Ad hoc Standard of Review for Anti-dumping Disputes
刘成伟
【关键词】Section Two
【全文】
IIntroduction
As to the general approach for panels (outside of the anti-dumping areas), while there are no provisions in the DSU explicitly concerning the standard of review question, some language may be construed as relevant. As noted by the Appellate Body, in general, Art. 11 of the DSU which provides “an objective assessment” bears directly on standard of review applicable to the determination and assessment of the facts in national investigative proceedings. Most interesting, perhaps, is found at DSU Art. 3.2: “Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements”. This language could be interpreted as a constraint on the standard of review, but possibly not to the extent of Art. 17.6 of the Anti-dumping Agreement.1
The issue of scope of review became a controversy in the negotiations of the new Anti-dumping Code during the Uruguay Round and centered on what standard of review should be applied by panels in examining issues of law, especially when the agreement does not specifically address an issue and whether there should be a provision limiting the extent of scrutiny by a panel of factual issues, so as to prevent panels from engaging in a de novo review of such factual issues. As to the second issue, obviously standard of review and scope of review are closely linked.
In this respect, the most prominent of these is found in the AD Agreement at Art. 17.6 which reads as follows:
“In examining the matter referred to in paragraph 5:
(i) in its assessment of the facts of the matter, the panel shall determine whether the authorities'' establishment of the facts was proper and whether their evaluation of those facts was unbiased and objective. If the establishment of the facts was proper and the evaluation was unbiased and objective, even though the panel might have reached a different conclusion, the evaluation shall not be overturned;
(ii) the panel shall interpret the relevant provisions of the Agreement in accordance with customary rules of interpretation of public international law.Where the panel finds that a relevant provision of the Agreement admits of more than one permissible interpretation, the panel shall find the authorities'' measure to be in conformity with the Agreement if it rests upon one of those permissible interpretations.”
And Art. 17.6 is not the only provision bearing on the standard-of-review in the anti-dumping field. Also relevant are two Ministerial Decisions taken at the final Ministerial Conference of the Uruguay Round at Marrakesh, Morocco in April 1994, and made part of the Uruguay Round Final Act text. These state, respectively:
“DECISION ON REVIEW OF ARTICLE 17.6 OF THE AGREEMENT ON IMPLEMENTATION OF ARTICLE VI OF THE GENERAL AGREEMENT ON TARIFFS AND TRADE 1994
Ministers decide as follows:
The standard of review in paragraph 6 of Article 17 of the Agreement on Implementation of Article VI of GATT 1994 shall be reviewed after a period of three years with a view to considering the question of whether it is capable of general application.
DECLARATION ON DISPUTE SETTLEMENT PURSUANT TO THE AGREEMENT ON IMPLEMENTATION OF ARTICLE VI OF THE GENERAL AGREEMENT ON TARIFFS AND TRADE 1994 OR PART V OF THE AGREEMENT ON SUBSIDIES AND COUNTERVAILING MEASURES
Ministers recognize, with respect to dispute settlement pursuant to the Agreement on Implementation of Article VI of GATT 1994 or Part V of the Agreement on Subsidies and Countervailing Measures, the need for the consistent resolution of disputes arising from anti-dumping and countervailing duty measures.”
As both of these passages suggest, the anti-dumping provisions were not uncontroversial, for the Ministerial Decision seem both to limit the application of those anti-dumping provisions, and to raise questions how they fit into the overall jurisprudence of the WTO. Nevertheless, we note that both the two Ministerial Decisions are a mere “Declaration”, rather than a “Decision” of the Ministers. In our view, a Declaration lacks the mandatory authority of a Decision. In the Ministerial Declaration, Ministers simply “recognize … the need” for the consistent resolution of disputes. In our opinion, the simple recognition of the need for an action does not mandate that action. In a Ministerial Decision, by contrast, Ministers “decide” that certain action shall be taken. For these reasons, we do not consider that the Ministerial Declaration imposes any obligations on panels.
Since the standards laid out in the AD Agreement (and the DSU) essentially codify recent panel review standards under the GATT, and remain to be clarified and developed by further practice by the DSB under the WTO, the remainder of this section will examine those standards with respect to anti-dumping as implemented by panels and interpreted by the Appellate Body in particular cases.
IISpecial Standard of Review under the AD Agreement: in General
As noted above and more specified previously, in the absence of provisions in the DSU or any other covered agreements explicitly concerning the standard of review question, as to the general approach for panels (outside of the anti-dumping areas), Art. 11 of the DSU which provides “an objective assessment” bears directly on standard of review applicable to the determination and assessment of the facts in national investigative proceedings. Also, panels have stated, on more than one occasion, that, for “all but one” of the covered agreements, Art. 11 of the DSU sets forth the appropriate standard of review for panels. The “one” is the AD Agreement.
