4.72 Guatemala submits that, for a claim to be specifically identified, the complaining party "should ... have identified during conciliation and in its request for establishment of a panel the action or factual situation allegedly giving rise to an inconsistency with the Agreement and the obligation under the Agreement that allegedly was violated." ³⁴ It is not enough for a panel to say that the matter "can reasonably be interpreted" as amounting to a claim covered by the written request for consultations or the request for the establishment of a panel. ³⁵ Guatemala recalls EC - Imposition of Anti-Dumping Duties on Imports of Cotton Yarn from Brazil, in which the panel:

"considered that it was not sufficient that a contention simply 'can reasonably be interpreted' as amounting to a claim, as that implied that there could be indeterminacy or ambiguity regarding the ambit of a claim. This would, in the view of the Panel, run counter to the fundamental purpose of the terms of reference, which was to give advance notice to the defendant and to third parties of the claim at issue. This purpose could only be effectively served if there was no ambiguity regarding the ambit of the claim at issue. The Panel considered that, in order to ensure this, a claim had to be expressly referred to in [the document in which the establishment of a panel was requested] in order to be within its terms of reference. The Panel accordingly dismissed Brazil's argument on this point." ³⁶

4.73 Guatemala asserts that, in EC - Imposition of Anti-Dumping Duties on Audio Tapes and Cassettes originating in Japan, the panel similarly rejected the complaining party's argument that consideration should be given to "how its interests might be affected" by the panel's failure to refer to specific claims. Guatemala notes that the panel "did not consider that such an assessment would be either appropriate or feasible", and stated that it could not understand the basis on which a panel could after the fact consider whether certain claims might have been resolved in previous stages of the dispute settlement process had those claims been raised during those stages of the process. Nor did that panel consider that, after the fact, a panel would have a basis on which to consider whether the rights of third parties to protect their interests through participation in the panel process were jeopardized by the failure of a complainant to raise a claim at the time it requested the establishment of a panel.  ³⁷

4.74 Guatemala considers that in EC - Imposition of Anti-Dumping Duties on Imports of Cotton Yarn from Brazil, the panel found that nowhere in the request for the establishment of a panel submitted by Brazil was there any reference to the EC having made an incorrect determination that certain domestic sales were not in the ordinary course of trade, and on that basis the panel rejected Brazil's argument concerning the ordinary course of trade. ³⁸ Guatemala recalls that the panel also rejected Brazil's argument that the ordinary course of trade claim could "reasonably" be interpreted as being covered by the document in which the establishment of a panel was requested. ³⁹

4.75 According to Guatemala, in United States - Imposition of Anti-Dumping Duties on Imports of Fresh and Chilled Atlantic Salmon from Norway, the panel considered that its terms of reference did not extend to Norway's claim that the United States was denying Norway national treatment in accordance with Article III of the GATT 1947. ⁴⁰ Guatemala recalls that the panel pointed out that Norway "did not refer to this claim, however characterized" in its request for the establishment of a panel. ⁴¹ According to Guatemala, Norway argued that its claim was included in the request for the establishment of a panel through a reference to the denial by the United States of "equitable and open procedures". ⁴² The panel found that, while Norway's request identified four specific aspects of the claim regarding the lack of "equitable and open procedures", these did not include denial of national treatment. ⁴³ The panel therefore considered that "the claim in question was not identified in [Norway's request for the establishment of a panel], and thus reasonable notice had not been provided to the defending party nor to third parties that the claim would be raised in this dispute". ⁴⁴ Guatemala notes that the panel also rejected Norway's argument that the "matter" before the panel consisted of the imposition of anti-dumping duties. On the contrary, the "matter" consisted of the specific claims stated by Norway in those documents. Consequently, Guatemala notes that the panel concluded that it could not examine the merits of Norway's claim regarding the denial of national treatment because that claim was not within its terms of reference. ⁴⁵

4.76 Guatemala argues that, in EC - Anti-Dumping Duties on Audio Tapes and Cassettes Originating in Japan, the panel rejected the claim by Japan that the EC's methodology for selecting the export models to be used in performing a comparison of price undercutting was within the terms of reference of the panel : ⁴⁶

"In the view of the Panel, a statement that the EC's undercutting methodology was `defective' and contained `arbitrary and prejudicial elements', without any identification of the element or elements of the EC's methodology deemed to be inconsistent with the Agreement, did not identify the action or factual situation allegedly giving rise to an inconsistency with the Agreement with sufficient particularity to allow a potential third party to decide whether its interests might be affected such that it would exercise its right to participate in the proceeding." ⁴⁷

