UNITED STATES � ANTI-DUMPING ACT OF 1916

AB-2000-5

D. Claims of Error by the European Communities and Japan - Appellants

1. Third Party Rights

38. The European Communities and Japan contend that the Panel erred in not granting enhanced third party rights to Japan in the case brought by the European Communities, and in not granting enhanced third party rights to the European Communities in the case brought by Japan. They ask the Appellate Body to reverse the Panel's findings and reasoning in this regard, in particular with respect to the proper interpretation of Article 9.3 of the DSU and the appropriate standard for evaluating whether enhanced third party rights should be granted. The European Communities and Japan stress the similarity between the present cases and EC Measures Concerning Meat and Meat Products (Hormones) ("European Communities - Hormones ").²⁴

39. According to the European Communities and Japan, in European Communities - Hormones the Appellate Body identified three conditions for the granting of enhanced third party rights to a Member involved in a related dispute: (i) the two proceedings deal with the same matter; (ii) the same panelists serve in both disputes; and (iii) the proceedings are held concurrently. They add that, even if the treatment of the European Communities and Japan as third parties was simply a matter of the Panel's discretion under Article 12.1 of the DSU, such discretion should have been exercised on the basis of the principles reflected in Articles 9 and 10 of the DSU, taking account of the need to respect due process.

2. Conditional Appeals

(a) Articles III:4 and XI of the GATT 1994

40. If the Appellate Body finds the United States' arguments on the scope of Article VI of the GATT 1994 admissible and well-founded, then the European Communities and Japan request the Appellate Body to find that the 1916 Act violates Articles III:4 and XI of the GATT 1994. The European Communities and Japan incorporate by reference and to the extent necessary the arguments that they developed before the Panel in this regard.

(b) Article XVI:4 of the WTO Agreement

41. Should the Appellate Body find the United States' arguments regarding the Panel's jurisdiction and the "non-mandatory" character of the 1916 Act to be admissible and well-founded, the European Communities and Japan ask the Appellate Body to find that the 1916 Act violates Article XVI:4 of the WTO Agreement. The European Communities and Japan incorporate by reference and to the extent necessary all the arguments that they developed before the Panel in this connection.

E. Arguments by the United States - Appellee

1. Third Party Rights

42. The United States urges the Appellate Body to affirm the Panel's decision to deny enhanced third party rights to the European Communities and Japan. As a preliminary matter, the United States contests the claim of the European Communities and Japan that they were "prejudiced" by such denial, given that they prevailed on every substantive argument on which the Panel made findings.

43. The United States contends that the Panel's denial of enhanced third party rights was correct as a matter of law. In the view of the United States, Articles 9.2 and 9.3 of the DSU are of no assistance to the European Communities and Japan. Rather, as the Panel correctly noted and as the Appellate Body found in European Communities - Hormones , the question of whether to grant enhanced third party rights is a matter within the sound discretion of a panel. Unlike that case, these proceedings did not involve the consideration of complex facts or scientific evidence or a joint meeting of the parties. There were no "concurrent deliberations" as that term was used in the context of European Communities - Hormones. Furthermore, the granting of enhanced third party rights in these proceedings might have prejudiced the United States. In view of these circumstances, the United States considers that the Panel correctly denied enhanced third party rights to the European Communities and Japan.

2. Conditional Appeals

(a) Articles III:4 and XI of the GATT 1994

44. The United States submits that the Appellate Body lacks the authority to consider the claims by the European Communities and Japan under Articles III:4 and XI of the GATT 1994. First, the European Communities cannot request the Appellate Body to make any findings regarding Article XI of the GATT 1994 since that provision was not included in the European Communities' request for a panel. Second, the Panel made no factual or legal findings relating to the claims under Article III:4 and XI of the GATT 1994. As the facts relevant to the assessment of these claims were disputed before the Panel, the United States concludes that the limits on appellate review contained in Article 17 of the DSU prevent the Appellate Body from making any determinations of the claims under Articles III:4 and XI of the GATT 1994.

(b) Article XVI:4 of the WTO Agreement

45. Should the Appellate Body reach this issue, the United States requests the Appellate Body to affirm the Panel's conclusion that the 1916 Act only violates Article XVI:4 of the WTO Agreement to the extent that the 1916 Act violates Article VI of the GATT 1994.

