A. REPORT OF THE APPELLATE BODY (WT/DS397/AB/R) AND REPORT OF THE PANEL (WT/DS397/R)
The United States followed this dispute as a third party, in particular the issues raised with respect to the interpretation and application of Articles 6.10 and 9.2 of the Anti-Dumping Agreement and Articles 3.1 and 4.1 of the Anti-Dumping Agreement, among others.
We would like to thank the Panel, the Appellate Body and the Secretariat for their work on this dispute.
The United States is concerned with the Panel and Appellate Body’s consideration of Articles 6.10 and 9.2 of the AD Agreement because the Panel and Appellate Body may not have appreciated fully the difficulties that investigating authorities encounter when determining antidumping margins for nonmarket economy exporters. Importantly, the Appellate Body does recognize that “Article 6.10 . . . of the Anti?Dumping Agreement do[es] not preclude an investigating authority from determining a single dumping margin . . . for a number of exporters if it establishes that they constitute a single exporter for purposes of Articles 6.10 . . . .” This conclusion is grounded in the text of Article 6.10, which requires that individual dumping margins be determined for each exporter or producer. Therefore, before assigning an individual dumping margin to a firm, the investigating authority must decide whether that firm is an “exporter” or “producer” within the meaning of Article 6.10.
The United States would also highlight the Appellate Body’s statement that “the test in Korea – Certain Paper may not capture all situations where the State effectively controls or materially influences and coordinates several exporters such that they can be considered a single entity” for purposes of Articles 6.10 of the Anti?Dumping Agreement and can be assigned a single dumping margin. This statement correctly recognizes that the AD Agreement neither defines “exporter” nor “producer”, nor sets out the specific criteria for the investigating authority to examine before concluding that a particular firm or group of firms constitutes an “exporter” or “producer.”
With regard to the Appellate Body’s findings regarding Article 4.1 of the AD Agreement, the United States notes that the Appellate Body underscored the importance of properly defining the domestic industry for purposes of the injury analysis. The United States concurs with the Appellate Body’s statement that, “to ensure the accuracy of an injury determination, an investigating authority must not act so as to give rise to a material risk of distortion in defining the domestic industry, for example, by excluding a whole category of producers of the like product.”
The United States would also like to draw Members’ attention to the Appellate Body’s articulation of the standard of review for a claim of error under DSU Article 11. The Appellate Body usefully reminds Members that “[a]n attempt to make every error of a panel a violation of Article 11 of the DSU is an approach that is inconsistent with the scope” of Article 11. Further, the Appellate Body highlights that “[i]t is also unacceptable for a participant effectively to recast its arguments before the panel under the guise of an Article 11 claim.” We agree with these statements and believe they are a useful reminder to Members regarding the proper scope of Article 11, as well as reflecting the limited scope of appellate review under Article 17.6 of the DSU.
Finally, turning to a procedural matter, the United States notes that the report of the Appellate Body was circulated outside the 90-day period stipulated in Article 17.5 of the DSU. Unfortunately, this proceeding raises the same concerns regarding lack of transparency on this issue as the United States noted during the DSB’s consideration of the last Appellate Body report.
In this dispute, the Appellate Body’s Article 17.5 notification to the DSB that it could not provide its report within 60 days was submitted on May 24 but not circulated until July 5. Contrary to past practice, this notification makes no mention of whether the parties were consulted on this issue or whether each party agreed. Neither does the Appellate Body report refer to these issues.
In fact, as a third party, the United States is are aware that the parties to the dispute provided a letter informing the Appellate Body that each party would deem a report issued in this proceeding to be circulated pursuant to Article 17.5. This letter is dated June 30, prior to circulation of the Article 17.5 notice and the Appellate Body report.
The approach followed by the Appellate Body in this dispute again results in less transparency for Members on the circumstances leading to consideration by the DSB of a report circulated outside the 90-day period in Article 17.5. While we note that the parties to the dispute, China and the EU, were consulted and did agree to deem this report to be an Appellate Body report for purposes of Article 17.5, we do not see how less transparency for other Members and for the DSB as a whole is desirable. Once again, we consider that, in future disputes, Members should be provided with the level of transparency on these issues as provided by the Appellate Body in the past.
Appellate Body Report, para. 376.
Appellate Body Report, para. 380.
Appellate Body Report, para. 414.
Appellate Body Report, para. 442.
Thailand – Customs and Fiscal Measures on Cigarettes from the Philippines, WT/DS371/AB/R (adopted on 15 July 2011).
WT/DS397/9 (5 July 2011).