WTO Dispute Settlement Mechanism(7)/刘成伟(67)
In this regard, the Appellate Body in Thailand-H-beams (DS122) consider the extent of a panel's obligations under Art. 17.6 to review the investigating authority's final determination, and they rule as: 16
“Articles 17.5 and 17.6 clarify the powers of review of a panel established under the Anti-Dumping Agreement. These provisions place limiting obligations on a panel, with respect to the review of the establishment and evaluation of facts by the investigating authority. …
Article 17.5 specifies that a panel's examination must be based upon the ‘facts made available’ to the domestic authorities. Anti-dumping investigations frequently involve both confidential and non-confidential information. The wording of Article 17.5 does not specifically exclude from panel examination facts made available to domestic authorities, but not disclosed or discernible to interested parties by the time of the final determination. Based on the wording of Article 17.5, we can conclude that a panel must examine the facts before it, whether in confidential documents or non-confidential documents.
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