4.77 Guatemala submits that, by virtue of Article 31 of the Vienna Convention and the 1994 Marrakesh Agreement, a panel must be guided by the interpretation adopted by previous panels established under the Tokyo Round Anti-Dumping Code when interpreting the degree of specificity required in a request for the establishment of a panel under Article 17 of the ADP Agreement. Guatemala states that this is especially so given that the dispute settlement provisions of the Tokyo Round Anti-Dumping Code are virtually identical to those contained in the ADP Agreement. As was stated by the panel in EC - Regime for the Importation, Sale and Distribution of Bananas, Guatemala argues that the cases dealt with under the Tokyo Round Anti-Dumping Code are "of limited relevance in the interpretation of the terms of Article 6.2 of the DSU [because] the Tokyo Round Anti-Dumping Code had different rules for the initiation of panel procedures than were applicable in the case of GATT 1947 panels".  ⁴⁸

4.78 Guatemala asserts that the panel in EC - Regime for the Importation, Sale and Distribution of Bananas ⁴⁹, and the Appellate Body in earlier decisions found that, under Article 3.2 of the DSU, the starting point for the interpretation of the provisions of international treaties is Articles 31 and 32 of the Vienna Convention. 

4.79 Guatemala recalls in addition that Article XVI of the Marrakesh Agreement establishing the World Trade Organization provides that:

"Except as otherwise provided under this Agreement or the Multilateral Trade Agreements, the WTO shall be guided by the decisions, procedures and customary practices followed by the CONTRACTING PARTIES to GATT 1947 and the bodies established in the framework of GATT 1947". 

4.80 According to Guatemala, the panel in EC - Regime for the Importation, Sale and Distribution of Bananas also observed that "the nature of anti-dumping cases is different from this case". ⁵⁰ In disputes relating to anti-dumping measures, panels are required to review the factual and legal determinations of investigations carried out by the domestic authorities as opposed to the laws or regulations implemented by the national legislative authorities or administrative bodies. Claims under the GATT 1947 (or the GATT 1994) and other covered agreements may refer to any number of measures potentially inconsistent with a Member's obligations. On the other hand, Guatemala submits that anti-dumping cases involve only three possible measures: provisional measures, price undertakings, or a final measure. In accordance with the interpretations given by panels set up under the Tokyo Round Anti-Dumping Code, when interpreting rules similar to those contained in Article 17 of the ADP Agreement, Guatemala therefore submits that a panel must require a greater degree of specificity in the identification of claims in a request for the establishment of a panel under the ADP Agreement. 

4.81 Guatemala notes that in its request for the establishment of a panel, Mexico cited the following inconsistencies with the ADP Agreement in connection with the threat of injury: 

• (i) affirmative determination of the threat of injury in violation of the guidelines laid down in the ADP Agreement; 
• (ii) attempt to equate the accumulation of inventories of raw material (clinker) with inventories of the product under investigation (cement) for the purpose of determining the threat of injury; 
• (iii) attributing the threat of injury to the Guatemalan domestic industry to imports from Mexico when it was caused by other factors (e.g. increase in inventories, decline in sales, kiln stoppages, inter alia). 

4.82 Guatemala asserts that it might be argued that Mexico did not make any proper claim concerning these alleged inconsistencies because it did not assert the alleged violation of any specific provision or article of the ADP Agreement. If, for the sake of argument, it is assumed that the request made by Mexico for the establishment of a panel could be interpreted in the broadest sense to include an alleged violation of Article 3, Guatemala suggests that Mexico would have had to identify the following hypothetical claims relating to the preliminary determination of threat of injury in order to bring the issue before a panel: 

• Claim 1: Guatemala's action is inconsistent with Article 3 because it made a preliminary affirmative determination of threat of injury after attempting to compare the accumulation of inventories of raw material (clinker) with inventories of the product investigated (cement);
• Claim 2: Guatemala's action is inconsistent with Article 3 because it made a preliminary affirmative determination of threat of injury by improperly considering that the increase in inventories was caused by imports from Mexico and not by other factors; 
• Claim 3: Guatemala's action is inconsistent with Article 3 because it made a preliminary affirmative determination of threat of injury by improperly considering that the decline in sales was caused by imports from Mexico and not by other factors; and 
• Claim 4: Guatemala's action is inconsistent with Article 3 because it made a preliminary affirmative determination of threat of injury by improperly considering that the stoppage of the kilns was caused by imports from Mexico and not by other factors. 

