A little while ago, I posted about Claude Barfield's suggestion on using "non liquet" in WTO dispute settlement:
where the texts are unclear or contradictory, panels and the AB should be allowed or even instructed to adopt the non liquet doctrine—or in effect, “it is not clear.” Invocating this doctrine would allow the judicial panels to throw the issue back to the WTO General Council or to trade round negotiations.
I think I have a good example of a situation where a panel might have very much liked to have the option of throwing an issue back to the WTO Members, from the U.S. - AD/CVD on Chinese Products panel report (DS379), circulated lasted Friday. Here's the issue.
SCM Agreement Article 12.1.1 states in relevant part:
Exporters, foreign producers or interested Members receiving questionnaires used in a countervailing duty investigation shall be given at least 30 days for reply. ...
The parties disagreed on whether certain "questionnaires" sent out by the Department of Commerce were "questionnaires" covered by Article 12.1.1. The arguments were as follows:
15.2 China submits that the term "questionnaires" in Article 12.1.1 of the SCM Agreement refers not only to the first questionnaire issued in a countervailing duty investigation, but to "all" questionnaires, without qualification. Therefore, China claims, the United States acted inconsistently with this provision by failing to give China and investigated producers at least 30 days to reply to the "supplemental" and "new allegations" questionnaires issued by the USDOC in the four investigations at issue.
...
15.7 The United States considers that there is no obligation under Article 12.1.1 of the SCM
Agreement to provide the minimum 30-day period for reply to supplemental and new allegations questionnaires. According to the United States, "questionnaires" in Article 12.1.1, for which investigating authorities must provide at least 30 days for reply, refers to the questionnaire issued at the outset of an investigation, and not to subsequent requests for information.
So, the issue was whether "questionnaires" covers only the initial "questionnaires," or certain later "questionnaires" as well.
Here's the Panel's conclusion:
15.37 For the foregoing reasons, we conclude that the term "questionnaires", as used in Article 12.1.1 of the SCM Agreement, refers to the initial comprehensive questionnaire (or set of questionnaires) issued by an investigating authority at or following the initiation of a countervailing duty investigation covering the spectrum of issues on which the investigating authority will have to make determinations in relation to subsidization of the investigated product, injury and causation.
The Panel's interpretation is detailed and thorough, relying heavily on the context and the object and purpose. (And there's a similar finding under the corresponding AD Agreement provision to provide further support). At first glance, its reasoning seemed sensible to me. Nevertheless, interpreting a word such as "questionnaires" is a difficult task. I suspect this is a situation where the panelists may have wanted the option of throwing the issue back to the WTO Members. Of course, there's an obvious problem with that. The Members do not agree, as evidenced by the views of two of the third parties:
15.12 Argentina agrees with China that the minimum 30-day period for reply in Article 12.1.1 of the SCM Agreement applies to all "questionnaires" issued in an investigation, including the "new allegation" questionnaires. According to Argentina, this interpretation is consistent with the due process principle of "ample opportunity" in Article 12.1 of the Agreement. ...
15.13 Canada, recalling the findings of the panel in Egypt – Steel Rebar, considers that the 30-day requirement in Article 12.1.1 of the SCM Agreement only applies to the initial questionnaire issued inan investigation. Canada considers that this interpretation is supported by the context of Articles 12.1and 12.1.1 of the Agreement. ...