F. Arguments by India and Mexico - Third Participants

1. India

(a) Jurisdiction of the Panel to Hear Claims Against the 1916 Act as Such

46. India argues that the Panel correctly assumed jurisdiction in these disputes. The United States' argument amounts to a contention that a Member's anti-dumping law as such may not be challenged. If accepted, this position would deprive Article 18.4 of the Anti-Dumping Agreement of any meaning or legal effect, and allow a Member to maintain a WTO-incompatible law with impunity as long as none of the measures referred to in Article 17.4 of the Anti-Dumping Agreement were adopted. India considers that the Panel correctly held that the Appellate Body ruling in Guatemala - Cement applies only if the dispute is related to the initiation and conduct of an anti-dumping investigation, and does not exclude review of anti-dumping laws as such.

47. India also considers that the reasoning in India - Patent Protection for Pharmaceutical and Agricultural Chemical Products²⁵ is sufficient to dispose of the United States' argument that it is the interpretation by the United States' courts of the 1916 Act that is dispositive of the nature of the Act and whether it is mandatory or discretionary.

(b) Applicability of Article VI of the GATT 1994 and the Anti-Dumping Agreement to the 1916 Act

48. India does not accept the United States' contention that the 1916 Act is an anti-trust rather than an anti-dumping law. The 1916 Act clearly addresses transnational price discrimination and targets imported products sold in the United States. This is entirely consonant with the definition of dumping in Article VI of the GATT 1994. India underlines that Article VI applies whether the dumping is limited, sporadic, frequent or systemic. Accordingly, the 1916 Act cannot escape the disciplines of Article VI simply because it requires the prohibited conduct to be "common and systematic". India therefore agrees with the Panel that Article VI establishes that anti-dumping duties are the sole means authorized to deal with dumped imports.

2. Mexico

49. Mexico argues that the Panel correctly concluded that the key to the applicability of Article VI of the GATT 1994 to the 1916 Act is whether that law objectively addresses "dumping" within the meaning of that article, that the 1916 Act does address such "dumping", and that  anti-dumping duties are the sole remedy authorized under Article VI of the GATT 1994.

III. Issues Raised in these Appeals

50. The following issues are raised in these appeals:

(a) Whether the Panel erred in its assessment of the claims against the 1916 Act as such, in particular:

(i) in concluding that it had jurisdiction to consider claims that the 1916 Act as such is inconsistent with United States' obligations under Article VI of the GATT 1994 and the Anti-Dumping Agreement; and

(ii) in its interpretation and application of the distinction between mandatory and discretionary legislation;

(b) Whether the Panel erred in concluding that Article VI of the GATT 1994 and the Anti-Dumping Agreement apply to the 1916 Act;

(c) Whether the Panel erred in concluding:

(i) in the EC Panel Report, that the 1916 Act is inconsistent with Articles VI:1 and VI:2 of the GATT 1994, Articles 1, 4 and 5.5 of the Anti-Dumping Agreement and Article XVI:4 of the WTO Agreement; and

(ii) in the Japan Panel Report, that the 1916 Act is inconsistent with Articles VI:1 and VI:2 of the GATT 1994, Articles 1, 4.1, 5.1, 5.2, 5.4, 18.1 and 18.4 of the Anti-Dumping Agreement and Article XVI:4 of the WTO Agreement;

(d) Whether the Panel erred in refusing to grant "enhanced" third party rights to Japan in the case brought by the European Communities, and to the European Communities in the case brought by Japan; and

(e) If the Appellate Body were to reverse the Panel's findings that Article VI of the GATT 1994 and the Anti-Dumping Agreement apply to the 1916 Act, whether the Appellate Body can or should find that the 1916 Act is inconsistent with Articles III:4 and XI of the GATT 1994; and, if the Appellate Body were to reverse the Panel's findings on jurisdiction or on the distinction between mandatory and discretionary legislation, whether the Appellate Body can or should find that the 1916 Act is inconsistent with Article XVI:4 of the WTO Agreement.