4.83 Guatemala notes that Mexico made six claims in its first submission to the Panel because, in Mexico's view, Guatemala did not consider properly the factors listed in Article 3.7 of the ADP Agreement when making a preliminary determination of threat of injury. The six claims refer to: 

• Claim (a): Increase in imports; 
• Claim (b): Accumulation of inventories and underutilization of plant capacity; 
• Claim (c): Decrease in sales; 
• Claim (d): Decrease in the domestic producer's prices; 
• Claim (e): Loss of customers; and

• Claim (f): Excess plant capacity in the exporting firm and demand conditions in the Mexican market. 

4.84 Guatemala asserts that claim (b) in Mexico's first submission corresponds to hypothetical claims 1, 2 and 4 in the request for the establishment of a panel; claim (c) corresponds to hypothetical claim 3 in the request for the establishment of a panel. Thus, according to Guatemala, claims (a), (d), (e) and (f) in Mexico's first submission do not correspond to any of the claims raised directly or indirectly in its request for the establishment of a panel and should therefore be rejected because they are outside the Panel's terms of reference. The claims relating to the final stage also fall outside the Panel's terms of reference because in its request for the establishment of a panel Mexico did not directly or indirectly identify any claim concerning the utilization of the technical accounting evidence, the use of confidential information, or the failure to establish specific time-limits. Guatemala considers that the reasons for which Mexico did not identify these claims in its request for the establishment are not relevant to the determination to be made by this Panel concerning their inclusion in the terms of reference. The ADP Agreement, the DSU and the practice followed by panels established under the GATT and the WTO (including the Appellate Body) do not make any reference to reasons that might justify the examination of claims that are not duly identified in the terms of reference of a panel. 

4.85 Mexico considers that it is not possible - nor is it a requirement of the ADP Agreement or the DSU - to list the arguments of the dispute one by one in the request for establishment, and even less possible to relate each and every such argument to the provision with which it is allegedly inconsistent. That would imply going far beyond what is required by Article 6.2 of the DSU. This Article only requires the applicant to "identify the specific measures at issue", and to provide "a brief summary of the legal basis of the claim sufficient to present the problem clearly". 

4.86 Mexico argues that it submitted its request for the establishment of a panel in conformity with Article 6.2 of the DSU, since the request indicated how the benefits accruing to Mexico had been nullified and impaired by Guatemala, and that consultations had been held without reaching a mutually satisfactory resolution. At the same time, the request identified the specific matters at issue and provided a brief summary of the legal basis of the claims in order to present the problem clearly. 

4.87 Mexico submits that, in the case in question, the reference to "specific measures at issue" in Article 6.2 of the DSU does not apply since, according to Article 17.4 of the ADP Agreement and Appendix 2 of the DSU, what is important is the "matter" referred to the DSB and not the measures as such. Since Mexico's request for the establishment of a panel not only refers to all the matters at issue (initiation, preliminary determination, and final stage of the proceeding) but also includes a brief summary of the legal basis of the claim that is sufficiently clear to present the problem clearly, Mexico notes that the request was accepted and approved by the DSB. 

4.88 Guatemala suggests that Mexico's argument concerning the non-application of parts of Article 6.2 of the DSU is the result of Mexico's repeated confusion of the words "matter" and "measures", a confusion which is avoidable given the clarity of the ADP Agreement and the conclusions of the Appellate Body. Contrary to what Mexico claims, the initiation, the preliminary determination and the final stage of the proceedings mentioned in its request for the establishment of a panel are not the "matters at issue". According to Guatemala, the only "matter" at issue is the matter consisting of the individual claims addressing the provisional measure, since this was the only measure that Mexico identified in its request. Moreover, Guatemala suggests that Mexico's arguments are irrelevant for the purpose of determining whether Mexico identified the individual claims specifically enough in its request for establishment. Article 6.2 of the DSU requires the complaining Member to include in its request for the establishment of a panel the specific identification of the anti-dumping measure at issue and of the claims making up the legal basis of the challenge against that measure. In other words, the requirement for the complainant in an anti-dumping case to present its claims specifically has nothing to do with the requirement in Article 6.2, which refers to the obligation to identify the measure at issue. 

