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is one that is ‘permissible’ in light of the customary rules of interpretation of international law. If so, we allow that interpretation to stand, and unless there is error in the subsequent analysis of the facts under that legal interpretation under the standard of review under Article 17.6(i), the challenged action is upheld.”
With respect to legal analysis, as noted above, Art. 17.6(ii) provides first that the relevant provisions shall be in accordance the customary rules of interpretation of public law, and differs nothing from the general guideline for interpretation of the covered agreements under the WTO; and therefore we will not give unnecessary details as to this generally applied guidance in this section. However, what attracts our observation here is the controversy and doubt caused by Art. 17.6(ii) which then provides that if the panel finds that the relevant provisions admits of more than one permissible interpretation, the authority’s actions must rest upon one of the “permissible interpretations” to be in conformity.
Interestingly, however, it is not clear in light of the Vienna Convention whether or how a panel could ever reach the conclusion that provisions of an agreement admit of more than one interpretation. This is true because the Vienna Convention provides a set of rules for interpretation of treaties, aimed at resolving ambiguities in the text. Arts. 31 and 32 of the Vienna Convention are particularly relevant here. Art. 31, “General rule of interpretation”, provides a set of rules guiding the interpretation of the text of treaty. Art. 32, “Supplementary means of interpretation”, provides additional guidelines for any case n which application of the rules in Art. 31 still leaves the meaning of a provision “ambiguous or obscure”, or when they render a provision “manifestly absurd or unreasonable”. Art. 32 suggests, in other words, that the application of Art. 31 should in many cases resolve ambiguities, and that where the application of Art. 31 does not resolve ambiguities, Art. 32’s own rule “recourse … to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion” will resolve any lingering ambiguities.
To understand the source of that controversy, one must read Art. 17.6(ii) in the light of its negotiation context and history. 6 Art. 17.6(ii) was the compromise language of the Uruguay Round negotiators. What does it mean? A better understanding of its meaning must await future panel decisions. But at least on the face of it, subsection (ii) seems to establish a two-step process for panel review of interpretive questions.7 First, the panel must consider whether the provision of the agreement in question admits of more than one interpretation. If not, the panel must vindicate the provision’s only permissible interpretation. If, on the other hand, the panel determines that the provision does indeed admit of more than one interpretation, the panel shall proceed to the second step of the analysis and consider whether the national interpretation is within the set of“permissible” interpretations. If so, the panel must defer to the interpretation given to the provision by a national government.
(ii) Relationship between Art. 11 of the DSU and Art. 17.6 of the AD Agreement
In US-Hot-rolled Steel Products (DS184), the Appellate Body thinks it useful to address certain general aspects of the standard of review established by Art. 17.6 of the AD Agreement, as this standard bears upon each issue arising in this appeal. With regard to these general aspects, the Appellate Body thinks that two threshold aspects of the Art. 17.6 need to be noted. In this respect, the Appellate Body rules: 8
“…The first is that Article 17.6 is identified in Article 1.2 and Appendix 2 of the DSU as one of the ‘special or additional rules and procedures’ which prevail over the DSU ‘
o the extent that there is a difference’ between those provisions and the provisions of the DSU. In Guatemala - Anti-Dumping Investigation Regarding Portland Cement from Mexico, a dispute which involved claims under the Anti-Dumping Agreement, we stated: ‘In our view, it is only where the provisions of the DSU and the special or additional rules and procedures of a covered agreement cannot be read as complementing each other that the special or additional provisions are to prevail. A special or additional provision should only be found to prevail over a provision of the DSU in a situation where adherence to the one provision will lead to a violation of the other provision, that is, in the case of a conflict between them.’
Thus, we must consider the extent to which Article 17.6 of the Anti-Dumping Agreement can properly be read as ‘complementing’ the rules and procedures of the DSU or, conversely, the extent to which Article 17.6 ‘conflicts’ with the DSU.
The second threshold aspect follows from the first and concerns the relationship between Article 17.6 of the Anti-Dumping Agreement and Article 11 of the DSU. Article 17.6 lays down rules relating to a panel''s examination of ‘matters’ arising under one, and only one, covered agreement, the Anti-Dumping Agreement. In contrast, Article 11 of the DSU provides rules which apply to a panel''s examination of ‘matters’ arising under any of the covered agreements. Article 11 reads, in part: ‘… a panel should make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements …’
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