WTO Dispute Settlement Mechanism(7)/刘成伟(64)
The author, however, cannot hide his concern as to such implication as not to accept new evidence, derived from Art. 17.5(ii) by any parties or panels that, especially with regard to the ruling that: “It seems clear to us that, under this provision, a panel may not, when examining a claim of violation of the AD Agreement in a particular determination, consider facts or evidence presented to it by a party in an attempt to demonstrate error in the determination concerning questions that were investigated and decided by the authorities, unless they had been made available in conformity with the appropriate domestic procedures to the authorities of the investigating country during the investigation”. In any event, as a practical matter, it is unlikely that a Member would improperly withhold arguments from competent authorities with a view to raising those arguments later before a panel. More dangerous, it would force exporting members to appear before national investigating authorities in order to keep the possibility to raise issues in panel proceedings. Clearly, it is at least not reasonable. The parties involved in an underlying anti-dumping investigation are generally exporters, importers and other commercial entities, while those involved in WTO dispute settlement are the Members of the WTO. Therefore, it justifies accepting new evidence even in cases under the AD Agreement, so long as panels think it appropriate to exercise their discretion so.
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