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WTO ANALYTICAL INDEX: ANTI-DUMPING AGREEMENT

Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement)

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> Article 18
> Annex I
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> Relationship with other WTO Agreements
> Declaration on Dispute Settlement Pursuant to the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 or Part V of the Agreement on Subsidies and Countervailing Measures
> Decision on Review of Article 17.6 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994
> Decision on Anti-Circumvention

 

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Part III

XVIII. Article 18     back to top

A. Text of Article 18

Article 18: Final Provisions

18.1     No specific action against dumping of exports from another Member can be taken except in accordance with the provisions of GATT 1994, as interpreted by this Agreement.(24)

 

(footnote original) 24 This is not intended to preclude action under other relevant provisions of GATT 1994, as appropriate.

 

18.2     Reservations may not be entered in respect of any of the provisions of this Agreement without the consent of the other Members.

 

18.3     Subject to subparagraphs 3.1 and 3.2, the provisions of this Agreement shall apply to investigations, and reviews of existing measures, initiated pursuant to applications which have been made on or after the date of entry into force for a Member of the WTO Agreement.

 

18.3.1     With respect to the calculation of margins of dumping in refund procedures under paragraph 3 of Article 9, the rules used in the most recent determination or review of dumping shall apply.

 

18.3.2     For the purposes of paragraph 3 of Article 11, existing anti-dumping measures shall be deemed to be imposed on a date not later than the date of entry into force for a Member of the WTO Agreement, except in cases in which the domestic legislation of a Member in force on that date already included a clause of the type provided for in that paragraph.

 

18.4     Each Member shall take all necessary steps, of a general or particular character, to ensure, not later than the date of entry into force of the WTO Agreement for it, the conformity of its laws, regulations and administrative procedures with the provisions of this Agreement as they may apply for the Member in question.

 

18.5     Each Member shall inform the Committee of any changes in its laws and regulations relevant to this Agreement and in the administration of such laws and regulations.

 

18.6     The Committee shall review annually the implementation and operation of this Agreement taking into account the objectives thereof. The Committee shall inform annually the Council for Trade in Goods of developments during the period covered by such reviews.

 

18.7     The Annexes to this Agreement constitute an integral part thereof.


B. Interpretation and Application of Article 18

1. Article 18.1

(a) “specific action against dumping”

956.     In US — 1916 Act, the Appellate Body considered that “the scope of application of Article VI [of the GATT 1994] is clarified, in particular, by Article 18.1 of the Anti-Dumping Agreement”.(1302) The Appellate Body then found “that Article 18.1 of the Anti-Dumping Agreement requires that any ‘specific action against dumping’ be in accordance with the provisions of Article VI of the GATT 1994 concerning dumping, as those provisions are interpreted by the Anti-Dumping Agreement”:

“[T]he ordinary meaning of the phrase ‘specific action against dumping’ of exports within the meaning of Article 18.1 is action that is taken in response to situations presenting the constituent elements of ‘dumping’. ‘Specific action against dumping’ of exports must, at a minimum, encompass action that may be taken only when the constituent elements of ‘dumping’ are present. Since intent is not a constituent element of ‘dumping’, the intent with which action against dumping is taken is not relevant to the determination of whether such action is ‘specific action against dumping’ of exports within the meaning of Article 18.1 of the Anti-Dumping Agreement.

We note that footnote 24 refers generally to ‘action’ and not, as does Article 18.1, to ‘specific action against dumping’ of exports. ‘Action’ within the meaning of footnote 24 is to be distinguished from ‘specific action against dumping’ of exports, which is governed by Article 18.1 itself.

 

Article 18.1 of the Anti-Dumping Agreement contains a prohibition on the taking of any ‘specific action against dumping’ of exports when such specific action is not ‘in accordance with the provisions of GATT 1994, as interpreted by this Agreement’. Since the only provisions of the GATT 1994 ‘interpreted’ by the Anti-Dumping Agreement are those provisions of Article VI concerning dumping, Article 18.1 should be read as requiring that any ‘specific action against dumping’ of exports from another Member be in accordance with the relevant provisions of Article VI of the GATT 1994, as interpreted by the Anti-Dumping Agreement.

 

We recall that footnote 24 to Article 18.1 refers to ‘other relevant provisions of GATT 1994’ (emphasis added). These terms can only refer to provisions other than the provisions of Article VI concerning dumping. Footnote 24 thus confirms that the ‘provisions of GATT 1994’ referred to in Article 18.1 are in fact the provisions of Article VI of the GATT 1994 concerning dumping.

 

We have found that Article 18.1 of the Anti-Dumping Agreement requires that any ‘specific action against dumping’ be in accordance with the provisions of Article VI of the GATT 1994 concerning dumping, as those provisions are interpreted by the Anti-Dumping Agreement. It follows that Article VI is applicable to any ‘specific action against dumping’ of exports, i.e., action that is taken in response to situations presenting the constituent elements of ‘dumping’.“(1303)

 

“… Article VI of the GATT 1994 and the Anti-Dumping Agreement apply to ‘specific action against dumping’. Article VI, and, in particular, Article VI:2, read in conjunction with the Anti-Dumping Agreement, limit the permissible responses to dumping to definitive anti-dumping duties, provisional measures and price undertakings. Therefore, the 1916 Act is inconsistent with Article VI:2 and the Anti-Dumping Agreement to the extent that it provides for ‘specific action against dumping’ in the form of civil and criminal proceedings and penalties.”(1304)

957.     In US — Offset Act (Byrd Amendment), the Appellate Body reiterated its view that “a measure that may be taken only when the constituent elements of dumping or a subsidy are present, is a ‘specific action’ in response to dumping within the meaning of Article 18.1 of the Anti-Dumping Agreement”.(1305) This implied that the measure must be inextricably linked to, or have a strong correlation with, the constituent elements of dumping. According to the Appellate Body, “such link or correlation may, as in the 1916 Act, be derived from the text of the measure itself”.(1306) However, not all action taken in response to dumping is necessarily action against dumping.(1307) The Panel in US — Offset Act (Byrd Amendment) took the position that an action operates “against” dumping or a subsidy within the meaning of Article 18.1 of the Anti-Dumping Agreement if it has an adverse bearing on dumping.(1308) The Appellate Body agreed with the Panel’s interpretation of the term “against” and reached the following conclusion with respect to the Continued Dumping and Subsidy Offset Act (CDSOA):

“All these elements lead us to conclude that the CDSOA has an adverse bearing on the foreign producers/exporters in that the imports into the United States of the dumped or subsidized products (besides being subject to anti-dumping or countervailing duties) result in the financing of United States competitors — producers of like products — through the transfer to the latter of the duties collected on those exports. Thus, foreign producers/exporters have an incentive not to engage in the practice of exporting dumped or subsidized products or to terminate such practices. Because the CDSOA has an adverse bearing on, and, more specifically, is designed and structured so that it dissuades the practice of dumping or the practice of subsidization, and because it creates an incentive to terminate such practices, the CDSOA is undoubtedly an action ‘against’ dumping or a subsidy, within the meaning of Article 18.1 of the Anti-Dumping Agreement and of Article 32.1 of the SCM Agreement.”(1309)

