Chapter VII
Special Rules for Anti-dumping Disputes
OUTLINE
Section One Recourse of Anti-dumping Disputes to the DSB
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I Introduction
II Sufficiency of Panel Request under the AD Agreement
(i) Art. 6.2 of the DSU and Article 17.4 of the AD Agreement
(ii) Art. 6.2 of the DSU and Article 17.5(i) of the AD Agreement
(iii) A Summary Guiding
III General Legal Basis for Claims against Legislation as Such
IV Special Rules for Claims against Anti-dumping Legislation as Such
(i) Introduction
（ii）General Legal Basis under Art. 17 of the AD Agreement
(iii) Understanding of Art. 17.4 of the AD Agreement
(iv) Extensive Basis in Context
(v) A Summary
Section Two Ad hoc Standard of Review for Anti-dumping Disputes
I Introduction
II Special Standard of Review under the AD Agreement: in General
(i) Ad hoc Approaches to Domestic Determination: Art. 17.6
(ii) Relationship between Art. 11 of the DSU and Art. 17.6 of the AD Agreement
(iii) A Summary Guiding
III Scope of Review of Fact-findings: Art. 17.5(ii) of the AD Agreement
(i)Overview of the GATT Practice
(ii)Concerned Rulings in Reports Issued by WTO Panels
(iii)Tentative Remarks: Guidance from the Appellate Body
Section One
Recourse of Anti-dumping Disputes to the DSB
I Introduction
Compared to the legally fragmented previous GATT dispute settlement system, the new WTO dispute settlement system is an integrated system with much broader jurisdiction and less scope for “rule shopping” and “forum shopping”. However, according to Art. 1.2 of the DSU which states in part that, “[t]he rules and procedures of this Understanding shall apply subject to such special or additional rules and procedures on dispute settlement contained in the covered agreements as are identified in Appendix 2 to this Understanding”, many covered agreements under the WTO jurisdiction continue to include special dispute settlement rules and procedures. Such special rules and procedures are listed in Appendix 2 to the DSU. And in this chapter, we will focus on such special dispute settlement rules concerning anti-dumping disputes, i.e. Arts. 17.4 through 17.7 of the Anti-dumping Agreement (‘the AD Agreement’).
An analysis of the DSB practice suggests a separate contribution of this chapter to this book, merited by dispute settlement proceedings in the anti-dumping field. In this chapter, the author focuses on the two main issues repeatedly raised, as preliminary or procedural issues, during dispute settlement regarding anti-dumping. One is the issue of recourse of anti-dumping disputes to the DSB, which deals mainly with Arts. 17.4 and 17.5(i) of the AD Agreement; the other one is the issue of standard of review in anti-dumping areas, which runs most on Art. 17.6, including Art. 17.5(ii), of the AD Agreement. And in this section we will focus on the first one. In this respect, Arts. 17.4 and 17.5(i) of the AD Agreement states:
“17.4 If the Member that requested consultations considers that the consultations pursuant to paragraph 3 have failed to achieve a mutually agreed solution, and if final action has been taken by the administering authorities of the importing Member to levy definitive anti-dumping duties or to accept price undertakings, it may refer the matter to the Dispute Settlement Body (“DSB”). When a provisional measure has a significant impact and the Member that requested consultations considers that the measure was taken contrary to the provisions of paragraph 1 of Article 7, that Member may also refer such matter to the DSB.
17.5 The DSB shall, at the request of complaining party, establish a panel to examine the matter based upon:
(i) a written statement of the Member making the request indicating how a benefit accruing to it, directly or indirectly, under this Agreement has been nullified or impaired, or that the achieving of the objectives of the Agreement is being impeded, and
(ii) …”
II Sufficiency of Panel Request under the AD Agreement
Generally, as noted in previously, it is only where the provisions of the DSU and the special or additional rules and procedures of a covered agreement cannot be read as complementing each other that the special or additional provisions are to prevail. A special or additional provision should only be found to prevail over a provision of the DSU in a situation where adherence to the one provision will lead to a violation of the other provision, that is, in the case of a conflict between them. Then the author means to get down to the issue of whether these provisions cited above limits panel request under the AD Agreement to somehow other than those required by Art. 6.2 of the DSU.
