TWN Info Service on WTO
and Trade Issues (May08/20)
AB ruling on "zeroing" makes
The doubtful prospects for clinching a Doha deal (being pushed by WTO Director-General Pascal Lamy) over the next few weeks, and concluding the negotiations during the George W Bush presidency, have been made more difficult as a result of the ruling of the Appellate Body (AB) on 30 April, reversing a three-member panel ruling that would have allowed the US "zeroing" practices in so-called "periodic reviews" of antidumping determinations and countervailing duty levies.
The term "zeroing" is used in anti-dumping matters when a member, in an anti-dumping investigation or finding of "dumping" and "margin of dumping" resulting in levy of countervailing duties, for comparison values uses values of exports below the "normal" value, but ignores exports where prices are above the "normal" value.
The AB ruling (WT/DS344/AB/R) was handed down by a 3-member division bench - Mr. A. V. Ganesan (chair), and Ms Lilia R. Bautista and Mr. George Sacerdoti (members), and is expected to be automatically adopted (by negative consensus) by the Dispute Settlement Body at its meeting on 20 May.
The panel, whose ruling has been reversed, was composed of the Argentine ambassador, Mr Alberto Juan Dumont (Chairman), Mr. Bruce Cullen, senior analyst on trade rules in New Zealand's Ministry of Economic Development and Ms. Leora Blumberg, South African attorney and international trade advisor with the Hong Kong office of Heller Ehrman, a San Francisco law firm. As is now invariably the practice, the panel chair and members, had been named by the WTO Director-General.
Apart from the reversal of the panel ruling on the US "zeroing" practice, the AB, without providing a specific ruling or recommendation to the DSB, has in obiter dicta of sorts sought to enjoin on panels a duty, "absent cogent reasons," to follow earlier rulings and interpretations and legal clarifications in adopted panel and Appellate rulings on the same issues.
The AB has thus sought to introduce de facto into the WTO jurisprudence, the principle of stare decisis (decisions on law in litigations on the basis of precedent), which is contrary to the provisions of the Dispute Settlement Understanding (DSU) and the Marrakesh Treaty. The Dispute Settlement Body (and hence panels and AB) are enjoined by Art. 3.2 of the DSU to clarify existing provisions of the covered agreements under the Marrakesh Treaty "in accordance with customary rules of public international law."
The stare decisis principle in Anglo-Saxon systems of law, is alien to other systems of jurisprudence, and is not found in the Vienna Law of Treaties codifying customary rules of public international law. While almost all other WTO members are parties to the Vienna Law of Treaties, the US though it signed it in 1970, absent Senate advice and consent, did not ratify it; however, it considers many of the provisions of the Vienna Convention on the Law of Treaties to constitute customary international law on the law of treaties, and (according to the US State Department website) considers itself bound by the customary rules of public international law.
[An important consequence of US non-ratification of the Vienna Law of Treaties is that in domestic law and municipal courts, the US Supreme Court adopts a nationalist paradigm and preaches deference to executive branch treaty interpretations, and envisions domestic courts as agents of national sovereignty with an obligation to maximize the United States' immediate strategic interests - Criddle, Evan J., "The Vienna Convention on the Law of Treaties in US Treaty Interpretation," Virginia Journal of International Law, Vol. 44, No. 2, 2004 .]
On substance ("zeroing" practice), the AB ruling would make it more difficult to accommodate the US administration and Congress, who want changes in relevant rules to enable the US to apply "zeroing" so as to be able to shield domestic producers from competitive imports. The draft negotiating text from the Chairman of the Rules negotiations, seeking to partially meet the US view (opposed by most others involved in these Rules negotiations), has suggested changes to the AD Agreement to enable "zeroing" in some cases, but not in initial investigations and dumping determination stages.
to some trade diplomats and observers, if Director-General Pascal Lamy
is able to get a mini-Ministerial to agree on modalities in agriculture
and NAMA and gets it adopted by the General Council by June, he will
table a "package" to promote a
On the other side, the AB obiter dicta raise anew a problem long troubling several developing countries, and now the US, namely, that the Appellate Body (whose reports like those of panels are automatically adopted by negative consensus) is creating new obligations for members in violation of Art. 3.2 of the DSU.
