Chapter VII
Special Rules for Anti-dumping Disputes

OUTLINE

Section One Recourse of Anti-dumping Disputes to the DSB
I Introduction
II Sufficiency of Panel Request under the AD Agreement
(i) Art. 6.2 of the DSU and Article 17.4 of the AD Agreement
(ii) Art. 6.2 of the DSU and Article 17.5(i) of the AD Agreement
(iii) A Summary Guiding
III General Legal Basis for Claims against Legislation as Such
IV Special Rules for Claims against Anti-dumping Legislation as Such
(i) Introduction
（ii）General Legal Basis under Art. 17 of the AD Agreement
(iii) Understanding of Art. 17.4 of the AD Agreement
(iv) Extensive Basis in Context
(v) A Summary
Section Two Ad hoc Standard of Review for Anti-dumping Disputes
I Introduction
II Special Standard of Review under the AD Agreement: in General
(i) Ad hoc Approaches to Domestic Determination: Art. 17.6
(ii) Relationship between Art. 11 of the DSU and Art. 17.6 of the AD Agreement
(iii) A Summary Guiding
III Scope of Review of Fact-findings: Art. 17.5(ii) of the AD Agreement
(i)Overview of the GATT Practice
(ii)Concerned Rulings in Reports Issued by WTO Panels
(iii)Tentative Remarks: Guidance from the Appellate Body





Section One
Recourse of Anti-dumping Disputes to the DSB

I Introduction
Compared to the legally fragmented previous GATT dispute settlement system, the new WTO dispute settlement system is an integrated system with much broader jurisdiction and less scope for “rule shopping” and “forum shopping”. However, according to Art. 1.2 of the DSU which states in part that, “[t]he rules and procedures of this Understanding shall apply subject to such special or additional rules and procedures on dispute settlement contained in the covered agreements as are identified in Appendix 2 to this Understanding”, many covered agreements under the WTO jurisdiction continue to include special dispute settlement rules and procedures. Such special rules and procedures are listed in Appendix 2 to the DSU. And in this chapter, we will focus on such special dispute settlement rules concerning anti-dumping disputes, i.e. Arts. 17.4 through 17.7 of the Anti-dumping Agreement (‘the AD Agreement’).
An analysis of the DSB practice suggests a separate contribution of this chapter to this book, merited by dispute settlement proceedings in the anti-dumping field. In this chapter, the author focuses on the two main issues repeatedly raised, as preliminary or procedural issues, during dispute settlement regarding anti-dumping. One is the issue of recourse of anti-dumping disputes to the DSB, which deals mainly with Arts. 17.4 and 17.5(i) of the AD Agreement; the other one is the issue of standard of review in anti-dumping areas, which runs most on Art. 17.6, including Art. 17.5(ii), of the AD Agreement. And in this section we will focus on the first one. In this respect, Arts. 17.4 and 17.5(i) of the AD Agreement states:

