4 December 1992

27. Norway further argued that strong policy considerations dictated that a local remedies doctrine not be applied to dispute settlement proceedings under the Agreement. The imposition of an exhaustion of local remedies requirement would result in years of delay in the dispute settlement process and would therefore be inconsistent with the Agreement's purpose of the effective and timely resolution of disputes. Finally, even if one were to apply the requirement of exhaustion of local remedies to dispute settlement proceedings under the Agreement, account had to be taken of the fact that, as confirmed in a recent judgement of the International Court of Justice, international law permitted the use of a rule of reason in the interpretation of the requirement; under this approach, the exhaustion requirement did not mean that each and every minute aspect of a claim had to be raised in the local fora before the claim could be raised at the international level. ¹⁶

28. Regarding the principle referred to by the United States of exhaustion of administrative remedies, Norway submitted that this principle was a requirement of US administrative law but not a principle of public international law. Since this principle did not originate in public international law, the reasons for not applying it to dispute settlement proceedings under the Agreement were even stronger than in the case of the exhaustion of local remedies doctrine. In any event, the exceptions established under US jurisprudence to the application of the requirement of exhaustion of administrative remedies weighed against the application of this requirement to dispute settlement under the Agreement. Thus, United States courts enjoyed a degree of discretion in the application of this requirement and did not apply it when the administrative remedy was inadequate and when resort to agency proceedings would be futile. Given that US trade law was not required to be in conformity with relevant international agreements ¹⁷ there were no "effective" administrative remedies to exhaust in cases involving an action of the United States inconsistent with its obligations under the General Agreement. Since the United States Department of Commerce and other relevant agencies often did not apply GATT law on any consistent basis, it was also often futile for a contracting party to raise GATT related issues before these agencies.

29. Norway also observed in this context that a major rationale for the application of the requirement of administrative remedies was that it was inefficient and inappropriate to have courts review factual issues which could more effectively be considered by an agency having expertise in that area. In light of this, courts had often excused the exhaustion requirement when reviewing issues of law, as opposed to issues of fact. The issues raised by Norway before this Panel similarly concerned issues of law, not of fact. The questions before the Panel concerned not what the facts were but whether the interpretation and consideration of the facts by the United States were in conformity with the obligations of the United States under the Agreement.

30. Norway did not contest that the issue of the standing of the petitioner in the countervailing duty investigation had not been raised before the investigating authorities in the United States by the Norwegian respondents. However, the question of whether the petitioner was acting on behalf of the domestic industry had been raised in a letter to the Department of Commerce from a domestic producer, prior to the initiation of the investigation. The Department had ignored this letter. More importantly, the Panel established by the Committee on Anti-dumping Practices in the dispute between Sweden and the United States in "United States - Imposition of Anti-Dumping Duties on Imports of Seamless Stainless Steel Hollow Products from Sweden" ¹⁸ had held that, before initiating an investigation, investigating authorities were required to satisfy themselves that a written request for the initiation of the investigation was filed on behalf of the domestic industry. To satisfy themselves as to industry support, the investigating authorities had to take affirmative steps. The Panel had found that it was not sufficient to rely upon statements by petitioners claiming to be acting on behalf of the domestic industry. Thus, the question of the standing of a petitioner did not need to be raised by any party: investigating authorities were under an affirmative obligation to satisfy themselves that a petition was filed on behalf of the domestic industry. Indeed, in the case considered by the Panel in the dispute between Sweden and the United States, there had been no challenge of the petitioner's standing prior to the initiation of the investigation.

31. Norway further argued that it was consistent practice of the United States to assume that a petitioner was acting on behalf of a domestic industry until such time as a substantial proportion of the domestic industry come forth to oppose the petition. ¹⁹ The United States would not investigate the standing of a petitioner if the challenge came from foreign private respondents of from a foreign government. There had therefore been no reason for the Norwegian respondents to raise this issue during the investigation.

