WTO Dispute Settlement Mechanism(7)/刘成伟(56)
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.
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