Electronic copy available at: http://ssrn.com/abstract=1731534
REVIEW AND REVOCATION OF ANTI-DUMPING MEASURESREVIEW AND REVOCATION OF ANTI-DUMPING MEASURES
*Sangharsh PandeySangharsh Pandey1 1
“Unfair Competition is selling cheaper than someone else”2
Everyman’s Guide to Contemporary Economic Jargon,
In GROWTH, ADVERTISING AND THE CONSUMER (1964)
The Anti-Dumping Agreement (hereinafter referred as “ADA”) is often considered to be the
most complex and technical agreement of the WTO.3 This Paper will analyse the
circumstances in which review and revocation of anti-dumping measures should be done
along with the help of judgments given by Panel and the Appellate Body Report. In the
globalised economy dumping is one of the most controversial issues. In Oxford Dictionary,
‘dumping’ is defined as sale of goods in foreign market at low price.4 Dumping has
traditionally been defined as the type of price discrimination between national markets,5 in
which a producer sells at a lower price abroad than in his home market (price dumping). It is
often considered unfair 6 that a producer, who benefits from protection in his home market
and therefore can charge high prices there, subsequently uses the artificially high profits
generated on the protected home market to subsidize low-priced export sales. He is perceived
to thereby unfairly compete with domestic producers in the- open- importing country market
which cannot afford such low prices.
1 The author is Final Year Student of Hidayatullah National Law University, Raipur, Chhattisgarh. He can be
reached at email@example.com.
2 Patrick.F.J.Macror, Arthur E. Appleton, Michael G. Plummer, The World Trade Organization-Legal,
Economic & Political Analysis, Chapter 40, “Anti-Dumping and Competition Law”, p.no.67, Springer, Vol. II,
3 Durling and Nicely, Understanding the WTO Anti-Dumping Agreement: Negotiating History and Subsequent
Interpretation (2002) 2, note that the ADA may be the most important substantive agreement from the Uruguay
4 The Concise Oxford Dictionary, (10th Edn.). Article VI and Anti-dumping Agreement however; have given a
specific definition of dumping.
5 Viner, Dumping, A Problem in International Trade (1966 edn) 3; Dale, Anti-Dumping Law in a Liberal Trade
Order (1980) 1.
6 As originally envisaged by economists such as Viner, note 2 above, anti-dumping action would be justified
against predatory dumping only. However, predatory dumping has never been proven to exist. Anti-dumping
laws have also seldom contained a predatory intent requirement, presumably because of recognition of the
difficulty of proving such intent.
Electronic copy available at: http://ssrn.com/abstract=1731534
Article VI of GATT defines “dumping” as the sale of goods in an importing nation at a price
below their “normal value”, which entails either price discrimination in favour of buyers in
the importing nation or sales below (roughly) long run average cost.7
The focus on the effects of dumping, on the domestic industry in the importing country led to
the early realization that protective measures against dumping should only be permissible if
such dumping causes injury in the importing country. This conclusion was drawn almost from
the date of enactment of the first national anti-dumping laws at the beginning of the twentieth
century.8 Therefore, the national anti-dumping laws required two tests before the importing
country could impose so-called anti-dumping duties: there had to be dumping and such
dumping had to cause injury in the importing country.
However, the methods used to assess dumping and injury as well as investigatory procedures
differed substantially among the countries that used such laws. This divergence, and the
growing realization that anti-dumping laws, as applied, had the potential to become
significant barriers to international trade, created international interest in dumping. It was not
until the end of the Second World War, however, that binding international rules were
developed. Such rules were implemented as part of the 1947 General Agreement on Tariffs
and Trade (GATT).
