As you may have already known by now, the AB has issued yet another anti-zeroing decision. (United States- Measures Relating to Zeroing and Sunset Reviews — Recourse to DSU Article 21.5 by Japan) Even before this report, we all know that the AB has firmly established an anti-zeroing jurisprudence through a series of consistent yet evolving decisions. The next question is whether this jurisprudence will (or can) zero the zeroing practice, once and for all. Technically, zeroing is currently one of many "Doha" agendas, although the Negotiating Group on Rules has made no substantial progress amid diametrically opposite positions between the United States and the Friends of Antidumping. The Chair of the Group once conceded that there simply existed "no hints on possible middle ground approaches nor suggestions for possible compromises or trade-offs." (WTO, Negotiating Group on Rules, Working Document from the Chairman, TN/RL/W/232, May 28, 2008, at 1, A-10, A-11)
One might reasonably speculate that the U.S. would attempt to override the AB’s anti-zeroing case law at the Doha Round negotiation. (See today’s FT coverage) In fact, the U.S. policymakers and politicians have argued that this issue is a matter of negotiation, not of litigation. According to them, the AB’s anti-zeroing case law is a form of unhealthy judicial activism. The U.S. might take the Doha Round hostage for the zeroing issue. So, this zeroing issue might be a phantom menace looming over the Doha Round.
A more interesting (and more fundamental) question is whether this "negotiation" can, or should, trump the AB’s firm jurisprudence. To me, this specific AB jurisprudence, considering its background, format, clarity, intensity, consistency and coherence, is close to the so-called "constitutional common law" which may survive an ordinary legislative overriding and be reversed by a constitutional amendment. Within the context of the WTO, this means that a mere negotiation, even if the U.S. position were to prevail (which I strongly doubt), cannot change the AB’s anti-zeroing jurisprudence. (See my paper addressing these issues.)
Then, how about a formal amendment (Article X of the WTO Agreement) or an authoritative interpretation (Article IX of the WTO Agreement)? Of course, the current zeroing negotiation, although really tedious in its pace, eventually aims for an amendment of relevant provisions (such as Articles 2.4 and 9.3) of the WTO AD Agreement. Perhaps, the U.S. might want to maintain a rather grey legal status of zeroing, that is to say still vulnerable to WTO litigation yet not illegal per se in a legislative sense, as long as the negotiation remains stalled. However, the most interesting question is what if other members, such as Japan, suddenly initiate a formal process of amendment or authoritative interpretation which aims to "codify" the AB’s sweeping anti-zeroing jurisprudence? Under the formal decision-making process in Articles IX and X, a two-thirds or three-quarters majority can make this happen in case there is no consensus. To the best of my knowledge, such majority can be easily obtainable given the low popularity of zeroing among WTO members. After all, it seems hard to find WTO members enthusiastic about zeroing, except for the U.S.
What do you think?
