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12 See, WT/DS136/AB/R; WT/DS162/AB/R/70-74.
13 See, WT/DS136/AB/R; WT/DS162/AB/R/76-83.
Section Two
Ad hoc Standard of Review for Anti-dumping Disputes
I Introduction
As to the general approach for panels (outside of the anti-dumping areas), while there are no provisions in the DSU explicitly concerning the standard of review question, some language may be construed as relevant. As noted by the Appellate Body, in general, Art. 11 of the DSU which provides “an objective assessment” bears directly on standard of review applicable to the determination and assessment of the facts in national investigative proceedings. Most interesting, perhaps, is found at DSU Art. 3.2: “Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements”. This language could be interpreted as a constraint on the standard of review, but possibly not to the extent of Art. 17.6 of the Anti-dumping Agreement.1
The issue of scope of review became a controversy in the negotiations of the new Anti-dumping Code during the Uruguay Round and centered on what standard of review should be applied by panels in examining issues of law, especially when the agreement does not specifically address an issue and whether there should be a provision limiting the extent of scrutiny by a panel of factual issues, so as to prevent panels from engaging in a de novo review of such factual issues. As to the second issue, obviously standard of review and scope of review are closely linked.
In this respect, the most prominent of these is found in the AD Agreement at Art. 17.6 which reads as follows:
“In examining the matter referred to in paragraph 5:
(i) in its assessment of the facts of the matter, the panel shall determine whether the authorities' establishment of the facts was proper and whether their evaluation of those facts was unbiased and objective. If the establishment of the facts was proper and the evaluation was unbiased and objective, even though the panel might have reached a different conclusion, the evaluation shall not be overturned;
(ii) the panel shall interpret the relevant provisions of the Agreement in accordance with customary rules of interpretation of public international law. Where the panel finds that a relevant provision of the Agreement admits of more than one permissible interpretation, the panel shall find the authorities' measure to be in conformity with the Agreement if it rests upon one of those permissible interpretations.”
And Art. 17.6 is not the only provision bearing on the standard-of-review in the anti-dumping field. Also relevant are two Ministerial Decisions taken at the final Ministerial Conference of the Uruguay Round at Marrakesh, Morocco in April 1994, and made part of the Uruguay Round Final Act text. These state, respectively:
“DECISION ON REVIEW OF ARTICLE 17.6 OF THE AGREEMENT ON IMPLEMENTATION OF ARTICLE VI OF THE GENERAL AGREEMENT ON TARIFFS AND TRADE 1994
Ministers decide as follows:
The standard of review in paragraph 6 of Article 17 of the Agreement on Implementation of Article VI of GATT 1994 shall be reviewed after a period of three years with a view to considering the question of whether it is capable of general application.
DECLARATION ON DISPUTE SETTLEMENT PURSUANT TO THE AGREEMENT ON IMPLEMENTATION OF ARTICLE VI OF THE GENERAL AGREEMENT ON TARIFFS AND TRADE 1994 OR PART V OF THE AGREEMENT ON SUBSIDIES AND COUNTERVAILING MEASURES
Ministers recognize, with respect to dispute settlement pursuant to the Agreement on Implementation of Article VI of GATT 1994 or Part V of the Agreement on Subsidies and Countervailing Measures, the need for the consistent resolution of disputes arising from anti-dumping and countervailing duty measures.”
As both of these passages suggest, the anti-dumping provisions were not uncontroversial, for the Ministerial Decision seem both to limit the application of those anti-dumping provisions, and to raise questions how they fit into the overall jurisprudence of the WTO. Nevertheless, we note that both the two Ministerial Decisions are a mere “Declaration”, rather than a “Decision” of the Ministers. In our view, a Declaration lacks the mandatory authority of a Decision. In the Ministerial Declaration, Ministers simply “recognize … the need” for the consistent resolution of disputes. In our opinion, the simple recognition of the need for an action does not mandate that action. In a Ministerial Decision, by contrast, Ministers “decide” that certain action shall be taken. For these reasons, we do not consider that the Ministerial Declaration imposes any obligations on panels.
Since the standards laid out in the AD Agreement (and the DSU) essentially codify recent panel review standards under the GATT, and remain to be clarified and developed by further practice by the DSB under the WTO, the remainder of this section will examine those standards with respect to anti-dumping as implemented by panels and interpreted by the Appellate Body in particular cases.
II Special Standard of Review under the AD Agreement: in General
As noted above and more specified previously, in the absence of provisions in the DSU or any other covered agreements explicitly concerning the standard of review question, as to the general approach for panels (outside of the anti-dumping areas), Art. 11 of the DSU which provides “an objective assessment” bears directly on standard of review applicable to the determination and assessment of the facts in national investigative proceedings. Also, panels have stated, on more than one occasion, that, for “all but one” of the covered agreements, Art. 11 of the DSU sets forth the appropriate standard of review for panels. The “one” is the AD Agreement.
