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WTO Panel Rulings on Anti-dumping: I
In a ruling on the US Anti-dumping Act of 1916 the WTO panel and Appellate Body have unequivocally held that the US Act which provides for specific action against dumping in the form of civil and criminal proceedings and penalties is inconsistent with Article VI of GATT, 1994 and the WTO Agreement on Antidumping as well as Article XVI:4 of the WTO Agreement. It remains to be seen how soon the US will repeal its Anti-dumping Act of 1916. The WTO dispute settlement bodies have, however, demonstrated that their jurisdiction is not circumscribed by the limitations sought to be placed by the US.
Much has been written about the limitations imposed by the WTO Agreement on Anti-dumping (AD Agreement) on the Disputes Settlement Panels of the WTO. For example, Grimwade (1996) points out that “under guidelines included at the insistence of the US, the task of the disputes panel will be limited to determining whether or not the facts were established in an unbiased and objective manner”. In the context of an international dispute settlement mechanism, the issue relating to standard of review is particularly complicated as it directly impinges upon determinations made by national authorities [Jung 2000]. Article 11 of the Disputes Settlement Understanding (DSU) requires that “a panel should make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements”. However, Article 17.6 of the AD Agreement requires that:
(i) in its assessment of the facts of the matter, the panel shall determine whether the authorities’ establishment of the facts was proper and whether their evaluation of those facts was unbiased and objective. If the establishment of the facts was proper and the evaluation was unbiased and objective, even though the panel might have reached a different conclusion, the evaluation shall not be overturned;(ii) the panel shall interpret the relevant provisions of the Agreement in accordance with customary rules of interpretation of public international law. 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.
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