958.     In US — Offset Act (Byrd Amendment), the Appellate Body also emphasized that in order to determine whether a specific action is “against” dumping or subsidization, it is neither necessary, nor relevant, to examine the conditions of competition under which domestic products and dumped/subsidized imports compete, nor to assess the impact of the measure on the competitive relationship between them. An analysis of the term “against”, in the view of the Appellate Body, “is more appropriately centred on the design and structure of the measure; such an analysis does not mandate an economic assessment of the implications of the measure on the conditions of competition under which domestic product and dumped/subsidized imports compete”.(1310) However, as the Appellate Body also stated, “a measure cannot be against dumping or a subsidy simply because it facilitates or induces the exercise of rights that are WTO-consistent”(1311), such as the filing of anti-dumping applications.

(b) “except in accordance with the provisions of GATT 1994”

959.     The Panel in US — 1916 Act (EC) considered that Article 18.1 of the Anti-Dumping Agreement confirms the purpose of Article VI as “to define the conditions under which counteracting dumping as such is allowed.”(1312)

(c) Footnote 24

960.     The Panel in US — 1916 Act (Japan) considered that:

“[F]ootnote 24 does not prevent Members from addressing the causes or effects of dumping through other trade policy instruments allowed under the WTO Agreement. Nor does it prevent Members from adopting other types of measures which are compatible with the WTO Agreement. Such a possibility does not affect our conclusion that, when a law of a Member addresses the type of price discrimination covered by Article VI and makes it the cause for the imposition of anti-dumping measures, that Member has to abide by the requirements of Article VI and the Anti-Dumping Agreement.”(1313)

961.     The Appellate Body in US — Offset Act (Byrd Amendment) clarified that footnotes 24 and 56 are clarifications of the main provisions, and were added so as to avoid ambiguity:

“[T]hey confirm what is implicit in Article 18.1 of the Anti-Dumping Agreement and in Article 32.1 of the SCM Agreement, namely, that an action that is not ‘specific’ within the meaning of Article 18.1 of the Anti-Dumping Agreement and of Article 32.1 of the SCM Agreement, but is nevertheless related to dumping or subsidization, is not prohibited by Article 18.1 of the Anti-Dumping Agreement or Article 32.1 of the SCM Agreement.”(1314)

962.     In US — 1916 Act, the Appellate Body referred to footnote 24 in order to clarify the scope of Article VI of GATT 1994. See paragraph 956 above.

(d) Relationship between Article 18.1, GATT Article VI and the Note Ad Paragraphs 2 and 3 of Article VI

963.     The dispute in US — Shrimp (Thailand)/US — Customs Bond Directive concerned US requirements for increased bonds to secure eventual payment of duties under a retrospective assessment system. The Appellate Body, upholding the Panel, found that the enhanced bond requirement (EBR) was permitted under the Note Ad Paragraphs 2 and 3 to Article VI of the GATT 1994 and did not constitute a “specific action against dumping” under Article 18.1:

“[W]e reaffirm the Appellate Body findings in previous reports that the Anti-Dumping Agreement does not allow a fourth category of specific action against dumping. We do not, however, consider that a security taken for guaranteeing the payment of a lawfully established duty liability would necessarily constitute a ‘specific action against dumping’; rather, whether a particular security constitutes a ‘specific action against dumping’ should be evaluated in the light of the nature and characteristics of the security and the particular circumstances in which it is applied. We wish to emphasize that, in any event, an impermissible specific action against dumping cannot be taken in the guise of a security.

 

Generally speaking, a security is accessory or ancillary to the principal obligation that it guarantees. A security that is taken to guarantee the obligation to pay anti-dumping or countervailing duties is intrinsically linked to that obligation. Thus, taking security for the full and final payment of duties should be viewed as a component of the imposition and collection of anti-dumping or countervailing duties. Therefore, a reasonable security taken in accordance with the Ad Note for potential additional anti-dumping duty liability does not necessarily, in and of itself, constitute a fourth autonomous category of response to dumping.”(1315)

964.     In that dispute, the Appellate Body in US — Shrimp (Thailand) and US — Customs Bond Directive then interpreted the Ad Note as authorizing the taking of “reasonable security” after the imposition of an anti-dumping duty order, pending determination of the final liability for payment of the anti-dumping duty.(1316) The Appellate Body also upheld the Panel’s findings that the security requirement at issue (a requirement for importers of shrimp to increase their bond amounts) was not “reasonable” within the meaning of the Ad Note, and therefore upheld the Panel’s finding that the application of this measure to the shrimp at issue was inconsistent with Article 18.1 of the Anti-Dumping Agreement.(1317) The Appellate Body rejected a claim that the security requirement at issue violated Article 18.1 “as such” because it had found that imposition of security during the period after an anti-dumping order was permitted, if the security was reasonable.(1318)

2. Article 18.3

(a) “reviews of existing measures”

965.     Referring to its statement that the Anti-Dumping Agreement applies only to “reviews of existing measures” initiated pursuant to applications made on or after the date of entry into force of the Anti-Dumping Agreement for the Member concerned, the Panel in US — DRAMS drew a comparison with the findings of the Panel in Brazil — Desiccated Coconut:

“We note that this approach is in line with that adopted by the Panel on Desiccated Coconut in respect of Article 32.3 of the SCM Agreement, which is virtually identical to Article 18.3 of the AD Agreement. That Panel stated that ‘Article 32.3 defines comprehensively the situations in which the SCM Agreement applies to measures which were imposed pursuant to investigations not subject to that Agreement. Specifically, the SCM Agreement applies to reviews of existing measures initiated pursuant to applications made on or after the date of entry into force of the WTO Agreement. It is thus through the mechanism of reviews provided for in the SCM Agreement, and only through that mechanism, that the Agreement becomes effective with respect to measures imposed pursuant to investigations to which the SCM Agreement does not apply’ (Brazil — Measures Affecting Desiccated Coconut, WT/DS22/R, para. 230, upheld by the Appellate Body in WT/DS22/AB/R, adopted on 20 March 1997).”(1319)

(b) Application of the Anti-Dumping Agreement

966.     Regarding the application of the Anti-Dumping Agreement to pre- and post-WTO measures, the Panel in US — DRAMS emphasized that the Anti-Dumping Agreement applies only to reviews and existing measures initiated pursuant to applications made on or after the date of entry into force of the Agreement with respect to the Member concerned:

“In our view, pre-WTO measures do not become subject to the AD Agreement simply because they continue to be applied on or after the date of entry into force of the WTO Agreement for the Member concerned. Rather, by virtue of the ordinary meaning of the terms of Article 18.3, the AD Agreement applies only to ‘reviews of existing measures’ initiated pursuant to applications made on or after the date of entry into force of the AD Agreement for the Member concerned (‘post-WTO reviews’). However, we do not believe that the terms of Article 18.3 provide for the application of the AD Agreement to all aspects of a pre-WTO measure simply because parts of that measure are under post-WTO review. Instead, we believe that the wording of Article 18.3 only applies the AD Agreement to the post-WTO review. In other words, the scope of application of the AD Agreement is determined by the scope of the post-WTO review, so that pursuant to Article 18.3, the AD Agreement only applies to those parts of a pre-WTO measure that are included in the scope of a post-WTO review. Any aspects of a pre-WTO measure that are not covered by the scope of the post-WTO review do not become subject to the AD Agreement by virtue of Article 18.3 of the AD Agreement. By way of example, a pre-WTO injury determination does not become subject to the AD Agreement merely because a post-WTO review is conducted relating to the pre-WTO determination of the margin of dumping.”(1320)

967.     The Panel in US — Shrimp (Viet Nam) examined two administrative reviews of an anti-dumping order established before the date of Viet Nam’s accession to the WTO. In the panel proceeding, Viet Nam did not challenge the original investigation, but did challenge an “all others” rate that had been calculated in the original investigation. In response to a US argument that this claim was barred by Article 18.3, the Panel distinguished the factual situation from the situation in US — DRAMS:

“We are unable to accept the United States’ argument which, in our view, is not supported by the findings of the panel in US — DRAMS. In US — DRAMS, the determination at issue — that of the product coverage of the Anti-Dumping measures at issue — was determined once, before the entry into force of the WTO Agreement, and never subsequently reconsidered. By contrast, the evidence before us shows that the USDOC made a new and distinct ‘all others’ rate determination in each of the administrative reviews which are before us. … The mere fact that the ‘all others’ rate ultimately applied was not recalculated does not change the extent of the analysis inherent in the USDOC’s new determination to continue to apply that rate….

 

In sum, the evidence before us shows that the ‘all others’ rates applied in each of the administrative reviews at issue were subject to full consideration by the USDOC in each case. The ‘all others rate’ applied by the USDOC in each instance was a direct result of the margins calculated by the USDOC in that review. It is only because the USDOC determined that all such margins could not be relied upon that the USDOC decided to apply the same ‘all others’ rate as had been applied in the original investigation. Accordingly, the United States’ citation to the findings of the panel in US — DRAMs is inapposite.(1321)

3. Article 18.4

(a) Maintenance of inconsistent legislation after entry into force of WTO Agreement

968.     In US — Hot-Rolled Steel, Japan had challenged Section 735(c)(5)(A) of the United States Tariff Act of 1930, as amended, which provided for a method for calculating the “all others” rate (see paragraphs (i)-708 above) as inconsistent with Article 9.4 and, accordingly with Articles XVI:4 of the WTO Agreement and 18.4 of the Anti-Dumping Agreement. The Panel found that Section 735(c)(5)(A), as amended, was, on its face, inconsistent with Article 9.4 “in so far as it requires the consideration of margins based in part on facts available in the calculation of the all others rate”. The Panel further found that, in maintaining this Section following the entry into force of the Anti-Dumping Agreement, the United States had acted inconsistently with Article 18.4 of this Agreement as well as with Article XVI:4 of the WTO Agreement.(1322) The Appellate Body upheld these findings.(1323)

(b) Mandatory versus discretionary legislation

969.     In US — 1916 Act (EC), the Panel referred to Article 18.4 in stating that the mere fact that the initiation of anti-dumping investigations was discretionary would not make the legislation at issue non-mandatory. See paragraph 878 above.

(c) Measures subject to dispute settlement

970.     In the view of the Appellate Body in US — Corrosion Resistant Steel Sunset Review, all laws, regulations and administrative procedures mentioned in Article 18.4 may, as such, be submitted to dispute settlement. The Appellate Body considered that “the phrase ‘laws, regulations and administrative procedures’ seems to us to encompass the entire body of generally applicable rules, norms and standards adopted by Members in connection with the conduct of anti-dumping proceedings.(1324) If some of these types of measure could not, as such, be subject to dispute settlement under the Anti-Dumping Agreement, it would frustrate the obligation of ‘conformity’ set forth in Article 18.4.”(1325)

971.     As regards, the concept of measures subject to WTO dispute settlement, see Articles 6 and 7 of the Chapter on the DSU.

4. Article 18.5

972.     Article 18.5 of the Agreement provides that “Each Member shall inform the Committee of any changes in its laws and regulations relevant to this Agreement and in the administration of such laws and regulations”. Pursuant to a decision of the Committee in February 1995, all Members having new or existing legislation and/or regulations which apply in whole or in part to anti-dumping duty investigations or reviews covered by the Agreement are requested to notify the full and integrated text of such legislation and/or regulations to the Committee. Changes in a Member’s legislation and/ or regulations are to be notified to the Committee as well. Pursuant to that same decision of the Committee, if a Member has no such legislation or regulations, the Member is to inform the Committee of this fact. The Committee also decided that Observer governments should comply with these notification obligations.

973.     As of 29 October 2004, 105 Members had notified the Committee regarding their domestic anti-dumping legislation.(1326) Of these 105 Members, 29 had notified the Committee that they had no anti-dumping legislation. Members’ communications in this regard can be found in document series G/ADP/N/1/ …. 28 Members had not, as yet, made any notification of anti-dumping legislation and/or regulations. Annex A sets out the status of notifications concerning legislation under Article 18.5 of the Agreement, and sets out the reference symbol of the document(s) containing each Member’s current notification in this regard.

974.     In US — Customs Bond Directive India requested the Panel to find that the United States had violated Article 18.5 of the Anti-Dumping Agreement and Article 32.6 of the SCM Agreement. The United States was of the view that it had no obligation to notify the amended customs bond directive (CBD) to either of the Committees.(1327) The Panel disagreed with the United States:

“The EBR has been designed as a security for the collection of potential increased anti-dumping or countervailing duties and this security may only be imposed where a given product is subject to an anti-dumping or countervailing order. We also recall our findings that the Amended CBD constitutes specific action against dumping or subsidization within the meaning of Article 18.1 of the Anti-Dumping Agreement and Article 32.1 of the SCM Agreement. We arrived at this conclusion by finding, inter alia, that the constituent elements of dumping and/ or subsidization were present in the Amended CBD. For all of these reasons, we consider that the Amended CBD ‘changes … the administration’ of anti-dumping or countervailing duty laws and/or regulations and thus falls within the scope of Article 18.5 of the Anti-Dumping Agreement and Article 32.6 of the SCM Agreement.

