WTO Dispute Settlement Mechanism(7)
Chapter VIISpecial Rules for Anti-dumping Disputes
OUTLINE
Section One Recourse of Anti-dumping Disputes to the DSB
I Introduction
II Sufficiency of Panel Request under the AD Agreement
(i) Art. 6.2 of the DSU and Article 17.4 of the AD Agreement
(ii) Art. 6.2 of the DSU and Article 17.5(i) of the AD Agreement
(iii) A Summary Guiding
III General Legal Basis for Claims against Legislation as Such
IV Special Rules for Claims against Anti-dumping Legislation as Such
(i) Introduction
（ii）General Legal Basis under Art. 17 of the AD Agreement
(iii) Understanding of Art. 17.4 of the AD Agreement
(iv) Extensive Basis in Context
(v) A Summary
Section Two Ad hoc Standard of Review for Anti-dumping Disputes
I Introduction
II Special Standard of Review under the AD Agreement: in General
(i) Ad hoc Approaches to Domestic Determination: Art. 17.6
(ii) Relationship between Art. 11 of the DSU and Art. 17.6 of the AD Agreement
(iii) A Summary Guiding
III Scope of Review of Fact-findings: Art. 17.5(ii) of the AD Agreement
(i)Overview of the GATT Practice
(ii)Concerned Rulings in Reports Issued by WTO Panels
(iii)Tentative Remarks: Guidance from the Appellate Body
Section One
Recourse of Anti-dumping Disputes to the DSB
I Introduction
Compared to the legally fragmented previous GATT dispute settlement system, the new WTO dispute settlement system is an integrated system with much broader jurisdiction and less scope for “rule shopping” and “forum shopping”. However, according to Art. 1.2 of the DSU which states in part that, “[t]he rules and procedures of this Understanding shall apply subject to such special or additional rules and procedures on dispute settlement contained in the covered agreements as are identified in Appendix 2 to this Understanding”, many covered agreements under the WTO jurisdiction continue to include special dispute settlement rules and procedures. Such special rules and procedures are listed in Appendix 2 to the DSU. And in this chapter, we will focus on such special dispute settlement rules concerning anti-dumping disputes, i.e. Arts. 17.4 through 17.7 of the Anti-dumping Agreement (‘the AD Agreement’).
An analysis of the DSB practice suggests a separate contribution of this chapter to this book, merited by dispute settlement proceedings in the anti-dumping field. In this chapter, the author focuses on the two main issues repeatedly raised, as preliminary or procedural issues, during dispute settlement regarding anti-dumping. One is the issue of recourse of anti-dumping disputes to the DSB, which deals mainly with Arts. 17.4 and 17.5(i) of the AD Agreement; the other one is the issue of standard of review in anti-dumping areas, which runs most on Art. 17.6, including Art. 17.5(ii), of the AD Agreement. And in this section we will focus on the first one. In this respect, Arts. 17.4 and 17
.5(i) of the AD Agreement states:
“17.4 If the Member that requested consultations considers that the consultations pursuant to paragraph 3 have failed to achieve a mutually agreed solution, and if final action has been taken by the administering authorities of the importing Member to levy definitive anti-dumping duties or to accept price undertakings, it may refer the matter to the Dispute Settlement Body (“DSB”). When a provisional measure has a significant impact and the Member that requested consultations considers that the measure was taken contrary to the provisions of paragraph 1 of Article 7, that Member may also refer such matter to the DSB.
17.5 The DSB shall, at the request of complaining party, establish a panel to examine the matter based upon:
(i) a written statement of the Member making the request indicating how a benefit accruing to it, directly or indirectly, under this Agreement has been nullified or impaired, or that the achieving of the objectives of the Agreement is being impeded, and
(ii) …”
II Sufficiency of Panel Request under the AD Agreement
Generally, as noted in previously, it is only where the provisions of the DSU and the special or additional rules and procedures of a covered agreement cannot be read as complementing each other that the special or additional provisions are to prevail. A special or additional provision should only be found to prevail over a provision of the DSU in a situation where adherence to the one provision will lead to a violation of the other provision, that is, in the case of a conflict between them. Then the author means to get down to the issue of whether these provisions cited above limits panel request under the AD Agreement to somehow other than those required by Art. 6.2 of the DSU.
