[ 劉成偉 ]——(2003-7-7) / 已閱64933次
Interestingly, however, it is not clear in light of the Vienna Convention whether or how a panel could ever reach the conclusion that provisions of an agreement admit of more than one interpretation. This is true because the Vienna Convention provides a set of rules for interpretation of treaties, aimed at resolving ambiguities in the text. Arts. 31 and 32 of the Vienna Convention are particularly relevant here. Art. 31, “General rule of interpretation”, provides a set of rules guiding the interpretation of the text of treaty. Art. 32, “Supplementary means of interpretation”, provides additional guidelines for any case n which application of the rules in Art. 31 still leaves the meaning of a provision “ambiguous or obscure”, or when they render a provision “manifestly absurd or unreasonable”. Art. 32 suggests, in other words, that the application of Art. 31 should in many cases resolve ambiguities, and that where the application of Art. 31 does not resolve ambiguities, Art. 32’s own rule “recourse … to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion” will resolve any lingering ambiguities.
To understand the source of that controversy, one must read Art. 17.6(ii) in the light of its negotiation context and history. 6 Art. 17.6(ii) was the compromise language of the Uruguay Round negotiators. What does it mean? A better understanding of its meaning must await future panel decisions. But at least on the face of it, subsection (ii) seems to establish a two-step process for panel review of interpretive questions.7 First, the panel must consider whether the provision of the agreement in question admits of more than one interpretation. If not, the panel must vindicate the provision’s only permissible interpretation. If, on the other hand, the panel determines that the provision does indeed admit of more than one interpretation, the panel shall proceed to the second step of the analysis and consider whether the national interpretation is within the set of “permissible” interpretations. If so, the panel must defer to the interpretation given to the provision by a national government.
(ii) Relationship between Art. 11 of the DSU and Art. 17.6 of the AD Agreement
In US-Hot-rolled Steel Products (DS184), the Appellate Body thinks it useful to address certain general aspects of the standard of review established by Art. 17.6 of the AD Agreement, as this standard bears upon each issue arising in this appeal. With regard to these general aspects, the Appellate Body thinks that two threshold aspects of the Art. 17.6 need to be noted. In this respect, the Appellate Body rules: 8
“…The first is that Article 17.6 is identified in Article 1.2 and Appendix 2 of the DSU as one of the ‘special or additional rules and procedures’ which prevail over the DSU ‘[t]o the extent that there is a difference’ between those provisions and the provisions of the DSU. In Guatemala - Anti-Dumping Investigation Regarding Portland Cement from Mexico, a dispute which involved claims under the Anti-Dumping Agreement, we stated: ‘In our view, 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.’
Thus, we must consider the extent to which Article 17.6 of the Anti-Dumping Agreement can properly be read as ‘complementing’ the rules and procedures of the DSU or, conversely, the extent to which Article 17.6 ‘conflicts’ with the DSU.
The second threshold aspect follows from the first and concerns the relationship between Article 17.6 of the Anti-Dumping Agreement and Article 11 of the DSU. Article 17.6 lays down rules relating to a panel's examination of ‘matters’ arising under one, and only one, covered agreement, the Anti-Dumping Agreement. In contrast, Article 11 of the DSU provides rules which apply to a panel's examination of ‘matters’ arising under any of the covered agreements. Article 11 reads, in part: ‘… 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 …’
Article 11 of the DSU imposes upon panels a comprehensive obligation to make an ‘objective assessment of the matter’, an obligation which embraces all aspects of a panel's examination of the ‘matter’, both factual and legal. Thus, panels make an ‘objective assessment of the facts’, of the ‘applicability’ of the covered agreements, and of the ‘conformity’ of the measure at stake with those covered agreements. Article 17.6 is divided into two separate sub-paragraphs, each applying to different aspects of the panel's examination of the matter. The first sub-paragraph covers the panel's ‘assessment of the facts of the matter’, whereas the second covers its ‘interpret[ation of] the relevant provisions’. The structure of Article 17.6, therefore, involves a clear distinction between a panel's assessment of the facts and its legal interpretation of the Anti-Dumping Agreement.
