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The United States'' request for establishment does not use the words ‘nullified or impaired’, nor the words ‘the achieving of the objectives of the Agreement is being impeded’. However, it does allege specific violations of its rights and Mexico''s obligations under the AD Agreement, which is a ‘covered agreement’ under the DSU.
The Appellate Body has ruled that the provisions of the DSU must be read together with the provisions of special or additional rules for dispute settlement in covered agreements, such as those set forth in Article 17.5 of the AD Agreement, unless there is a difference between them. The Appellate Body has further ruled, in Guatemala-Cement, that: ‘there is no inconsistency between Article 17.5 of the Anti-Dumping Agreement and the provisions of Article 6.2 of the DSU. On the contrary, they are complementary and should be applied together. A panel request made concerning a dispute brought under the Anti-Dumping Agreement must therefore comply with the relevant dispute settlement provisions of both that Agreement and the DSU.’
We have already concluded that the United States'' request for establishment satisfies the requirements of Article 6.2 of the DSU. The questions we must now resolve are, first, what (if anything) is required by Article 17.5(i) of the AD Agreement in addition to what is required under Article 6.2 of the DSU, and second, assuming there are additional requirements under Article 17.5(i), whether the United States'' request for establishment satisfies those further requirements.
In our view, Article 17.5(i) does not require a complaining Member to use the words ‘nullify’ or ‘impair’ in a request for establishment. However, it must be clear from the request that an allegation of nullification or impairment is being made, and the request must explicitly indicate how benefits accruing to the complaining Member are being nullified or impaired.
In interpreting the requirements of Article 17.5(i), we note Article 3.8 of the DSU, which serves as context for our understanding of Article 17.5(i). Article 3.8 provides: ‘In cases where there is an infringement of the obligations assumed under a covered agreement, the action is considered prima facie to constitute a case of nullification or impairment. This means that there is normally a presumption that a breach of the rules has an adverse impact on the other Members parties to that covered agreement.’
At least one GATT Panel has described the presumption of nullification or impairment arising from a violation of GATT provisions ‘in practice as an irrefutable presumption’. In our view, a request for establishment that alleges violations of the AD Agreement which, if demonstrated, will constitute a prima facie case of nullification or impairment under Article 3.8 of the DSU, contains a sufficient allegation of nullification or impairment for purposes of Article 17.5(i). In addition, as noted above, the request must indicate how benefits accruing to the complaining Member are being nullified or impaired.”
(iii) A Summary Guiding
Generally, the provisions of the DSU must be read together with the provisions of special or additional rules for dispute settlement in covered agreements unless there is a difference between them. As to relationship between Art. 6.2 of the DSU and Art. 17.4 of the AD Agreement, it has been ruled by the Appellate Body that they are complementary and should be applied together in disputes under the AD Agreement. Art. 17.4 does not set out any further or additional requirements with respect to the degree of specificity with which claims must be set forth in a request for establishment challenging a final anti-dumping measure. A request that satisfies the requirements of Art. 6.2 of the DSU in this regard also satisfies the requirements of Art. 17.4 of the AD Agreement.
The word “matter” has been stated to have the same meaning in Art. 17 of the AD Agreement as it has in Art. 7 of the DSU. It consists of two element: The specific “measure” and the “claims” relating to it, both of which must be properly identified in a panel request as required by Art. 6.2 of the DSU. However, pursuant to the provisions of Art. 17.4 of the AD Agreement and Art. 6.2 of the DSU, in disputes under the AD Agreement relating to the initiation and conduct of anti-dumping investigations, a definitive anti-dumping duty, the acceptance of a price undertaking or a provisional measure must be identified as part of the matter referred to the DSB.
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