In Mexico-HFCS (DS132), the dispute involves the imposition of a definitive anti-dumping measure by the Mexican Ministry of Trade and Industrial Development (SECOFI) on imports of high-fructose corn syrup (HFCS) from the United States. Mexico argues that the United States' request for establishment of this Panel is not consistent with the requirements of Art. 6.2 of the DSU and Art. 17.4 and 17.5(i) of the AD Agreement, and therefore argues that the Panel must terminate the proceeding without reaching the substance of the United States' claims.
(i) Art. 6.2 of the DSU and Art. 17.4 of the AD Agreement
In considering the alleged failure to assert claims under Art. 6.2 of the DSU and Art. 17.4 of the AD Agreement, the Panel rules that: 1
“[W]e note first that the Appellate Body has stated that Article 6.2 of the DSU and Article 17.4 of the AD Agreement are complementary and should be applied together in disputes under the AD Agreement. It has further stated that: ‘the word “matter” has the same meaning in Article 17 of the Anti-Dumping Agreement as it has in Article 7 of the DSU. It consists of two element: The specific “measure” and the “claims” relating to it, both of whi
ch must be properly identified in a panel request as required by Article 6.2 of the DSU.’
Moreover, it has specified that: ‘in disputes under the Anti-Dumping Agreement relating to the initiation and conduct of anti-dumping investigations, a definitive anti-dumping duty, the acceptance of a price undertaking or a provisional measure must be identified as part of the matter referred to the DSB pursuant to the provisions of Article 17.4 of the Anti-Dumping Agreement and Article 6.2 of the DSU.’
In considering the arguments relating to Article 17.4 of the AD Agreement, we note first that Article 17.4 does not, in our view, set out any further or additional requirements with respect to the degree of specificity with which claims must be set forth in a request for establishment challenging a final anti-dumping measure. Therefore, a request for establishment that satisfies the requirements of Article 6.2 of the DSU in this regard also satisfies the requirements of Article 17.4 of the AD Agreement.
[…]
In Guatemala - Cement, the Appellate Body, after finding that, in the case of a dispute under the AD Agreement, the request for establishment must identify a definitive anti-dumping duty, the acceptance of a price undertaking or a provisional measure as a specific measure at issue, went on to address the question of the claims that might be included in a dispute under the AD Agreement.
‘This requirement to identify a specific anti-dumping measure at issue in a panel request in no way limits the nature of the claims that may be brought concerning alleged nullification or impairment of benefits or the impeding of the achievement of any objective in a dispute under the AD Agreement. As we have observed earlier, there is a difference between the specific measures at issue -- in the case of the Anti-Dumping Agreement, one of the three types of anti-dumping measure described in Article 17.4 -- and the claims or the legal basis of the complaint referred to the DSB relating to those specific measures.’
The Appellate Body Report in Guatemala-Cement indicates that a complainant may, having identified a specific anti-dumping duty in its request for establishment, bring any claims under the AD Agreement relating to that specific measure. That there should be a relationship between the measure challenged in a dispute and the claims asserted in that dispute would appear necessary, given that Article 19.1 of the DSU requires that, ‘where a panel or the Appellate Body concludes that a measure is inconsistent with a covered agreement, it shall recommend that the Member concerned bring the measure into conformity with the agreement’ …”
(ii) Art. 6.2 of the DSU and Art. 17.5(i) of the AD Agreement
Mexico also contends that the United States' request for establishment is insufficient under Art. 17.5(i) of the AD Agreement because it does not indicate how Mexico's final anti-dumping measure nullifies or impairs benefits accruing to the United States un
der the AD Agreement, and does not indicate how the achieving of the objectives of the AD Agreement was being impeded by that measure. In considering this issue, the Panel rule in pertinent as: 2
“[W]e note Article 17.5(i) of the AD Agreement, which provides: ‘The DSB shall, at the request of the complaining party, establish a panel to examine the matter based upon: (i) A written statement of the Member making the request indicating how a benefit accruing to it, directly or indirectly, under this Agreement, has been nullified or impaired, or that the achieving of the objectives of the Agreement is being impeded.’
