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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?
IIIGeneral 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, “
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 obligations, 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:
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