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Article 11 of the DSU imposes upon panels a comprehensive obligation to make an ‘objective assessment of the matter’, an obligation which embraces all aspects of a panel''s examination of the ‘matter’, both factual and legal. Thus, panels make an ‘objective assessment of the facts’, of the ‘applicability’ of the covered agreements, and of the ‘conformity’ of the measure at stake with those covered agreements. Article 17.6 is divided into two separate sub-paragraphs, each applying to different aspects of the panel''s examination of the matter. The first sub-paragraph covers the panel''s ‘assessment of the facts of the matter’, whereas the second covers its ‘interpret
the relevant provisions’. The structure of Article 17.6, therefore, involves a clear distinction between a panel''s assessment of the facts and its legal interpretation of the Anti-Dumping Agreement.
In considering Article 17.6(i) of the Anti-Dumping Agreement, it is important to bear in mind the different roles of panels and investigating authorities. Investigating authorities are charged, under the Anti-Dumping Agreement, with making factual determinations relevant to their overall determination of dumping and injury. Under Article 17.6(i), the task of panels is simply to review the investigating authorities'' ‘establishment’ and ‘evaluation’ of the facts. To that end, Article 17.6(i) requires panels to make an ‘assessment of the facts’. The language of this phrase reflects closely the obligation imposed on panels under Article 11 of the DSU to make an ‘objective assessment of the facts’. Thus the text of both provisions requires panels to ‘assess’ the facts and this, in our view, clearly necessitates an active review or examination of the pertinent facts. Article 17.6(i) of the Anti-Dumping Agreement does not expressly state that panels are obliged to make an assessment of the facts which is ‘objective’. However, it is inconceivable that Article 17.6(i) should require anything other than that panels make an objective ‘assessment of the facts of the matter’. In this respect, we see no ‘conflict’ between Article 17.6(i) of the Anti-Dumping Agreement and Article 11 of the DSU.
Article 17.6(i) of the Anti-Dumping Agreement also states that the panel is to determine, first, whether the investigating authorities'' ‘establishment of the facts was proper’ and, second, whether the authorities'' ‘evaluation of those facts was unbiased and objective’. Although the text of Article 17.6(i) is couched in terms of an obligation on panels - panels ‘shall’ make these determinations - the provision, at the same time, in effect defines when investigating authorities can be considered to have acted inconsistently with the Anti-Dumping Agreement in the course of their ‘establishment’ and ‘evaluation’ of the relevant facts. In other words, Article 17.6(i) sets forth the appropriate standard to be applied by panels in examining the WTO-consistency of the investigating authorities'' establishment and evaluation of the facts under other provisions of the Anti-Dumping Agreement. Thus, panels must assess if the establishment of the facts by the investigating authorities was proper and if the evaluation of those facts by those authorities was unbiased and objective. If these broad standards have not been met, a panel must hold the investigating authorities'' establishment or evaluation of the facts to be inconsistent with the Anti-Dumping Agreement.
We turn now to Article 17.6(ii) of the Anti-Dumping Agreement. The first sentence of Article 17.6(ii), echoing closely Article 3.2 of the DSU, states that panels ‘shall’ interpret the provisions of the Anti-Dumping Agreement ‘in accordance with customary rules of interpretation of public international law’. Such customary rules are embodied in Articles 31 and 32 of the Vienna Convention on the Law of Treaties ("Vienna Convention"). Clearly, this aspect of Article 17.6(ii) involves no ‘conflict’ with the DSU but, rather, confirms that the usual rules of treaty interpretation under the DSU also apply to the Anti-Dumping Agreement.
The second sentence of Article 17.6(ii) bears repeating in full: ‘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.’
This second sentence of Article 17.6(ii) presupposes that application of the rules of treaty interpretation in Articles 31 and 32 of the Vienna Convention could give rise to, at least, two interpretations of some provisions of the Anti-Dumping Agreement, which, under that Convention, would both be ‘permissible interpretations’. In that event, a measure is deemed to be in conformity with the Anti-Dumping Agreement ‘if it rests upon one of those permissible interpretations’.
It follows that, under Article 17.6(ii) of the Anti-Dumping Agreement, panels are obliged to determine whether a measure rests upon an interpretation of the relevant provisions of the Anti-Dumping Agreement which is permissible under the rules of treaty interpretation in Articles 31 and 32 of the Vienna Convention. In other words, a permissible interpretation is one which is found to be appropriate after application of the pertinent rules of the Vienna Convention. We observe that the rules of treaty interpretation in Articles 31 and 32 of the Vienna Convention apply to any treaty, in any field of public international law, and not just to the WTO agreements. These rules of treaty interpretation impose certain common disciplines upon treaty interpreters, irrespective of the content of the treaty provision being examined and irrespective of the field of international law concerned.
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