Debunking the NFTC Report regarding Antidumping
Steve Charnovitz
18 December 2019
Yesterday, the (US) National Foreign Trade Council (NFTC) released a Report Resolving the WTO Appellate Body Crisis: Proposals on Overreach.
The Report proposes that "guidance" be given to the Appellate Body that WTO adjudicators must examine broadly worded provisions and general terms:
... with a view to respecting Member sovereignty. Such provisions and terms are often intended to provide discretion to Members in their implementation, and adjudicators must therefore interpret such provisions and terms in a way that maintains that discretion (p. 7).
The Report further proposes that "Article 17.6(ii) of the Antidumping Agreement must be given meaning" (p. 7) and claims that "The Appellate Body effectively read this provision out of the Antidumping Agreement by concluding in the cases in which it arose that there was only one permissible interpretation of the provisions at issue under customary rules of interpretation of public international law" (p. 8). The Report further argues:
... treaty interpreters are obliged to give effect to all treaty terms. In the second sentence of Article 17.6(ii), WTO Members recognized that there could be more than one permissible interpretation of the Antidumping Agreement under customary rules of interpretation of public international law. Adjudicators should reflect that in their approach (p. 8).
As these Proposals and arguments appear to reflect some confusion within the NFTC, let me try to set the record straight:
- The jurisprudence of the Appellate Body has never denied that under Article 17.6(ii), there could be more than one permissible interpretation of the WTO Antidumping Agreement. For example, in the US – Hot Rolled Steel case (para. 59), the Appellate Body agreed that Article 17.6(ii) "presupposes" that the rules of treaty interpretation "could give rise to, at least, two interpretations of some provisions of the Anti-Dumping Agreement...."
- In the 12 cases where a second allegedly permissible interpretation was urged on the Appellate Body, the appellators rejected that interpretation as impermissible under the customary rules of interpretation of public international law. In my view, there can be no serious doubt as to the legal correctness of the Appellate Body's refusal to agree to treaty interpretations that were so clearly contrary to the text, overall context, object and purpose, and basic fairness of the Antidumping Agreement.
- The phrase "give effect" is itself ambiguous. For me, a court gives effect to a statutory provision when it considers the applicability of that provision to the matter at hand. While it is true that the Appellate Body has not yet given effect to Article 17.6(ii) in the narrow sense of blessing a second permissible interpretation, that's because the proffered interpretations have been so obviously illegitimate.
- Respecting "Member sovereignty" in the WTO legal system does not mean upholding a right of WTO governments (like the United States) to engage in unilateral measures that violate WTO commitments. WTO member governments used their sovereignty in 1994 to write new rules for global trade and to establish a tribunal to enforce them. When a brave Appellate Body stands up to US protectionism, that's not "overreach"; rather, it reflects judicial independence which is a precondition for the rule of law on both the domestic and international planes.
