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(i) Ad hoc Approaches to Domestic Determination: Art. 17.6
As noted previously, in general, on balance panels don’t act as “super-investigative authorities” and do not engage in a de novo review of factual issues, nor in a total deference. However, as to be noted below, Art. 17.6 AD seems to set out an ad hoc specific standard of review for disputes arising under the AD Agreement. Art. 17.6 of the AD Agreement sets out a special standard of review for disputes arising under that Agreement. However, as to be shown in more detail below, this Art. 17.6 standard applies only to disputes arising under the AD Agreement, and not to disputes arising under other covered agreements. Importantly, it seems that the negotiators compromised so that the limiting language on standard of review as provided for in Art. 17.6 of the AD Agreement, would apply only to the anti-dumping text, and not necessarily to other dispute settlement cases before the WTO panels.
With regard to factual issues, it is Art. 17.6(i) that is on point. In this respect, the special standard in Art. 17.6(i) has been applied on many occasions, e.g., the Panel in Argentina-Floor Tiles (DS189) rules: 2
“We note that the Panel in the case United States - Anti-Dumping Measures on Stainless Steel Plate in Coils and Stainless Steel Sheet and Strip from Korea considered that Article 17.6(i): ‘speaks not only to the establishment of the facts, but also to their evaluation. Therefore, the Panel must check not merely whether the national authorities have properly established the relevant facts but also the value or weight attached to those facts and whether this was done in an unbiased and objective manner. This concerns the according of a certain weight to the facts in their relation to each other; it is not a legal evaluation.’
Accordingly, it is not our role as a panel to perform a de novo review of the evidence which was before the investigating authority at the time it made its determination. Rather, we must review the determination the investigating authority made on the basis of the information before it in order to determine whether the establishment of the facts was proper and the evaluation of the facts was unbiased and objective. With respect to the latter aspect of our review, we consider that the task before us is to examine whether, on the basis of the information before it, an unbiased and objective investigating authority evaluating that evidence could have reached the conclusions it did.”
It is ruled in more detail by the Panel in US-Hot-rolled Steel Products (DS184) as: 3
“… The question of whether the establishment of facts was proper does not, in our view, involve the question whether all relevant facts were considered including those that might detract from an affirmative determination. Whether the facts were properly established involves determining whether the investigating authorities collected relevant and reliable information concerning the issue to be decided - it essentially goes to the investigative process. Then, assuming that the establishment of the facts with regard to a particular claim was proper, we consider whether, based on the evidence before the investigating authorities
at the time of the determination, an unbiased and objective investigating authority evaluating that evidence could have reached the conclusions that the investigating authorities
reached on the matter in question. In this context, we consider whether all the evidence was considered, including facts which might detract from the decision actually reached by the investigating authorities.”
With respect to the interpretation of the AD Agreement, it is Art. 17.6(ii) that runs on the legal interpretation issue. In this respect, its application of customary rules of interpretation, as well as unusual provision in Art. 17.6(ii) has also been noted on many occasions, e.g., the Panel in Argentina-Floor Tiles (DS189) rules: 4
“We consider the first part of this subparagraph to be a clear reference to the customary rules of interpretation as laid down in Articles 31-32 of the Vienna Convention on the Law of Treaties. Article 31 of the Vienna Convention provides that a treaty shall be interpreted in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose. Article 17.6(ii) of the AD Agreement provides that in the case where this method leads the panel to the conclusion that the provision in question admits of more than one permissible interpretation, the panel shall find the measure in conformity if it is based on one such permissible interpretation.”
Furthermore, the Panel in US-Hot-rolled Steel Products (DS184) rules: 5
“… Thus, in considering those aspects of the determination
which stand or fall depending on the interpretation of the AD Agreement itself rather than or in addition to the analysis of facts, we first interpret the provisions of the AD Agreement. As the Appellate Body has repeatedly stated, panels are to consider the interpretation of the WTO Agreements, including the AD Agreement, in accordance with the principles set out in the Vienna Convention on the Law of Treaties (the "Vienna Convention"). Thus, we look to the ordinary meaning of the provision in question, in its context, and in light of its object and purpose. Finally, we may consider the preparatory work (the negotiating history) of the provision, should this be necessary or appropriate in light of the conclusions we reach based on the text of the provision. We then evaluate whether the interpretation
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