merits and substantive issues of the "zeroing" practices of
the United States in anti-dumping cases, the panel's reasoning that
it is permissible to practice "simple zeroing" (implying "dumping"
by an importer and/or in individual transactions, and collecting duties
on that basis) in periodic reviews of determinations of "dumping"
and "dumping margins", is so faulty that it is difficult to
argue against the AB's reversal, and its analysis of why "zeroing"
is contrary to the provisions on anti-dumping in Art. VI of GATT 1994
and the Anti-Dumping (AD) Agreement of the
In fact, taking account of the state of play at the WTO and the Doha talks (and how panels function, serviced and guided by the secretariat, which also services and promotes particular positions in the negotiations), it is difficult to dispel the suspicion that the panel ruling was an attempt to meet the views of the United States - where influential Congressmen and Senators have made clear that there would be no Doha deal, if it did not have Rules changes (reversing several panel and Appellate Body rulings) to allow for "zeroing".
If this is the "price" that others have to, and are willing to pay, to get the US Congress to agree to a Doha package, then the change of rules should be a matter that the members must collectively negotiate and agree to (by positive consensus), and not by the "negative consensus" of an adopted panel ruling. And if it is desirable to have "stare decisis" to prevail in WTO jurisprudence, then it too must be done by changing the DSU rules - in the separate negotiations under way for "review and clarification" of the DSU.
On the substantive issue of "zeroing", the AB report sets out the different US usages and practices of " zeroing" - in original investigations and determination of dumpings, in collection of provisional duties and customs bonds in such investigations, in levy of countervailing duty and the subsequent determinations for collection of duties, in sunset reviews and for other determinations. (See below).
AB ruling came in an appeal by
AB ruling, reversing the panel's findings, was not unexpected, and follows
a long line of earlier rulings and the analyses behind those rulings.
The first ruling against "zeroing" came in a dispute brought
against the EC by
there are some other curious aspects to the panel ruling and its reversal
by the AB. These involve the panel and its membership, the role of the
Pascal Lamy-led secretariat (whose Legal and Rules divisions had presumably
serviced the panel), the ongoing Rules negotiations in the
The panel report (DS344/R) was circulated to WTO members on 20 December 2007; but the two parties must have been provided an interim report in August or September, and the finalised report in October.
Thus, at least from September, its detailed contents were known (apart from the panel members who decided on the ruling) to the two parties, the WTO's legal and the rules divisions, and the top echelons of the WTO secretariat.
In the context of the Lamy-led current efforts to conclude the Doha negotiations (with chairs of various negotiating bodies putting forward draft texts or reports), the Uruguayan Chairman of the Rules negotiations, Ambassador Guillermo Valles Galmes, tabled his first draft negotiating text on 30 November 2007, outlining in that text, some ideas of the chair to allow "zeroing" in what was described by trade officials as in several "limited circumstances" (see Kanaga Raja, "Trade: WTO Rules text curbs fisheries subsidies, tightens AD rules", SUNS #6380 of 5 December 2007).
However, it is clear, from a reading of the panel report, and the AB's present ruling, that the Rules Chair's texts cover precisely the "limited circumstances" where the panel had ruled in US favour (but now reversed by the AB).
It is a well-known secret that the secretariat, both its legal and substantive divisions that service panels, provide their own (sometimes divided) counsel to the panels (after the parties had presented their case and arguments, and behind the back of the parties). It is hence a reasonable conclusion (unless the complete records, including the advice, oral or otherwise, given to the panel by the legal and rules divisions are made public and show otherwise) that this is a case of the secretariat and its Rules division, and the panellists attempting to accommodate US views - for allowing "zeroing" in limited circumstances for anti-dumping determinations and countervailing duties.
first reactions of WTO members in the Rules negotiations to the Chair's
proposals came at an informal meeting of the Rules negotiating body
on 12 December, 2007. At that meeting,
two other subsequent meetings of the Rules group on 25 January and 18
February (SUNS #6401 of 28 January, 2008 and #6417 of 19 February, 2008),
where the Chair's texts on zeroing again were sharply criticised and
members wanted it to be dropped, the Argentine position is not clear.