32. The United States submitted that it had not argued that the public international law rule of exhaustion of local remedies was applicable to dispute settlement proceedings under the Agreement but that the rationale of this rule was similar to the rationale of the Agreement-based requirements that an issue first be raised in the domestic administrative proceedings. Norway had not addressed the specific language of the Agreement relied upon by the United States to support its view that a matter not raised before the investigating authorities could not in the first instance be raised before a Panel. Rather, it had argued that the GATT system generally did not impose a requirement to go through national authorities before raising an issue in GATT dispute settlement proceedings. However, the Agreement established a rôle for domestic investigating authorities not found under other GATT provisions. Under Norway's argument, the investigating authorities were virtual appendages, which could be ignored at will. This view was inconsistent with the central and exclusive rôle provided under the Agreement for the investigating authorities.

33. The United States considered that, while Norway's discussion of the public international law rule of exhaustion of local remedies was beside the point in that the United States had not argued that this rule applied to dispute settlement under the Agreement, Norway's interpretation of this rule was in any event erroneous. Historically, the rule of exhaustion of local remedies had been used in cases where the national of one country had been injured by another country. In these cases, the national was required to seek redress under the allegedly offending country's system before asking his own government to try to resolve the dispute on a government-to-government level. The doctrine did not apply to disputes solely between countries. This distinction had been clarified in a recent judgement of the International Court of Justice in the Elettronica Sicula S.p.A. case. ²⁰ There, the United States had claimed that the doctrine did not apply because the United States was representing itself, not the two American companies involved. The Court had rejected this argument, stating that "the matter which colours and pervades the United States claim as a whole is the alleged damage to Raytheon and Machlett, said to have resulted from the actions of the Respondent". ²¹ The Court had thus ruled that the doctrine of exhaustion of local remedies applied when a nation was primarily representing its nationals, even if some issues of sovereignty were present.

34. In the view of the United States, the interests of the Norwegian exporters "coloured and pervaded" Norway's claim in the proceedings before this Panel. This dispute had arisen only after the United States had imposed countervailing duties on Norwegian imports of fresh and chilled Atlantic salmon. The arguments made by Norway were in most instances identical to those which were made or could have been made by the private Norwegian interests during the investigations. In fact, Norway was actually espousing the interests of its nationals in these proceedings. Norway's argument that it was adjudicating its own rights under the Agreement, separate and apart from the interests of its nationals would create an exemption to the local remedies doctrine which would effectively swallow the entire doctrine. By definition, any time one country brought a claim against another, international legal rights, usually treaty rights or the equivalent, were at issue. To argue, as did Norway, that in any such instance the international matter involves an offence by one country against another and is thereby exempt from the exhaustion doctrine ignored the international jurisprudence on this subject. The United States was not claiming that disputes involving fundamentally private interests in which there was an element of government-to-government obligations were not rightfully a subject for international dispute resolution, but only that such disputes would not be exempted from the principle of exhaustion of local remedies.

35. The United States argued that the matter raised by Norway regarding the failure of the Department of Commerce to conduct an "upstream subsidy" analysis was not within the Panel's terms of reference and accordingly should not be considered by the Panel. During the consultation and conciliation process, Norway failed to address the issue at all, either under the category of "calculation methods" or as an issue that should be addressed in the injury investigation. Norway addressed the issue for the first time in the entire dispute resolution proceedings in its first submission before the Panel. Document SCM/M/53 defined the Panel's terms of reference by referring to "the matter referred to the Committee by Norway in SCM/123 and Add.1". Document SCM/123 referred to the Government of Norway's "reservations to the calculation methods of alleged subsidies". However, on page 2 of document SCM/123/Add.1, Norway had detailed these "reservations" as being (1) the failure of the United States to take account of secondary tax effects of the subsidies, and (2) the alleged double-counting of the interest rate charged to the salmon farms. There had been no mention of "upstream subsidies" whatsoever. This matter was therefore outside the terms of reference of the Panel.