GATT does not “outlaw” dumping but it does “recognise” that dumping is to be condemned
under certain circumstances. In other words, GATT rules do not prohibit injurious dumping,
although they condemn it.9 However, they do allow country in which a product is dumped to
take protective action if it can establish that the product is dumped and thereby causes injury
to the domestic industry of that product. To a certain extent this importing country emphasis
follows logically from the definition of dumping as price discrimination practiced by private
individuals. The WTO addresses governmental behaviour and therefore could not possibly
7 GATT, Article VI(1) [now “GATT 1994,” reprinted in full in John Jackson, William Davey, and Alan Sykes,
Documents Supplement to Legal Problems of International Economic Relations (St. Paul, MN:West, 1995)
pp.15-78]. “Normal value” is equal to the price charged by the same firm for identical or similar merchandise in
its home country or in third country markets, or to the “cost of production” for the goods “plus a reasonable
addition for selling cost and profit.” Id. Cost of production is understood to include an allocation of fixed costs
and is thus a very rough approximation to what economists would term long-run average cost.
8 See for more detail Vermulst, (1986) 7 New York Law School Journal of International and Comparitive Law
9 Art VI: 1 GATT 1994.
prohibit dumping by private enterprises.10 Moreover, importing countries may welcome
dumped imports because their user industries and consumers will benefit from the low prices.
GATT 1947 applies only to goods. This implies that dumping of services is not covered.11
Since 1947, anti-dumping has received elaborate attention in the GATT/WTO on several
occasions. Following a 1958 GATT Secretariat study of national anti-dumping laws, a Group
of Experts was established that in 1960 agreed on certain common interpretations of
ambiguous terms of Article VI. Moreover, in an ambitious move, an Anti-Dumping Code was
negotiated during the 1967 Kennedy Round and signed by 17 parties. The Code was revised
during the Tokyo Round. The Tokyo Round Code had 25 signatories, counting the EC as
one.12 Although the 1979 Code was not explicitly mentioned in the Ministerial Declaration
starting the Uruguay Round, fairly early in the negotiations a number of GATT Contracting
Parties, notably the United States, Japan, Korea, Hong Kong and the EC proposed changes-
sometimes radical ones- to the 1979 Code. These led to the new ADA.
As the ADA forms part of the single package, all WTO members are automatically members
of and bound by the ADA. This occasionally leads to the misunderstanding that the WTO
rules oblige WTO members to adopt anti-dumping legislation, which is not correct. However,
WTO members that do adopt and utilize anti-dumping legislation must do so in accordance
with the provisions of the ADA.
Article VI of GATT 1994 does not prohibit anti-dumping per se as illegal, it only recognises
the right of the importing country to impose anti-dumping duties within some limitations:-
1) One of the limitation is to determine that:
(a) The product in question is being dumped,
10 Compare GATT Analytical Index, 223 (vol 1 1995):
‘[i]n discussions at the Review Session in 1954-55, in connection with the rejection of a proposal to add a clause
specifically obligating contracting parties to prevent dumping by their commercial enterprises, it was agreed to
add the following statement to the working Party’s Report:
“In connexion with the effect of Article VI on the practice of dumping itself, they agreed that it follows from
paragraph 1 of Article VI, that contracting parties should, within the framework of their legislation, refrain from
encouraging dumping, as defined in that paragraph, by private commercial enterprises.”
See also, Jackson, World Trade and the Law of GATT (1969) 401-424.
11 Ibid 404-405. It may be noted that the WTO General Agreement on Trade in Services (WTO GATS) does not
contain provisions on dumping of services.
12 See GATT, B.I.S.D., 36th Supp., at 435 (1990). The Parties were: Australia, Austria, Brazil, Canada,
Czechoslovakia, Egypt, the EC, Finland, Hong Kong, Hungary, India, Japan, Korea, Mexico, New Zealand,
Norway, Pakistan, Poland, Romania, Singapore, Spain, Sweden, Switzerland, the USA and Yugoslavia.
(b) Material injury13 is caused,
(c) Material injury has been caused through dumping or the causal link between
dumping and material injury has to be found out.
