IV. Whether This Dispute Was Properly Before the Panel

57. With respect to the question whether this dispute was properly before it, the Panel concluded as follows:

58. The Panel reached this conclusion on the basis of two alternative lines of reasoning. Under the first line of reasoning, it found the following:

59. In its alternative line of reasoning, the Panel assumed "that the dispute settlement provisions of the ADP Agreement (Articles 17.3, 17.4, and 17.5 in particular) did not represent a coherent dispute settlement scheme which replaces the more general provisions of the DSU".³⁸ Under this line of reasoning, it found that:

60. We now turn to the provisions of the DSU and the Anti-Dumping Agreement which pertain to this issue. Article 1.1 of the DSU reads, in relevant part:

61. Article 1.2 of the DSU provides, in relevant part:

62. Article 6.2 of the DSU reads, in relevant part:

63. Article 17 of the Anti-Dumping Agreement contains the consultation and dispute settlement provisions of that Agreement. Paragraphs 4 through 7 of Article 17 are listed as special or additional rules and procedures in Appendix 2 of the DSU; paragraphs 1 through 3 of Article 17 are not. Article 17.4 reads as follows:

64. As to the Panel's interpretation of the relationship between Article 17 of the Anti-Dumping Agreement and the rules and procedures of the DSU, Article 1.1 of the DSU establishes an integrated dispute settlement system which applies to all of the agreements listed in Appendix 1 to the DSU (the "covered agreements"). The DSU is a coherent system of rules and procedures for dispute settlement which applies to "disputes brought pursuant to the consultation and dispute settlement provisions of" the covered agreements.⁴² The Anti-Dumping Agreement is a covered agreement listed in Appendix 1 of the DSU; the rules and procedures of the DSU, therefore, apply to disputes brought pursuant to the consultation and dispute settlement provisions contained in Article 17 of that Agreement. Under Article 17.3 of the Anti-Dumping Agreement, consultations may be requested by a Member, if that Member "considers that any benefit accruing to it, directly or indirectly, under this Agreement is being nullified or impaired, or that the achievement of any objective is being impeded, by another Member or Members". Article 17.3 of the Anti-Dumping Agreement is not listed in Appendix 2 of the DSU as a special or additional rule and procedure. It is not listed precisely because it provides the legal basis for consultations to be requested by a complaining Member under the Anti-Dumping Agreement. Indeed, it is the equivalent provision in the Anti-Dumping Agreement to Articles XXII and XXIII of the GATT 1994, which serve as the basis for consultations and dispute settlement under the GATT 1994, under most of the other agreements in Annex 1A of the Marrakesh Agreement Establishing the World Trade Organization⁴³ (the "WTO Agreement"), and under the Agreement on Trade-Related Aspects of Intellectual Property Rights (the "TRIPS Agreement").

65. Article 1.2 of the DSU provides that the "rules and procedures of this Understanding shall apply subject to such special or additional rules and procedures on dispute settlement contained in the covered agreements as are identified in Appendix 2 to this Understanding." (emphasis added) It states, furthermore, that these special or additional rules and procedures "shall prevail" over the provisions of the DSU "[t]o the extent that there is a difference between" the two sets of provisions (emphasis added) Accordingly, if there is no "difference", then the rules and procedures of the DSU apply together with the special or additional provisions of the covered agreement. In our view, it is only where the provisions of the DSU and the special or additional rules and procedures of a covered agreement cannot be read as complementing each other that the special or additional provisions are to prevail. A special or additional provision should only be found to prevail over a provision of the DSU in a situation where adherence to the one provision will lead to a violation of the other provision, that is, in the case of a conflict between them. An interpreter must, therefore, identify an inconsistency or a difference between a provision of the DSU and a special or additional provision of a covered agreement before concluding that the latter prevails and that the provision of the DSU does not apply.

66. We see the special or additional rules and procedures of a particular covered agreement as fitting together with the generally applicable rules and procedures of the DSU to form a comprehensive, integrated dispute settlement system for the WTO Agreement. The special or additional provisions listed in Appendix 2 of the DSU are designed to deal with the particularities of dispute settlement relating to obligations arising under a specific covered agreement, while Article 1 of the DSU seeks to establish an integrated and comprehensive dispute settlement system for all of the covered agreements of the WTO Agreement as a whole. It is, therefore, only in the specific circumstance where a provision of the DSU and a special or additional provision of another covered agreement are mutually inconsistent that the special or additional provision may be read to prevail over the provision of the DSU.