Trade officials could not say whether
AB ruling was handed down, and made public on 30 April. After this,
the Uruguayan chair visited
the instant case (
its present ruling (para 67), the AB has given (as set out by
model zeroing method used by the
In its arguments (before the panel and the AB), the US said that the term "dumping" has been used in various contexts and for various purposes in the AD agreement, and these were capable of different meanings; and in terms of the AD provisions on "standard of review" where panels and WTO bodies are asked to defer to interpretations of the importing country where the language of the AD and the evidence was capable of different interpretations, wanted the AB to accept its view. The US had also sought to buttress its case by referring to the adopted recommendations of the 1960 GATT working party on anti-dumping, the Tokyo Round code provisions, and the AD Agreement of the Marrakesh Treaty. The AB said given the provisions of the AD Agreement, the first two are not relevant.
In the appeal, the AB considered three questions. First, are the terms "dumping" and "margin of dumping" exporter- or importer-related concepts for Art. 9.3 of the AD agreement. Secondly, can "dumping" and "margin of dumping" be found to exist at the transaction and importer-specific level for purposes of Art. 9.3. Thirdly, in duty assessment proceedings under Art. 9.3, is it permissible to disregard the amount by which the export price exceeds the normal value in any export transaction (para 82).
In its analysis, the AB has brought out two important elements:
The various provisions of Art. 9.3 (in 9.3.1, 9.3.2, and 9.3.3), in relation to imposition and collection of anti-dumping duties, is subject to the overriding requirement in Art. 9.3 that the amount of anti-dumping duty "shall not exceed the margin of dumping established under Article 2".
And, Article 2 (dealing with determination of dumping), has set out in Art. 2.1 as to when a product could be viewed as "being dumped", that is introduced into the commerce of another country at less than its normal value. By its opening words, "For the purposes of this agreement", Art. 2.1 makes clear that this view about when a product is "being dumped" applies throughout the agreement (and hence the term cannot be interpreted differently in different parts of the agreement).
On whether "dumping" and "margin of dumping" is exporter-specific or an importer-related concept, the AB (paras 83-94), has said that from Articles VI: 1 and VI: 2 of GATT 1994, and the various provisions of the AD Agreement, it is clear that (a) "dumping" and "margin of dumping" are exporter-specific concepts; "dumping" is product-related as well, in the sense that an anti-dumping duty is a levy in respect of a product investigated and found to be "dumped"; (b) that "dumping" and "margin of dumping" have the same meaning throughout the agreement; ( c) an individual margin of dumping is to be established for investigated exporter and the amount of AD duty levied in respect of an exporter shall not exceed its margin of dumping; and (d) the purpose of an AD duty is to counteract "injurious dumping" and not "dumping" per se. Under the AD agreement, the concepts of "dumping", "injury" and "margin of dumping" are interlinked and therefore these terms have to be considered and interpreted in a coherent and consistent manner for all parts of the AD Agreement.
on these considerations, the AB disagreed with the Dumont panel view
The AB also negatived (paras 96-99) the panel's reasoning that "dumping" and "margin of dumping" could be found to exist at the level of a transaction. This view, said the AB, is based on the notion that transaction-specific and importer-specific dumping and margin of dumping could be confined to the stage of duty assessment and collection of duty under Art. 9.3.
However, said the AB, "we find no textual or contextual basis for such an interpretation" (para 99).
refuting some of the arguments of the
the AB has consistently held that "margin of dumping" is an
exporter-specific concept. Secondly, the AB has consistently held that
"dumping" and "margin of dumping" do not exist at
the level of individual transactions, and therefore "dumping"
and "margin of dumping" cannot be interpreted to apply at
an individual transaction level, as the
"The AB has ruled on the amount of anti-dumping duty that can be levied in accordance with Art. 9.3 of the AD Agreement, and not on how the amount is to be collected from the importers. In addition, the AB has recognized that WTO members have flexibility in choosing their duty assessment and collection system within the parameters set out in the ruling (paras 100-114).