The United States' request for establishment does not use the words ‘nullified or impaired’, nor the words ‘the achieving of the objectives of the Agreement is being impeded’. However, it does allege specific violations of its rights and Mexico's obligations under the AD Agreement, which is a ‘covered agreement’ under the DSU.
The Appellate Body has ruled that the provisions of the DSU must be read together with the provisions of special or additional rules for dispute settlement in covered agreements, such as those set forth in Article 17.5 of the AD Agreement, unless there is a difference between them. The Appellate Body has further ruled, in Guatemala-Cement, that: ‘there is no inconsistency between Article 17.5 of the Anti-Dumping Agreement and the provisions of Article 6.2 of the DSU. On the contrary, they are complementary and should be applied together. A panel request made concerning a dispute brought under the Anti-Dumping Agreement must therefore comply with the relevant dispute settlement provisions of both that Agreement and the DSU.’
We have already concluded that the United States' request for establishment satisfies the requirements of Article 6.2 of the DSU. The questions we must now resolve are, first, what (if anything) is required by Article 17.5(i) of the AD Agreement in addition to what is required under Article 6.2 of the DSU, and second, assuming there are additional requirements under Article 17.5(i), whether the United States' request for establishment satisfies those further requirements.
In our view, Article 17.5(i) does not require a complaining Member to use the words ‘nullify’ or ‘impair’ in a request for establishment. However, it must be clear from the request that an allegation of nullification or impairment is being made, and the request must explicitly indicate how benefits accruing to the complaining Member are being nullified or impaired.
[…]
In interpreting the requirements of Article 17.5(i), we note Article 3.8 of the DSU, which serves as context for our understanding of Article 17.5(i). Article 3.8 provides: ‘In cases where there is an infringement of the obligations assumed under a covered agreement, the action is considered prima facie to constitute a case of nullification or impairment. This means that there is normally a presumption that a breach of the rules has an adver
se impact on the other Members parties to that covered agreement.’
At least one GATT Panel has described the presumption of nullification or impairment arising from a violation of GATT provisions ‘in practice as an irrefutable presumption’. In our view, a request for establishment that alleges violations of the AD Agreement which, if demonstrated, will constitute a prima facie case of nullification or impairment under Article 3.8 of the DSU, contains a sufficient allegation of nullification or impairment for purposes of Article 17.5(i). In addition, as noted above, the request must indicate how benefits accruing to the complaining Member are being nullified or impaired.”
(iii) A Summary Guiding
Generally, the provisions of the DSU must be read together with the provisions of special or additional rules for dispute settlement in covered agreements unless there is a difference between them. As to relationship between Art. 6.2 of the DSU and Art. 17.4 of the AD Agreement, it has been ruled by the Appellate Body that they are complementary and should be applied together in disputes under the AD Agreement. Art. 17.4 does not set out any further or additional requirements with respect to the degree of specificity with which claims must be set forth in a request for establishment challenging a final anti-dumping measure. A request that satisfies the requirements of Art. 6.2 of the DSU in this regard also satisfies the requirements of Art. 17.4 of the AD Agreement.
The word “matter” has been stated to have the same meaning in Art. 17 of the AD Agreement as it has in Art. 7 of the DSU. It consists of two element: The specific “measure” and the “claims” relating to it, both of which must be properly identified in a panel request as required by Art. 6.2 of the DSU. However, pursuant to the provisions of Art. 17.4 of the AD Agreement and Art. 6.2 of the DSU, in disputes under the AD Agreement relating to the initiation and conduct of anti-dumping investigations, a definitive anti-dumping duty, the acceptance of a price undertaking or a provisional measure must be identified as part of the matter referred to the DSB.
Nevertheless, this requirement to identify a specific anti-dumping measure at issue in a panel request in no way limits the nature of the claims that may be brought under the AD Agreement. There is a difference between the specific measures at issue and the claims or the legal basis of the complaint referred to the DSB relating to those specific measures. The only requirement special in Art. 17.4 of the AD Agreement, in contrast with that in Art. 6.2 of the DSU, seems to be that there should be a relationship between the measure challenged in a dispute-- in the case of the AD Agreement, one of the three types of anti-dumping measure described in Art. 17.4 --and the claims asserted in that dispute. In any event, a complainant may, having identified a specific anti-dumping duty in its request for establishment, bring any claims under
the AD Agreement relating to that specific measure.