 

…Despite the absence of a specific deadline, in our view, in order for any notification to be effective, it must be made within a reasonable time. It is also our view that Article 18.5 of the Anti-Dumping Agreement and Article 32.6 of the SCM Agreement were originally formulated to address transparency concerns surrounding the administration of anti-dumping and countervailing duty investigations and measures. A failure to properly notify changes in the anti-dumping laws or regulations, or the administration of such laws to the Anti-Dumping and SCM Committees within a reasonable time fails to address that objective.

 

In the matter before us, we are unaware that the United States has yet attempted to notify the Amended CBD to the Anti-Dumping and SCM Committees. The United States has failed to do so despite the fact that the Amended CBD became effective more than three years ago with publication of the July 2004 Amendment. We consider this delay to be unreasonable.

 

We accordingly find that the United States has failed to meet its obligation to notify the Amended CBD to the Anti-Dumping and SCM Committees.”(1328)

5. Article 18.6

(a) Annual reviews

975.     Paragraph 7.4 of the Doha Ministerial Decision of 14 November 2001 on Implementation-Related Issues and Concerns states that the Ministerial Conference “[t]akes note that Article 18.6 of the Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 requires the Committee on Anti-Dumping Practices to review annually the implementation and operation of the Agreement taking into account the objectives thereof. The Committee on Anti-Dumping Practices is instructed to draw up guidelines for the improvement of annual reviews and to report its views and recommendations to the General Council for subsequent decision within 12 months.”(1329)

976.     Further to the Doha mandate, the Committee on Anti-Dumping Practices adopted on 27 November 2002, the “Recommendation regarding Annual Reviews of the Anti-Dumping Agreement”.(1330) In its recommendation, the Committee on Anti-Dumping Practices considers that “improvements in the reporting of anti-dumping activity under the Agreement and in the Committee’s annual reviews are important to promoting transparency”. Accordingly, the Recommendation includes the following improvements aimed at providing useful information to Members and the public, and enhancing transparency under the Agreement:

“1.     The Committee’s annual report under Article 18.6 should include in the Summary of Anti-Dumping Actions(1331), in addition to the column currently included that lists the initiations reported by each Member, a comparable column listing the number of anti-dumping revocations reported by each Member during the reporting period. Where a Member has not provided such information, the report should note this omission. Members are already requested to report the number of revocations in a separate table as an annex to their semi-annual reports of anti-dumping activity. Consequently, such information should be included in the Article 18.6 annual report.

 

2.     The Committee’s Article 18.6 annual report should also include a chart comparing for each Member the number of preliminary and final measures reported in its semi-annual reports with the number of notices of preliminary and final measures the Member submitted to the Secretariat for the comparable period.

 

3.     Developed country Members should include, when reporting anti-dumping actions in the semi-annual report that Members are required to submit under Article 16.4, the manner in which the obligations of Article 15 have been fulfilled. Without prejudice to the scope and application of Article 15, price undertakings and lesser duty rules are examples of constructive remedies that could be included in such Members’ semi-annual reports. The Committee’s annual report under Article 18.6 should include, in a separate table, a compilation of the information reported by each Member in this respect during the reporting period. Where a Member has not provided such information, the report should note this omission.

 

This recommendation does not prejudge the ability of Members to submit other proposals and to agree in the future on other recommendations aimed at improving annual reviews in the Committee on Anti-Dumping Practices.”(1332)

6. Relationship with other Articles

(a) General

977.     The relationship between Article 18.1 and other provisions in the Anti-Dumping Agreement was discussed in Guatemala — Cement II. The Panel found that the subject anti-dumping duty order of Guatemala was inconsistent with Articles 3, 5, 6, 7, 12, and paragraph 2 of Annex I of the Anti-Dumping Agreement. The Panel then opined that Mexico’s claims under other articles of the Anti-Dumping Agreement, among them Article 18, were “dependent claims, in the sense that they depend entirely on findings that Guatemala has violated other provisions of the AD Agreement. There would be no basis to Mexico’s claims under Articles 1, 9 and 18 of the AD Agreement, and Article VI of GATT 1994, if Guatemala were not found to have violated other provisions of the AD Agreement.”(1333) In light of this dependent nature of Mexico’s claim, the Panel considered it not necessary to address these claims.

978.     The Panel in US — 1916 Act (Japan) stated that “[t]he meaning of Article 18.4 which immediately comes to mind when reading that Article is that when a law, regulation or administrative procedure of a Member has been found incompatible with the provisions of the Anti-Dumping Agreement, that Member is also in breach of its obligations under Article 18.4.”(1334)

979.     The Panel in US — 1916 Act (Japan) stated in a footnote that “we did not exercise judicial economy with respect to Article 18.4 because, in that context, a violation of Article 18.4 automatically results from the breach of another provision of the Anti-Dumping Agreement.”(1335)

(b) Article 17

980.     In US — 1916 Act, the Appellate Body referred to Article 18.1 and 18.4 as contextual support for its reading of Article 17.4 as allowing Members to bring claims against anti-dumping legislation as such.(1336)

7. Relationship with other WTO Agreements

(a) Article VI of the GATT 1994

981.     The relationship between Article 18 and Article VI of the GATT 1994 was discussed in US — 1916 Act. See paragraphs 956960 above and 1001 below.

(b) SCM Agreement

982.     The Panel in US — DRAMS referred to the applicability of the SCM Agreement to measures initiated before the entry into force of the WTO Agreement, in deciding on a similar issue under the Anti-Dumping Agreement. See paragraph 965 above.

 

XIX. Annex I     back to top

A. Text of Annex I

Annex I: Procedures for on-the-spot Investigations Pursuant to Paragraph 7 of Article 6

1.     Upon initiation of an investigation, the authorities of the exporting Member and the firms known to be concerned should be informed of the intention to carry out on-the-spot investigations.

 

2.     If in exceptional circumstances it is intended to include non-governmental experts in the investigating team, the firms and the authorities of the exporting Member should be so informed. Such non-governmental experts should be subject to effective sanctions for breach of confidentiality requirements.

 

3.      It should be standard practice to obtain explicit agreement of the firms concerned in the exporting Member before the visit is finally scheduled.

 

4.     As soon as the agreement of the firms concerned has been obtained, the investigating authorities should notify the authorities of the exporting Member of the names and addresses of the firms to be visited and the dates agreed.

 

5.     Sufficient advance notice should be given to the firms in question before the visit is made.

 

6.     Visits to explain the questionnaire should only be made at the request of an exporting firm. Such a visit may only be made if (a) the authorities of the importing Member notify the representatives of the Member in question and (b) the latter do not object to the visit.

 

7.     As the main purpose of the on-the-spot investigation is to verify information provided or to obtain further details, it should be carried out after the response to the questionnaire has been received unless the firm agrees to the contrary and the government of the exporting Member is informed by the investigating authorities of the anticipated visit and does not object to it; further, it should be standard practice prior to the visit to advise the firms concerned of the general nature of the information to be verified and of any further information which needs to be provided, though this should not preclude requests to be made on-the-spot for further details to be provided in the light of information obtained.