2) A further guarantee for the principle that anti-dumping duties are not applied as a
protectionist measure and their purpose is curative rather than punishment is found in
the provisions which limit the extent of its application:
(a) As to amount- Anti-dumping duties can be imposed only to prevent offset
dumping and it should not exceed the margin of dumping.14
(b) As to period—The limitation regarding period is dealt in Article 11 of the present
ADA which provides that:
1. Anti-dumping duty shall remain in force only as long as and to the extent as to the
counteract dumping which is causing injury.
2. There shall be review of the need for continued imposition of duty by the authorities
themselves or on request by the interested parties.15 Interested parties shall have the
right to request the authorities to examine whether the continued imposition of the
duty is necessary to offset dumping, whether the injury would be likely to continue or
recur if the duty were removed or varied or both. Anti-dumping duties should be
terminated immediately in the absence of the need for the same.
3. The third provision is called the ‘Sunset Clause’ which provides: “Notwithstanding
the provisions of paragraph 1 and 2, any definitive anti-dumping duty shall be
terminated on a date not later than five years from its imposition (or from the date of
the most recent review under Paragraph 2 if that review has covered both dumping
and injury under this paragraph), unless the authorities determine, in a review initiated
before that date on their own initiative or upon duly substantiated request made by or
on behalf of the domestic industry within a reasonable period of time prior to that date
13 Material injury is not defined in the Agreement but has come to mean as an injury which is not insignificant
14 Clause 2 of Article VI says, “In order to prevent or offset dumping a contracting party may levy on any
dumped product an anti-dumping duty not greater in amount than the margin of dumping in respect of such
15 The latter requires that a reasonable time has lapsed before such a request is made.
that the expiry of the duty would be likely to lead to continuance or recurrence of
dumping and injury”.
A clarification is given in footnote 22 for the regimes which impose retrospective duty. It
says, “When the amount of anti-dumping duty is assessed on the retrospective basis, a finding
in the most recent assessment proceeding under sub-paragraph 3.1 of Article 9 that no duty is
to be levied shall not by itself require the authorities to terminate the definitive duty”.16
I) PROVISION FOR REVIEW AND REVOCATION BEFORE THE URUGUAY ROUND
The provision review and revocation of AD duties has been gradually developed since the
1967 Code. Article 9 of the 1967 Code said:
a) An AD duty shall remain in force only as long as it is necessary in order to counteract
dumping which is causing injury.
b) The authorities concerned shall review the need for the continued imposition of the
duty, where warranted, on their own initiative or if interested suppliers or importers of
the product so request and submit information substantiating the need for review.
Changes Brought by the 1979 Code
(i) Article 9.1 added the words “and to the extent necessary” which made the provision
for review applicable also as to the amount of Anti-dumping duties.
(ii) Article 9.2 substituted the words “any interested party” in place of “suppliers or
importers of products”, as used in the 1967 Code.
Case under the 1979 Code
Article 9 of the Code was invoked in the case of United States- Imposition of Anti-Dumping
Duties on Imports of Fresh Chilled Atlantic Salmon From Norway17. Norway claimed that the
continued imposition of the anti-dumping duty order was inconsistent with the provision in
Article 9.1 that “an anti-dumping duty shall remain in force only as long as, and to the extent
necessary to counteract dumping which is causing injury”. According to Norway, the United
States was under an obligation to terminate the AD duties on imports of Atlantic salmon from
16 Paragraph 3.1 of Article 9, ADA provides that- “When the amount of the anti dumping duty is assessed on a
retrospective basis, the determination of the final liability for payment of anti dumping duties shall take place as
soon as possible, normally within 12 months, and in no case more than 18 months, after the date on which a
request for a final assessment of the amount of the anti dumping duty has been made. Any refund shall be made
promptly and normally in not more than 90 days following the determination of final liability made pursuant to
this sub paragraph. In any case, where a refund is not made within 90 days, the authorities shall provide an
explanation if so requested.