IV. Claims Against the 1916 Act as Such

A. Jurisdiction of the Panel to Hear Claims Against the 1916 Act as Such

51. With respect to its jurisdiction to examine the claims of the European Communities and Japan, the Panel found that:

� Article 17 of the Anti-Dumping Agreement does not prevent us from reviewing the conformity of laws as such under the Anti-Dumping Agreement. The same applies, a fortiori, with respect to Article VI of the GATT 1994. �²⁶

52. The United States appeals the Panel's finding that it had jurisdiction to consider the claims that the 1916 Act as such is inconsistent with Article VI of the GATT 1994 and the Anti-Dumping Agreement.

53. In its appellee's submission, the European Communities argues that the United States' appeal relating to the Panel's finding on jurisdiction should be rejected because the United States' objection to the Panel's jurisdiction was both not timely raised before the Panel and not well founded. In the case brought by the European Communities, the United States did not raise this objection to the jurisdiction of the Panel until the stage of interim review. The Panel stated that "there would be a number of reasons to reject the US argument as untimely."²⁷ The European Communities agrees and argues before us that the jurisdictional objection by the United States could have and should have been raised before the interim review stage of the proceedings before the Panel. The European Communities invokes the principle that procedural objections must be made in a timely manner and in good faith and refers in this respect to the Appellate Body Reports in Korea - Dairy Safeguards²⁸ and United States - FSC.²⁹

54. We agree with the Panel that the interim review was not an appropriate stage in the Panel's proceedings to raise objections to the Panel's jurisdiction for the first time. An objection to jurisdiction should be raised as early as possible and panels must ensure that the requirements of due process are met. However, we also agree with the Panel's consideration that "some issues of jurisdiction may be of such a nature that they have to be addressed by the Panel at any time."³⁰ We do not share the European Communities' view that objections to the jurisdiction of a panel are appropriately regarded as simply "procedural objections". The vesting of jurisdiction in a panel is a fundamental prerequisite for lawful panel proceedings. We, therefore, see no reason to accept the European Communities' argument that we must reject the United States' appeal because the United States did not raise its jurisdictional objection before the Panel in a timely manner.

55. The United States appeals, on the basis of the wording of Article 17.4 of the Anti-Dumping Agreement and our Report in Guatemala - Cement, the Panel's finding that it had jurisdiction to examine the 1916 Act as such. According to the United States, Members cannot bring a claim of inconsistency with the Anti-Dumping Agreement against legislation as such independently from a claim of inconsistency of one of the three anti-dumping measures specified in Article 17.4, i.e., a definitive anti-dumping duty, a price undertaking or, in some circumstances, a provisional measure. The United States contends that:

[When a Member has] a law which [provides for the imposition of] duties to counteract dumping and, under the Anti-Dumping Agreement, if [another Member wishes] to challenge that law, then [the other Member must] wait until one of the three measures [referred to in Article 17.4 of the Anti-Dumping Agreement] is in place.³¹

56. Since, in the present cases, the European Communities and Japan did not challenge a definitive anti-dumping duty, a price undertaking or a provisional measure, the United States concludes that the Panel did not have jurisdiction to examine the 1916 Act as such. Moreover, the United States contends that if the 1916 Act as such cannot be challenged under the Anti-Dumping Agreement, it cannot be challenged under Article VI of the GATT 1994 because Article VI and the Anti-Dumping Agreement are an inseparable package of rights and obligations.

57. In examining the legal basis for the Panel's jurisdiction to consider the claims of inconsistency made in respect of the 1916 Act as such, we begin with Article 1.1 of the DSU, which states, in relevant part:

The rules and procedures of this Understanding shall apply to disputes brought pursuant to the consultation and dispute settlement provisions of the agreements listed in Appendix 1 to this Understanding (referred to in this Understanding as the "covered agreements"). (emphasis added)

For the DSU to apply to claims that the 1916 Act as such is inconsistent with Article VI of the GATT 1994 and the Anti-Dumping Agreement, a legal basis to bring the claims must be found in the GATT 1994 and the Anti-Dumping Agreement, respectively.

