There is an interesting article by Alan Beattie in yesterday's FT. Beattie first observes that dispute settlement is heating up in response to the continued failure to conclude Doha. He then refers to Robert Lighthizers' complaints about the AB, which we have discussed before. Then Beattie makes the following statement about the AB findings regarding zeroing:
For American companies, lawmakers and officials, this is a clear case of panellists legislating from the bench. Warren Maruyama, general counsel for the US trade representative, says the USTR has “substantial problems” with the most recent zeroing case. “If it looks as though the WTO panels or the appellate body are making up law out of whole cloth, that is a problem,” he says. “I think they have to stick to the texts. In situations like [zeroing] the country challenging a measure has the burden of proof, so if the matter is unclear the panel should go negative.”
I just don't see any reasonable argument that anything is made up out of whole cloth or that anyone is legislating from the bench. Article 2.4 of the Antidumping Agreement provides that "A fair comparison shall be made between the export price and the normal value." Zeroing is an unfair comparison. I know that there is some complexity in the operation of the more detailed provisions of the Agreement, and probably some imperfect drafting, but given the language of Article 2.4, it seems simply false to claim that the AB is making it up.