36. Norway argued first that in document SCM/123 it had not only stated a concern over whether the United States had applied the appropriate injury standard (which required a consideration of the trade effects of the subsidies) but had also raised a concern regarding the calculation of the level of alleged subsidization. In the addendum to this document, Norway had in paragraph 2 stated that it would raise before the panel to be established the issue of the calculation of the level of the subsidies which the United States had found to exist. In paragraph 3.C of the addendum, Norway had expressed concern over the failure of the United States to consider the trade effects of the subsidies. Second, the terms of reference of the Panel defined as the Panel's mandate the examination "of the matter referred to the Committee by Norway in SCM/123 and Add.1". The "matter" referred to the Committee was the imposition of countervailing duties by the United States on imports of fresh Atlantic salmon from Norway. The question of whether the United States had fulfilled its obligations under the Agreement by imposing countervailing duties without adjusting for the fact that most of the benefits of the programmes it had found to exist had gone to producers of smolt, not to producers of salmon, and by failing to consider the trade effects of the programmes it had determined to be subsidies was properly before the Panel. Indeed, the issue of the treatment of alleged subsidies to smolt producers had been at issue since the investigation which had resulted in the imposition of the countervailing duties and was thus part of "the matter referred to the Committee". Third, the signatory imposing countervailing duties in contravention of its tariff bindings had to justify its actions. In the case under consideration, the United States had to demonstrate that it had considered all relevant facts in determining whether to impose countervailing duties because previous Panels had established that anti-dumping and countervailing duties could be imposed only after certain facts had been established. ²² In this case, by failing to examine the trade effects of regional programmes (which included a determination of whether there were any trade effects from the alleged subsidies to smolt producers) the United States had not considered all relevant facts. Norway had consistently raised the question of the treatment by the United States of the subsidies to smolt producers as part of the concern that the United States had imposed a countervailing duty in excess of the level of subsidisation found to exist, as part of its concern that the United States had not applied the appropriate injury causation standard, and as part of its concern that the United States had not, as required by Article 11 of the Agreement, considered the trade effects of the subsidies.

37. Norway further argued in this context that in "United States - Imposition of Anti-Dumping Duties on Imports of Seamless Stainless Steel Hollow Products from Sweden", the Panel had determined that, rather than promulgating a general standard for considering facts and arguments not previously raised, the Panel would examine and decide on such facts and legal arguments as "they arose in relation to the specific matters in dispute". ²³ This standard was correct. Where the facts or legal issues related to the general issue before a panel, the panel ought to consider all relevant arguments and issues. Moreover, as long as the issue was raised by the complaining party at the time of its first submission to the panel, the other party to the dispute would not be prejudiced since it would have several opportunities to respond.

38. Finally, Norway submitted that its request for the establishment of a panel had been more detailed than any previous request for the establishment of a panel. It would be ironic if Norway were to be penalized for providing greater information than any other complaining party had ever done.

39. The United States observed that in its first submission to the Panel Norway had treated the question of the treatment of subsidies to smolt producers entirely as an issue relating to the calculation of the amount of the subsidy. The argument that this issue pertained to Norway's claim that the United States had failed to consider the trade effects of the subsidies had appeared only at a later stage of the proceedings. Norway's attempt to place this issue under the injury rubric ignored the true nature of the issue and the substance of what Norway had argued in its first submission.

40. The United States also argued that the issue of the treatment of subsidies to Norwegian producers of smolt was not properly before the Panel because the issue had not been raised during consultations and conciliation preceding the establishment of the Panel. As illustrated by Articles 3, 17 and 18 of the Agreement, the Agreement embodied a fundamental principle of jurisprudence that certain procedures must be followed before a Panel could consider a matter. Before a signatory could initiate a conciliation process under Article 17 with respect to a countervailing duty procedure, consultations under Article 3 must have failed. Only if the Committee was unable to resolve the matter through conciliation could a panel be established. Therefore, an issue could not be presented in the first instance before a panel. The principle at issue here, closely akin to the notion of exhaustion of local remedies under international law, had a procedural component and a public policy component. The procedural component was that a signatory must advance through the appropriate fora in sequence, as reflected in the requirements of Articles 3, 17 and 18 that consultations be concluded before a signatory was allowed to resort to conciliation and that the Committee was not allowed to establish a panel until the conciliation process had ended. The public policy component was for the thorough and orderly resolution of disputes. This was reflected in the requirements that investigating authorities conduct the investigation and that consultations and conciliation concern the matters in that investigation. This policy would be defeated if signatories were allowed to raise issues for the first time before a panel. It was only by requiring that all relevant issues be raised throughout the dispute settlement process that the Agreement could provide any realistic chance of resolving that dispute in the most fair and effective way possible. Withholding any issue not only prejudiced the opposing party, but also undermined the structure of the dispute settlement system of the Agreement.