With regard to Art. 17.5(i) of the AD Agreement, the Appellate Body has ruled that, there is no inconsistency between Art. 17.5 of the AD Agreement and the provisions of Art. 6.2 of the DSU. On the contrary, they are complementary and should be applied together. The only requirement complementary in Art. 17.5(i) is that, the request must explicitly indicate how benefits accruing to the complaining Member are being nullified or impaired.
Art. 17.5(i) does not require a complaining Member to use the words “nullify” or “impair” in a request for establishment. In this respect, serving as context for interpreting the requirements of Art. 17.5(i), Art. 3.8 of the DSU provides a presumption, which in practice operates as an irrefutable presumption, that the violation of a covered agreement constitutes a prima facie case of nullification or impairment. Therefore, a request alleging violations of the AD Agreement which, if demonstrated, will constitute a prima facie case of nullification or impairment under Art. 3.8 of the DSU, contains a sufficient allegation of nullification or impairment for purposes of Art. 17.5(i) of the AD Agreement.
As discussed above, we have examined some aspects of panel’s jurisdiction relating to the initiation and conduct of anti-dumping investigations. How about the legal basis for a complaining party to bring a claim against anti-dumping legislation as such?
III General Legal Basis for Claims against Legislation as Such
Arts. XXII and XXIII of the GATT 1994 serve as the basis for consultations and dispute settlement under the GATT 1994 and, through incorporation by reference, under most of the other agreements in Annex 1A to the WTO Agreement. According to Art. XXIII:1(a) of the GATT 1994, a Member can bring a dispute settlement claim against another Member when it considers that a benefit accruing to it under the GATT 1994 is being nullified or impaired, or that the achievement of any objective of the GATT 1994 is being impeded, as a result of the failure of that other Member to carry out its obligations under that Agreement. Do these provisions serve as legal basis for challenges against legislation as such other than its application in specific cases, either?
In this respect, the Appellate Body in US-1916 Act (DS136/DS162) rules that, “[p]rior to the entry into force of the WTO Agreement, it was firmly established that Article XXIII:1(a) of the GATT 1947 allowed a Contracting Party to challenge legislation as such, independently from the application of that legislation in specific instances. While the text of Article XXIII does not expressly address the matter, panels consistently considered that, under Article XXIII, they had the jurisdiction to deal with claims against legislation as such”. This ruling is confirmed by the WTO practice. For example, the Panel in US-Sections 301-310 (DS152) thinks that, legislation as such may also breach WTO obligat
ions, they rule: 4
“As a general proposition, GATT acquis, confirmed in Article XVI:4 of the WTO Agreement and recent WTO panel reports, make abundantly clear that legislation as such, independently from its application in specific cases, may breach GATT/WTO obligations:
(a)In GATT jurisprudence, to give one example, legislation providing for tax discrimination against imported products was found to be GATT inconsistent even before it had actually been applied to specific products and thus before any given product had actually been discriminated against.
(b)Article XVI:4 of the WTO Agreement explicitly confirms that legislation as such falls within the scope of possible WTO violations. It provides as follows: ‘Each Member shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreements.’
The three types of measures explicitly made subject to the obligations imposed in the WTO agreements – ‘laws, regulations and administrative procedures’ - are measures that are applicable generally; not measures taken necessarily in a specific case or dispute. Article XVI:4, though not expanding the material obligations under WTO agreements, expands the type of measures made subject to these obligations.
(c)Recent WTO panel reports confirm, too, that legislation as such, independently from its application in a specific case, can be inconsistent with WTO rules.”
Clearly, it is established that legislation as such, independently from its application in a specific case, can be inconsistent with WTO rules and therefore can be brought before the DSB. However, what role panels may play when called upon to resolve settlement concerning legislation as such?