17 ADP/87, Report of the Panel adopted by the Committee on Anti-Dumping Practices on 27 April, 1994.
Norway because, at the time of the affirmative final determination of injury by the USITC no
material injury was caused to the domestic industry in the United States by imports from
Norway and, imports of Atlantic Salmon from Norway were no longer causing any present
material injury to this industry. The United States contended that Norway was factually
incorrect in contending that at the time of the final determination by the USITC no material
injury to the domestic industry in the United States had been caused by the imports from
Norway. Regarding events occurring subsequent to the imposition of the anti-dumping duty
order, the United States argued that Norway could seek a review by the investigating
authorities of the United States of the need for the continuation of this anti-dumping duty
order. According to the US lack of injury following the imposition of AD duties was not
surprising since the Agreement presumed that these duties might remove the injury caused to
the domestic industry by these imports.
The Panel noted that if the mere fact that, following the imposition of anti-dumping
duties, the imports in question were no longer causing injury were sufficient to require a Party
to terminate the imposition of these duties, the logical result would be that any anti-dumping
duty which was effective in removing injury to a domestic industry had to be withdrawn
immediately. The Panel considered that this interpretation of Article 9 would make
ineffective the other provisions of the Agreement.
According to the Panel an interpretation of Article 9 consistent with other provisions of
the Agreement required that in considering whether a Party was acting inconsistently with
Article 9.1, account to be taken of the effect of the imposition of the anti-dumping duties.
Therefore the Panel concluded that the continued imposition of AD duties on imports of fresh
and chilled Atlantic salmon from Norway was not inconsistent with the obligations of the
United States under Article 9.1 of the Agreement.
II) PROVISION FOR REVIEW AND REVOCATION UNDER THE URUGUAY ROUND
The Anti-dumping Agreement in Uruguay Round has made many important changes in the
provisions relating to review and revocation of AD duties.
(a) Article 11 describes in detail what is to be reviewed.
(b) There is a Sunset Clause providing for mandatory revocation of Anti-dumping duties
after five years unless conditions mentioned in Article 11.3 are fulfilled.
Cases under the Uruguay Round Anti-dumping Agreement
The interpretation of the provision regarding review and revocation under the present Anti-
dumping Agreement arose in the case of United States--- Anti dumping duty on dynamic
random access memory semi-conductors of one megabit or above from Korea (DRAMS
case)18 In this case Korea challenged Section 353.25(a)(2) of the United States Department of
Commerce Regulation made under Section 751(d) of the Tariff Act of 1930 (as amended)
which provided that the Secretary of Commerce may revoke an order in part if the secretary
(a) One or more producers or resellers covered by the order have sold the merchandise at
not less than the foreign market value for a period of at least three consecutive years
(b) It is not likely that those persons will in the future sell the merchandise at less than the
foreign market value; and
(c) There will be an immediate reinstatement of duty in case of dumping again.
Korea claimed that in three consecutive reviews Korean firms were found to be not dumping
but still the duty was not revoked because the petitioners could not satisfy the authorities that
there was no likelihood of dumping in future. There were three issues involved in this case:
(i) Whether cessation of dumping necessitates revocation of anti-dumping duties?
(ii) Whether finding of prospective dumping is valid under Article 11.2?
(iii)Whether the no-likelihood criterion of recurrence of dumping under the US law was
(i) Whether cessation of dumping necessitates revocation of anti-dumping duties
Contention of Korea - Korea claimed that Article VI and the Anti-dumping agreement allow
imposition of anti-dumping duty only to offset dumping that is causing injury. Since for three
years Korean companies were found to be not dumping, therefore, there was no injury caused
by such dumping and that the US was under an obligation to revoke the duty. Korea further
contended that para 1 of Article 11, which is the basic provision, lays down a general rule
regarding revocation and para 2 then sets forth certain specific administrative requirements
and imposes certain obligations on authorities which they are required to fulfil. Each of the
18 WT/DS99/R. There was another case involving the issue of review and revocation of anti-dumping duty,
namely, United States – Anti-dumping duties on imports of Stainless Steel plate from Sweden (24 February,
1994, ADP/117, unadopted) which came before GATT Panel under the 1979 Anti-dumping Agreement.