41. Norway argued that, even if the matter of the treatment of subsidies to smolt producers had not been raised during consultations and conciliation, this would not preclude the Panel from considering this matter in its proceedings. Referring to its comments on the principles of exhaustion of local remedies and of exhaustion of administrative remedies, ²⁴ Norway rejected the application of these principles to the remedies provided for under the Agreement. In any event, the issue of the treatment of subsidies to producers of smolt had in fact been raised by Norway during consultations and conciliation, as demonstrated by written questions addressed by Norway to the United States as part of the process of consultations under Article 3 of the Agreement. In these questions Norway had asked the United States to explain how the US legislation complied with the provisions of Article 11 of the Agreement (which required a consideration of the trade effects of subsidies) and whether US legislation required that in determining whether injury was caused by subsidised imports the effects of the subsidies in question be taken into consideration. Furthermore, in its request for conciliation under Article 17 of the Agreement (SCM/117) Norway had stated that the United States had failed to demonstrate that the regional development programmes countervailed by the United States had caused a distortion of trade. This issue had also been raised by the representative of Norway at the meeting held by the Committee for the purpose of conciliation under Article 17 in July 1991.

42. The United States argued that the issue raised by Norway regarding the continued imposition of the countervailing duty order was not properly before the Panel because this issue had not appeared in Norway's request for the establishment of a panel (SCM/123 and Add.1) and was therefore outside the Panel's terms of reference. In addition, this issue had not been raised during the consultations and conciliation preceding the establishment of the Panel.

43. Norway argued that Article VI of the General Agreement constituted an exception to the obligations of Articles I and II of the General Agreement. The interpretative practice of the contracting parties confirmed that exceptions such as Article VI had to be interpreted narrowly and that the contracting party invoking the exception had the burden of proof of demonstrating that it had met all the requirements of the provision in question. ²⁵ Article VI of the General Agreement provided that no anti-dumping or countervailing duties could be levied unless certain facts had been established and the contracting party invoking this Article had taken into account all facts necessary to meet the requirements of this Article. ²⁶ The contracting party taking action under this Article must establish the existence of these facts when its action was challenged. ²⁷ In the matter before this Panel, the United States had not demonstrated that it had met these requirements.

44. The United States considered that the proposition that Article VI of the General Agreement constituted an exception to fundamental rights and obligations under the General Agreement was contradicted by the text, structure and the drafting and interpretative histories of the General Agreement. The fact that with respect to no other commercial practice subject to provisions of the General Agreement the drafters had used language as strong as in Article VI, where they had expressly provided that injurious dumping was to be "condemned," was revealing of the key rôle intended by the drafters for the unfair trade remedies within the GATT framework. The structure of the General Agreement also confirmed that Article VI had not been drafted as an exception. Article VI was placed at the beginning of the General Agreement, where the primary subjects of the General Agreement were found. By contrast, where the drafters had intended to craft exceptions, they had placed them at the end of Part II of the General Agreement in Articles XX and XXI. Indeed, the placement of these Articles (grouped together at the end of Part II), their titles (expressly identified as exceptions) and their text (e.g. the requirement that measures taken under these provisions not be a "disguised restriction on international trade) all set them clearly apart from inter alia Article VI. Moreover, application of anti-dumping and/or countervailing duties had also not been encumbered with restrictions and requirements found elsewhere in the General Agreement, e.g. in Article XIX.

45. Norway argued that the proposition advanced by the United States that Article VI was not an exception to fundamental principles of the General Agreement was inconsistent with the plain language of this Article and the overall objectives of the General Agreement. This view was also incompatible with previous panel findings, views of well respected international legal scholars and the drafting history of the General Agreement. In any event, the US argument on Article VI was irrelevant since, whatever the nature of Article VI, in the case before this Panel the United States had not met express requirements of the Agreement.