58. We note that in the present cases, the European Communities and Japan both brought their claims of inconsistency with Article VI of the GATT 1994 and the Anti-Dumping Agreement pursuant to Article XXIII of the GATT 1994 and Article 17 of the Anti-Dumping Agreement.³²

59. Articles XXII and XXIII of the GATT 1994 serve as the basis for consultations and dispute settlement under the GATT 1994 and, through incorporation by reference, under most of the other agreements in Annex 1A to the WTO Agreement³³. According to Article XXIII:1(a) of the GATT 1994, a Member can bring a dispute settlement claim against another Member when it considers that a benefit accruing to it under the GATT 1994 is being nullified or impaired, or that the achievement of any objective of the GATT 1994 is being impeded, as a result of the failure of that other Member to carry out its obligations under that Agreement.

60. Prior to the entry into force of the WTO Agreement, it was firmly established that Article XXIII:1(a) of the GATT 1947 allowed a Contracting Party to challenge legislation as such, independently from the application of that legislation in specific instances. While the text of Article XXIII does not expressly address the matter, panels consistently considered that, under Article XXIII, they had the jurisdiction to deal with claims against legislation as such.³⁴ In examining such claims, panels developed the concept that mandatory and discretionary legislation should be distinguished from each other, reasoning that only legislation that mandates a violation of GATT obligations can be found as such to be inconsistent with those obligations. We consider the application of this distinction to the present cases in section IV(B) below.

61. Thus, that a Contracting Party could challenge legislation as such before a panel was well-settled under the GATT 1947. We consider that the case law articulating and applying this practice forms part of the GATT acquis which, under Article XVI:1 of the WTO Agreement, provides guidance to the WTO and, therefore, to panels and the Appellate Body. Furthermore, in Article 3.1 of the DSU, Members affirm "their adherence to the principles for the management of disputes heretofore applied under Articles XXII and XXIII of GATT 1947". We note that, since the entry into force of the WTO Agreement, a number of panels have dealt with dispute settlement claims brought against a Member on the basis of its legislation as such, independently from the application of that legislation in specific instances.³⁵

62. Turning to the issue of the legal basis for claims brought under the Anti-Dumping Agreement, we note that Article 17 of the Anti-Dumping Agreement addresses dispute settlement under that Agreement. Just as Articles XXII and XXIII of the GATT 1994 create a legal basis for claims in disputes relating to provisions of the GATT 1994, so also Article 17 establishes the basis for dispute settlement claims relating to provisions of the Anti-Dumping Agreement. In the same way that Article XXIII of the GATT 1994 allows a WTO Member to challenge legislation as such, Article 17 of the Anti-Dumping Agreement is properly to be regarded as allowing a challenge to legislation as such, unless this possibility is excluded. No such express exclusion is found in Article 17 or elsewhere in the Anti-Dumping Agreement.

63. In considering whether Article 17 contains an implicit restriction on challenges to anti-dumping legislation as such, we first note that Article 17.1 states:

Except as otherwise provided herein, the Dispute Settlement Understanding is applicable to consultations and the settlement of disputes under this Agreement.

64. Article 17.1 refers, without qualification, to "the settlement of disputes" under the Anti-Dumping Agreement. Article 17.1 does not distinguish between disputes relating to anti-dumping legislation as such and disputes relating to anti-dumping measures taken in the implementation of such legislation. Article 17.1 therefore implies that Members can challenge the consistency of legislation as such with the Anti-Dumping Agreement unless this action is excluded by Article 17.

65. Similarly, Article 17.2 of the Anti-Dumping Agreement does not distinguish between disputes relating to anti-dumping legislation as such and disputes relating to anti-dumping measures taken in the implementation of such legislation. On the contrary, it refers to consultations with respect to "any matter affecting the operation of this Agreement".

66. Article 17.3 of the Anti-Dumping Agreement states, in wording that mirrors Article XXIII of the GATT 1994:

If any 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, it may, with a view to reaching a mutually satisfactory resolution of the matter, request in writing consultations with the Member or Members in question. �

67. In our Report in Guatemala - Cement, we described Article 17.3 as:

� 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 �³⁶

68. Article 17.3 does not explicitly address challenges to legislation as such. As we have seen above, Articles XXII and XXIII allow challenges to be brought under the GATT 1994 against legislation as such. Since Article 17.3 is the "equivalent provision" to Articles XXII and XXIII of the GATT 1994, Article 17.3 provides further support for our view that challenges may be brought under the Anti-Dumping Agreement against legislation as such, unless such challenges are otherwise excluded.

