Well, the end of the debate in the WTO's judicial organs anyway (the political battle will surely continue). From a concurring opinion in today's AB decision in U.S. - Continued Zeroing (DS350):
304. One Member of the Division wishes to make the following statement in relation to section V.C.2.
305. Over a period of time, successive panels and the Appellate Body have engaged in a very considerable interpretative enterprise to determine whether the Anti-Dumping Agreement and Article VI of the GATT 1994 prohibit the use of zeroing. At the heart of the debate is a contestation as to the correct interpretation of the concept of dumping. The Appellate Body has interpreted dumping to be an exporter-specific concept, requiring that a determination be made for the product under consideration. By contrast, successive panels have found that dumping is permissibly determined at the level of individual export transactions. To resolve this difference, the text, context, and object and purpose have been carefully scrutinized, as well as supplementary means of treaty interpretation. Each interpretation has found support in different places. These interpretative exercises have not lacked for hermeneutic ingenuity, and each has generated its own puzzles: witness the question of mathematical equivalence and the consequential issue of textual redundancy.
306. This debate at once demonstrates the robustness of the WTO's system of dispute settlement, but also its limits. The interpretation of the covered agreements requires scrupulous adherence to the disciplines of the customary rules of interpretation of public international law. Those disciplines are directed towards arriving at a coherent and harmonious interpretation to develop an answer to an interpretative problem and thereby provide certainty as to the rights and obligations of the parties. Variability, contradiction, and uncertainty stalk the interpretative enterprise, but they are the hallmarks of its failure, not its success. Just as the interpreter of a treaty strives for coherence, there is an inevitable recognition that a treaty bears the imprint of many hands. And what is left behind is a text, sometimes negotiated to a point where an agreement to regulate a matter could only be reached on the basis of constructive ambiguity, carrying both the hopes and fears of the parties. Interpretation is an endeavour to discern order, notwithstanding these infirmities, without adding to or diminishing the rights and obligations of the parties.
307. Article 2.1 of the Anti-Dumping Agreement illustrates this problem. Nothing could be more
important than the definition of the concept of "dumping". It is foundational and applies throughout the Agreement, as the clear wording of Article 2.1 makes plain. It cannot have variable or contradictory meanings, for that would infect the entire Agreement. Yet the definition is cast at a high level of generality. The definition makes no attribution of agency; it does not say who introduces a product into the commerce of another country. Article 2.1 might so easily have included the words "by an exporter", but it does not. So too, the definition might have referred to the product as a whole, and not simply a product. The definition is inchoate, and thus it must be interpreted.
308. The Appellate Body has found contextual support for its interpretation of "dumping" as a product-wide and exporter-specific concept by reference to other provisions in the Anti-Dumping Agreement. In particular, the Appellate Body has emphasized the significance of Articles 2.4, 2.4.2, 5.8, 6.10, 9.5, and 3.1 and concluded that the cumulative contextual force of these provisions is dispositive of the meaning attaching to the concept of "dumping", and excludes an interpretation of dumping that is transaction-specific.
309. There can be little doubt that the Anti-Dumping Agreement requires aggregation. In Article 6.10, an individual margin of dumping must be determined for each known exporter. Article 3.1 requires an assessment of the volume of dumped imports and their effect. Save for the most exceptional case where an importation consists only of a single transaction (for example, the importation of a large piece of capital equipment), this is an exercise that requires a determination by taking into account the entire volume of dumped imports. Under Article 5.8, a de minimis assessment could not be made with respect to an individual export transaction; and Article 9.5 requires a determination of individual margins of dumping for any exporters who have not exported the product during the period of investigation.
310. While aggregation is an unavoidable requirement of the Anti-Dumping Agreement, these provisions are not clear as to what it is that must be aggregated. Does aggregation require the aggregation of all comparison results, positive and negative, or does it suffice to aggregate only those comparison results that are positive, having considered all transactions and determined which are dumped and which are not. The Appellate Body has found that aggregation must give equal weight to all comparison results if the exercise is to be fair and arrive at a determination for the product as a whole; successive panels have found no such requirement, save where the first methodology in Article 2.4.2 refers in express terms to all comparable export transactions.
311. The interpretative endeavour has ranged far and wide. The Appellate Body has emphasized that dumping is an exporter-specific concept. Panels have pointed out that the liability for anti-dumping duties rests upon importers. The Appellate Body views its interpretation as one that respects the differences in the prospective and retrospective systems of duty assessment; its critics think otherwise.
312. There is little point in further rehearsing the fine points of these interpretations. In my view, there is every reason to survey this debate with humility. There are arguments of substance made on both sides; but one issue is unavoidable. In matters of adjudication, there must be an end to every great debate. The Appellate Body exists to clarify the meaning of the covered agreements. On the question of zeroing it has spoken definitively. Its decisions have been adopted by the DSB. The membership of the WTO is entitled to rely upon these outcomes. Whatever the difficulty of interpreting the meaning of "dumping", it cannot bear a meaning that is both exporter-specific and transaction-specific. We have sought to elucidate the notion of permissibility in the second sentence of Article 17(6)(ii). The range of meanings that may constitute a permissible interpretation does not encompass meanings of such wide variability, and even contradiction, so as to accommodate the two rival interpretations. One must prevail. The Appellate Body has decided the matter. At a point in every debate, there comes a time when it is more important for the system of dispute resolution to have a definitive outcome, than further to pick over the entrails of battles past. With respect to zeroing, that time has come.
Without going into too much detail on this, I'll simply note that those who have followed this issue will probably have a guess as to which AB Member is the author of the concurring opinion.
