WTO Dispute Settlement Mechanism(7)/刘成伟(62)
(iii) Tentative Remarks: Guidance from the Appellate Body
The new Art. 17.5(ii) of the AD Agreement brought in the Uruguay Round causes ad hoc but vague approaches to domestic investigation. Contradictory reports have been issued, as to whether this article allows the admissibility before the panel proceedings of new evidence under the AD Agreement where such evidence or claims had not been raised before the national investigating authorities. However, overall, the record appears to be satisfactory. This particularly so, bearing in mind that the negotiators of the DSU and of the specific dispute settlement provisions of the new Anti-dumping Agreement failed to come up with much more precise guidelines than those that panels had somehow set for themselves. As far as findings of facts are concerned, the new AD Agreement contains one guideline that purports to be more specific i.e. restricting the possibility for panels to overturn the evaluation of facts as made by national administering authorities. Apart from the question whether this means that panels must henceforth ignore compelling new evidence, the reports examined show that panels have avoided de novo reviews and have at most engaged in “marginal” review of the findings of fact. 15
总共71页
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