46. Norway argued that the statement in Article VI of the General Agreement that injurious dumping was to be "condemned" provided no support for the view that Article VI was not an exception to fundamental principles of the General Agreement. When, at the second session of the CONTRACTING PARTIES, the text of Article VI of the General Agreement had been replaced by Article 34 of the Havana Charter, the Working Party had noted that there was no difference in meaning between the original Article VI and Article 34 of the Havana Charter. ²⁸ This demonstrated that the inclusion of the word "condemned" was without significance. If anything, the drafting history of Article 34 of the Havana Charter indicated that the term "condemned" had been added in order to limit, not expand, the use of anti-dumping measures. In November 1947, at the Havana Conference, Article 34 of the draft Charter had been considered by the sub-committee on general commercial policy provisions. A number of delegations to this committee had wanted to expand Article 34 to include a condemnation of dumping and to cover in addition to "price dumping" all forms of dumping without requiring an injury test. Another group of delegations had believed that the primary objective of the Article should be to restrict the abuse of anti-dumping measures. The result had been the current text of Article VI, which kept the main focus of the Article on limiting the use of anti-dumping duties but which included a statement that dumping was to be "condemned", but only dumping as defined in Article VI, and only if injury was also found. The inclusion of the word "condemned" had been necessary to reach a compromise under which the coverage of the Article was limited to instances of price dumping which caused injury. Norway noted that the United States had been among the delegations which had wanted the focus of the Article to be on restricting the use of anti-dumping duties, not on limiting the use of dumping in general.

47. Norway considered that Article II:2(b) of the General Agreement supported the view that Article VI was an exception. The language and placement of this provision demonstrated that the imposition of anti-dumping and countervailing duties was intended to be an exception to, not a fundamental right of, the General Agreement. In fact, one author had described the reference to anti-dumping and countervailing duties in Article II:2(b) as an "exception". ²⁹

48. In response to the argument of the United States with respect to the placement of Article VI within the General Agreement, Norway observed that this argument overlooked the fact there were exceptions scattered all over the text of the General Agreement, e.g. in Articles I:2, II:2(a), (b) and (c), III:3, III:6, IV, XII, XIV and XIX. There was therefore no basis for the view that the placement of Article VI in the General Agreement indicated that the Article was not an exception. With respect to the argument that the absence in Article VI of provisions regarding consultation confirmed that this Article was not an exception, Norway noted that this argument ignored the practice of many signatories to require consultations before imposing duties under Article VI. Moreover, this argument failed to take into account that consultation procedures had been included in the Agreement and in the Agreement on Implementation of Article VI of the General Agreement, which had been designed to elaborate upon the requirements of Article VI.

49. The United States further argued that the negotiating history of the General Agreement demonstrated that remedies for dumped and subsidized goods had from the beginning been a fundamental aspect of the General Agreement. As described in a recent GATT publication, the promotion of fair competition (defined as curbing government subsidies, dumping and "other distortions of international competition") had been and remained one of the fundamental objectives of the General Agreement. ³⁰ This recent description of the fundamental nature of the rights under Article VI reflected the negotiating history of the General Agreement. The drafters of the General Agreement had recognized in 1947 that distortions to international competition caused by unfair trade practices could be so severe that effective remedies to curb such distortions were essential: indeed, as essential to an overall programme of liberalization of international trade as, for example, the m.f.n. principle and the national treatment principle. The essential balance reflected in the text of the General Agreement was that contracting parties would open their markets - principally through tariff reductions - in exchange for reciprocal access and the right to take action against unfairly traded imports. Without such disciplines, tariff reduction would have been of little or no value. The importance of disciplines governing unfair trade practices was reflected in the formal announcement by the United States Department of State of the accession of the United States to the General Agreement. Describing Part II of the General Agreement, which contained the commercial policy provisions (including Article VI), the Department had explained that:

50. Regarding the negotiating history of the General Agreement, the United States also observed that injurious dumping had been viewed with such concern during the original GATT negotiations that proposals had been considered to permit imposition of tougher countermeasures than merely offsetting duties. ³² However, in the end the Article VI remedy had been limited to such duties. This choice indicated clearly that the drafters of Article VI had been capable of narrowing the anti-dumping/countervailing duty instrument in the General Agreement in whichever way they chose. The negotiating record revealed that the drafters had narrowed the remedy. By contrast, there was no support for the view of Norway that the application of that remedy should be further narrowed by, inter alia, establishing a burden of proof or persuasion on parties invoking their fundamental rights under Article VI. Indeed, the narrow nature of the remedy suggested the contrary: if the imposition of offsetting duties alone was to bear the burden of remedying the harm caused by, and deterring these anti- competitive and unfair trade practices, the application of the remedy should be broadly construed. In particular, it should not be restricted except as expressly required by the terms of Article VI. The drafting history also demonstrated that no special burden of proof had been contemplated with respect to contracting parties imposing duties under Article VI. Early proposals that the importing country be required to prove dumping allegations had been rejected in favour of the weaker and broader language of Article VI as adopted, which simply provided that imposition of anti-dumping duties or countervailing duties should occur only after a determination by a contracting party that dumping and injury existed. ³³