As noted above, panels may have jurisdiction as to domestic law once brought before them appropriately. In practice, panels often have to address domestic laws, In respect of the examination of domestic or municipal law by WTO panels, in some circumstances, it is clear that an examination of the relevant aspects of municipal law is essential to determining whether Members to a dispute have complied with their obligations under the covered agreements.
However, as stressed in the DSB practice, panels’ mandate is to examine municipal law solely for the purpose of determining whether Members meet their WTO obligations. In doing so, panels do not interpret municipal law “as such”, the way they would, say, interpret provisions of the covered agreements. Panels are, instead, called upon by the DSB to the meaning of domestic law as factual elements and to check whether these factual elements constitute conduct by the Members contrary to their WTO obligations. The rules on burden of proof for the establishment of facts also apply in this respect. There may be various differences between domestic law and the covered agreements, e.g., some terms such as “determination” used both in domestic law and in WTO provisions, do not nec
essarily have the same meaning. It follows that in making factual findings concerning the meaning of domestic law panels are not bound to accept the interpretation presented by parties to a particular dispute. That said, any Member can reasonably expect that considerable deference be given to its views on the meaning of its own law. 5
“While it is clear from the terms of Article 3.2 of the DSU that it falls within the competence of the Panel to ‘clarify the existing provisions of [the covered agreements] in accordance with customary rules of interpretation of public international law’, the DSU does not expressly provide how panels should address domestic legislation. Article 11 of the DSU only specifies that panels ‘should make […] an objective assessment of the facts of the case’. However, both Article 3.2 of the DSU and the practice of the Appellate Body make it clear that we have, whenever appropriate, to develop our approach on the basis of that of international courts in similar circumstances. We will consequently take into consideration the practice of international tribunals in this respect.” 6
Furthermore, the understanding of a law the WTO-compatibility of which has to be assessed begins with an analysis of the terms of that law. However, panels have never considered that they should limit themselves to an analysis of the text of municipal law in isolation from its interpretation by domestic courts or other authorities, even if they were to find that text to be clear on its face. Panels think if they were to do so, they might develop an understanding of that law different from the way it is actually understood and applied by the domestic authorities. This would be contrary to panels’ obligation to make an objective assessment of the facts of the case, pursuant to Article 11 of the DSU. Therefore, panels rule that they must look at all the aspects of the domestic legislation that are relevant for their understanding of the disputed municipal law. However, looking at all the relevant aspects of the domestic law of a Member may raise some methodological difficulties, such as how much deference must be paid to that Member's characterization of its legislation. In that context, panels think they will determine first how to deal with that aspect of the examination of a domestic law and how they should consider the case-law related to it, where courts are, inter alia, responsible for interpreting the law. 7
Thus, as ruled in US-1916 Act (DS136/DS162), “[panels’] understanding of the term ‘examination’ as used by the Appellate Body is that panels need not accept at face value the characterisation that the respondent attaches to its law. A panel may analyse the operation of the domestic legislation and determine whether the description of the functioning of the law, as made by the respondent, is consistent with the legal structure of that Member. This way, it will be able to determine whether or not the law as applied is in conformity
with the obligations of the Member concerned under the WTO Agreement.”8
To sum up, legislation as such, independently from its application in specific cases, may breach GATT/WTO obligations. Panels under the GATT/WTO consistently consider that, under Article XXIII of the GATT, they have the jurisdiction to deal with claims against legislation as such. Such ruling is also confirmed by the WTO practice.
However, panels can never substitute domestic authorities of their role in interpreting national law. Panels have to find their appropriate approaches to domestic law. In this respect, in general, as summarized by the Appellate Body in US-1998 Act (DS176), “the municipal law of WTO Members may serve not only as evidence of facts, but also as evidence of compliance or non-compliance with international obligations. Under the DSU, a panel may examine the municipal law of a WTO Member for the purpose of determining whether that Member has complied with its obligations under the WTO Agreement. Such an assessment is a legal characterization by a panel”. 9
IV Special Rules for Claims against Anti-dumping Legislation as Such
（i）Introduction
In US-1916 Act (DS136/DS162), the United States appeals the Panel's finding that it had jurisdiction to consider the claims that the 1916 Act as such is inconsistent with Article VI of the GATT 1994 and the AD Agreement. According to the United States, Members cannot bring a claim of inconsistency with the AD Agreement against legislation as such independently from a claim of inconsistency of one of the three anti-dumping measures specified in Art. 17.4, i.e., a definitive anti-dumping duty, a price undertaking or, in some circumstances, a provisional measure.