“17.4 If the Member that requested consultations considers that the consultations pursuant to paragraph 3 have failed to achieve a mutually agreed solution, and if final action has been taken by the administering authorities of the importing Member to levy definitive anti-dumping duties or to accept price undertakings, it may refer the matter to the Dispute Settlement Body (“DSB”). When a provisional measure has a significant impact and the Member that requested consultations considers that the measure was taken contrary to the provisions of paragraph 1 of Article 7, that Member may also refer such matter to the DSB.
17.5 The DSB shall, at the request of complaining party, establish a panel to examine the matter based upon:
(i) a written statement of the Member making the request indicating how a benefit accruing to it, directly or indirectly, under this Agreement has been nullified or impaired, or that the achieving of the objectives of the Agreement is being impeded, and
(ii) …”
II Sufficiency of Panel Request under the AD Agreement
Generally, as noted in previously, it is only where the provisions of the DSU and the special or additional rules and procedures of a covered agreement cannot be read as complementing each other that the special or additional provisions are to prevail. A special or additional provision should only be found to prevail over a provision of the DSU in a situation where adherence to the one provision will lead to a violation of the other provision, that is, in the case of a conflict between them. Then the author means to get down to the issue of whether these provisions cited above limits panel request under the AD Agreement to somehow other than those required by Art. 6.2 of the DSU.
In Mexico-HFCS (DS132), the dispute involves the imposition of a definitive anti-dumping measure by the Mexican Ministry of Trade and Industrial Development (SECOFI) on imports of high-fructose corn syrup (HFCS) from the United States. Mexico argues that the United States' request for establishment of this Panel is not consistent with the requirements of Art. 6.2 of the DSU and Art. 17.4 and 17.5(i) of the AD Agreement, and therefore argues that the Panel must terminate the proceeding without reaching the substance of the United States' claims.
(i) Art. 6.2 of the DSU and Art. 17.4 of the AD Agreement
In considering the alleged failure to assert claims under Art. 6.2 of the DSU and Art. 17.4 of the AD Agreement, the Panel rules that: 1
“[W]e note first that the Appellate Body has stated that Article 6.2 of the DSU and Article 17.4 of the AD Agreement are complementary and should be applied together in disputes under the AD Agreement. It has further stated that: ‘the word “matter” has the same meaning in Article 17 of the Anti-Dumping Agreement as it has in Article 7 of the DSU. It consists of two element: The specific “measure” and the “claims” relating to it, both of which must be properly identified in a panel request as required by Article 6.2 of the DSU.’
中国政府 苏联政府


中华人民共和国政府和苏维埃社会主义共和国联盟政府贸易协定


（签订日期１９９０年１０月２日 生效日期１９９１年１月１日）
　　中华人民共和国政府和苏维埃社会主义共和国联盟政府（以下简称“缔约双方”），注意到一九五八年四月二十三日中华人民共和国和苏维埃社会主义共和国联盟通商航海条约的规定，为在平等互利的基础上进一步发展两国之间的经济贸易合作，达成协议如下：

　　第一条　缔约双方将根据各自国家的需要与可能积极促进双边经济贸易关系长期稳定的发展。

　　第二条　中国和苏联之间的经济贸易往来将依照本协定的规定和各自国家有效的法律和法规进行。
　　中国有对外经济贸易经营权的经济组织和苏联对外经济活动参与者将依照本协定规定签订有关合同。

　　第三条　本协定第二条所述之中国经济组织和苏联对外经济活动参与者之间签订的合同的结算和支付，将依照各自国家有效的法律和法规以共同确定的可自由兑换货币办理。
　　合同价格将根据国际市场上当时的价格确定。

　　第四条　中国银行和苏联对外经济银行将协商制定依照本协定进行结算的技术程序。

　　第五条　为进一步发展两国间的经济贸易关系，可以采用国际实践中通用的各种经济贸易联系形式，包括易货贸易以及政府间商定的易货。

　　第六条　缔约双方每年可协商并以相应的议定书编制某些相互供应的商品的指导性清单。
　　两国对外经济贸易主管部门的代表每年轮流在北京和莫斯科举行会晤，就中苏两国经济贸易关系问题交换意见，并在必要时提出相应的建议。

　　第七条　缔约双方将相互为在本国举办贸易博览会、展览会提供协助，并促进贸易代表团的互访。

　　第八条　经缔约双方同意，可对本协定进行修改和补充。

　　第九条　本协定自一九九一年一月一日起生效，有效期为五年。如缔约任何一方在本协定期满六个月之前未将终止本协定的愿望书面通知另一方，则本协定有效期将自动延长一年，并依此办法顺延。
　　在本协定有效期内签订的，至本协定有效期终止时尚未执行完的合同，应按照本协定的规定执行完毕。
　　本协定于一九九０年十月二日在莫斯科签订，正本共两份，每份都用中文和俄文写成，两种文本具有同等效力。

　　　　中华人民共和国政府　　　　　　　　　　苏维埃社会主义共和国
　　　　　全　权　代　表　　　　　　　　　　　　联盟政府全权代表
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