WTO Dispute Settlement Mechanism(7)/刘成伟(44)
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.
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