69. As indicated above, the United States bases its objection to the Panel's jurisdiction on Article 17.4 of the Anti-Dumping Agreement and our Report in Guatemala - Cement.

70. Article 17.4 of the Anti-Dumping Agreement provides:

If the Member that requested consultations considers that the consultations pursuant to paragraph 3 have failed to achieve a mutually agreed solution, and if final action has been taken by the administering authorities of the importing Member to levy definitive anti-dumping duties or to accept price undertakings, it may refer the matter to the Dispute Settlement Body ("DSB"). When a provisional measure has a significant impact and the Member that requested consultations considers that the measure was taken contrary to the provisions of paragraph 1 of Article 7, that Member may also refer such matter to the DSB. (emphasis added)

We note that, unlike Articles 17.1 to 17.3, Article 17.4 is a special or additional dispute settlement rule listed in Appendix 2 to the DSU.

71. In Guatemala - Cement, Mexico had challenged Guatemala's initiation of anti-dumping proceedings, and its conduct of the investigation, without identifying any of the measures listed in Article 17.4. We stated that:

� Three types of anti-dumping measure are specified in Article 17.4: definitive anti-dumping duties, the acceptance of price undertakings, and provisional measures. According to Article 17.4, a "matter" may be referred to the DSB only if one of the relevant three anti-dumping measures is in place. This provision, when read together with Article 6.2 of the DSU, requires a panel request in a dispute brought under the Anti-Dumping Agreement to identify, as the specific measure at issue, either a definitive anti-dumping duty, the acceptance of a price undertaking, or a provisional measure. � (original emphasis)

� We find that in disputes under the Anti-Dumping Agreement relating to the initiation and conduct of anti-dumping investigations, a definitive anti-dumping duty, the acceptance of a price undertaking or a provisional measure must be identified as part of the matter referred to the DSB pursuant to the provisions of Article 17.4 of the Anti-Dumping Agreement and Article 6.2 of the DSU.³⁷ (emphasis added)

72. Nothing in our Report in Guatemala - Cement suggests that Article 17.4 precludes review of anti-dumping legislation as such. Rather, in that case, we simply found that, for Mexico to challenge Guatemala's initiation and conduct of the anti-dumping investigation, Mexico was required to identify one of the three anti-dumping measures listed in Article 17.4 in its request for establishment of a panel. Since it did not do so, the panel in that case did not have jurisdiction.

73. Important considerations underlie the restriction contained in Article 17.4. In the context of dispute settlement proceedings regarding an anti-dumping investigation, there is tension between, on the one hand, a complaining Member's right to seek redress when illegal action affects its economic operators and, on the other hand, the risk that a responding Member may be harassed or its resources squandered if dispute settlement proceedings could be initiated against it in respect of each step, however small, taken in the course of an anti-dumping investigation, even before any concrete measure had been adopted.³⁸ In our view, by limiting the availability of dispute settlement proceedings related to an anti-dumping investigation to cases in which a Member's request for establishment of a panel identifies a definitive anti-dumping duty, a price undertaking or a provisional measure³⁹, Article 17.4 strikes a balance between these competing considerations.

74. Therefore, Article 17.4 sets out certain conditions that must exist before a Member can challenge action taken by a national investigating authority in the context of an anti-dumping investigation. However, Article 17.4 does not address or affect a Member's right to bring a claim of inconsistency with the Anti-Dumping Agreement against anti-dumping legislation as such.

75. Moreover, as we have seen above, the GATT and WTO case law firmly establishes that dispute settlement proceedings may be brought based on the alleged inconsistency of a Member's legislation as such with that Member's obligations. We find nothing, and the United States has identified nothing, inherent in the nature of anti-dumping legislation that would rationally distinguish such legislation from other types of legislation for purposes of dispute settlement, or that would remove anti-dumping legislation from the ambit of the generally-accepted practice that a panel may examine legislation as such.

76. Our reading of Article 17 as allowing Members to bring claims against anti-dumping legislation as such is supported by Article 18.4 of the Anti-Dumping Agreement.