In considering Article 17.6(i) of the Anti-Dumping Agreement, it is important to bear in mind the different roles of panels and investigating authorities. Investigating authorities are charged, under the Anti-Dumping Agreement, with making factual determinations relevant to their overall determination of dumping and injury. Under Article 17.6(i), the task of panels is simply to review the investigating authorities' ‘establishment’ and ‘evaluation’ of the facts. To that end, Article 17.6(i) requires panels to make an ‘assessment of the facts’. The language of this phrase reflects closely the obligation imposed on panels under Article 11 of the DSU to make an ‘objective assessment of the facts’. Thus the text of both provisions requires panels to ‘assess’ the facts and this, in our view, clearly necessitates an active review or examination of the pertinent facts. Article 17.6(i) of the Anti-Dumping Agreement does not expressly state that panels are obliged to make an assessment of the facts which is ‘objective’. However, it is inconceivable that Article 17.6(i) should require anything other than that panels make an objective ‘assessment of the facts of the matter’. In this respect, we see no ‘conflict’ between Article 17.6(i) of the Anti-Dumping Agreement and Article 11 of the DSU.
Article 17.6(i) of the Anti-Dumping Agreement also states that the panel is to determine, first, whether the investigating authorities' ‘establishment of the facts was proper’ and, second, whether the authorities' ‘evaluation of those facts was unbiased and objective’. Although the text of Article 17.6(i) is couched in terms of an obligation on panels - panels ‘shall’ make these determinations - the provision, at the same time, in effect defines when investigating authorities can be considered to have acted inconsistently with the Anti-Dumping Agreement in the course of their ‘establishment’ and ‘evaluation’ of the relevant facts. In other words, Article 17.6(i) sets forth the appropriate standard to be applied by panels in examining the WTO-consistency of the investigating authorities' establishment and evaluation of the facts under other provisions of the Anti-Dumping Agreement. Thus, panels must assess if the establishment of the facts by the investigating authorities was proper and if the evaluation of those facts by those authorities was unbiased and objective. If these broad standards have not been met, a panel must hold the investigating authorities' establishment or evaluation of the facts to be inconsistent with the Anti-Dumping Agreement.
We turn now to Article 17.6(ii) of the Anti-Dumping Agreement. The first sentence of Article 17.6(ii), echoing closely Article 3.2 of the DSU, states that panels ‘shall’ interpret the provisions of the Anti-Dumping Agreement ‘in accordance with customary rules of interpretation of public international law’. Such customary rules are embodied in Articles 31 and 32 of the Vienna Convention on the Law of Treaties ("Vienna Convention"). Clearly, this aspect of Article 17.6(ii) involves no ‘conflict’ with the DSU but, rather, confirms that the usual rules of treaty interpretation under the DSU also apply to the Anti-Dumping Agreement.
The second sentence of Article 17.6(ii) bears repeating in full: ‘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.’
This second sentence of Article 17.6(ii) presupposes that application of the rules of treaty interpretation in Articles 31 and 32 of the Vienna Convention could give rise to, at least, two interpretations of some provisions of the Anti-Dumping Agreement, which, under that Convention, would both be ‘permissible interpretations’. In that event, a measure is deemed to be in conformity with the Anti-Dumping Agreement ‘if it rests upon one of those permissible interpretations’.
It follows that, under Article 17.6(ii) of the Anti-Dumping Agreement, panels are obliged to determine whether a measure rests upon an interpretation of the relevant provisions of the Anti-Dumping Agreement which is permissible under the rules of treaty interpretation in Articles 31 and 32 of the Vienna Convention. In other words, a permissible interpretation is one which is found to be appropriate after application of the pertinent rules of the Vienna Convention. We observe that the rules of treaty interpretation in Articles 31 and 32 of the Vienna Convention apply to any treaty, in any field of public international law, and not just to the WTO agreements. These rules of treaty interpretation impose certain common disciplines upon treaty interpreters, irrespective of the content of the treaty provision being examined and irrespective of the field of international law concerned.
We cannot, of course, examine here which provisions of the Anti-Dumping Agreement do admit of more than one ‘permissible interpretation’. Those interpretive questions can only be addressed within the context of particular disputes, involving particular provisions of the Anti-Dumping Agreement invoked in particular claims, and after application of the rules of treaty interpretation in Articles 31 and 32 of the Vienna Convention.