On the issue of "simple zeroing" by the US in periodic reviews (where the panel, disregarding past AB rulings, found in favour of the US), the AB said that in applying "simple zeroing" in periodic reviews, the USDOC (US Department of Commerce) compares prices of individual export transactions against monthly weighted average normal values, and disregards the amounts by which the export prices exceed the monthly weighted average normal values, when aggregating the results of the comparisons to calculate the going-forward cash deposit rate for the exporter and the duty assessment rate for the importer concerned. Simple zeroing thus results in the levy of an amount of anti-dumping duty that exceeds an exporter's margin of dumping, which operates as the ceiling for the amount of anti-dumping duty that can be levied in respect of the sales made by an exporter. Therefore, simple zeroing is, as such, inconsistent with Article VI: 2 of the GATT 1994 and Article 9.3 of the Anti-Dumping Agreement (para 133).
these reasons, the AB reversed the Panel's finding that simple zeroing
in periodic reviews is not, as such, inconsistent with Article VI: 2
of the GATT 1994 and Article 9.3 of the Anti-Dumping Agreement, Instead,
the AB found that simple zeroing in periodic reviews is, as such, inconsistent
The AB chose not to hand down a ruling on these points (and could have refrained from doing so on the ground of "judicial economy" since it was reversing the panel's rulings on the substantive issue of "zeroing"). However, without giving a ruling and recommendation, the AB has made some observations, in the nature of obiter dicta.
In its obiter dicta on the Mexican appeal on Art. 11, the AB said that Article 11 of the DSU sets out function of panels in the WTO dispute settlement system. The first sentence of DSU Art. 11 provides that "the function of panels is to assist the DSB in discharging its responsibilities" under the DSU and the covered agreements. The second sentence provides that "Accordingly, a panel should make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements, and make such other findings as will assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements."
By use of "Accordingly", a link is created between the first and the second sentence of Article 11, and ties the second sentence to the general description contained in the first sentence. The second sentence enunciates two specific "functions" of panels: the duty "to make an objective assessment of the matter before it" and "to make such other findings as will assist the DSB in making the recommendations or in giving the rulings" under the covered agreements.
In the AB view, "the function of panels" in the first sentence of Article 11 is informed by the general provisions in Article 3 of the DSU, which sets out the basic principles of the WTO dispute settlement system. Article 3.2 also provides that "the dispute settlement system of the WTO is a central element in providing security and predictability to the multilateral trading system", and serves "to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law."
While AB reports are not binding, except with respect to resolving the particular dispute between the parties, this does not mean that subsequent panels are free to disregard the legal interpretations and the ratio decidendi contained in previous Appellate Body reports that have been adopted by the DSB. Citing several AB reports, the AB said that the legal interpretation embodied in adopted panel and Appellate Body reports becomes part and parcel of the acquis of the WTO dispute settlement system. Ensuring "security and predictability" in the dispute settlement system, as contemplated in Article 3.2 of the DSU, implies that, absent cogent reasons, an adjudicatory body will resolve the same legal question in the same way in a subsequent case.
"In the hierarchical structure contemplated in the DSU, panels and the Appellate Body have distinct roles to play. In order to strengthen dispute settlement in the multilateral trading system, the Uruguay Round established the Appellate Body as a standing body. Pursuant to Article 17.6 of the DSU, the Appellate Body is vested with the authority to review "issues of law covered in the panel report and legal interpretations developed by the panel".
Accordingly, Article 17.13 provides that the Appellate Body may "uphold, modify or reverse" the legal findings and conclusions of panels. The creation of the Appellate Body by WTO Members to review legal interpretations developed by panels shows that Members recognized the importance of consistency and stability in the interpretation of their rights and obligations under the covered agreements. This is essential to promote "security and predictability" in the dispute settlement system, and to ensure the "prompt settlement" of disputes.
