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Most importantly, Art. 17.5(ii) can never be deemed to require that a panel consider those facts exclusively in the format in which they were originally available to the investigating authority. In any event, the statement of Art. 17.5(ii) 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”, does not mean that a panel is frozen into inactivity. It does 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 were not raised before the investigating authorities under national law. This is to be confirmed by some rulings from the Appellate Body below.
Whatever merits Art. 17.6 of the AD Agreement bears, it offers no clear guidance rather than causing some issues of interpretation. Therefore, the author thinks it much useful and unavoidable to examine how and to what extent the Appellate Body have applied and interpreted this article.
In this regard, the Appellate Body in Thailand-H-beams (DS122) consider the extent of a panel''s obligations under Art. 17.6 to review the investigating authority''s final determination, and they rule as: 16
“Articles 17.5 and 17.6 clarify the powers of review of a panel established under the Anti-Dumping Agreement. These provisions place limiting obligations on a panel, with respect to the review of the establishment and evaluation of facts by the investigating authority. …
Article 17.5 specifies that a panel''s examination must be based upon the ‘facts made available’ to the domestic authorities. Anti-dumping investigations frequently involve both confidential and non-confidential information. The wording of Article 17.5 does not specifically exclude from panel examination facts made available to domestic, authorities, but not disclosed or discernible to interested parties by the time of the final determination. Based on the wording of Article 17.5, we can conclude that a panel must examine the facts before it, whether in confidential documents or non-confidential documents.
Article 17.6(i) requires a panel, in its assessment of the facts of the matter, to determine whether the authorities'' ‘establishment of the facts’ was ‘proper’. The ordinary meaning of ‘establishment’ suggests an action to ‘place beyond dispute; ascertain, demonstrate, prove’; the ordinary meaning of ‘proper’ suggests ‘accurate’ or ‘correct’. Based on the ordinary meaning of these words, the proper establishment of the facts appears to have no logical link to whether those facts are disclosed to, or discernible by, the parties to an anti-dumping investigation prior to the final determination. Article 17.6(i) requires a panel also to examine whether the evaluation of those facts was ‘unbiased and objective’. The ordinary meaning of the words ‘unbiased’ and ‘objective’ also appears to have no logical link to whether those facts are disclosed to, or discernible by, the parties to an anti-dumping investigation at the time of the final determination.
There is a clear connection between Articles 17.6(i) and 17.5(ii). The facts of the matter referred to in Article 17.6(i) are ‘the facts made available in conformity with appropriate domestic procedures to the authorities of the importing Member’ under Article 17.5(ii). Such facts do not exclude confidential facts made available to the authorities of the importing Member. Rather, Article 6.5 explicitly recognizes the submission of confidential information to investigating authorities and its treatment and protection by those authorities. Article 12, in paragraphs 2.1, 2.2 and 2.3, also recognizes the use, treatment and protection of confidential information by investigating authorities. The ‘facts’ referred to in Articles 17.5(ii) and 17.6(i) thus embrace ‘all facts confidential and non-confidential’, made available to the authorities of the importing Member in conformity with the domestic procedures of that Member. Article 17.6(i) places a limitation on the panel in the circumstances defined by the Article. The aim of Article 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. Whether evidence or reasoning is disclosed or made discernible to interested parties by the final determination is a matter of procedure and due process. These matters are very important, but they are comprehensively dealt with in other provisions, notably Articles 6 and 12 of the Anti-Dumping Agreement.
Articles 17.5 and 17.6(i) require a panel to examine the facts made available to the investigating authority of the importing Member. These provisions do not prevent a panel from examining facts that were not disclosed to, or discernible by, the interested parties at the time of the final determination.
We, therefore, reverse the Panel''s interpretation that, in reviewing an injury determination under Article 3.1, a panel is required under Article 17.6(i), in assessing whether the establishment of facts is proper, to ascertain whether the ‘factual basis’ of the determination is ‘discernible’ from the documents that were available to the interested parties and/or their legal counsel in the course of the investigation and at the time of the final determination; and, in assessing whether the evaluation of the facts is unbiased and objective, to examine the ‘analysis and reasoning’ in only those documents ‘to ascertain the connection between the disclosed factual basis and the findings’.”
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