Finally, although the second sentence of Article 17.6(ii) of the Anti-Dumping Agreement imposes obligations on panels which are not found in the DSU, we see Article 17.6(ii) as supplementing, rather than replacing, the DSU, and Article 11 in particular. Article 11 requires panels to make an ‘objective assessment of the matter’ as a whole. Thus, under the DSU, in examining claims, panels must make an ‘objective assessment’ of the legal provisions at issue, their ‘applicability’ to the dispute, and the ‘conformity’ of the measures at issue with the covered agreements. Nothing in Article 17.6(ii) of the Anti-Dumping Agreement suggests that panels examining claims under that Agreement should not conduct an ‘objective assessment’ of the legal provisions of the Agreement, their applicability to the dispute, and the conformity of the measures at issue with the Agreement. Article 17.6(ii) simply adds that a panel shall find that a measure is in conformity with the Anti-Dumping Agreement if it rests upon one permissible interpretation of that Agreement.”
(iii) A Summary Guiding
In general, Art. 11 of the DSU which provides “an objective assessment” bears directly on standard of review applicable to the determination and assessment of the facts in national investigative proceedings. Also, Art. 17.6 of the AD Agreement sets out a special standard of review for, and only to, disputes arising under that Agreement, which applies not to disputes arising under other covered agreements.
Then we get down to the relationship between Art. 11 of the DSU and Art. 17.6 of the AD Agreement. Firstly, Art. 17.6 is identified as one of the “special or additional rules and procedures” which prevail over the DSU “to the extent that there is a difference” between those provisions and the provisions of the DSU. In this respect, it is only in a situation where the provisions cannot be read as complementing each other, i.e., where adherence to the one provision will lead to a violation of the other provision, i.e. in the case of a conflict between them, that the special or additional provisions are to prevail.
Specifically, Art. 11 of the DSU generally imposes upon panels a comprehensive obligation to make an “objective assessment of the matter”, embracing both factual and legal; Art. 17.6 is divided into two separate sub-paragraphs, involving a clear distinction between a panel's assessment of the facts and its legal interpretation of the AD Agreement.
Under Art. 17.6(i), the task of panels is simply to review the investigating authorities' “establishment” and “evaluation” of the facts. The texts of both Art. 11 of the DSU and Art. 17.6(i) provisions require panels to “assess” the facts, and it is inconceivable that Art. 17.6(i) should require anything other than that panels make an objective “assessment of the facts of the matter”. In this respect, we see no “conflict”. Art. 17.6(i) of the AD Agreement also sets forth the appropriate standard to be applied by panels in examining the WTO-consistency, i.e., the panel is to determine, first, whether the investigating authorities' “establishment of the facts was proper” and, second, whether the authorities' “evaluation of those facts was unbiased and objective”. I.e., to review whether the investigating authorities collected relevant and reliable information concerning the issue to be decided, and, whether, based on the evidence before the investigating authorities of the importing Member at the time of the determination, an unbiased and objective investigating authority evaluating that evidence could have reached the conclusions that the investigating authorities of the importing Member reached on the matter in question- it essentially goes to the investigative process.”
We turn now to Art. 17.6(ii). The first sentence of Art. 17.6(ii), involves no “conflict” with the DSU but, rather, confirms the application to the AD Agreement of the usual rules of treaty interpretation under the DSU echoing closely Art. 3.2 of the DSU, i.e., “in accordance with customary rules of interpretation of public international law” embodied in Arts. 31 and 32 of the Vienna Convention which apply to any treaty, in any field of public international law, and not just to the WTO agreements. The second sentence of Art. 17.6(ii) presupposes that application of such rules of treaty interpretation could give rise to, at least, two interpretations of some provisions of the AD Agreement, which, under that Convention, would both be “permissible interpretations”. In that event, a measure is deemed to be in conformity with the Anti-Dumping Agreement “if it rests upon one of those permissible interpretations”. And the question of which provisions of the AD Agreement do admit of more than one “permissible interpretation”, if exists, can only be addressed within the context of particular disputes after application of the rules of treaty interpretation in Arts. 31 and 32 of the Vienna Convention.
In short, although the second sentence of Art. 17.6(ii) of the AD Agreement imposes obligations on panels which are not found in the DSU, we see Art. 17.6(ii) as supplementing, rather than replacing, the DSU, and Art. 11 in particular, to conduct an “objective assessment” of the legal provisions of the Agreement, their applicability to the dispute, and the conformity of the measures at issue with the Agreement. Art. 17.6(ii) simply adds that a panel shall find that a measure is in conformity with the Anti-Dumping Agreement if it rests upon one permissible interpretation of that Agreement.”