11.1 Modification of the level of duty
Article 11.2 has always provided that authorities shall review the need for the continued
imposition of an anti-dumping duty, but now also specifically makes provision for the
modification of the level of the anti-dumping duty. This simply confirms the practice
employed by most members and confirms that there is a link between Articles 11.1 and 11.2,
that is, that the duty may only remain in place to the extent necessary to counter injurious
11.2 Changed circumstances
Article 11.2 now clearly provides that the duty shall be terminated or the level thereof
modified if ‘there has been a change in circumstances of a lasting nature…’ In determining
whether there has been a change of circumstances of a lasting nature, investigating authorities
‘may take into account, inter alia, the impact of the existing duty and the possible effects if
that duty were terminated or modified’. This clearly indicates that authorities cannot restrict
their evaluation to information relating to the period of review, but have to take into
consideration all current information that may have a bearing on the future margin of
dumping. Accordingly, where the information is submitted showing that the likelihood exists
that the changed circumstances will revert to the original circumstances in future, this cannot
be regarded as changed circumstances for purposes of an interim review.
Considering the provisions of Article 9.3 regarding refund proceedings, it is submitted that
where an authority determines that a duty should be terminated or decreased, such duty
should be terminated or decreased with retroactive effect at least up to the initiation of the
review, but preferably retroactive to the start of the review period.88 In cases where the
authorities find that the level of duty should be increased, such increase should only be
effective from the date the final determination is published.89
11.3 Duration of duties
Article 11.3 deals with sunset or expiry reviews and provides that no duty may remain in
place for a period exceeding five years from the date of imposition or the last substantive
87 Note that the draft Art. 11.2 first indicates that investigating authorities shall review the need for a
modification of the level of duty on their own initiative or upon request by any interested party, and then again
provides that interested parties may request a modification of the level of duty. The second provision in this
regard is superfluous and should be deleted.
88 This will effectively incorporate refund proceedings in an interim review, meaning that separate refund
proceedings need not be undertaken following a determination in an interim review.
89 This would also be in line with the procedures regarding the retroactive imposition of definitive duties.
interim or sunset review thereof. In the draft text the order of interim and sunset reviews is
changed, which appears superfluous as it neither adds nor detracts from the existing text.
Reference is also made to the ‘effective’ date of the most recent review. This becomes
important in the context of paragraph 3.3, which has been inserted in the draft text. Paragraph
3.3 provides that the effective date of a sunset review is the date that the original five-year
period would have lapsed, regardless of whether the review is only completed after that date.
The provision therefore has the effect of decreasing the total duration of a duty imposed
subsequent to a sunset review. It effectively provides that an investigating authority can no
longer take its time in conducting a sunset review, maintain the duty as long as the review is
underway and then impose the duty for an additional five years. This proposal is fully
supported, as it minimises the negative impact of the anti-dumping duty on exporters by
curtailing the duration of such duty. The draft text also provides that, except in special
circumstances, a sunset review shall be based on a written application by or on behalf of
industry, compared to the provision in the current text that a sunset review shall be self-
initiated by the authorities or initiated after receipt of an application by the domestic
industry. The emphasis therefore shifts away from self-initiation towards an application that
has to be submitted. This appears to be aimed against the procedures of some authorities that
self-initiate all sunset reviews without any indication by the domestic industry as to whether it
wishes the duty to be maintained.90 These industries are only required to show after initiation
whether they want the duty maintained and, if not, the review is terminated.91 However, by
this stage, exporters have already wasted a significant amount of time and energy in
defending a non-existent case, which has the effect of creating another non-tariff barrier. The
draft text further requires that an application ‘shall contain information reasonably available
to the applicant and shall explain why, in the view of the applicant, dumping and injury are
likely to continue or recur should the duty expire’. This cannot be supported. An anti-
dumping duty can only be imposed after it has been shown in an original investigation that
dumping caused material injury to a domestic industry. Accordingly, it has already been
shown that unfair trade is taking place. The exporter is fully aware of the timing of the
upcoming sunset review and will do everything in its power to prevent the domestic industry
from obtaining a normal value. In a recent sunset review in South Africa, the exporter refused
to supply the domestic industry with any product for a period of approximately one year prior
to the sunset review as it knew that the domestic industry would be looking for normal values.
