WTO Dispute Settlement Mechanism(7)/刘成伟(68)
Article 17.6(i) requires a panel, in its assessment of the facts of the matter, to determine whether the authorities' ‘establishment of the facts’ was ‘proper’. The ordinary meaning of ‘establishment’ suggests an action to ‘place beyond dispute; ascertain, demonstrate, prove’; the ordinary meaning of ‘proper’ suggests ‘accurate’ or ‘correct’. Based on the ordinary meaning of these words, the proper establishment of the facts appears to have no logical link to whether those facts are disclosed to, or discernible by, the parties to an anti-dumping investigation prior to the final determination. Article 17.6(i) requires a panel also to examine whether the evaluation of those facts was ‘unbiased and objective’. The ordinary meaning of the words ‘unbiased’ and ‘objective’ also appears to have no logical link to whether those facts are disclosed to, or discernible by, the parties to an anti-dumping investigation at the time of the final determination.
There is a clear connection between Articles 17.6(i) and 17.5(ii). The facts of the matter referred to in Article 17.6(i) are ‘the facts made available in conformity with appropriate domestic procedures to the authorities of the importing Member’ under Article 17.5(ii). Such facts do not exclude confidential facts made available to the authorities of the importing Member. Rather, Article 6.5 explicitly recognizes the submission of confidential information to investigating authorities and its treatment and protection by those authorities. Article 12, in paragraphs 2.1, 2.2 and 2.3, also recognizes the use, treatment and protection of confidential information by investigating authorities. The ‘facts’ referred to in Articles 17.5(ii) and 17.6(i) thus embrace ‘all facts confidential and non-confidential’, made available to the authorities of the importing Member in conformity with the domestic procedures of that Member. Article 17.6(i) places a limitation on the panel in the circumstances defined by the Article. The aim of Article 17.6(i) is to prevent a panel from ‘second-guessing’ a determination of a national authority when the establishment of the facts is proper and the evaluation of those facts is unbiased and objective. Whether evidence or reasoning is disclosed or made discernible to interested parties by the final determination is a matter of procedure and due process. These matters are very important, but they are comprehensively dealt with in other provisions, notably Articles 6 and 12 of the Anti-Dumping Agreement.
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