 

8.     Enquiries or questions put by the authorities or firms of the exporting Members and essential to a successful on-the-spot investigation should, whenever possible, be answered before the visit is made.

 
B. Interpretation and Application of Annex I

1. On-the-spot verifications as an option

983.     The Panel in Argentina — Ceramic Tiles, indicated in a footnote that, although common practice, there is no requirement to carry out on-the-spot verifications. See paragraph 524 above.

2. Participation of non-governmental experts in the on-the-spot verification

984.     In Guatemala — Cement II, Mexico claimed that a verification visit by Guatemala’s authority to a Mexican producer’s site was inconsistent with Article 6.7 and Annex I(2), (3), (7) and (8) because the authority included non-governmental experts with an alleged conflict of interest in its verification team. See paragraphs 529531 above.

3. Information verifiable on-the-spot

985.     In Guatemala — Cement II, Mexico argued that in violation of Article 6.7 and paragraph 7 of Annex I, the Guatemalan authority sought to verify certain information not submitted by the Mexican producer under investigation because it pertained to the period of investigation newly added during the course of the investigation. See paragraph 526 above.

4. Relationship with other Articles

986.     In Guatemala — Cement II, the Panel found that the subject anti-dumping duty order of Guatemala was inconsistent with Articles 3, 5, 6, 7, 12, and paragraph 2 of Annex I of the Anti-Dumping Agreement. The Panel then opined that Mexico’s claims under Articles 1, 9 and 18 of the Anti-Dumping Agreement, and Article VI of GATT 1994, were “dependent claims, in the sense that they depend entirely on findings that Guatemala has violated other provisions of the AD Agreement. There would be no basis to Mexico’s claims under Articles 1, 9 and 18 of the AD Agreement, and Article VI of GATT 1994, if Guatemala were not found to have violated other provisions of the AD Agreement.” In light of this dependent nature of Mexico’s claim, the Panel considered it not necessary to address these claims.(1337)

987.     With respect to the relationship of Annex I and Article 6.7, in Egypt — Steel Rebar, the Panel came to the same conclusion as with the relationship between Article 6.8 and Annex II (see paragraph 536 above), i.e. that Annex I is incorporated by reference into Article 6.7. See paragraph 523 above.

 

XX. Annex II     back to top

A. Text of Annex II

Annex II: Best Information Available in Terms of Paragraph 8 of Article 6

1.     As soon as possible after the initiation of the investigation, the investigating authorities should specify in detail the information required from any interested party, and the manner in which that information should be structured by the interested party in its response. The authorities should also ensure that the party is aware that if information is not supplied within a reasonable time, the authorities will be free to make determinations on the basis of the facts available, including those contained in the application for the initiation of the investigation by the domestic industry.

 

2.     The authorities may also request that an interested party provide its response in a particular medium (e.g. computer tape) or computer language. Where such a request is made, the authorities should consider the reasonable ability of the interested party to respond in the preferred medium or computer language, and should not request the party to use for its response a computer system other than that used by the party. The authority should not maintain a request for a computerized response if the interested party does not maintain computerized accounts and if presenting the response as requested would result in an unreasonable extra burden on the interested party, e.g. it would entail unreasonable additional cost and trouble. The authorities should not maintain a request for a response in a particular medium or computer language if the interested party does not maintain its computerized accounts in such medium or computer language and if presenting the response as requested would result in an unreasonable extra burden on the interested party, e.g. it would entail unreasonable additional cost and trouble.

 

3.     All information which is verifiable, which is appropriately submitted so that it can be used in the investigation without undue difficulties, which is supplied in a timely fashion, and, where applicable, which is supplied in a medium or computer language requested by the authorities, should be taken into account when determinations are made. If a party does not respond in the preferred medium or computer language but the authorities find that the circumstances set out in paragraph 2 have been satisfied, the failure to respond in the preferred medium or computer language should not be considered to significantly impede the investigation.

 

4.     Where the authorities do not have the ability to process information if provided in a particular medium (e.g. computer tape), the information should be supplied in the form of written material or any other form acceptable to the authorities.

 

5.     Even though the information provided may not be ideal in all respects, this should not justify the authorities from disregarding it, provided the interested party has acted to the best of its ability.

 

6.     If evidence or information is not accepted, the supplying party should be informed forthwith of the reasons therefor, and should have an opportunity to provide further explanations within a reasonable period, due account being taken of the time-limits of the investigation. If the explanations are considered by the authorities as not being satisfactory, the reasons for the rejection of such evidence or information should be given in any published determinations.

 

7.     If the authorities have to base their findings, including those with respect to normal value, on information from a secondary source, including the information supplied in the application for the initiation of the investigation, they should do so with special circumspection. In such cases, the authorities should, where practicable, check the information from other independent sources at their disposal, such as published price lists, official import statistics and customs returns, and from the information obtained from other interested parties during the investigation. It is clear, however, that if an interested party does not cooperate and thus relevant information is being withheld from the authorities, this situation could lead to a result which is less favourable to the party than if the party did cooperate.


B. Interpretation and Application of Annex II

1. “best information available”

988.     With respect to Annex II and recourse to “best information available” pursuant to Article 6.8, see paragraphs 532607 above.

2. Paragraph 1

989.     As regards the interpretation of paragraph 1 of Annex II, see paragraphs 540542, 563564 and 567570 above.

3. Paragraph 3

990.     As regards the interpretation of paragraph 3, see paragraphs 535 and 549560 above.

4. Paragraph 5

991.     Concerning the interpretation of the concept of cooperation “to the best of its ability”, see paragraphs 574580 above. As regards cooperation as a two-way process, see paragraph 583 above.

5. Paragraph 6

(a) Duty to inform of reasons for disregarding evidence or information

992.     See paragraphs 560 and 592593 above.

(b) “reasonable period, due account being taken of the time-limits of the investigation”

993.     In Egypt — Steel Rebar, the Panel considered that the text of paragraph 6 of Annex II “makes clear that the obligation for an investigating authority to provide a reasonable period for the provision of further explanations is not open-ended or absolute. Rather, this obligation exists within the overall time constraints of the investigation.” The Panel concluded that “in determining a ‘reasonable period’ an investigating authority must balance the need to provide an adequate period for the provision of the explanations referred to against the time constraints applicable to the various phases of the investigation and to the investigation as a whole.”(1338)

994.     In Egypt — Steel Rebar, the Panel considered that the issue of whether the two-to-five day deadline fixed by the investigating authority was unreasonable “must be judged on the basis of the overall factual situation that existed at the time”. In this case, the Panel considered whether the information requested was new information, whether any of the other respondents received a longer period in which to respond and what was the attitude of the respondents concerned, and concluded that the deadline in question was not unreasonable.(1339)

6. Paragraph 7

995.     As regards the possibility of resorting to a “secondary source”, see paragraph 584 above.

996.     Concerning the concept of cooperation, see paragraphs 573574 above.

7. Relationship with Article 6

(a) Relationship with Article 6.1

997.     In Egypt — Steel Rebar, Turkey had claimed a violation of paragraph 1 of Annex II outside the context of Article 6.8. The Panel decided not to rule on whether paragraph 1 could be invoked separately from Article 6.8.(1340)

(b) Relationship with Article 6.2

998.     In Egypt — Steel Rebar, Turkey had made a number of claims of violation of both paragraph 6 of Annex II and Article 6.2. The Panel, which did not take a position on whether paragraph 6 of Annex II can be invoked separately from Article 6.8, considered as follows.