With regard to the whole Art. 17.6 of the DSU, as ruled by the Appellate Body in Mexico-HFCS (recourse to Article 21.5 of the DSU by US) (DS132), “[w]e recently examined this standard of review in United States - Hot-Rolled Steel. In our Report in that case, we observed that, pursuant to Article 17.6(i), ‘the task of panels is simply to review the investigating authorities' 'establishment' and 'evaluation' of the facts’. Under Article 17.6(ii), panels must ‘determine whether a measure rests upon an interpretation of the relevant provisions of the Anti-Dumping Agreement which is permissible under the rules of treaty interpretation in Articles 31 and 32 of the Vienna Convention’. The requirements of the standard of review provided for in Article 17.6(i) and 17.6(ii) are cumulative. In other words, a panel must find a determination made by the investigating authorities to be consistent with relevant provisions of the Anti-Dumping Agreement if it finds that those investigating authorities have properly established the facts and evaluated those facts in an unbiased and objective manner, and that the determination rests upon a ‘permissible’ interpretation of the relevant provisions.” 9
III Scope of Review of Fact-findings: Art. 17.5(ii) of the AD Agreement
Pursuant to Art. 17.6(i) of the DSU, panels’ approach in a dispute is to determine whether the establishment of the facts by the investigating authorities of the importing Member is proper and whether their evaluation of those facts is unbiased and objective. Where the establishment of the facts is proper, panels must examine whether the evidence before the investigating authorities of the importing Member in the course of their investigation and at the time of their determinations is such that an unbiased and objective investigating authority evaluating that evidence could have determined dumping, injury and causal relationship.
In connection with panels assessment of the facts of the matter under AD Agreement, Art. 17.5(ii), with which Art. 17.6(i) shall be read, states 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.” This seems to relate to all of the facts made available to the authorities of the importing Member. However, does it mean that a complainant WTO member may not raise new claims in a dispute settlement proceeding under the AD Agreement where such claims had not been raised before the national investigating authorities?
Whatever may be its substantive merits, Art. 17.5(ii) does not offer much of a guideline in this regard. Then the author means to explore below some aspects of the admissibility issue, particular in disputes relating to anti-dumping.
(i) Overview of the GATT Practice
With regard to the question of the raising of new evidence in a dispute settlement proceeding concerning anti-dumping, it came up in three cases under the Tokyo Round Anti-dumping Code: US-Stainless Steel (ADP/47 of 20 August 1990), US-Cement (ADP/182 of 7 September 1992), US-Salmon (ADP/87 of 30 November 1992). 10
In US-Stainless Steel, the panel did not deem it necessary to deal with the US claim to that effect. In US-Cement, the US claimed that Mexico should be precluded from raising the issue of “standing” of the petitioners and the issue of cumulation of Mexican and Japanese imports, as these issues had not been raised during the administrative proceedings. The panel rejected the US claim, it considered that: “if such fundamental restriction on the right of recourse to the Agreement’s dispute settlement process had been intended by the drafters of the Agreement, they would have made explicit for it”. However, the panel added “the matter examined by the panel would have to be based on facts raised in the first instance, in conformity with the appropriate domestic procedures, in the administrative proceedings in the importing country”.
In US-Salmon, the US raised the preliminary objection that two issues raised by Norway before the panel had not been raised in the national administrative proceedings in the US; according to the US these issues therefore not admissible in the proceedings before the panel. The panel rejected this claim on the ground that the dispute settlement provisions of the (Tokyo Round) Anti-dumping Code (Article 15) did 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 had not been raised before the investigating authorities under national law. The panel noted however, that its conclusion “did not imply that in reviewing the merits of a claim a panel should not take account of whether or not the issues to which the claim relates were raised before the investigating authorities in the domestic anti-dumping duty proceeding”.
The practical conclusion seems to be that the panels before which this issue was raised did consider GATT dispute settlement proceedings as quite independent from national proceedings, in the sense that they did not consider themselves bound to remain within the limits of the case as brought before, and dealt by, national administrative authorities. While this is probably to be welcomed, some of the arguments put forward in support of the contrary view are not without merit and are likely to come up in another guise. 11 As to be shown below, even panels called by the DSB have issued contradictory reports in this respect.
