|
In short, although the second sentence of Art. 17.6(ii) of the AD Agreement imposes obligations on panels which are not found in the DSU, we see Art. 17.6(ii) as supplementing, rather than replacing, the DSU, and Art. 11 in particular, to 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. Art. 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.”
With regard to the whole Art. 17.6 of the DSU, as ruled by the Appellate Body in Mexico-HFCS (recourse to Article 21.5 of the DSU by US) (DS132), “
e recently examined this standard of review in United States - Hot-Rolled Steel. In our Report in that case, we observed that, pursuant to Article 17.6(i), ‘the task of panels is simply to review the investigating authorities'' ''establishment'' and ''evaluation'' of the facts’. Under Article 17.6(ii), panels must ‘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’. The requirements of the standard of review provided for in Article 17.6(i) and 17.6(ii) are cumulative. In other words, a panel must find a determination made by the investigating authorities to be consistent with relevant provisions of the Anti-Dumping Agreement if it finds that those investigating authorities have properly established the facts and evaluated those facts in an unbiased and objective manner, and that the determination rests upon a ‘permissible’ interpretation of the relevant provisions.” 9
IIIScope of Review of Fact-findings: Art. 17.5(ii) of the AD Agreement
Pursuant to Art. 17.6(i) of the DSU, panels’ approach in a dispute is to determine whether the establishment of the facts by the investigating authorities of the importing Member is proper and whether their evaluation of those facts is unbiased and objective. Where the establishment of the facts is proper, panels must examine whether the evidence before the investigating authorities of the importing Member in the course of their investigation and at the time of their determinations is such that an unbiased and objective investigating authority evaluating that evidence could have determined dumping, injury and causal relationship.
In connection with panels assessment of the facts of the matter under AD Agreement, Art. 17.5(ii), with which Art. 17.6(i) shall be read, states that the DSB shall establish a panel to examine the matter based upon: “the facts made available in conformity with appropriate domestic procedures to the authorities of the importing Member.” This seems to relate to all of the facts made available to the authorities of the importing Member. However, does it mean that a complainant WTO member may not raise new claims in a dispute settlement proceeding under the AD Agreement where such claims had not been raised before the national investigating authorities?
Whatever may be its substantive merits, Art. 17.5(ii) does not offer much of a guideline in this regard. Then the author means to explore below some aspects of the admissibility issue, particular in disputes relating to anti-dumping.
(i) Overview of the GATT Practice
With regard to the question of the raising of new evidence in a dispute settlement proceeding concerning anti-dumping, it came up in three cases under the Tokyo Round Anti-dumping Code: US-Stainless Steel (ADP/47 of 20 August 1990), US-Cement (ADP/182 of 7 September 1992), US-Salmon (ADP/87 of 30 November 1992). 10
In US-Stainless Steel, the panel did not deem it necessary to deal with the US claim to that effect. In US-Cement, the US claimed that Mexico should be precluded from raising the issue of “standing” of the petitioners and the issue of cumulation of Mexican and Japanese imports, as these issues had not been raised during the administrative proceedings. The panel rejected the US claim, it considered that: “if such fundamental restriction on the right of recourse to the Agreement’s dispute settlement process had been intended by the drafters of the Agreement, they would have made explicit for it”. However, the panel added “the matter examined by the panel would have to be based on facts raised in the first instance, in conformity with the appropriate domestic procedures, in the administrative proceedings in the importing country”.
In US-Salmon, the US raised the preliminary objection that two issues raised by Norway before the panel had not been raised in the national administrative proceedings in the US; according to the US these issues therefore not admissible in the proceedings before the panel. The panel rejected this claim on the ground that the dispute settlement provisions of the (Tokyo Round) Anti-dumping Code (Article 15) did not offer any basis for refusing to consider a claim by a party in a dispute settlement merely because the subject matter of the claim had not been raised before the investigating authorities under national law. The panel noted however, that its conclusion “did not imply that in reviewing the merits of a claim a panel should not take account of whether or not the issues to which the claim relates were raised before the investigating authorities in the domestic anti-dumping duty proceeding”.
|