In examining the legal basis for the Panel's jurisdiction to consider the claims of inconsistency made in respect of the 1916 Act as such, the Appellate Body begins with Art. 1.1 of the DSU, which states, in relevant part: “The rules and procedures of this Understanding shall apply to disputes brought pursuant to the consultation and dispute settlement provisions of the agreements listed in Appendix 1 to this Understanding (referred to in this Understanding as the ‘covered agreements’).” The Appellate Body rules that, “[f]or the DSU to apply to claims that the 1916 Act as such is inconsistent with Article VI of the GATT 1994 and the Anti-Dumping Agreement, a legal basis to bring the claims must be found in the GATT 1994 and the Anti-Dumping Agreement, respectively”. They also note that in the present case, “the European Communities and Japan both brought their claims of inconsistency with Article VI of the GATT 1994 and the Anti-Dumping Agreement pursuant to Article XXIII of the GATT 1994 and Article 17 of the Anti-Dumping Agreement”. 10
Since legal basis for claims against legislation as such under the GATT 1994 has generally been discussed above, the author will not give unnecessary detail in this respect and means to focus here on the issu
e of the legal basis for claims brought under the AD Agreement, Art. 17.4 of the AD Agreement bears great relevance here. Then the author will examine some relevant aspects of the Appellate Body Report on US-1916 Act (DS136/DS162).
(ii) General Legal Basis under Art. 17 of the AD Agreement
In this respect, the Appellate Body rules: 11
“[…] Just as Articles XXII and XXIII of the GATT 1994 create a legal basis for claims in disputes relating to provisions of the GATT 1994, so also Article 17 establishes the basis for dispute settlement claims relating to provisions of the Anti-Dumping Agreement. In the same way that Article XXIII of the GATT 1994 allows a WTO Member to challenge legislation as such, Article 17 of the Anti-Dumping Agreement is properly to be regarded as allowing a challenge to legislation as such, unless this possibility is excluded. No such express exclusion is found in Article 17 or elsewhere in the Anti-Dumping Agreement.
In considering whether Article 17 contains an implicit restriction on challenges to anti-dumping legislation as such, we first note that Article 17.1 states: ‘Except as otherwise provided herein, the Dispute Settlement Understanding is applicable to consultations and the settlement of disputes under this Agreement.’
Article 17.1 refers, without qualification, to ‘the settlement of disputes’ under the Anti-Dumping Agreement. Article 17.1 does not distinguish between disputes relating to anti-dumping legislation as such and disputes relating to anti-dumping measures taken in the implementation of such legislation. Article 17.1 therefore implies that Members can challenge the consistency of legislation as such with the Anti-Dumping Agreement unless this action is excluded by Article 17.
Similarly, Article 17.2 of the Anti-Dumping Agreement does not distinguish between disputes relating to anti-dumping legislation as such and disputes relating to anti-dumping measures taken in the implementation of such legislation. On the contrary, it refers to consultations with respect to ‘any matter affecting the operation of this Agreement’.
Article 17.3 of the Anti-Dumping Agreement states, in wording that mirrors Article XXIII of the GATT 1994: ‘If any Member considers that any benefit accruing to it, directly or indirectly, under this Agreement is being nullified or impaired, or that the achievement of any objective is being impeded, by another Member or Members, it may, with a view to reaching a mutually satisfactory resolution of the matter, request in writing consultations with the Member or Members in question….’
In our Report in Guatemala - Cement, we described Article 17.3 as: ‘… the equivalent provision in the Anti-Dumping Agreement to Articles XXII and XXIII of the GATT 1994, which serve as the basis for consultations and dispute settlement under the GATT 1994…’
Article 17.3 does not explicitly address challenges to legislation as such. As we have seen above, Articles XXII and XXIII allow c
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