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We cannot, of course, examine here which provisions of the Anti-Dumping Agreement do admit of more than one ‘permissible interpretation’. Those interpretive questions can only be addressed within the context of particular disputes, involving particular provisions of the Anti-Dumping Agreement invoked in particular claims, and after application of the rules of treaty interpretation in Articles 31 and 32 of the Vienna Convention.
Finally, although the second sentence of Article 17.6(ii) of the Anti-Dumping Agreement imposes obligations on panels which are not found in the DSU, we see Article 17.6(ii) as supplementing, rather than replacing, the DSU, and Article 11 in particular. Article 11 requires panels to make an ‘objective assessment of the matter’ as a whole. Thus, under the DSU, in examining claims, panels must make an ‘objective assessment’ of the legal provisions at issue, their ‘applicability’ to the dispute, and the ‘conformity’ of the measures at issue with the covered agreements. Nothing in Article 17.6(ii) of the Anti-Dumping Agreement suggests that panels examining claims under that Agreement should not conduct an ‘objective assessment’ of the legal provisions of the Agreement, their applicability to the dispute, and the conformity of the measures at issue with the Agreement. Article 17.6(ii) simply adds that a panel shall find that a measure is in conformity with the Anti-Dumping Agreement if it rests upon one permissible interpretation of that Agreement.”
(iii) A Summary Guiding
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. Also, Art. 17.6 of the AD Agreement sets out a special standard of review for, and only to, disputes arising under that Agreement, which applies not to disputes arising under other covered agreements.
Then we get down to the relationship between Art. 11 of the DSU and Art. 17.6 of the AD Agreement. Firstly, Art. 17.6 is identified as one of the “special or additional rules and procedures” which prevail over the DSU “to the extent that there is a difference” between those provisions and the provisions of the DSU. In this respect, it is only in a situation where the provisions cannot be read as complementing each other, i.e., where adherence to the one provision will lead to a violation of the other provision, i.e. in the case of a conflict between them, that the special or additional provisions are to prevail.
Specifically, Art. 11 of the DSU generally imposes upon panels a comprehensive obligation to make an “objective assessment of the matter”, embracing both factual and legal; Art. 17.6 is divided into two separate sub-paragraphs, involving a clear distinction between a panel''s assessment of the facts and its legal interpretation of the AD Agreement.
Under Art. 17.6(i), the task of panels is simply to review the investigating authorities'' “establishment” and “evaluation” of the facts. The texts of both Art. 11 of the DSU and Art. 17.6(i) provisions require panels to “assess” the facts, and it is inconceivable that Art. 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”. Art. 17.6(i) of the AD Agreement also sets forth the appropriate standard to be applied by panels in examining the WTO-consistency, i.e., 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”. I.e., to review whether the investigating authorities collected relevant and reliable information concerning the issue to be decided, and, whether, based on the evidence before the investigating authorities of the importing Member at the time of the determination, an unbiased and objective investigating authority evaluating that evidence could have reached the conclusions that the investigating authorities of the importing Member reached on the matter in question- it essentially goes to the investigative process.”
We turn now to Art. 17.6(ii). The first sentence of Art. 17.6(ii), involves no “conflict” with the DSU but, rather, confirms the application to the AD Agreement of the usual rules of treaty interpretation under the DSU echoing closely Art. 3.2 of the DSU, i.e., “in accordance with customary rules of interpretation of public international law” embodied in Arts. 31 and 32 of the Vienna Convention which apply to any treaty, in any field of public international law, and not just to the WTO agreements. The second sentence of Art. 17.6(ii) presupposes that application of such rules of treaty interpretation could give rise to, at least, two interpretations of some provisions of the AD 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”. And the question of which provisions of the AD Agreement do admit of more than one “permissible interpretation”, if exists, can only be addressed within the context of particular disputes after application of the rules of treaty interpretation in Arts. 31 and 32 of the Vienna Convention.
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