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Therefore, we consider that Articles 18.1 and 18.4 support our conclusion that a Member may challenge the consistency of legislation as such with the provisions of the Anti-Dumping Agreement.
For all these reasons, we conclude that, pursuant to Article XXIII of the GATT 1994 and Article 17 of the Anti-Dumping Agreement, the European Communities and Japan could bring dispute settlement claims of inconsistency with Article VI of the GATT 1994 and the Anti-Dumping Agreement against the 1916 Act as such. We, therefore, uphold the Panel''s finding that it had jurisdiction to review these claims.”
(v) Concluding Remarks
In the same way that Art. XXIII of the GATT 1994 allows a WTO Member to challenge legislation as such, Art. 17 of the AD Agreement is properly to be regarded as allowing a challenge to anti-dumping legislation as such, unless this possibility is excluded. No such express exclusion is found in Art. 17 or elsewhere in the AD Agreement.
In general, Arts. 17.1 and 17.2 of the AD Agreement do not distinguish between disputes relating to anti-dumping legislation as such and disputes relating to anti-dumping measures taken in the implementation of such legislation. Also, Art. 17.3 operates as the equivalent provision in the AD Agreement to Arts. XXII and XXIII of the GATT 1994. Therefore, they seem to imply that Members can challenge the consistency of legislation as such with the AD Agreement unless this action is excluded by Art. 17.
Unlike Arts. 17.1 to 17.3, Art. 17.4 is a special or additional dispute settlement rule listed in Appendix 2 to the DSU. According to Art. 17.4, a “matter” may be referred to the DSB only if one of the relevant three anti-dumping measures is in place. This provision, when read together with Art. 6.2 of the DSU, requires a panel request in a dispute brought under the AD Agreement to identify, as the specific measure at issue, either a definitive anti-dumping duty, the acceptance of a price undertaking, or a provisional measure.
Nevertheless, nothing suggests that Art. 17.4 preclude review of anti-dumping legislation as such. As noted in subsection Ⅱ of this section, a request that satisfies the requirements of Article 6.2 of the DSU also satisfies the requirements of Art. 17.4 of the AD Agreement. The 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. In any event, a complainant may, having identified a specific anti-dumping duty in its request for establishment, bring any claims including claims against anti-dumping legislation as such under the AD Agreement if such claims relate to one of the relevant three anti-dumping measures pursuant Art. 17.4. Important considerations underlie the restriction contained in Art. 17.4, seems to strike a balance between considerations of a complaining Member''s right to seek redress and the risk that a responding Member may be harassed or its resources squandered.
In the same way that the GATT/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.
In a word, Art. 17.4 sets out certain conditions, however, does not address or affect a Member''s right to bring a claim of inconsistency with the AD Agreement against anti-dumping legislation as such. Members may challenge the consistency of legislation as such with the provisions of the AD Agreement.
【注释】1 See, in detail, WT/DS132/R/7.11; 7.14; 7.51-7.52.
2 WT/DS132/R/7.22-7.24; 7.26-7.28.
3 See, WT/DS136/AB/R; WT/DS162/AB/R/60.
4 See, WT/DS152/R/7.41.
5 See, in detail, WT/DS152/R/7.17-7.20.
6 See, WT/DS136/R/6.40; WT/DS162/R/6.36.
7 See, in detail, WT/DS136/R/6.48; WT/DS162/R/6.47.
8 See, WT/DS136/R/6.51; WT/DS162/R/6.50.
9 See, WT/DS176/AB/R/105.
10 See, WT/DS136/AB/R; WT/DS162/AB/R/57-58.
11 See, WT/DS136/AB/R; WT/DS162/AB/R/62-68.
12 See, WT/DS136/AB/R; WT/DS162/AB/R/70-74.
13 See, WT/DS136/AB/R; WT/DS162/AB/R/76-83.
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