(ii) Concerning Rulings in Reports Issued by WTO Panels
With regard to Art. 17.5(ii) of the AD Agreement, the Panel in EC-Bed Linen (DS141) rules that, it “does not require, however, that a panel consider those facts exclusively in the format in which they were originally available to the investigating authority. Indeed, the very purpose of the submissions of the parties to the Panel is to marshal the relevant facts in an organized and comprehensible fashion in support of their arguments and to elucidate the parties' positions”. 12
However, contradicting the ruling above, the Panel in US-Hot-rolled Steel (DS184) takes the implications of Art. 17.5(ii) of the AD Agreement as the basis of evidentiary rulings and refuse to accept new evidence that is not before the domestic investigating authorities at the time of determination, they rule: 13
“A panel is obligated by Article 11 of the DSU to conduct ‘an objective assessment of the matter before it’. In this case, we must also consider the implications of Article 17.5(ii) of the AD Agreement as the basis of evidentiary rulings…It seems clear to us that, under this provision, a panel may not, when examining a claim of violation of the AD Agreement in a particular determination, consider facts or evidence presented to it by a party in an attempt to demonstrate error in the determination concerning questions that were investigated and decided by the authorities, unless they had been made available in conformity with the appropriate domestic procedures to the authorities of the investigating country during the investigation. … Japan acknowledges that Article 17.5(ii) must guide the Panel in this respect, but argues that it ‘complements’ the provisions of the DSU which establish that it is the responsibility of the panel to determine the admissibility and relevance of evidence offered by parties to a dispute. We agree, to the extent that it is our responsibility to decide what evidence may be considered. However, that Article 17.5(ii) and the DSU provisions are complementary does not diminish the importance of Article 17.5(ii) in guiding our decisions in this regard. It is a specific provision directing a panel's decision as to what evidence it will consider in examining a claim under the AD Agreement. Moreover, it effectuates the general principle that panels reviewing the determinations of investigating authorities in anti-dumping cases are not to engage in de novo review.
The conclusion that we will not consider new evidence with respect to claims under the AD Agreement flows not only from Article 17.5(ii), but also from the fact that a panel is not to perform a de novo review of the issues considered and decided by the investigating authorities. We note that several panels have applied similar principles in reviewing determinations of national authorities in the context of safeguards under the Agreement on Safeguards and special safeguards under Article 6 of the Agreement on Textiles and Clothing. There is no corollary to Article 17.5(ii) in those agreements. Nonetheless, these panels have concluded that a de novo review of the determinations would be inappropriate, and have undertaken an assessment of, inter alia, whether all relevant facts were considered by the authorities. In that context, the Panel in United States - Definitive Safeguard Measures on Imports of Wheat Gluten from the European Communities ("United States - Wheat Gluten") recently observed that it was not the panel's role to collect new data or to consider evidence which could have been presented to the decision maker but was not.”
Clearly, the Panel determines not to consider new evidence with respect to claims under the AD Agreement. Nonetheless, it is important to note that, the same Panel makes another ruling not to exclude the presentation of evidence which might in any event go beyond the specific facts made available to the administering authority in accordance with appropriate domestic procedures during the course of a single anti-dumping investigation. In this respect, the Panel rules: 14
“It is important to note that, in this case, Japan's claims are not limited to challenges under the AD Agreement to the final anti-dumping measure imposed by the United States. … Japan does, however, argue that the challenged evidence is relevant to the claims under Article X of GATT 1994. In our view, the evidence to be considered in connection with Japan's Article X claim is not limited by the provisions of Article 17.5(ii) of the AD Agreement To the extent there are any limits to the evidence that may be considered in connection with Japan's claim under Article X of GATT 1994, these would derive from the provisions of the DSU itself, and not the AD Agreement.
Under Article 13.2 of the DSU, Panels have a general right to seek information ‘from any relevant source’. We note that, as a general rule, panels have wide latitude in admitting evidence in WTO dispute settlement. The DSU (as opposed to the AD Agreement) contains no rule that might be understood to restrict the evidence that panels may consider. Moreover, international tribunals are generally free to admit and evaluate evidence of every kind, and to ascribe to it the weight that they see fit. As one legal scholar has noted: ‘The inherent flexibility of the international procedure, and its tendency to be free from technical rules of evidence applied in municipal law, provide the "evidence" with a wider scope in international proceedings… Generally speaking, international tribunals have not committed themselves to the restrictive rules of evidence in municipal law. They have found it justified to receive every kind and form of evidence, and have attached to them the probative value they deserve under the circumstances of a given case.’