“As for the claim of violation of the requirement in Annex II, paragraph 6 to provide a ‘reasonable period’, we recall that this provision forms part of the required procedural and substantive basis for a decision as to whether to resort to facts available pursuant to Article 6.8. We further recall that we have found, supra(1341), that the [investigating authority]’s decision to resort to facts available … did not violate Article 6.8, based on considerations under Annex II, paragraphs 3 and 5. Thus, we would not necessarily need to address this aspect of this claim for its own sake. Nonetheless, a full analysis of Annex II, paragraph 6 as it pertains to the factual basis of this claim, appears necessary to evaluate the merits of the claimed violation of Article 6.2 resulting from the deadline for responses to the 23 September requests. In performing this analysis, however, we note that we again do not here take a position on whether Annex II, paragraph 6 can be invoked separately from Article 6.8. We would need to do so only if we find that as a factual matter, the deadline in question was unreasonable.”(1342)

(c) Relationship with Article 6.8

999.     As regards the relationship between Annex II and Article 6.8, see paragraphs 532607 above.

 

XXI. Relationship with other WTO Agreements     back to top

A. Article VI of the GATT 1994

1000.     Regarding the relationship between Article VI of the GATT 1994 and the Anti-Dumping Agreement, the Panel in US — 1916 Act (EC), referring to the Appellate Body Report on Argentina — Footwear (EC), used the term an “inseparable package of rights and disciplines”:

“In our opinion, Article VI and the Anti-Dumping Agreement are part of the same treaty or, as the panel and the Appellate Body put it in Argentina — Footwear (EC) with respect to Article XIX and the Agreement on Safeguards, an ‘inseparable package of rights and disciplines’. In application of the customary rules of interpretation of international law, we are bound to interpret Article VI of the GATT 1994 as part of the WTO Agreement and the Anti-Dumping Agreement is part of the context of Article VI. This implies that Article VI should not be interpreted in a way that would deprive it or the Anti-Dumping Agreement of meaning. Rather, we should give meaning and legal effect to all the relevant provisions. However, the requirement does not prevent us from making findings in relation to Article VI only, or in relation to specific provisions of the Anti-Dumping Agreement, as required by our terms of reference.”(1343)

1001.     The Panel in US — 1916 Act (EC) considered the Anti-Dumping Agreement as context in interpreting Article VI of the GATT 1994 and explained its reasoning as follows:

“The official title of the Anti-Dumping Agreement is ‘Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994’. This agreement is essential for the interpretation of Article VI. Articles 1 and 18.1 confirm the close link between Article VI and the Anti-Dumping Agreement. Moreover, as was recalled by the Appellate Body in the Brazil — Coconuts case, the WTO Agreement is a single treaty instrument which was accepted by the WTO Members as a single undertaking. As a result, Article 18.1 of the Anti-Dumping Agreement is part of the context of Article VI since Article 31.2 of the Vienna Convention provides that ‘the context for the purpose of the interpretation of a treaty shall comprise, […] the text [of the treaty], including its preamble and annexes…’. We are therefore not only entitled to consider Articles 1 and 18.1 of the Anti-Dumping Agreement even though the European Communities did not mention those provisions as part of its claims in its request for establishment of a panel, but we are also required to do so under the general principles of interpretation of public international law.”(1344)

1002.     In examining the scope of Article VI of the GATT 1994, the Panel in US — 1916 Act (EC) stated that Article 1 of the Anti-Dumping Agreement “supports the view that Article VI is about what Members are entitled to do when they counteract dumping within the meaning of Article VI … by referring to ‘anti-dumping measure[s]’ which may be applied by Members.”(1345) (emphasis in original) The Panel concluded that “a law that would counteract ‘dumping’ as defined in Article VI:1 would fall within the scope of Article VI.”(1346)

1003.     The Appellate Body in US — 1916 Act concluded that “[s]ince an ‘Anti-Dumping measure’ must, according to Article 1 of the Anti-Dumping Agreement, be consistent with Article VI of the GATT 1994 and the provisions of the Anti-Dumping Agreement, it seems to follow that Article VI would apply to ‘an anti-dumping measure’, i.e., a measure against dumping.”(1347)

1004.     The Panel in US — 1916 Act (EC) considered that the first sentence of Article 1 of the Anti-Dumping Agreement confirms the purpose of Article VI as “to define the conditions under which counteracting dumping as such is allowed.”(1348)

1005.     Regarding the relationship between Article VI of the GATT 1994 and the Anti-Dumping Agreement, the Panel in US — 1916 Act (Japan) noted that “Article 1.1 of the Anti-Dumping Agreement establishes a link between Article VI and the Anti-Dumping Agreement.”(1349)

1006.     The Appellate Body in US — 1916 Act agreed with the Panel’s conclusion that “[g]iven the link between Article VI of the GATT 1994 and the Anti-Dumping Agreement, we find that the applicability of Article VI to the 1916 Act also implies the applicability of the Anti-Dumping Agreement.”(1350)


B. Article XI of the GATT 1994

1007.     The Panel in US — 1916 Act (Japan), after finding that the measure at issue was inconsistent with provisions of the Anti-Dumping Agreement (and Article VI of the GATT 1994), exercised judicial economy with respect to a claim under Article XI of the GATT 1994.(1351)

C. Article 3.2 of the DSU

1008.     The Panel in US — DRAMS discussed the interpretation of provisions of the Anti-Dumping Agreement in the light of the wording of Article 3.2 of the DSU.

D. Article 11 of the DSU

1009.     As regards the different standard of review under Article 17.6 of the Anti-Dumping Agreement and the general standard of review of Article 11 of the DSU, see paragraphs 911912 above.

E. Agreement on Safeguards

1010.     The Appellate Body in US — Hot-Rolled Steel supported its interpretation of the non-attribution language of Article 3.5 by referring to its decisions in two safeguards Reports, US — Wheat Gluten and US — Lamb where it interpreted the non-attribution language in Article 4.2(b) of the Agreement on Safeguards in a similar manner. See paragraph 285 above. See also the Panel Report in Guatemala — Cement II, paragraph 251 above.

