[ 劉成偉 ]——(2003-7-7) / 已閱64934次
Article 17.3 of the Anti-Dumping Agreement states, in wording that mirrors Article XXIII of the GATT 1994: ‘If any Member considers that any benefit accruing to it, directly or indirectly, under this Agreement is being nullified or impaired, or that the achievement of any objective is being impeded, by another Member or Members, it may, with a view to reaching a mutually satisfactory resolution of the matter, request in writing consultations with the Member or Members in question….’
In our Report in Guatemala - Cement, we described Article 17.3 as: ‘… the equivalent provision in the Anti-Dumping Agreement to Articles XXII and XXIII of the GATT 1994, which serve as the basis for consultations and dispute settlement under the GATT 1994…’
Article 17.3 does not explicitly address challenges to legislation as such. As we have seen above, Articles XXII and XXIII allow challenges to be brought under the GATT 1994 against legislation as such. Since Article 17.3 is the ‘equivalent provision’ to Articles XXII and XXIII of the GATT 1994, Article 17.3 provides further support for our view that challenges may be brought under the Anti-Dumping Agreement against legislation as such, unless such challenges are otherwise excluded.”
(iii) Understanding of Art. 17.4 of the AD Agreement
As indicated above, the United States bases its objection to the Panel's jurisdiction on Art. 17.4 of the AD Agreement and the Appellate Body’s Report in Guatemala - Cement. In this respect, the Appellate Body in present case rules: 12
“[…] We note that, unlike Articles 17.1 to 17.3, Article 17.4 is a special or additional dispute settlement rule listed in Appendix 2 to the DSU.
In Guatemala - Cement, Mexico had challenged Guatemala's initiation of anti-dumping proceedings, and its conduct of the investigation, without identifying any of the measures listed in Article 17.4. We stated that:
‘… Three types of anti-dumping measure are specified in Article 17.4: definitive anti-dumping duties, the acceptance of price undertakings, and provisional measures. According to Article 17.4, a "matter" may be referred to the DSB only if one of the relevant three anti-dumping measures is in place. This provision, when read together with Article 6.2 of the DSU, requires a panel request in a dispute brought under the Anti-Dumping Agreement to identify, as the specific measure at issue, either a definitive anti-dumping duty, the acceptance of a price undertaking, or a provisional measure…
[…] We find that in disputes under the Anti-Dumping Agreement relating to the initiation and conduct of anti-dumping investigations, a definitive anti-dumping duty, the acceptance of a price undertaking or a provisional measure must be identified as part of the matter referred to the DSB pursuant to the provisions of Article 17.4 of the Anti-Dumping Agreement and Article 6.2 of the DSU.’
Nothing in our Report in Guatemala - Cement suggests that Article 17.4 precludes review of anti-dumping legislation as such. Rather, in that case, we simply found that, for Mexico to challenge Guatemala's initiation and conduct of the anti-dumping investigation, Mexico was required to identify one of the three anti-dumping measures listed in Article 17.4 in its request for establishment of a panel. Since it did not do so, the panel in that case did not have jurisdiction.
Important considerations underlie the restriction contained in Article 17.4. In the context of dispute settlement proceedings regarding an anti-dumping investigation, there is tension between, on the one hand, a complaining Member's right to seek redress when illegal action affects its economic operators and, on the other hand, the risk that a responding Member may be harassed or its resources squandered if dispute settlement proceedings could be initiated against it in respect of each step, however small, taken in the course of an anti-dumping investigation, even before any concrete measure had been adopted. In our view, by limiting the availability of dispute settlement proceedings related to an anti-dumping investigation to cases in which a Member's request for establishment of a panel identifies a definitive anti-dumping duty, a price undertaking or a provisional measure, Article 17.4 strikes a balance between these competing considerations.
Therefore, Article 17.4 sets out certain conditions that must exist before a Member can challenge action taken by a national investigating authority in the context of an anti-dumping investigation. However, Article 17.4 does not address or affect a Member's right to bring a claim of inconsistency with the Anti-Dumping Agreement against anti-dumping legislation as such.”
(iv) Extensive Basis in Context
Moreover, as noted above, the GATT and WTO case law firmly establishes that dispute settlement proceedings may be brought based on the alleged inconsistency of a Member's legislation as such with that Member's obligations. It has been found that, nothing inherent in the nature of anti-dumping legislation that would rationally distinguish such legislation from other types of legislation for purposes of dispute settlement, or that would remove anti-dumping legislation from the ambit of the generally-accepted practice that a panel may examine legislation as such. To go further, the Appellate Body rules that: 13
“Our reading of Article 17 as allowing Members to bring claims against anti-dumping legislation as such is supported by Article 18.4 of the Anti-Dumping Agreement.
Article 18.4 of the Anti-Dumping Agreement states: ‘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.’
Article 18.4 imposes an affirmative obligation on each Member to bring its legislation into conformity with the provisions of the Anti-Dumping Agreement not later than the date of entry into force of the WTO Agreement for that Member. Nothing in Article 18.4 or elsewhere in the Anti-Dumping Agreement excludes the obligation set out in Article 18.4 from the scope of matters that may be submitted to dispute settlement.
