|
It seems to us that, particularly in considering allegations under Article X of GATT 1994, we should exercise our discretion to allow the presentation of evidence concerning the administration of the defending Members'' anti-dumping laws, which might in any event go beyond the specific facts made available to the administering authority in accordance with appropriate domestic procedures during the course of a single anti-dumping investigation.
]
There is, however, a significant distinction between questions concerning the admissibility of evidence, and the weight to be accorded to the evidence in making our decisions. That we have concluded that it is not appropriate to exclude from this proceeding at the outset evidence put forward by Japan has no necessary implications concerning the relevance or weight of that evidence in our ultimate determinations on the substantive claims before us. Moreover, we wish to emphasize that we have conducted our examination of the challenged final anti-dumping measure and the underlying determinations of the USDOC and USITC in strict observance of the requirements of Article 17.5(ii).”
(iii) Tentative Remarks: Guidance from the Appellate Body
The new Art. 17.5(ii) of the AD Agreement brought in the Uruguay Round causes ad hoc but vague approaches to domestic investigation. Contradictory reports have been issued, as to whether this article allows the admissibility before the panel proceedings of new evidence under the AD Agreement where such evidence or claims had not been raised before the national investigating authorities. However, overall, the record appears to be satisfactory. This particularly so, bearing in mind that the negotiators of the DSU and of the specific dispute settlement provisions of the new Anti-dumping Agreement failed to come up with much more precise guidelines than those that panels had somehow set for themselves. As far as findings of facts are concerned, the new AD Agreement contains one guideline that purports to be more specific i.e. restricting the possibility for panels to overturn the evaluation of facts as made by national administering authorities. Apart from the question whether this means that panels must henceforth ignore compelling new evidence, the reports examined show that panels have avoided de novo reviews and have at most engaged in “marginal” review of the findings of fact. 15
As far as the report issued by the Panel in US-Hot-rolled Steel (DS184) not to consider new evidence, it appears at least to be satisfactory owing to its understanding of Art. 17.5(ii) and bearing in mind that a panel is not to perform a de novo review of the issues considered and decided by the investigating authorities. Its conclusion not to accept new evidence is reasonable with their emphasis on strict observance of the requirements of Art. 17.5(ii).
Furthermore, the Panel notes that to the extent there are any limits to the evidence that may be considered in connection with those claims under the covered agreements other than the AD Agreement, these would derive from the provisions of the DSU itself, and not the AD Agreement. Also, they rule that, as a general rule, panels have wide latitude in admitting evidence in WTO dispute settlement. The DSU (as opposed to the AD Agreement) contains no rule that might be understood to restrict the evidence that panels may consider. Therefore, they make another conclusion that, “particularly in considering allegations under Art. X of GATT 1994, we should exercise our discretion to allow the presentation of evidence concerning the administration of the defending Members'' anti-dumping laws, which might in any event go beyond the specific facts made available to the administering authority in accordance with appropriate domestic procedures during the course of a single anti-dumping investigation”.
The author, however, cannot hide his concern as to such implication as not to accept new evidence, derived from Art. 17.5(ii) by any parties or panels that, especially with regard to the ruling that: “It seems clear to us that, under this provision, a panel may not, when examining a claim of violation of the AD Agreement in a particular determination, consider facts or evidence presented to it by a party in an attempt to demonstrate error in the determination concerning questions that were investigated and decided by the authorities, unless they had been made available in conformity with the appropriate domestic procedures to the authorities of the investigating country during the investigation”. In any event, as a practical matter, it is unlikely that a Member would improperly withhold arguments from competent authorities with a view to raising those arguments later before a panel. More dangerous, it would force exporting members to appear before national investigating authorities in order to keep the possibility to raise issues in panel proceedings. Clearly, it is at least not reasonable. The parties involved in an underlying anti-dumping investigation are generally exporters, importers and other commercial entities, while those involved in WTO dispute settlement are the Members of the WTO. Therefore, it justifies accepting new evidence even in cases under the AD Agreement, so long as panels think it appropriate to exercise their discretion so.
However, in any event, the new Art. 17.5(ii) is not without any merit but causing uncertainty. As to be shown below, there is a clear connection between Arts. 17.6(i) and 17.5(ii). The facts of the matter referred to in Art. 17.6(i) are “the facts made available in conformity with appropriate domestic procedures to the authorities of the importing Member” under Art. 17.5(ii). Art. 17.6(i) places a limitation on the panel in the circumstances defined by the Article. The aim of Art. 17.6(i) is to prevent a panel from “second-guessing” a determination of a national authority when the establishment of the facts is proper and the evaluation of those facts is unbiased and objective. It bears more significance that the panel note the importance of Art. 17.5(ii) in guiding their decisions in this regard. It is a specific provision directing a panel''s decision as to what evidence it will consider in examining a claim under the AD Agreement. Moreover, it effectuates the general principle that panels reviewing the determinations of investigating authorities in anti-dumping cases are not to engage in de novo review.
|