F. SCM Agreement

1011.     The Panel in US — DRAMS referred to the applicability of the SCM Agreement to measures initiated before the entry into force of the WTO Agreement, in deciding on a similar issue under the Anti-Dumping Agreement. See paragraph 965 above.

G. Accession Agreements

1012.     The Panel and Appellate Body in EC Fasteners (China) interpreted paragraph 15 of the Protocol of Accession of the People’s Republic of China, and the Panel in US — Shrimp (Viet Nam) interpreted the accession commitments of Viet Nam; see paragraphs 166167 above.

 

XXIII. Declaration on Dispute Settlement Pursuant to the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 or Part V of the Agreement on Subsidies and Countervailing Measures     back to top

A. Text

          Ministers recognize, with respect to dispute settlement pursuant to the Agreement on Implementation of Article VI of GATT 1994 or Part V of the Agreement on Subsidies and Countervailing Measures, the need for the consistent resolution of disputes arising from anti-dumping and countervailing duty measures.


B. Interpretation and Application

1013.     In US — Lead and Bismuth II, the United States argued that, by virtue of the Declaration, the standard of review set forth in Article 17.6 of the Anti-Dumping Agreement is also applicable to reviews of countervailing duty investigations under the SCM Agreement. The Appellate Body disagreed:

“We consider this argument to be without merit. By its own terms, the Declaration does not impose an obligation to apply the standard of review contained in Article 17.6 of the Anti-Dumping Agreement to disputes involving countervailing duty measures under Part V of the SCM Agreement. The Declaration is couched in hortatory language; it uses the words ‘Ministers recognize‘. Furthermore, the Declaration merely acknowledges ‘the need for the consistent resolution of disputes arising from anti-dumping and countervailing duty measures.’ It does not specify any specific action to be taken. In particular, it does not prescribe a standard of review to be applied.”(1352)

1014.     The Panel in US — Corrosion-Resistant Steel Sunset Review considered the issue of “whether prior panel and Appellate Body decisions on countervailing measures can be taken into account by, and provide guidance for, panels dealing with disputes under the Anti-Dumping Agreement (and vice versa)”, and stated that it found support in the Declaration “for the application of a similar interpretative analysis by this Panel in addressing analogous issues under the Anti-Dumping Agreement”.(1353) Subsequent panels have made similar statements.(1354)

 

XXIV. Decision on Review of Article 17.6 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994     back to top

A. Text

Ministers decide as follows:

 

          The standard of review in paragraph 6 of Article 17 of the Agreement on Implementation of Article VI of GATT 1994 shall be reviewed after a period of three years with a view to considering the question of whether it is capable of general application.


B. Interpretation and Application

1015.     In EC — Hormones, the Appellate Body noted that this Decision “evidences that the Ministers were aware that Article 17.6 of the Anti-Dumping Agreement was applicable only in respect of that Agreement”.(1355)

1016.     In US — Lead and Bismuth II, the Appellate Body referred to the Decision in the context of rejecting the argument that the standard of review set forth in Article 17.6 of the Anti-Dumping Agreement is also applicable to reviews of countervailing duty investigations under the SCM Agreement:

“This Decision provides for review of the standard of review in Article 17.6 of the Anti-Dumping Agreement to determine if it is ‘capable of general application’ to other covered agreements, including the SCM Agreement. By implication, this Decision supports our conclusion that the Article 17.6 standard applies only to disputes arising under the Anti-Dumping Agreement, and not to disputes arising under other covered agreements, such as the SCM Agreement. To date, the DSB has not conducted the review contemplated in this Decision.”(1356)

 

XXV. Decision on Anti-Circumvention     back to top

A. Text of the Decision on Anti-Circumvention

Decision on Anti-Circumvention

Ministers,

 

          Noting that while the problem of circumvention of anti-dumping duty measures formed part of the negotiations which preceded the Agreement on Implementation of Article VI of GATT 1994, negotiators were unable to agree on specific text,

 

          Mindful of the desirability of the applicability of uniform rules in this area as soon as possible,

 

          Decide to refer this matter to the Committee on Anti-Dumping Practices established under that Agreement for resolution.


B. Interpretation and Application of the Decision on Anti-Circumvention

1017.     At its meeting of 28–29 April 1997, the Committee on Anti-Dumping Practices decided to establish an “Informal Group on Anti-Circumvention”. The Committee agreed that the Informal Group would be open to all Members, and could not make any decisions on the issues discussed, but would make recommendations for consideration by the Committee.(1357) Documents pertaining to the Informal Group on Anti-Circumvention are contained in the series G/ADP/IG.

1018.     The Panel in China — Auto Parts discussed the Decision in the context of examining a claim under Article II of the GATT 1994. In that case, China argued that the measures at issue were anti-circumvention measures, aimed at addressing the evasion of certain tariff rates under China’s tariff schedule. In support of its position that the measures at issue were consistent with its obligations under Article II of the GATT 1994, China invoked the Decision on Anti-Circumvention. The Panel did not consider the Decision to be relevant to the claim before it:

“The Panel notes that as submitted by the complainants, the notion of anti-circumvention measures applied in connection with anti-dumping duties is recognized in the Ministerial Decision on Anti-Circumvention. The Decision provides: …

 

As shown in the text of the Decision, WTO Members referred issues relating to circumvention of anti-dumping duties to the Committee on Anti-Dumping Practices at the time of the Uruguay Round negotiations. Since then, WTO Members have continued to discuss the relevant issues in accordance with the mandate under the Decision and as part of the Doha negotiations. In contrast, we have no evidence or document showing that comparable recognition or discussion has ever taken place in the context of ordinary customs duties or interpretation of Members’ Schedules of Concessions within the scope of Article II of the GATT 1994. In the absence of any specific indication or legal basis that the Members’ discussions on the notion of circumvention in relation to anti-dumping duties can be also related to ordinary customs duties, we do not find that the circumstances surrounding the notion of anti-circumvention of anti-dumping measures can be extended to the interpretation of Members’ Schedules of Concessions.