The Panel's failure to follow previously adopted Appellate Body reports addressing the same issues undermines the development of a coherent and predictable body of jurisprudence clarifying Members' rights and obligations under the covered agreements as contemplated under the DSU. Clarification, as envisaged in Article 3.2 of the DSU, elucidates the scope and meaning of the provisions of the covered agreements in accordance with customary rules of interpretation of public international law. While the application of a provision may be regarded as confined to the context in which it takes place, the relevance of clarification contained in adopted Appellate Body reports is not limited to the application of a particular provision in a specific case. (Paras 158-161)
are deeply concerned about the Panel's decision to depart from well-established
Appellate Body jurisprudence clarifying the interpretation of the same
legal issues. The Panel's approach has serious implications for the
proper functioning of the WTO dispute settlement system, as explained
above. Nevertheless, we consider that the Panel's failure flowed, in
essence, from its misguided understanding of the legal provisions at
issue. Since we have corrected the Panel's erroneous legal interpretation
and have reversed all of the Panel's findings and conclusions that have
been appealed, we do not, in this case, make an additional finding that
the Panel also failed to discharge its duties under Article 11 of the
As a result, the AB ruling implies, but does not specifically say so, that subsequent panels should follow earlier adopted panel and AB rulings. A loophole or exception is however given by providing that the earlier rulings need not be followed "for cogent reasons". And whether the reasons are "cogent or not" will presumably be decided in any given case by the AB!
However, the same Art. 3.2 of the DSU cited by the AB, also provides that "Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements." Also, Article IX: 2 of the Marrakesh Treaty, has explicitly reserved to the Ministerial Conference and the General Council "the exclusive authority to adopt interpretations" of the Marrakesh Treaty and of the Multilateral Trade Agreements (annexed to the Treaty). And there is the further stipulation that this Authority to interpret (Multilateral Trade Agreements) is to be exercised (by the Ministerial Conference and the General Council) "on the basis of a recommendation by the Council overseeing the functioning of that Agreement."
This shows that those countries who negotiated and concluded the Marrakesh Treaty, and brought into being the WTO, envisaged changes to rules by amendments to the Treaty or particular agreement, and on agreed interpretations by the Ministerial Conference and General Council, in particular instances, to remove ambiguities.
But by its reasoning and process, and use of the words "for cogent reasons" in the present case, the AB has assumed (or rather arrogated) to itself powers akin to those claimed by the US Supreme Court under the "due process" clause of the Constitution (but not envisaged by those who drafted and adopted that Constitution at the Philedelphia convention), or those claimed by the Indian Supreme Court under the theory of "basic features" of the Constitution that could not be amended (that were not contemplated by the Constitutent Assembly of India in 1949). Far from strengthening the WTO and its system, and ensuring "trade security", AB obiter dicta will add to the antagonistic feeling among the public in many countries against the WTO and its neo-mercantalist, corporate globalization system.
The AB views, obiter dicta still, on GATT-acquis, and the role of the dispute settlement system in providing security and predictability to the multilateral system, is against an early AB decision (shrimp-turtle disputes against the US), where the AB invoked the need for "evolutionary" interpretation of international law (for the then 4-year old Marrakesh Treaty and GATT 1994!) to import, what had been mooted but not agreed upon at Marrakesh, namely, "environment and sustainable development" exception to GATT Art. XX (Chakravarthi Raghavan 2000, "The World Trade Organization and its Dispute Settlement System: Tilting the balance against the South", TWN Trade and Development Series No. 9, para 4.42, p22).
Also, it would appear that carrying forward from GATT 1948 into GATT 1994, and view adopted decisions as "GATT-acquis" is at the least anamalous. Under the old GATT, rulings and recommendations of panels were adopted by positive consensus by the CONTRACTING PARTIES, and thus became rulings and authoritative interpretations of the relevant provisions by the CONTRACTING PARTIES. Under the WTO, panel and AB rulings are adopted by negative consensus (and as such can only be said to be issues decided among the parties to the dispute, and limited to the points raised, as the AB report has conceded in the first sentence of para 158).
and GATT 1994, the "GATT-acquis" could only be construed to
apply in terms of ( a) agreements of WTO members subsequent to
Raghavan, Editor Emeritus, contributed this analysis and comment on
the Appellate Body Report on the