The Appellate Body's approach of taking longer than 90 days to issue its reports, without first getting consent from the participants in the dispute, is one issue that has given rise to the U.S. actions relating to appointment of Appellate Body Members. Apparently, this approach (along with similar actions taken by panels) may also have more narrow interpretive implications. This is from the Morocco - Hot-Rolled Steel panel report circulated on Wednesday:
7.70. The MDCCE initiated the underlying investigation on 21 January 2013, and concluded it on 12 August 2014, that is, 18 months and 22 days after initiation.99 Turkey claims that the MDCCE acted inconsistently with Article 5.10 of the Anti-Dumping Agreement because the MDCCE failed to conclude the underlying investigation within the 18-month maximum time limit permissible under that provision, having exceeded that time limit by 22 days.100 Morocco does not dispute that the MDCCE exceeded the 18-month deadline for the conclusion of an anti-dumping investigation set out in Article 5.10, but contends that Article 5.10 should be interpreted flexibly and should not be understood as establishing a rigid 18-month deadline.101
7.71. We must therefore evaluate whether, in concluding the underlying investigation 22 days after the maximum permissible time limit of 18 months under Article 5.10, the MDCCE acted inconsistently with that provision.
7.72. We note that Article 5.10 states that investigations shall "in no case" be concluded in more than 18 months. The words "in no case" make it clear that an investigating authority may not, in any case, conclude its investigation in more than 18 months, and therefore, allow for no exceptions in adherence to this time limit. Further, we note that our reading of Article 5.10 is consistent with that of the Appellate Body and past panels. The Appellate Body has indicated that the time limits for concluding investigations set out in Article 5.10 are "mandated" under the Anti-Dumping Agreement, while a previous panel has found that these time limits are "strict".102 In particular, one past panel considered that Article 11.11 of the Agreement on Subsidies and Countervailing Measures (SCM Agreement), which carries an obligation regarding conclusion of subsidies investigations that is identical to the one pertaining to anti-dumping investigations in Article 5.10 of the Anti-Dumping Agreement, does not permit prolonging the 18-month time limit under any circumstances.103
7.73. Morocco however, draws our attention to language used in certain "other contexts" of the WTO Agreements which is similar to that in Article 5.10 of the Anti-Dumping Agreement.104 Morocco contends, in particular, that the language on deadlines for concluding appellate proceedings in Articles 17.5 of the DSU, and panel proceedings in Articles 12.8 and 12.9 of the DSU, is similar to that in Article 5.10, and yet the Appellate Body and panels have "interpreted" those DSU provisions so as to allow them to exceed those deadlines.105 Morocco argues that the same flexibility with which the time frames for concluding Appellate Body and panel proceedings have been interpreted, must apply to interpreting the time frame under Article 5.10. Turkey contends, in response, that Articles 17.5, 12.8, and 12.9 of the DSU carry obligations which are different from those in Article 5.10, and are therefore irrelevant for interpreting Article 5.10. Turkey, agreeing with the European Union's views, argues that the DSU provisions in question impose deadlines on the WTO bodies, rather than on individual WTO Members, with a view to contributing to the prompt resolution of disputes. Article 5.10, in contrast, imposes obligations on investigating authorities to protect the rights of other Members' exporters.106 Morocco dismisses these differences as being "artificial", contending that WTO disputes too are initiated to secure the rights of exporters, and like anti-dumping investigations, involve competing interests and are subject to similar due process considerations.107
7.74. We consider that the DSU provisions that Morocco cites cannot serve as context for interpreting Article 5.10 of the Anti-Dumping Agreement. Morocco, notably, itself refers to these DSU provisions as appearing in "other contexts" of the WTO Agreements.108 In particular, we agree with Turkey and the European Union that the DSU provisions in question impose deadlines on the WTO bodies, rather than on individual WTO Members, with a view to contributing to the prompt
resolution of disputes, whereas Article 5.10 imposes obligations on investigating authorities to protect the rights of other Members' exporters. As Turkey argues, the conduct of the WTO dispute settlement proceedings, including the time frame for concluding them, is subject to the supervision of the DSB.109 The conduct of national anti-dumping investigations, in contrast, is not. We agree with Turkey that, in such a situation, it cannot be envisaged that investigating authorities conducting anti-dumping investigations would be permitted to "unilaterally deprive exporters of their rights".110 Interpreting the 18-month time limit in Article 5.10 as a flexible time limit, as Morocco considers the Panel should do, would mean that an investigating authority could, in principle, indefinitely delay an investigation, leaving exporters, whose commercial decisions depend on the outcome of the investigation, without any recourse in WTO law. We consider that such an interpretation is inconceivable under Article 5.10. The text of that provision leaves no room for flexibility in the strict obligation to adhere to the 18-month time limit and, in so doing, preserves predictability for the interested parties in an investigation. We therefore reject Morocco's argument for interpreting the time limit under Article 5.10, in light of the DSU provisions, which operate in an altogether different context.7.75. Moreover, although Morocco asks us to interpret Article 5.10 in light of the DSU provisions, it is, effectively, asking us to do so in view of WTO dispute settlement practice. Morocco refers not to any formal interpretation of these provisions by the Appellate Body or panels, but to cases where the Appellate Body and the panels have exceeded the time limits set out in the relevant DSU provisions.111 In our view, there is no case for importing into the adherence of the time limit under Article 5.10 flexibility from WTO dispute settlement practice, which as stated above, is subject to
DSB supervision.
That was a clever and creative argument by Morocco, but I suspect the Appellate Body will agree with the panel's conclusion here.