77. Article 18.4 of the Anti-Dumping Agreement states:

Each Member shall take all necessary steps, of a general or particular character, to ensure, not later than the date of entry into force of the WTO Agreement for it, the conformity of its laws, regulations and administrative procedures with the provisions of this Agreement as they may apply for the Member in question.

78. Article 18.4 imposes an affirmative obligation on each Member to bring its legislation into conformity with the provisions of the Anti-Dumping Agreement not later than the date of entry into force of the WTO Agreement for that Member. Nothing in Article 18.4 or elsewhere in the Anti-Dumping Agreement excludes the obligation set out in Article 18.4 from the scope of matters that may be submitted to dispute settlement.

79. If a Member could not bring a claim of inconsistency under the Anti-Dumping Agreement against legislation as such until one of the three anti-dumping measures specified in Article 17.4 had been adopted and was also challenged, then examination of the consistency with Article 18.4 of anti-dumping legislation as such would be deferred, and the effectiveness of Article 18.4 would be diminished.

80. Furthermore, we note that Article 18.1 of the Anti-Dumping Agreement states:

No specific action against dumping of exports from another Member can be taken except in accordance with the provisions of GATT 1994, as interpreted by this Agreement.

81. Article 18.1 contains a prohibition on "specific action against dumping" when such action is not taken in accordance with the provisions of the GATT 1994, as interpreted by the Anti-Dumping Agreement. Specific action against dumping could take a wide variety of forms. If specific action against dumping is taken in a form other than a form authorized under Article VI of the GATT 1994, as interpreted by the Anti-Dumping Agreement, such action will violate Article 18.1.⁴⁰ We find nothing, however, in Article 18.1 or elsewhere in the Anti-Dumping Agreement, to suggest that the consistency of such action with Article 18.1 may only be challenged when one of the three measures specified in Article 17.4 has been adopted. Indeed, such an interpretation must be wrong since it implies that, if a Member's legislation provides for a response to dumping that does not consist of one of the three measures listed in Article 17.4, then it would be impossible to test the consistency of that legislation, and of particular responses thereunder, with Article 18.1 of the Anti-Dumping Agreement.

82. Therefore, we consider that Articles 18.1 and 18.4 support our conclusion that a Member may challenge the consistency of legislation as such with the provisions of the Anti-Dumping Agreement.

83. For all these reasons, we conclude that, pursuant to Article XXIII of the GATT 1994 and Article 17 of the Anti-Dumping Agreement, the European Communities and Japan could bring dispute settlement claims of inconsistency with Article VI of the GATT 1994 and the Anti-Dumping Agreement against the 1916 Act as such. We, therefore, uphold the Panel's finding that it had jurisdiction to review these claims.

24 Appellate Body Report, WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998.

25 Appellate Body Report, WT/DS50/AB/R, adopted 16 January 1998, paras. 65 - 66.

26 EC Panel Report, para. 5.27. See also Japan Panel Report, para. 6.91.

27 EC Panel Report, para. 5.19.

28 Appellate Body Report, supra, footnote 21, paras. 127 - 131.

29 Appellate Body Report, supra, footnote 22, para. 166.

30 EC Panel Report, para. 5.17. We note that it is a widely accepted rule that an international tribunal is entitled to consider the issue of its own jurisdiction on its own initiative, and to satisfy itself that it has jurisdiction in any case that comes before it. See, for example, Case Concerning the Administration of the Prince von Pless (Preliminary Objection) (1933) P.C.I.J. Ser. A/B, No. 52, p. 15; Individual Opinion of President Sir A. McNair, Anglo-Iranian Oil Co. Case (Preliminary Objection) (1952) I.C.J. Rep., p. 116; Separate Opinion of Judge Sir H. Lauterpacht in Case of Certain Norwegian Loans (1957) I.C.J. Rep., p. 43; and Dissenting Opinion of Judge Sir H. Lauterpacht in the Interhandel Case (Preliminary Objections) (1959) I.C.J. Rep., p. 104. See also M.O. Hudson, The Permanent Court of International Justice 1920-1942 (MacMillan, 1943), pp. 418-419; G. Fitzmaurice, The Law and Procedure of the International Court of Justice, Vol. 2 (Grotius Publications, 1986), pp. 530, 755-758; S. Rosenne, The Law and Practice of the International Court (Martinus Nijhoff, 1985), pp. 467-468; L.A. Podesta Costa and J.M. Ruda, Derecho Internacional P�blico, Vol. 2 (Tipogr�fica, 1985), p. 438; M. Diez de Velasco Vallejo, Instituciones de Derecho International P�blico (Tecnos, 1997), p. 759. See also the award of the Iran-United States Claims Tribunal in Marks & Umman v. Iran, 8 Iran-United States C.T.R., pp. 296-97 (1985) (Award No. 53-458-3); J.J. van Hof, Commentary on the UNCITRAL Arbitration Rules: The Application by the Iran-U.S. Claims Tribunal (Kluwer, 1991), pp. 149-150; and Rule 41(2) of the rules applicable to ICSID Arbitration Tribunals: International Centre for Settlement of Investment Disputes, Rules of Procedure for Arbitration Proceedings (Arbitration Rules).