67. Clearly, the consultation and dispute settlement provisions of a covered agreement are not meant to replace, as a coherent system of dispute settlement for that agreement, the rules and procedures of the DSU. To read Article 17 of the Anti-Dumping Agreement as replacing the DSU system as a whole is to deny the integrated nature of the WTO dispute settlement system established by Article 1.1 of the DSU. To suggest, as the Panel has⁴⁴, that Article 17 of the Anti-Dumping Agreement replaces the "more general approach of the DSU" is also to deny the application of the often more detailed provisions of the DSU to anti-dumping disputes. The Panel's conclusion is reminiscent of the fragmented dispute settlement mechanisms that characterized the previous GATT 1947 and Tokyo Round agreements; it does not reflect the integrated dispute settlement system established in the WTO.

68. For these reasons, we conclude that the Panel erred in finding that Article 17 of the Anti-Dumping Agreement "provides for a coherent set of rules for dispute settlement specific to anti-dumping cases ... that replaces the more general approach of the DSU."⁴⁵

69. In its alternative line of reasoning, the Panel gave the term "measure" a broad reading. It found that this term is a "shorthand reference to the many and varied situations in which obligations under the WTO Agreements might not be fulfilled."⁴⁶ Given this statement and the reasoning in paragraph 7.24 of the Panel Report, it appears to us that the Panel reads the term "measure" as synonymous with allegations of violations of the GATT 1994 and the other covered agreements. As a consequence, the Panel blurs the distinction between a "measure"⁴⁷ and "claims" of nullification or impairment of benefits.⁴⁸ However, Article 6.2 of the DSU requires that both the "measure at issue" and the "legal basis for the complaint" (or the "claims") be identified in a request for the establishment of a panel. As we understand the Panel, it would, in effect, suffice, under Article 6.2 of the DSU, for a panel request to identify only the "legal basis for the complaint", without identifying the "specific measure at issue". This is inconsistent with the plain language of Article 6.2 of the DSU. For these reasons, we do not agree with the Panel's finding in the first sentence of paragraph 7.26 of the Panel Report.

70. In view of the fact that we have reversed both of the Panel's findings that led it to conclude that this dispute was properly before it, we must now address this question ourselves.⁴⁹ Article 17.4 of the Anti-Dumping Agreement allows a Member to refer a "matter" to the DSB when certain specified conditions are satisfied. The word "matter" also appears in paragraphs 2, 3, 5 and 6 of Article 17. It is the key concept in defining the scope of a dispute that may be referred to the DSB under the Anti-Dumping Agreement and, therefore, in identifying the parameters of a panel's terms of reference in an anti-dumping dispute. According to the rules of interpretation set out in Article 31 of the Vienna Convention, the meaning of a term is to be determined by reference to its ordinary meaning, read in light of its context, and the object and purpose of the treaty.

To continue with Whether This Dispute Was Properly Before the Panel

³⁵Panel Report, para. 7.27.

³⁶Panel Report, para. 7.16.

³⁷Panel Report, para. 7.18.

³⁸Panel Report, para. 7.22.

³⁹Ibid.

⁴⁰Panel Report, para. 7.24.

⁴¹Panel Report, para. 7.26.

⁴²DSU, Article 1.1.

⁴³Articles XXII and XXIII of the GATT 1994 are not expressly incorporated by reference into the Anti-Dumping Agreement as they are into all of the other Annex 1A agreements, with the exception of the Agreement on Textiles and Clothing and the Agreement on Implementation of Article VII of the GATT 1994. As a result, contrary to the Panel's assumptions in paras. 7.23 and 7.24 of the Panel Report, Article XXIII of the GATT 1994 does not apply to disputes brought under the Anti-Dumping Agreement. On the contrary, Articles 17.3 and 17.4 of the Anti-Dumping Agreement are the "consultation and dispute settlement provisions" pursuant to which disputes may be brought under that covered agreement.

⁴⁴Panel Report, para. 7.16.

⁴⁵Ibid.

⁴⁶Panel Report, para. 7.26.

⁴⁷In the practice established under the GATT 1947, a "measure" may be any act of a Member, whether or not legally binding, and it can include even non-binding administrative guidance by a government (see Japan - Trade in Semi-Conductors, adopted 4 May 1988, BISD 35S/116). A measure can also be an omission or a failure to act on the part of a Member (see, for example, India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, complaint by the United States, WT/DS50/R and WT/DS50/AB/R, adopted 16 January 1998, and also India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, complaint by the European Communities and its Member States, WT/DS79/R, adopted 22 September 1998).

⁴⁸Infra, paras. 72 and 73.

⁴⁹We note that since the Panel's terms of reference in this case referred exclusively to only one document -- the request for the establishment of a panel submitted by Mexico to the DSB (WT/DS60/2, G/ADP/D3/2, 13 February 1997) -- there is no need for us to address the request for consultations (WT/DS60/1, G/ADP/D3/1, 24 October 1996) in this case.