4.89 According to Mexico, it follows from the request for the establishment of a panel that Mexico's claim specifically covers the fact that the initiation and conduct of the investigation, like the preliminary determination of threat of injury, contravened the relevant provisions of the ADP Agreement (WT/DS60/2, paragraph (b)(ii)), and that in the final stage of the proceeding there were various violations of the Mexican exporter's rights of defence in contravention of Article 6 of the ADP Agreement (WT/DS60/2, paragraph (c)(i) to (iv)). Mexico argues that detailing and developing each of the paragraphs and subparagraphs of the request for the establishment of a panel would have meant going far beyond the "brief summary of the legal basis of the complaint" required by Article 6.2 of the DSU. Mexico notes that in each case details were developed in Mexico's first submission to the Panel. 

4.90 Mexico asserts that, according to Article 7 of the DSU, the Panel's terms of reference are to examine "the matter referred to the DSB", which goes beyond the limited interpretation which Guatemala is endeavouring to give to the Panel's terms of reference.

6. Whether certain claims were raised in the request for consultations and are before the Panel 

4.91 Guatemala submits that two of Mexico's claims should be rejected by the Panel because they were not raised either directly or indirectly in Mexico's request for consultations. These claims are that:

- Guatemala violated Article 5.2 of the ADP Agreement by initiating the investigation without having received information on imports from the Directorate-General of Customs; and

- Guatemala violated Article 6.1.3 of the ADP Agreement by failing to provide either Cruz Azul or Mexico with a copy of the full text of the application as soon as Guatemala initiated the investigation. 

4.92 Guatemala relies on its earlier argument that panels under the Tokyo Round Anti-Dumping Code established a three-step process for the settlement of disputes in anti-dumping cases concerning "the individual claims of which a matter is composed, in which panel examination of a matter would be preceded by consultations concerning that same matter and conciliation concerning that same matter". Although the conciliation phase requirement was eliminated during the Uruguay Round, Guatemala asserts that "the justification for this approach was not limited to the conciliation issue". ⁵¹

4.93 According to Guatemala, anti-dumping cases have unique characteristics and are subject to special dispute settlement rules under Article 17 of the Agreement. In its interpretation of similar rules under Article 15 of the Tokyo Round Anti-Dumping Code, the panel in United States - Imposition of Anti-Dumping Duties on Imports of Fresh and Chilled Atlantic Salmon from Norway, observed that: 

"The parties to a dispute were required to consult and thereby provide at least an opportunity for reaching a mutually satisfactory resolution of the matter in dispute. At the conciliation phase, during the Committee's review of the matter, the parties to the dispute were required to go further and make their best efforts to reach a mutually satisfactory solution throughout the period of conciliation. The Panel therefore considered that the Agreement provided that before a party to a dispute could request a panel concerning a matter, the parties to the dispute had to have been given an opportunity to reach a mutually satisfactory resolution of the matter. This condition would not be meaningful unless the matter had been raised in consultations and conciliation." ⁵²

 Guatemala recalls that the panel stated that these conclusions: "were particularly appropriate in view of the nature of disputes concerning anti-dumping actions" ... The requirement to engage in consultations and conciliation served an essential purpose in clarifying the facts and arguments in dispute, and framing the dispute concerning the matter in terms which a panel would be best equipped to resolve.  ⁵³

4.94 Guatemala argues that, in accordance with the interpretations given by panels under the similar rules of the Tokyo Round Anti-Dumping Code, individual claims must be presented at the consultation stage in order to provide the prospect of "reaching a mutually satisfactory solution" in accordance with Article 17.3 of the ADP Agreement. Accordingly, the Panel should reject the two claims that Mexico failed to raise either in its request for consultations, dated 15 October 1996, or in its arguments relating to the consultations dated 30 October 1996, or in its list of questions dated 9 January 1997. 

4.95 According to Mexico, Guatemala's argument is entirely without validity since the Panel's terms of reference are determined not by the scope of the consultations but by the request for the establishment of a panel. Since both claims are contained in paragraph (a) of document WT/DS60/2, it is clear that they form an integral part of the Panel process. Furthermore, Mexico submits that the consultations with Guatemala concerned all the issues that Mexico raised in the request for the establishment of a panel. Mexico asserts that, in the consultations, it explained point by point to Guatemala why Mexico considered that the investigation should never have been initiated, and pointed out other weaknesses that had emerged in the course of the investigation up until the date of the consultations (9 January 1997).