If a Member could not bring a claim of inconsistency under the Anti-Dumping Agreement against legislation as such until one of the three anti-dumping measures specified in Article 17.4 had been adopted and was also challenged, then examination of the consistency with Article 18.4 of anti-dumping legislation as such would be deferred, and the effectiveness of Article 18.4 would be diminished.
Furthermore, we note that Article 18.1 of the Anti-Dumping Agreement states: ‘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.’
Article 18.1 contains a prohibition on ‘specific action against dumping’ when such action is not taken in accordance with the provisions of the GATT 1994, as interpreted by the Anti-Dumping Agreement. Specific action against dumping could take a wide variety of forms. If specific action against dumping is taken in a form other than a form authorized under Article VI of the GATT 1994, as interpreted by the Anti-Dumping Agreement, such action will violate Article 18.1. We find nothing, however, in Article 18.1 or elsewhere in the Anti-Dumping Agreement, to suggest that the consistency of such action with Article 18.1 may only be challenged when one of the three measures specified in Article 17.4 has been adopted. Indeed, such an interpretation must be wrong since it implies that, if a Member's legislation provides for a response to dumping that does not consist of one of the three measures listed in Article 17.4, then it would be impossible to test the consistency of that legislation, and of particular responses thereunder, with Article 18.1 of the Anti-Dumping Agreement.
Therefore, we consider that Articles 18.1 and 18.4 support our conclusion that a Member may challenge the consistency of legislation as such with the provisions of the Anti-Dumping Agreement.
For all these reasons, we conclude that, pursuant to Article XXIII of the GATT 1994 and Article 17 of the Anti-Dumping Agreement, the European Communities and Japan could bring dispute settlement claims of inconsistency with Article VI of the GATT 1994 and the Anti-Dumping Agreement against the 1916 Act as such. We, therefore, uphold the Panel's finding that it had jurisdiction to review these claims.”
(v) Concluding Remarks
In the same way that Art. XXIII of the GATT 1994 allows a WTO Member to challenge legislation as such, Art. 17 of the AD Agreement is properly to be regarded as allowing a challenge to anti-dumping legislation as such, unless this possibility is excluded. No such express exclusion is found in Art. 17 or elsewhere in the AD Agreement.
In general, Arts. 17.1 and 17.2 of the AD Agreement do not distinguish between disputes relating to anti-dumping legislation as such and disputes relating to anti-dumping measures taken in the implementation of such legislation. Also, Art. 17.3 operates as the equivalent provision in the AD Agreement to Arts. XXII and XXIII of the GATT 1994. Therefore, they seem to imply that Members can challenge the consistency of legislation as such with the AD Agreement unless this action is excluded by Art. 17.
Unlike Arts. 17.1 to 17.3, Art. 17.4 is a special or additional dispute settlement rule listed in Appendix 2 to the DSU. According to Art. 17.4, a “matter” may be referred to the DSB only if one of the relevant three anti-dumping measures is in place. This provision, when read together with Art. 6.2 of the DSU, requires a panel request in a dispute brought under the AD Agreement to identify, as the specific measure at issue, either a definitive anti-dumping duty, the acceptance of a price undertaking, or a provisional measure.
Nevertheless, nothing suggests that Art. 17.4 preclude review of anti-dumping legislation as such. As noted in subsection Ⅱ of this section, a request that satisfies the requirements of Article 6.2 of the DSU also satisfies the requirements of Art. 17.4 of the AD Agreement. The requirement to identify a specific anti-dumping measure at issue in a panel request in no way limits the nature of the claims that may be brought under the AD Agreement. In any event, a complainant may, having identified a specific anti-dumping duty in its request for establishment, bring any claims including claims against anti-dumping legislation as such under the AD Agreement if such claims relate to one of the relevant three anti-dumping measures pursuant Art. 17.4. Important considerations underlie the restriction contained in Art. 17.4, seems to strike a balance between considerations of a complaining Member's right to seek redress and the risk that a responding Member may be harassed or its resources squandered.
In the same way that the GATT/WTO case law firmly establishes that dispute settlement proceedings may be brought based on the alleged inconsistency of a Member's legislation as such with that Member's obligations, it has been found that, nothing inherent in the nature of anti-dumping legislation that would rationally distinguish such legislation from other types of legislation for purposes of dispute settlement, or that would remove anti-dumping legislation from the ambit of the generally-accepted practice that a panel may examine legislation as such.
In a word, Art. 17.4 sets out certain conditions, however, does not address or affect a Member's right to bring a claim of inconsistency with the AD Agreement against anti-dumping legislation as such. Members may challenge the consistency of legislation as such with the provisions of the AD Agreement.
【NOTE】:
1 See, in detail, WT/DS132/R/7.11; 7.14; 7.51-7.52.
2 WT/DS132/R/7.22-7.24; 7.26-7.28.
3 See, WT/DS136/AB/R; WT/DS162/AB/R/60.
4 See, WT/DS152/R/7.41.
5 See, in detail, WT/DS152/R/7.17-7.20.
6 See, WT/DS136/R/6.40; WT/DS162/R/6.36.
7 See, in detail, WT/DS136/R/6.48; WT/DS162/R/6.47.
8 See, WT/DS136/R/6.51; WT/DS162/R/6.50.
9 See, WT/DS176/AB/R/105.
10 See, WT/DS136/AB/R; WT/DS162/AB/R/57-58.
11 See, WT/DS136/AB/R; WT/DS162/AB/R/62-68.
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