One of the important recurring issues among the US problems with the case law of the Appellate Body is the standard of review in anti-dumping disputes. The relevant text was changed at a very late stage of the Uruguay Round negotiations, after most of the texts were closed. Belatedly a group of US congressional assistants, mostly from the House Ways and Means Committee, descended on Geneva, demanding the reopening of certain texts and issues, since otherwise the US Congress would not agree, or so the other delegations were told. One of their main demands was modification of Article 17(6) of the Anti-Dumping Agreement (ADA). Simon Lester recently gave what amounts to an American take on this issue in his IELP blog.
What is now Article 17(6)(i) ADA was relatively uncontroversial, as it represented the “non-de-novo-review” rule, also known as “broad margin of appreciation” in European administrative law systems, although written in a typical US legislative style. Subparagraph (ii) of Article 17(6) was more contested.[1] Originally the US proposed only what is now the second sentence, which came straight from a 1984 US administrative law case, the so-called Chevron case. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), discussed in John H. Jackson and Steven P. Croley, ‘WTO Dispute Settlement Procedures, Standard of Review and Deference to National Governments’, 90 AJIL 1996, 193 – 213.( Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), discussed in John H. Jackson and Steven P. Croley, ‘WTO Dispute Settlement Procedures, Standard of Review and Deference to National Governments’, 90 AJIL 1996, 193 – 213.) It is obvious that the other delegations were less than enthusiastic about importing a principle of US administrative law into a treaty text; a principle, moreover, that seemed needlessly to conflate principles of interpretation with the question of granting discretion to the administrative authorities in the application of the law. What was more: a US attempt to have the application of Chevron deference accepted in a GATT anti-subsidy case had been rejected by a GATT panel report that was subsequently blocked by the US. (GATT panel report, doc. SCM/185 US – Countervailing Duties on Lead and Bismuth Carbon Steel Products, 18 November 1994, paras 368-371). To cut a long story short, after furious negotiation under enormous time pressure, the compromise was the present text of Article 17(6) (ii) ADA: a reference back to the “customary rules of interpretation of public international law” (also mentioned as the general rule of interpretation in Article 3(2) of the DSU), followed by the US text representing Chevron deference.
Why could both the US and other parties agree to this compromise? The US certainly believed that it had won something and has been very frustrated for a long time that the Appellate Body has never found reason to apply the second sentence, which embodies the US Chevron principle. The others, however, had hoped precisely for this result, and some even expected it. They realized that the customary rules of interpretation of international law as laid down in Articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties in principle laid down a complete recipe for interpretation of treaty provisions. (A direct reference to Arts. 31 and 32 could not be agreed during the Uruguay Round, as France and the US among others had not (and have not) ratified the 1969 Vienna Convention). Hence, any tribunal that applies this recipe, in principle should always arrive at one, and only one, possible interpretation (perhaps with very, very rare exceptions). Thus, the risk of an application of the deference doctrine of one particular Member State (the US) in WTO litigation would be minimal.
The others’ expectation about the (non)- recourse to the second sentence – which they so much disliked – has been proved right, because the Appellate Body has clarified the WTO agreements, including the ADA, in conformity with the customary rules of interpretation and thus has seen no reason so far to have recourse to the second sentence of Article 17(6)(ii) ADA. That is entirely in conformity with what the others believed they bargained for, namely at most a very minimal possibility to apply the second sentence. Given their disgruntlement at these late stage negotiations, they did not want to make the US any the wiser about their reasons for accepting the compromise. The US simply made a bad judgment during this hurried negotiation, probably for want of understanding of interpretation in international law in the new negotiating team sent from Congress. Should the US now, after over 20 years, be helped by other WTO Members to repair their negotiation error, after having taken the Appellate Body hostage? That would be decidedly an un-American thing to do, especially under the Trump administration.
[1] The full text of Art. 17(6)(ii) ADA reads as follows: “the panel shall interpret the relevant provisions of the Agreement in accordance with customary rules of interpretation of public international law. Where the panel finds that a relevant provision of the Agreement admits of more than one permissible interpretation, the panel shall find the authorities' measure to be in conformity with the Agreement if it rests upon one of those permissible interpretations.”
