WTO Dispute Settlement Mechanism(7)/刘成伟(53)
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
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