7. Whether certain new claims were raised during course of Panel proceedings and are before the Panel 

4.96 Guatemala asserts that only at the first substantive meeting Mexico claimed for the first time that the Ministry had improperly made the preliminary affirmative determination of threat of injury because it did not take into account the fact that from 1994 to 1995 the value of Cementos Progreso's sales increased by 21.9% and its net profits rose by 22.8% in nominal Quetzales, not adjusted for inflation. Guatemala submits that the Panel has no mandate to examine Mexico's claim concerning the increase in the value of sales and profits because it is outside the Panel's terms of reference. Mexico did not make this claim in its request for the establishment of a panel, nor in its first written submission, nor in the written text of its oral submission. Guatemala suggests that, in conformity with the practice followed in the GATT and the WTO, the complainant Member is prevented from making new claims other than those included in its first written submission. Consequently, the Panel has no mandate to consider this claim because Mexico did not include it in its first written submission. 

4.97 Guatemala surmises that Mexico may respond that its "claim" regarding the increase in the value of sales and profits could more accurately be called an "argument", and that a Member is not obliged to identify all its "arguments" in its request for the establishment of a panel or in its first submission. Nevertheless, Guatemala submits that Mexico's assertion concerning the increase in the volume of sales and profits should be considered a claim and not an argument. According to Guatemala, Mexico cannot simply "claim" in its request for establishment that Guatemala violated the ADP Agreement by making a preliminary affirmative determination of threat of injury and then put forward any plausible "argument" at any stage of the procedure in order to substantiate the alleged violation. Mexico must explain the legal and factual grounds for the alleged violation. In this particular case, Mexico claims that Guatemala violated the ADP Agreement by making a preliminary affirmative determination of threat of injury when the value of Cementos Progreso's sales and profits from 1994 to 1995 had increased. Guatemala suggests that for systemic reasons, other Members would be interested in the issue whether, according to Article 3.7 of the ADP Agreement, the investigating authority must take into account the value of sales and profits, because Article 3.7 does not make any reference to these. Mexico's failure to make its claim properly deprives interested third Members of the opportunity to examine such a claim. 

4.98 Mexico disputes Guatemala's argument that Mexico cannot simply claim a violation in the request for establishment and then put forward any plausible argument to substantiate the allegation, and that Mexico must explain the legal and factual grounds for the alleged violation in the request for the establishment of a panel. Mexico argues that according to established procedures, claims are submitted in the request for the establishment of a panel and the arguments are submitted to the panel. Mexico submits that the Report of the Appellate Body in the EC - Regime for the Importation, Sale and Distribution of Bananas is clear in this respect:

"We accept the Panel's view that it was sufficient for the Complaining Parties to list the provisions of the specific agreements alleged to have been violated without setting out detailed arguments as to which specific aspects of the measures at issue relate to which specific provisions of those agreements. In our view, there is a significant difference between the claims identified in the request for the establishment of a panel, which establish the panel's terms of reference under Article 7 of the DSU, and the arguments supporting those claims, which are set out and progressively clarified in the first written submissions, the rebuttal submissions and the first and second panel meetings with the parties."  ⁵⁴

4.100 Guatemala also notes that Mexico relies on Article 1 of the ADP Agreement in its second submission to the Panel in order to demonstrate that revocation of anti-dumping duties constitutes an appropriate remedy in the present case. Guatemala states that since Mexico did not raise a claim under Article 1 either during the consultations or when requesting the establishment of a panel, any claim relating to Article 1 is outside the Panel's terms of reference. The Panel therefore does not have the authority to verify whether the initiation of the investigation or the application of an anti-dumping measure was inconsistent with Article 1 of the ADP Agreement. 