90 See Brink (2004: 665–673).
91 See Brink (2004: 668).
This followed despite the domestic industry having purchased specific products from the
exporter for a period of more than 50 years. If the domestic industry is not in a position to
obtain such normal values, no review can be initiated in terms of the draft text. It is submitted
that it should be up to the exporter to prove that there is no likelihood that dumping would
continue or recur. The industry should only be required to indicate whether it wishes the duty
to be maintained, prove industry standing in the matter and submit information to shows that
injury is likely to recur if the duty were to be removed.92
In terms of a footnote to sub-paragraph 4 authorities may ‘draw reasonable inferences about
the future from evidence on current facts if such inferences are supported by an analysis of
the evidence as a whole.’ This confirms that the purpose of a sunset review is to undertake a
prospective view of future events, rather than analyse what happened in the past.
Sub-paragraph 393 of the draft text further provides that a sunset review shall be initiated at
least six months prior to the lapse of the duty and that the review should be finished prior to
the end of the five-year period, but in no case more than six months thereafter. In addition,
should the review only be finalised after the original five-year period has lapsed, any final
decision will be effective from the date the five year period would have lapsed. Sub-
paragraph 5 provides that even where a duty has been extended through a sunset review at the
end of the original five-year period, no duty shall lapse more than ten years after the
imposition of the anti-dumping duty. While this provision is fully supported, as it cannot
make sense that some countries have maintained antidumping duties on the same product
since the 1970s, the wording of the text leaves some grey areas that have to be addressed.
Thus, the text indicates that duties must lapse only where it was extended following a sunset
review. Accordingly, nothing prevents an industry from requesting a substantive interim
(changed circumstances) review every four years. In these circumstances, the duty can still
be maintained indefinitely. It is submitted that this is not the intention and it should be clearly
Indicated that ‘no duty shall be maintained for a period exceeding 10 years from the date it
was originally imposed, regardless of any extensions or amendments to such duty’. Last, sub-
paragraph 6 provides that where an investigation on the same product under consideration is
initiated within two years after termination of an anti-dumping duty subsequent to sub-
paragraph 5, that is, the ten-year lapse, authorities may take ‘expeditious actions which may
92 This would be in line with inter alia the EC procedure. See Brink (2004: 447–450).
93 Logically it makes more sense to consider sub-paragraph 4 before sub-paragraph 3, as the latter is closely
linked to sub-paragraph 6 and it is proposed that the order should also be reversed in the final text.
constitute immediate application of provisional measures using the best information
available’ and may also impose definitive (but not provisional) duties to a date 90 days prior
to the application of the provisional measures, but in no case prior to the termination of the
anti-dumping duty. This, however, indicates that duties may be imposed retroactively to a
date prior to the initiation of the new investigation, which cannot be supported. More
guidelines should be provided on how to make a finding of likelihood, as some members’
methodology makes it virtually impossible to remove existing anti-dumping duties following
a sunset review, while other members’ methodology makes it virtually impossible to retain
existing duties in similar cases.
In essence the proposed amendments regarding sunset reviews and the duration of anti-
dumping duties are supported, but there are some loose threads that need to be tied.