In Mexico-HFCS (DS132), the dispute involves the imposition of a definitive anti-dumping measure by the Mexican Ministry of Trade and Industrial Development (SECOFI) on imports of high-fructose corn syrup (HFCS) from the United States. Mexico argues that the United States' request for establishment of this Panel is not consistent with the requirements of Art. 6.2 of the DSU and Art. 17.4 and 17.5(i) of the AD Agreement, and therefore argues that the Panel must terminate the proceeding without reaching the substance of the United States' claims.
(i) Art. 6.2 of the DSU and Art. 17.4 of the AD Agreement
In considering the alleged failure to assert claims under Art. 6.2 of the DSU and Art. 17.4 of the AD Agreement, the Panel rules that: 1
“[W]e note first that the Appellate Body has stated that Article 6.2 of the DSU and Article 17.4 of the AD Agreement are complementary and should be applied together in disputes under the AD Agreement. It has further stated that: ‘the word “matter” has the same meaning in Article 17 of the Anti-Dumping Agreement as it has in Article 7 of the DSU. It consists of two element: The specific “measure” and the “claims” relating to it, both of which must be properly identified in a panel request as required by Article 6.2 of the DSU.’
Moreover, it has specified that: ‘in disputes under the Anti-Dumping Agreement relating to the initiation and conduct of anti-dumping investigations, a definitive anti-dumping duty, the acceptance of a price undertaking or a provisional measure must be identified as part of the matter referred to the DSB pursuant to the provisions of Article 17.4 of the Anti-Dumping Agreement and Article 6.2 of the DSU.’
In considering the arguments relating to Article 17.4 of the AD Agreement, we note first that Article 17.4 does not, in our view, set out any further or additional requirements with respect to the degree of specificity with which claims must be set forth in a request for establishment challenging a final anti-dumping measure. Therefore, a request for establishment that satisfies the requirements of Article 6.2 of the DSU in this regard also satisfies the requirements of Article 17.4 of the AD Agreement.
[…]
In Guatemala - Cement, the Appellate Body, after finding that, in the case of a dispute under the AD Agreement, the request for establishment must identify a definitive anti-dumping duty, the acceptance of a price undertaking or a provisional measure as a specific measure at issue, went on to address the question of the claims that might be included in a dispute under the AD Agreement.
‘This requirement to identify a specific anti-dumping measure at issue in a panel request in no way limits the nature of the claims that may be brought concerning alleged nullification or impairment of benefits or the impeding of the achievement of any objective in a dispute under the AD Agreement. As we have observed earlier, there is a difference between the specific measures at issue -- in the case of the Anti-Dumping Agreement, one of the three types of anti-dumping measure described in Article 17.4 -- and the claims or the legal basis of the complaint referred to the DSB relating to those specific measures.’
The Appellate Body Report in Guatemala-Cement indicates that a complainant may, having identified a specific anti-dumping duty in its request for establishment, bring any claims under the AD Agreement relating to that specific measure. That there should be a relationship between the measure challenged in a dispute and the claims asserted in that dispute would appear necessary, given that Article 19.1 of the DSU requires that, ‘where a panel or the Appellate Body concludes that a measure is inconsistent with a covered agreement, it shall recommend that the Member concerned bring the measure into conformity with the agreement’ …”
(ii) Art. 6.2 of the DSU and Art. 17.5(i) of the AD Agreement
Mexico also contends that the United States' request for establishment is insufficient under Art. 17.5(i) of the AD Agreement because it does not indicate how Mexico's final anti-dumping measure nullifies or impairs benefits accruing to the United States under the AD Agreement, and does not indicate how the achieving of the objectives of the AD Agreement was being impeded by that measure. In considering this issue, the Panel rule in pertinent as: 2
“[W]e note Article 17.5(i) of the AD Agreement, which provides: ‘The DSB shall, at the request of the complaining party, establish a panel to examine the matter based upon: (i) A written statement of the Member making the request indicating how a benefit accruing to it, directly or indirectly, under this Agreement, has been nullified or impaired, or that the achieving of the objectives of the Agreement is being impeded.’
The United States' request for establishment does not use the words ‘nullified or impaired’, nor the words ‘the achieving of the objectives of the Agreement is being impeded’. However, it does allege specific violations of its rights and Mexico's obligations under the AD Agreement, which is a ‘covered agreement’ under the DSU.