It seems to us that, particularly in considering allegations under Article X of GATT 1994, we should exercise our discretion to allow the presentation of evidence concerning the administration of the defending Members' anti-dumping laws, which might in any event go beyond the specific facts made available to the administering authority in accordance with appropriate domestic procedures during the course of a single anti-dumping investigation.
[…]
There is, however, a significant distinction between questions concerning the admissibility of evidence, and the weight to be accorded to the evidence in making our decisions. That we have concluded that it is not appropriate to exclude from this proceeding at the outset evidence put forward by Japan has no necessary implications concerning the relevance or weight of that evidence in our ultimate determinations on the substantive claims before us. Moreover, we wish to emphasize that we have conducted our examination of the challenged final anti-dumping measure and the underlying determinations of the USDOC and USITC in strict observance of the requirements of Article 17.5(ii).”
(iii) Tentative Remarks: Guidance from the Appellate Body
The new Art. 17.5(ii) of the AD Agreement brought in the Uruguay Round causes ad hoc but vague approaches to domestic investigation. Contradictory reports have been issued, as to whether this article allows the admissibility before the panel proceedings of new evidence under the AD Agreement where such evidence or claims had not been raised before the national investigating authorities. However, overall, the record appears to be satisfactory. This particularly so, bearing in mind that the negotiators of the DSU and of the specific dispute settlement provisions of the new Anti-dumping Agreement failed to come up with much more precise guidelines than those that panels had somehow set for themselves. As far as findings of facts are concerned, the new AD Agreement contains one guideline that purports to be more specific i.e. restricting the possibility for panels to overturn the evaluation of facts as made by national administering authorities. Apart from the question whether this means that panels must henceforth ignore compelling new evidence, the reports examined show that panels have avoided de novo reviews and have at most engaged in “marginal” review of the findings of fact. 15
As far as the report issued by the Panel in US-Hot-rolled Steel (DS184) not to consider new evidence, it appears at least to be satisfactory owing to its understanding of Art. 17.5(ii) and bearing in mind that a panel is not to perform a de novo review of the issues considered and decided by the investigating authorities. Its conclusion not to accept new evidence is reasonable with their emphasis on strict observance of the requirements of Art. 17.5(ii).
Furthermore, the Panel notes that to the extent there are any limits to the evidence that may be considered in connection with those claims under the covered agreements other than the AD Agreement, these would derive from the provisions of the DSU itself, and not the AD Agreement. Also, they rule that, as a general rule, panels have wide latitude in admitting evidence in WTO dispute settlement. The DSU (as opposed to the AD Agreement) contains no rule that might be understood to restrict the evidence that panels may consider. Therefore, they make another conclusion that, “particularly in considering allegations under Art. X of GATT 1994, we should exercise our discretion to allow the presentation of evidence concerning the administration of the defending Members' anti-dumping laws, which might in any event go beyond the specific facts made available to the administering authority in accordance with appropriate domestic procedures during the course of a single anti-dumping investigation”.
The author, however, cannot hide his concern as to such implication as not to accept new evidence, derived from Art. 17.5(ii) by any parties or panels that, especially with regard to the ruling that: “It seems clear to us that, under this provision, a panel may not, when examining a claim of violation of the AD Agreement in a particular determination, consider facts or evidence presented to it by a party in an attempt to demonstrate error in the determination concerning questions that were investigated and decided by the authorities, unless they had been made available in conformity with the appropriate domestic procedures to the authorities of the investigating country during the investigation”. In any event, as a practical matter, it is unlikely that a Member would improperly withhold arguments from competent authorities with a view to raising those arguments later before a panel. More dangerous, it would force exporting members to appear before national investigating authorities in order to keep the possibility to raise issues in panel proceedings. Clearly, it is at least not reasonable. The parties involved in an underlying anti-dumping investigation are generally exporters, importers and other commercial entities, while those involved in WTO dispute settlement are the Members of the WTO. Therefore, it justifies accepting new evidence even in cases under the AD Agreement, so long as panels think it appropriate to exercise their discretion so.
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