Just a quick reminder from the Appellate Body, buried in a footnote in Monday's U.S. - Carbon Steel (India) report, that it still hasn't told us what it thinks of the mandatory/discretionary distinction:
1144 We note that the Appellate Body has "not, as yet, been required to pronounce generally upon the continuing relevance or significance of the mandatory/discretionary distinction" in respect of "as such" claims. (Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 93 (fn omitted))
But then just a few pages later, they said this:
4.483. In the light of the above review of the evidence, we do not consider that India's claim that Section 1677e(b) of the US Statute and Section 351.308(a)-(c) of the US Regulations are "as such" inconsistent with Article 12.7 of the SCM Agreement is sustained. Our review of the text of the measure on its face reveals its discretionary nature and does not identify elements requiring an investigating authority to engage in conduct inconsistent with Article 12.7 of the SCM Agreement. Further, in the absence of any consideration or findings by the Panel, having reviewed the judicial decisions, the Statement of Administrative Action, the legislative history of the measure, and quantitative and qualitative material on the application of the measure, we find that they do not establish conclusively that the measure requires an investigating authority to consistently apply inferences in a manner that would not comport with Article 12.7 in all cases of non-cooperation. Where inferences are drawn, this evidence of the use of "adverse inferences" does not establish conclusively that the measure at issue cannot be applied in a manner that comports with Article 12.7. ...
So there is no "as such" inconsistency, as the measure has a "discretionary nature" and does not "identify elements requiring an investigating authority to engage in conduct inconsistent with Article 12.7."
Anyone with thoughts on what, if anything, this means for the mandatory/discretionary distinction, please feel free to offer them. It seems as though they have found that a measure with discretion, of some sort, does not violate the rules. But I suspect there are nuances to this.