 

In this regard, China argues that since ‘nothing’ in the Decision implies that the same problem does not exist in the ordinary customs duty context, it should be presumed that it also exists in the ordinary customs duty context. We are not persuaded by China’s argument. The Decision explicitly notes that WTO Members could not agree on specific text relating to the problem of circumvention of anti-dumping duty measures, which formed part of the negotiations which preceded the Agreement on Implementation of Article VI of GATT 1994, which is an agreement on anti-dumping duties. It also expresses the negotiators’ ‘desirability of the applicability of the uniform rules in this area‘ (in the area of anti-dumping measures) (emphasis added). We do not find any basis in the language of the Decision, which is specifically aimed at the negotiators’ recognition of the circumvention problem with respect to anti-dumping duty measures, for extending the same consideration to ordinary customs duties.”(1358)

 

Footnotes:

1302. Appellate Body Report, US — 1916 Act, para. 121. back to text
1303. Appellate Body Report, US — 1916 Act, paras. 122–126. See also Panel Report, US — 1916 Act (Japan), paras. 6.214–218 and 6.264; and Panel Report, US — 1916 Act (EC), paras. 6.197–6.199. back to text
1304. Appellate Body Report, US — 1916 Act, para. 137. back to text
1305. Appellate Body Report, US — Offset Act (Byrd Amendment), para. 239. back to text
1306. Appellate Body Report, US — Offset Act (Byrd Amendment), para. 239. As the Appellate Body underlined, “Our analysis in US — 1916 Act focused on the strength of the link between the measure and the elements of dumping or a subsidy. In other words, we focused on the degree of correlation between the scope of application of the measure and the constituent elements of dumping or of a subsidy.” Ibid., para. 244. back to text
1307. See Appellate Body Report, US — Offset Act (Byrd Amendment), para. 247. back to text
1308. Panel Report, US — Offset Act (Byrd Amendment), paras. 7.17–7.18. back to text
1309. Appellate Body Report, US — Offset Act (Byrd Amendment), para. 256. back to text
1310. Appellate Body Report, US — Offset Act (Byrd Amendment), para. 257. back to text
1311. Appellate Body Report, US — Offset Act (Byrd Amendment), para. 258. back to text
1312. Panel Report, US — 1916 Act (EC), para. 6.114. back to text
1313. Panel Report, US — 1916 Act (Japan), para. 6.218. back to text
1314. Appellate Body Report, US — Offset Act (Byrd Amendment), para. 262. back to text
1315. Appellate Body Report, US — Shrimp (Thailand)/US — Customs Bond Directive, para. 231. The Appellate Body ruled that the complainants had not made any claims regarding cash deposits, and therefore rejected (and declared to be of no legal effect) the Panel’s finding that cash deposits required under US law following an anti-dumping order are not anti-dumping duties. Ibid., paras. 240–242. back to text
1316. Appellate Body Report, US — Shrimp (Thailand)/US — Customs Bond Directive, paras. 226–227; see under Article VI in the Chapter on the GATT 1994. back to text
1317. Appellate Body Report, US — Shrimp (Thailand)/US — Customs Bond Directive, paras. 268–269. back to text
1318. Appellate Body Report, US — Shrimp (Thailand)/US — Customs Bond Directive, para. 275. back to text
1319. Panel Report, US — DRAMS, para. 6.14, footnote 477. back to text
1320. Panel Report, US — DRAMS, para. 6.14. back to text
1321. Panel Report, US — Shrimp (Viet Nam), paras. 7.221–7.222. back to text
1322. Panel Report, US — Hot-Rolled Steel, para. 7.90. back to text
1323. Appellate Body Report, US — Hot-Rolled Steel, para. 129. back to text
1324. (footnote original) We observe that the scope of each element in the phrase “laws, regulations and administrative procedures” must be determined for purposes of WTO law and not simply by reference to the label given to various instruments under the domestic law of each WTO Member. This determination must be based on the content and substance of the instrument, and not merely on its form or nomenclature. Otherwise, the obligations set forth in Article 18.4 would vary from Member to Member depending on each Member’s domestic law and practice. back to text
1325. Appellate Body Report, United States — Corrosion Resistant Steel Sunset Review, para. 87. back to text
1326. The European Communities is counted as one Member. Prior to 1 May 2004, the member States of the EC were the following: Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden and the United Kingdom. As of 1 May 2004, the member States of the EC included in addition to the afore-listed, the following: Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, the Slovak Republic and Slovenia. This annual report includes a period both before and after the accession of these Members to the European Communities. Therefore, these Members’ separate notifications of legislation, submitted prior to their accession to the EC, are listed in this report. See document G/ADP/N/1/EEC/2/Suppl.6 for updated information on the current status of laws and regulations of these Members. back to text
1327. Panel Report, US — Customs Bond Directive, para. 7.278. back to text
1328. Panel Report, US — Customs Bond Directive, paras 7.282–7.285. back to text
1329. WT/MIN(01)/17. back to text
1330. G/ADP/9. back to text
1331. (footnote original) See Report (2001) of the Committee on Anti-Dumping Practices, Annex C, G/L/495 (31 October 2001). back to text
1332. G/ADP/9. back to text
1333. Panel Report, Guatemala — Cement II, para. 8.296. back to text
1334. Panel Report, US — 1916 Act (Japan), para. 6.286. back to text
1335. Panel Report, US — 1916 Act (Japan), para. 6.286, fn 595. back to text
1336. Appellate Body Report, US — 1916 Act, paras. 78–82. See also paras. 876 and 893 of this Chapter. back to text
1337. Panel Report, Guatemala — Cement II, para. 8.296. back to text
1338. Panel Report, Egypt — Steel Rebar, para. 7.282. back to text
1339. Panel Report, Egypt — Steel Rebar, paras. 7.289–7.295. back to text
1340. Panel Report, Egypt — Steel Rebar, para. 7.321. back to text
1341. (footnote original) Para. 7.248. back to text
1342. Panel Report, Egypt — Steel Rebar, para. 7.288. back to text
1343. Panel Report, US — 1916 Act (EC), para. 6.97. See also US — 1916 Act (Japan), para. 6.93. back to text
1344. Panel Report, US — 1916 Act (EC), para. 6.195. See also Panel Report, US — 1916 Act (Japan), para. 6.108. back to text
1345. Panel Report, US — 1916 Act (EC), para. 6.106. back to text
1346. Panel Report, US — 1916 Act (EC), para. 6.107. back to text
1347. Appellate Body Report, US — 1916 Act, para. 120. back to text
1348. Panel Report, US — 1916 Act (EC), para. 6.114. See also Panel Report, US — 1916 Act (Japan), para. 6.240. back to text
1349. Panel Report, US — 1916 Act (Japan), para. 6.108. See also Panel Report, US — 1916 Act (EC), para. 6.165. back to text
1350. Appellate Body Report, US — 1916 Act, para. 133. back to text
1351. Panel Report, US — 1916 Act (Japan), paras. 6.276–6.281. back to text
1352. Appellate Body Report, US — Lead and Bismuth II, para. 49. back to text
1353. Panel Report, US — Corrosion-Resistant Steel Sunset Review, footnote 39. back to text
1354. Panel Reports, US — Softwood Lumber VI, para. 7.18; US — Countervailing Duty Investigation on DRAMS, para. 7.351; US — Countervailing Measures on Certain EC Products (Article 21.5 — EC), para. 7.81; US — Oil Country Tubular Goods Sunset Reviews (Article 21.5 — Argentina), footnote 45; Japan — DRAMs (Korea), para. 7.354. back to text
1355. Appellate Body Report, EC — Hormones, footnote 79. back to text
1356. Appellate Body Report, US — Lead and Bismuth II, para. 50. back to text
1357. G/L/204, para. 15. back to text
1358. Panel Report, China — Auto Parts, paras. 7.498–7.500. back to text

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