11.4 Deadlines in reviews
Article 11.4 still provides that reviews should normally be concluded within 12 months, but
fails to provide a definitive deadline. This poses two problems. First, since sunset reviews
now have to be finalised within six months after the lapse of the original five-year period,
these provisions could contradict each other. Second, interim reviews are left open-ended. It
is submitted that there is no reason why a review, where issues such as product description
have already been settled in the original investigation, cannot be finalised within a period of
12 months. The text should therefore provide that ‘subject to the provisions of paragraph 3,
any review under Article 11 shall be concluded within 12 months from initiation’.
11.5 Parties subject to review
One issue not addressed by the draft text is the issue of which parties are subject to a review.
Footnote 11 to Article 3.1 provides as follows: For purposes of a determination of injury under
this Article, imports attributable to any exporter or producer for which the authorities determine a
margin of dumping of zero or de minimis shall not be considered to be ‘dumped imports’. This
should be confirmed in Article 11. It is submitted that once it has been found that a party is
not dumping, that decision should be final in respect of that exporter and it should not
remain part of the ‘proceeding’. Current practice in some jurisdictions is that an exporter
remains part of a proceeding until such time as the measure, which relates to the country
under investigation, has been terminated. Accordingly, every time an interim or sunset review
is initiated, that exporter is again subjected to a review. Article 11 should clearly provide that
no exporter or foreign producer found not to be dumping in an original investigation, interim
review, new shipper review or a sunset review shall be subject to any further reviews.
Review and revocation of anti-dumping measures is a part of procedural aspect of ADA. It
can be concluded from the above study that protective measures against dumping should only
be permissible if such dumping causes injury in the importing country. Anti-dumping laws
required two tests before the importing country could impose so-called anti-dumping duties:
there had to be dumping and such dumping had to cause injury in the importing country.
Anti-dumping duties shall remain in force only as long as it is necessary in order to
counteract dumping which is causing injury as was contended by Norway in United States
Imposition of Anti-Dumping Duties on Imports of Fresh Chilled Atlantic Salmon from Norway in
accordance with Article 9. And the authorities concerned shall review the need for the
continued imposition of the duty, where warranted, on their own initiative or if interested
suppliers or importers of the product so request.
Then, Article 11 provides in detail what is to be reviewed. It has been also submitted that
panel’s decision in DRAMS case reinforces the delicate balance, which the Agreement tries to
create between the interests of the injured Member country and that of the free world market,
governed by international commercial rules.
But, in oil country tubular goods from Argentina which relates to the sunset review of anti-
dumping measures, Appellate Body did not resolve the one key issue: whether the Sunset
Policy Bulletin, or its application by the United States, does or does not violate the WTO
provisions. Therefore the issue is still open for discussion and controversy, and will have to
be the matter of a decision in a future dispute. .
Inspite of many decisions given by the panel and appellate body, it appears that the WTO
dispute resolution seems not to have altered significantly the uneasy balance of interests
between major users of antidumping duties and their primary targets. The preservation of the
balance of interests among WTO Members is of particular importance in an area like
antidumping, in which fundamental disagreement over the legitimacy and conditions of
antidumping remedies curtails the possibility of unanimous consent to clear rules governing
their use. While binding WTO dispute resolution might create such clear rules through
common-law methods of adjudication, using dispute resolution to make law would create
serious problems of legitimacy for the WTO itself.
It is expected that the recommendations regarding Annual Reviews of the Anti-Dumping
Agreement will result in improvements that would provide useful information to Members
and the public, and would enhance transparency under the Agreement. Also, with the Draft
amendments to the WTO Anti-Dumping Agreement has enshrined a new era in the area of
Anti-dumping and would result in clarifying and improving disciplines under the ADA.
Although, there is a requirement that some grey areas still that have to be addressed and the
ambiguities and vagueness to be removed which give unguided and uncontrolled discretion
in the hands of the authorities which are part of review and revocation proceedings.