The first MPIA appeal (and second DSU Article 25 arbitration appeal) is now underway as Colombia has appealed the Colombia - Frozen Fries (DS591) dispute. The WTO announced today that the following arbitrators will hear the case:
- Mr José Alfredo GRAÇA LIMA (Chairperson)
- Mr Alejandro JARA
- Mr Joost PAUWELYN
With regard to the substance of the appeal, my sense is that most of the issues are pretty basic anti-dumping ones, but there is a possibility of an important systemic issue coming up. The panel report gets into the issue of the AD Agreement Article 17.6(ii) legal standard of review a bit:
7.285. Colombia argues that MINCIT's interpretation of the term "dumped imports" as including de minimis margin imports is a "permissible" interpretation within the meaning of the second sentence of Article 17.6(ii) of the Anti-Dumping Agreement.529 The second sentence of Article 17.6(ii) concerns situations "[w]here the panel finds that a relevant provision of the Agreement admits of more than one permissible interpretation". The first sentence of Article 17.6(ii) requires that panels "shall interpret the relevant provisions of the Agreement in accordance with customary rules of interpretation of public international law".
7.286. The question of whether a relevant provision admits of more than one "permissible" interpretation – the situation contemplated under the second sentence – thus depends on whether more than one such interpretation emerges when the Panel examines the provision in accordance with the "customary rules of interpretation of public international law" – that is, when the Panel applies the first sentence of Article 17.6(ii). As the starting point of our interpretative analysis, we must therefore interpret the term "dumped imports" in Articles 3.1, 3.2, 3.4, and 3.5 in accordance with the customary rules of interpretation of public international law, as reflected in Articles 31 and 32 of the Vienna Convention.5
...
7.303. We therefore disagree with Colombia that an interpretation of the term "dumped imports" as including de minimis margin imports is "permissible" within the meaning of the second sentence of Article 17.6(ii) of the Anti-Dumping Agreement. ...
This legal standard is important for the level of deference WTO adjudicators show towards domestic anti-dumping authorities, an issue that has been of importance to many people in the U.S. in particular. I wondered if there was a possibility that the U.S. would use this case as an opportunity to push for a broad approach to what constitutes a "permissible" interpretation. However, in the U.S. responses to questions from the panel, it did not seem very sympathetic to Colombia's position here:
4.2 To the third parties: To what extent does Article 17.6(ii) of the Anti-Dumping Agreement inform the interpretation of the term “dumped imports” in Article 3? In particular, does the Article 3 term “dumped imports” admit “of more than one permissible interpretation” within the meaning of Article 17.6(ii)? And, if so, is the interpretation advanced by Colombia in paragraphs 13.16-13.28 of its first written submission one such “permissible interpretation”?
24. Colombia argues that the term “dumped imports” as it appears in Article 3, concerning the determination of injury, can be interpreted as encompassing “all imports originating from origins for which a margin of dumping above zero (a positive margin of dumping) has been calculated, which includes de minimis dumping margins.”39 Colombia also argues that Article 9.1 of the Agreement on Safeguards,40 Article 11.9 of the Agreement on Subsidies and Countervailing Measures (SCM Agreement),41 and the negotiations of the Kennedy Round Antidumping Code,42 support its interpretation.
25. Article 17.6(ii) expressly acknowledges that the provisions of the Anti-Dumping Agreement may “admit[] of more than one permissible interpretation.”43 Article 17.6(ii) further requires that a panel find a measure “to be in conformity with the [Anti-Dumping] Agreement if it rests upon one of those permissible interpretations.”44
26. Colombia’s interpretation, however, would not appear to be supported by the text of Article 3. Article 3.1 refers to “the” dumped imports, which suggests something less than the total imports from the origins found to be dumping. Article 3.1 also speaks to the impact of “these imports,” referring back to “the” dumped imports and not to imports more generally. Article 3.3 also addresses the cumulative assessment of the effects of imports if “the margin of dumping … is more than de minimis,” not “the dumped imports” as defined by Colombia. Finally, Article 3.5 refers to injury caused by “the dumped imports … through the effects of dumping,” which cannot be said to include imports for which there is not sufficient evidence of dumping under Article 5.8.
27. Therefore, Colombia’s interpretation cannot be considered a permissible interpretation of the term “dumped imports” within the meaning of Article 17.6(ii) of the Anti-Dumping Agreement.
Nevertheless, it's worth keeping an eye on this issue as the dispute is argued and when the award is issued.