51. Norway argued that the main objective of the General Agreement was the reduction of tariff rates on an m.f.n. basis. By contrast, nothing in the General Agreement obligated nations or firms to refrain from dumping. ³⁴ While "promoting fair competition" might be one of the objectives of the General Agreement, the GATT had never defined this to mean "curbing government subsidies, dumping and other distortions of international competition", as claimed by the United States. In fact, the arbitrary imposition of anti-dumping duties was regarded as a protectionist device in its own right, retarding the promotion of fair competition. ³⁵ The GATT publication referred to by the United States did not define the promotion of fair competition in the manner suggested by the United States. Rather, it pointed out in a neutral fashion that "increasingly, the GATT is concerned with subsidies and dumping," and then pointed out more specifically that "the rules under which governments may respond to dumping in their domestic market by overseas competitors are contained in the GATT and an Anti-Dumping Code." Thus, the General Agreement and the Agreement on Implementation of Article VI of the General Agreement provided for limitations on the use of anti-dumping measures and did not regulate the practice of dumping as such. This publication further referred to Article I of the General Agreement as "the key article" of the General Agreement and described Article VI as a "technical article designed to prevent or control possible substitutes for tariffs". The publication also referred to Article VI as "lay[ing] down the conditions under which anti-dumping duties may be imposed", which again confirmed that Article VI dealt with limits on the use of anti-dumping measures. Moreover, the United States was incorrect in referring to dumping as "unfair trade" in its discussion of this GATT publication. This publication did not describe dumping as "unfair trade"; nor was dumping described as "unfair trade" in the text of the General Agreement or in the Agreement on Implementation of Article VI of the General Agreement.

52. In the view of Norway, the State Department publication referred to by the United States did not provide support for the view that Article VI remedies were a fundamental right of contracting parties to the General Agreement. The paragraph quoted by the United States referred to "non-tariff trade barriers" and did not discuss dumping. Interestingly, dumping was not mentioned in the introductory paragraph in which the State Department discussed the scope of the General Agreement, or in the paragraph which summarized the provisions of Part II of the General Agreement. By contrast, rules on tariffs, preferences, quotas, internal controls, customs regulations, state trading and subsidies were all identified in the introduction as key features of the General Agreement. This absence of a reference to the imposition of anti-dumping duties contradicted the view that from the outset the application of such duties had been considered a fundamental right under the General Agreement. To the contrary, the position of the State Department as reflected in this publication supported the view that Article VI had been intended to limit the application of anti-dumping measures, rather than to discipline dumping, as claimed by the United States.

53. The United States, referring to the Panel Reports in "Swedish Anti-Dumping Duties" ³⁶ in "New Zealand - Imports of Electrical Transformers from Finland", ³⁷ argued that the interpretative history of the General Agreement strongly supported the view that Article VI should be construed as a remedial provision, rather than as an exception. The former Report was significant in that the Panel had held that a principle as important as the m.f.n. principle was not applicable to duties imposed under Article VI. By contrast, true exceptions, such as Article XX and XXI contained "soft" m.f.n. provisions, generally requiring or urging compliance with m.f.n. principles to the extent not inconsistent with the exception itself. Equally important was the Panel's holding that a party invoking Article VI bore no special burden of proof. Rather, the Panel had simply found that it:

To understand what the Panel had meant by "establishing the existence of dumping", it was instructive to note the context of the Panel's comment. The Panel had noted that the Swedish authorities "had not established that the export prices of the Italian exporters were less than the normal value". ³⁹ In the words of the Panel: "no definitive evidence had been brought forward to support the conclusion [of dumping]". ⁴⁰ In other words, the Swedish authorities had not even collected the most rudimentary evidence of dumping; indeed, they appeared confused as to whether they believed that dumping had occurred on the basis of a comparison between home market prices and export prices, third country prices and export prices, or constructed values and export prices. ⁴¹ The facts of this case thus demonstrated that the Panel was to be taken at the plain meaning of its words when it had written that dumping must be "established" before action under Article VI was permitted.