31 United States' response to questioning at the oral hearing.

32 WT/DS/136/2, 12 November 1998; WT/DS162/3, 4 June 1999; and WT/DS162/3/Corr.1, 10 February 2000.

33 We note, however, that, as discussed in our Report in Guatemala - Cement, the Anti-Dumping Agreement does not incorporate by reference Articles XXII and XXIII of the GATT 1994: Appellate Body Report, supra, footnote 14, para. 64 and footnote 43.

34 See, for example, Panel Report, United States - Taxes on Petroleum and Certain Imported Substances ("United States - Superfund "), adopted 17 June 1987, BISD 34S/136; Panel Report, United States - Section 337 of the Tariff Act of 1930, adopted 7 November 1989, BISD 36S/345; Panel Report, Thailand - Restrictions on Importation of and Internal Taxes on Cigarettes ("Thailand - Cigarettes"), adopted 7 November 1990, BISD 37S/200; Panel Report, United States - Measures Affecting Alcoholic and Malt Beverages ("United States - Malt Beverages"), adopted 19 June 1992, BISD 39S/206; and Panel Report, United States - Tobacco, supra, footnote 16. See also Panel Report, United States - Wine and Grape Products, supra, footnote 18, examining this issue in the context of a claim brought under the Tokyo Round Agreement on Interpretation and Application of Articles VI, XVI and XXIII of the General Agreement of Tariffs and Trade.

35 See, for example, Panel Report, Japan - Taxes on Alcoholic Beverages, WT/DS8/R, WT/DS10/R, WT/DS11/R, adopted 1 November 1996, as modified by the Appellate Body Report, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R; Panel Report, Canada - Certain Measures Concerning Periodicals, WT/DS31/R, adopted 30 July 1997, as modified by the Appellate Body Report, WT/DS31/AB/R; Panel Report, European Communities - Hormones, WT/DS26/R, WT/DS48/R, adopted 13 February 1998, as modified by the Appellate Body Report, supra, footnote 24; Panel Report, Korea - Taxes on Alcoholic Beverages, WT/DS75/R, WT/DS84/R, adopted 17 February 1999, as modified by the Appellate Body Report, WT/DS75/AB/R, WT/DS84/AB/R; Panel Report, Chile - Taxes on Alcoholic Beverages, WT/DS87/R, WT/DS110/R, adopted 12 January 2000, as modified by the Appellate Body Report, WT/DS87/AB/R, WT/DS110/AB/R; Panel Report, United States - FSC, WT/DS108/R, adopted 20 March 2000, as modified by the Appellate Body Report, supra, footnote 22; and Panel Report, United States - Section 110(5) of the US Copyright Act, WT/DS160/R, adopted 27 July 2000.

36 Appellate Body Report, supra, footnote 14, para. 64.

37 Appellate Body Report, supra, footnote 14, paras. 79 - 80.

38 An unrestricted right to have recourse to dispute settlement during an anti-dumping investigation would allow a multiplicity of dispute settlement proceedings arising out of the same investigation, leading to repeated disruption of that investigation.

39 Once one of the three types of measure listed in Article 17.4 is identified in the request for establishment of a panel, a Member may challenge the consistency of any preceding action taken by an investigating authority in the course of an anti-dumping investigation.