(i) Ad hoc Approaches to Domestic Determination: Art. 17.6
As noted previously, in general, on balance panels don’t act as “super-investigative authorities” and do not engage in a de novo review of factual issues, nor in a total deference. However, as to be noted below, Art. 17.6 AD seems to set out an ad hoc specific standard of review for disputes arising under the AD Agreement. Art. 17.6 of the AD Agreement sets out a special standard of review for disputes arising under that Agreement. However, as to be shown in more detail below, this Art. 17.6 standard applies only to disputes arising under the AD Agreement, and not to disputes arising under other covered agreements. Importantly, it seems that the negotiators compromised so that the limiting language on standard of review as provided for in Art. 17.6 of the AD Agreement, would apply only to the anti-dumping text, and not necessarily to other dispute settlement cases before the WTO panels.
With regard to factual issues, it is Art. 17.6(i) that is on point. In this respect, the special standard in Art. 17.6(i) has been applied on many occasions, e.g., the Panel in Argentina-Floor Tiles (DS189) rules: 2
“We note that the Panel in the case United States - Anti-Dumping Measures on Stainless Steel Plate in Coils and Stainless Steel Sheet and Strip from Korea considered that Article 17.6(i): ‘speaks not only to the establishment of the facts, but also to their evaluation. Therefore, the Panel must check not merely whether the national authorities have properly established the relevant facts but also the value or weight attached to those facts and whether this was done in an unbiased and objective manner. This concerns the according of a certain weight to the facts in their relation to each other; it is not a legal evaluation.’
Accordingly, it is not our role as a panel to perform a de novo review of the evidence which was before the investigating authority at the time it made its determination. Rather, we must review the determination the investigating authority made on the basis of the information before it in order to determine whether the establishment of the facts was proper and the evaluation of the facts was unbiased and objective. With respect to the latter aspect of our review, we consider that the task before us is to examine whether, on the basis of the information before it, an unbiased and objective investigating authority evaluating that evidence could have reached the conclusions it did.”
It is ruled in more detail by the Panel in US-Hot-rolled Steel Products (DS184) as: 3
“… The question of whether the establishment of facts was proper does not, in our view, involve the question whether all relevant facts were considered including those that might detract from an affirmative determination. Whether the facts were properly established involves determining whether the investigating authorities collected relevant and reliable information concerning the issue to be decided - it essentially goes to the investigative process. Then, assuming that the establishment of the facts with regard to a particular claim was proper, we consider whether, based on the evidence before the investigating authorities [of the importing Member] at the time of the determination, an unbiased and objective investigating authority evaluating that evidence could have reached the conclusions that the investigating authorities [of the importing Member] reached on the matter in question. In this context, we consider whether all the evidence was considered, including facts which might detract from the decision actually reached by the investigating authorities.”
With respect to the interpretation of the AD Agreement, it is Art. 17.6(ii) that runs on the legal interpretation issue. In this respect, its application of customary rules of interpretation, as well as unusual provision in Art. 17.6(ii) has also been noted on many occasions, e.g., the Panel in Argentina-Floor Tiles (DS189) rules: 4
“We consider the first part of this subparagraph to be a clear reference to the customary rules of interpretation as laid down in Articles 31-32 of the Vienna Convention on the Law of Treaties. Article 31 of the Vienna Convention provides that a treaty shall be interpreted in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose. Article 17.6(ii) of the AD Agreement provides that in the case where this method leads the panel to the conclusion that the provision in question admits of more than one permissible interpretation, the panel shall find the measure in conformity if it is based on one such permissible interpretation.”
Furthermore, the Panel in US-Hot-rolled Steel Products (DS184) rules: 5
“… Thus, in considering those aspects of the determination [of the importing Member] which stand or fall depending on the interpretation of the AD Agreement itself rather than or in addition to the analysis of facts, we first interpret the provisions of the AD Agreement. As the Appellate Body has repeatedly stated, panels are to consider the interpretation of the WTO Agreements, including the AD Agreement, in accordance with the principles set out in the Vienna Convention on the Law of Treaties (the "Vienna Convention"). Thus, we look to the ordinary meaning of the provision in question, in its context, and in light of its object and purpose. Finally, we may consider the preparatory work (the negotiating history) of the provision, should this be necessary or appropriate in light of the conclusions we reach based on the text of the provision. We then evaluate whether the interpretation [of the importing Member] is one that is ‘permissible’ in light of the customary rules of interpretation of international law. If so, we allow that interpretation to stand, and unless there is error in the subsequent analysis of the facts under that legal interpretation under the standard of review under Article 17.6(i), the challenged action is upheld.”
With respect to legal analysis, as noted above, Art. 17.6(ii) provides first that the relevant provisions shall be in accordance the customary rules of interpretation of public law, and differs nothing from the general guideline for interpretation of the covered agreements under the WTO; and therefore we will not give unnecessary details as to this generally applied guidance in this section. However, what attracts our observation here is the controversy and doubt caused by Art. 17.6(ii) which then provides that if the panel finds that the relevant provisions admits of more than one permissible interpretation, the authority’s actions must rest upon one of the “permissible interpretations” to be in conformity.
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