54. With respect to the dispute in "New Zealand - Imports of Electrical Transformers from Finland", the United States observed that, while the Report of the Panel in this dispute was most frequently cited for reiterating the words of the Panel in the Swedish Anti-Dumping Duties case that a party invoking Article VI "must establish the existence" of injurious dumping, in fact the holding of the Panel in this case was far richer and consisted of two essential elements. First, the Panel had discussed the parties' respective allegations with regard to New Zealand's determination of dumping. After describing in detail the arguments of the parties to the dispute, it had reached the following conclusion:

The Panel's conclusion clearly indicated that, absent an express provision of the General Agreement which a complaining party could demonstrate to have been violated, and in the absence of evidence demonstrating that the factual basis of the determination did not conform to the requirements of the General Agreement, the party taking action under Article VI could be considered to have acted within its rights. In other words, the burden of producing evidence to the effect that the determinations were not made on a justifiable factual or legal basis rested with the complaining party.

TO CONTINUE WITH IMPOSITION OF COUNTERVAILING DUTIES ON IMPORTS OF FRESH AND CHILLED ATLANTIC SALMON FROM NORWAY

¹⁶ Elettronica Sicula S.p.A. Case, 1989 I.C.J. Reports, p.94.

¹⁷ Supra, paragraph 26.

¹⁸ ADP/47.

¹⁹ e.g. Certain Electrical Conductor Aluminium Redraw Rod from Venezuela, 53 Fed.Reg. p.24764 (1989).

²⁰ 1989 I.C.J. Reports, p.15.

²¹ Ibid., paragraph 52.

²² e.g. "New Zealand Imports of Electrical Transformers from Finland", BISD 32S/55, paragraph 4.4; "United States Countervailing Duties on fresh, chilled and frozen pork from Canada", DS7/R, BISD 38S/30, paragraph 4.8.

²³ ADP/47.

²⁴ Supra, paragraphs 25 29.

²⁵ e.g. Report of the Panel in "Canada Import, Distribution and Sale of Alcoholic Drinks by Canadian Provincial Marketing Agencies", BISD 35S/37; Report of the Panel in "Canada Administration of the Foreign Investment Review Act,", BISD 30S/140, and Report of the Panel in "United States Countervailing Duties on fresh, chilled and frozen pork from Canada", DS7/R, BISD 38S/30.

²⁶ Report of the Panel in "Swedish Anti Dumping Duties", BISD 3S/81, paragraph 15; Report of the Panel in "United States Countervailing Duties on fresh, chilled and frozen pork from Canada, DS7/R, BISD 38S/30, paragraph 4.8.

²⁷ Report of the Panel in "Swedish Anti Dumping Duties", BISD 3S/81, paragraph 15 and Report of the Panel in "New Zealand Imports of Electrical Transformers from Finland", BISD 32S/55, paragraph 4.4.

²⁸ BISD II/41.

²⁹ Jackson, World Trade and the Law of GATT (1969), p.210.

³⁰ GATT What It Is, What It Does (1990), p.4.

³¹ 17 Dept. State Bull., 1042, 1045 (1947).

³² Jackson, World Trade and the Law of GATT, (1969), p.421, note 55.

³³ E/PC/T/C.II/32 (1946) (Note of the Benelux countries.

³⁴ Report of the Panel in "Canada Administration of the Foreign Investment Review Act, BISD 30S/140, 164.

³⁵ See, e.g. Petersmann, "Need for Reforming Anti Dumping Rules and Practices", in 45 Aussenwirtschaft 179 (1990).

³⁶ BISD 3S/83.

³⁷ BISD 32S/55.

³⁸ BISD 3S/83, 86.

³⁹ BISD 3S/87.

⁴⁰ BISD 3S/88.

⁴¹ BISD 3S/88-89.

⁴² BISD 32S/55, 67.

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