B. Standard of Review 

4.101 Guatemala submits that the Panel's examination of the present dispute is circumscribed by the standard of review set forth in Article 17.6 of the ADP Agreement. ⁵⁵ Guatemala notes that during the final stages of the Uruguay Round negotiations, it was decided to include a provision in the ADP Agreement establishing a standard to be applied by panels in examining the facts of a case and interpreting the relevant legal provisions applied by the investigating authorities of the Members. This standard of review applicable to anti-dumping cases is set forth in Article 17.6 of the ADP Agreement. Guatemala notes that the ADP Agreement is the first legal instrument which provides specifically for a standard of review. Article 17.6(i) establishes the standard of review applicable to a panel's examination of the investigating authorities' evaluation of the facts in an anti-dumping investigation. Guatemala argues that, according to one commentator, Article 17.6(i):

"encapsulates a notion developed in several panel reports that when a panel examines the factual conclusions of national investigating authorities it should act as a "review" body and should not substitute its own factual assessment for that of the authorities unless the latter is seriously flawed". ⁵⁶

Continue on to IV. Main Arguments of the Parties, Section 4.102

Notes:

34. EC - Anti-Dumping Duties on Audio Tapes and Cassettes Originating in Japan, ADP/136, paragraph 303, not adopted, dated 28 April 1995. Guatemala also refers to EC - Imposition of Anti-Dumping Duties on Imports of Cotton Yarn from Brazil, ADP/137, paragraph 450, adopted on 30 October 1995.

35. EC - Imposition of Anti-Dumping Duties on Imports of Cotton Yarn from Brazil, ADP/137, paragraph 456, adopted on 30 October 1995.

36. Ibid.

37. EC - Imposition of Anti-Dumping Duties on Audio Tapes and Cassettes, ADP/136, paragraph 301, not adopted, dated 28 April 1995.

38. EC - Imposition of Anti-Dumping Duties on Imports of Cotton Yarn from Brazil, ADP/137, paragraph 453, adopted on 30 October 1995.

39. Ibid, paragraph 456.

40. United States - Imposition of Countervailing Duties on Imports of Fresh and Chilled Atlantic Salmon from Norway, ADP/87 paragraph 341, adopted on 27 April 1994.

41. Ibid.

42. Ibid.

43. Ibid.

44. Ibid.

45. Ibid, paragraph 342. Similarly, in United States - Imposition of Countervailing Duties on Imports of Fresh and Chilled Atlantic Salmon from Norway (SCM/153, paragraph 207, adopted on 28 April 1994), the United States expressed preliminary objections to panel consideration of two Norwegian claims regarding the United States' failure to carry out an "upstream subsidy analysis", and regarding continued application of the countervailing duty order under Article 4:9 of the Tokyo Round Subsidies Code. At para. 209 of its report, the panel reviewed Norway's request for the establishment of a panel and found that it included no reference to the alleged failure by the United States to carry out an upstream subsidy analysis or to the continued application of the countervailing duty order under Article 4:9. Consequently, at para. 215 the panel concluded that its terms of reference did not include the Norwegian claims.

46. EC - Anti-Dumping Duties on Audio Tapes and Cassettes Originating in Japan, ADP/136, paragraph 311, not adopted, dated 28 April 1995.

47. Ibid, paragraph 310.

48. EC - Regime for the Importation, Sale and Distribution of Bananas, DS27/R/GTM, paragraph 7.42, adopted 25 September 1997.

49. Ibid.

50. Ibid.

51. Edmond McGovern, International Trade Regulation, 12.143 (1995).

52. ADP/87, paragraph 333, adopted on 27 April 1994. Guatemala also refers to United States - Anti-Dumping Duties on Grey Portland Cement and Cement Clinker from Mexico, ADP/82, paragraph 5.12, not adopted, dated 7 September 1992 ("The Panel considered that a party should have the opportunity to consult bilaterally on a matter before having it submitted to multilateral conciliation.")

53. United States - Imposition of Anti-Dumping Duties on Imports of Fresh and Chilled Atlantic Salmon from Norway, ADP/87, paragraph 337, adopted on 27 April 1994.

54. EC - Regime for the Importation, Sale and Distribution of Bananas, DS27/AB/R, para. 141, adopted on 25 September 1997.

55. Article 17.6 provides that:

"In examining the matter referred to [the panel]:
(i) in its assessment of the facts of the matter, the panel shall determine whether the authorities' establishment of the facts was proper and whether their evaluation of those facts was unbiased and objective. If the establishment of the facts was proper and the evaluation was unbiased and objective, even though the panel might have reached a different conclusion, the evaluation shall not be overturned;
(ii) the panel shall interpret the relevant provisions of the Agreement in accordance with customary rules of interpretation of public international law. Where the panel finds that a relevant provision of the Agreement admits of more than one permissible interpretation, the panel shall find the authorities' measure to be in conformity with the Agreement if it rests upon one of those permissible interpretations."