WTO Dispute Settlement Mechanism(7)/刘成伟(55)
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”.
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