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Nothing in our Report in Guatemala - Cement suggests that Article 17.4 precludes review of anti-dumping legislation as such. Rather, in that case, we simply found that, for Mexico to challenge Guatemala''s initiation and conduct of the anti-dumping investigation, Mexico was required to identify one of the three anti-dumping measures listed in Article 17.4 in its request for establishment of a panel. Since it did not do so, the panel in that case did not have jurisdiction.
Important considerations underlie the restriction contained in Article 17.4. In the context of dispute settlement proceedings regarding an anti-dumping investigation, there is tension between, on the one hand, a complaining Member''s right to seek redress when illegal action affects its economic operators and, on the other hand, the risk that a responding Member may be harassed or its resources squandered if dispute settlement proceedings could be initiated against it in respect of each step, however small, taken in the course of an anti-dumping investigation, even before any concrete measure had been adopted. In our view, by limiting the availability of dispute settlement proceedings related to an anti-dumping investigation to cases in which a Member''s request for establishment of a panel identifies a definitive anti-dumping duty, a price undertaking or a provisional measure, Article 17.4 strikes a balance between these competing considerations.
Therefore, Article 17.4 sets out certain conditions that must exist before a Member can challenge action taken by a national investigating authority in the context of an anti-dumping investigation. However, Article 17.4 does not address or affect a Member''s right to bring a claim of inconsistency with the Anti-Dumping Agreement against anti-dumping legislation as such.”
(iv) Extensive Basis in Context
Moreover, as noted above, the GATT and WTO case law firmly establishes that dispute settlement proceedings may be brought based on the alleged inconsistency of a Member''s legislation as such with that Member''s obligations. It has been found that, nothing inherent in the nature of anti-dumping legislation that would rationally distinguish such legislation from other types of legislation for purposes of dispute settlement, or that would remove anti-dumping legislation from the ambit of the generally-accepted practice that a panel may examine legislation as such. To go further, the Appellate Body rules that: 13
“Our reading of Article 17 as allowing Members to bring claims against anti-dumping legislation as such is supported by Article 18.4 of the Anti-Dumping Agreement.
Article 18.4 of the Anti-Dumping Agreement states: ‘Each Member shall take all necessary steps, of a general or particular character, to ensure, not later than the date of entry into force of the WTO Agreement for it, the conformity of its laws, regulations and administrative procedures with the provisions of this Agreement as they may apply for the Member in question.’
Article 18.4 imposes an affirmative obligation on each Member to bring its legislation into conformity with the provisions of the Anti-Dumping Agreement not later than the date of entry into force of the WTO Agreement for that Member. Nothing in Article 18.4 or elsewhere in the Anti-Dumping Agreement excludes the obligation set out in Article 18.4 from the scope of matters that may be submitted to dispute settlement.
If a Member could not bring a claim of inconsistency under the Anti-Dumping Agreement against legislation as such until one of the three anti-dumping measures specified in Article 17.4 had been adopted and was also challenged, then examination of the consistency with Article 18.4 of anti-dumping legislation as such would be deferred, and the effectiveness of Article 18.4 would be diminished.
Furthermore, we note that Article 18.1 of the Anti-Dumping Agreement states: ‘No specific action against dumping of exports from another Member can be taken except in accordance with the provisions of GATT 1994, as interpreted by this Agreement.’
Article 18.1 contains a prohibition on ‘specific action against dumping’ when such action is not taken in accordance with the provisions of the GATT 1994, as interpreted by the Anti-Dumping Agreement. Specific action against dumping could take a wide variety of forms. If specific action against dumping is taken in a form other than a form authorized under Article VI of the GATT 1994, as interpreted by the Anti-Dumping Agreement, such action will violate Article 18.1. We find nothing, however, in Article 18.1 or elsewhere in the Anti-Dumping Agreement, to suggest that the consistency of such action with Article 18.1 may only be challenged when one of the three measures specified in Article 17.4 has been adopted. Indeed, such an interpretation must be wrong since it implies that, if a Member''s legislation provides for a response to dumping that does not consist of one of the three measures listed in Article 17.4, then it would be impossible to test the consistency of that legislation, and of particular responses thereunder, with Article 18.1 of the Anti-Dumping Agreement.
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