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Domestic Judicial Review of Trade Remedies:
Experiences of the Most Active WTO
Members, Cambridge University Press, 2013
by Müslüm Yilmaz (Ed.)
Gabrielle MARCEAU
*
The book entitled ‘Domestic Judicial Review of Trade Remedies – Experiences of the
Most Active WTO Members’, edited by MüslümYilmaz, has recently been published
by Cambridge University Press. It represents the first major academic research on
the highly significant issue of judicial review of trade remedy determinations at
domestic level.The book conveys the results of extensive research on how judicial
review is conducted by the domestic courts of twenty-one WTO Members that
are the most active users of trade remedies (anti-dumping, countervail and
safeguards). Country chapters in the book are prepared by high profile
practitioners, government officials and academics who are among the top trade
remedies experts in their respective jurisdictions.This adds significant value to the
entire project.
Each country chapter offers a detailed assessment of judicial review in the
relevant jurisdiction, identifies problems and discusses ways in which to address
them. In his overall conclusions, the Editor draws attention to similarities among
various country chapters in terms of the identification of problems and mentions
steps that may be taken in order to strengthen the effectiveness of domestic judicial
review. In this review, we briefly note the scope and main conclusions of this
research project and then elaborate on ways in which the common problems
identified may be addressed.
*Gabrielle Marceau is President of the International Economic Law Society (SIEL); she is also
Counsellor in Legal Affairs Division of the WTO Secretariat, Associate Professor at the Faculty of
Law, University of Geneva and Visiting professor at the Graduate Institute (IHEID). Opinions
expressed are only those of the author and do not bind the WTO Secretariat of the WTO.
Marceau, Gabrielle. ‘Domestic Judicial Review of Trade Remedies: Experiences of the Most Active WTO
Members, Cambridge University Press, 2013 by Müslüm Yilmaz (Ed.)’. Journal of World Trade 47,
no. 5 (2013): 1163–1170.
© 2013 Kluwer Law International BV, The Netherlands
1 SCOPE OF THE RESEARCH AND CONCLUSIONS REACHED
The book incorporates the results of extensive research on the issue of judicial
review of trade remedies by the domestic courts of the importing countries
imposing such measures. Apart from the Introduction and Conclusions, it consists
of eighteen chapters analysing the judicial review systems of twenty-one WTO
Members that are active users of trade remedies: Canada, United States, Mexico,
Colombia, Brazil, Argentina, Peru, European Union, Turkey, Israel, South Africa,
Pakistan, India, China, Korea, Indonesia, Australia, Japan, Malaysia, New Zealand
and Thailand. We see this book as an important academic achievement for four
reasons, namely novelty, wide coverage of countries, depth of country-specific
evaluations, and identification of common problems compromising the quality of
domestic judicial review in the field of trade remedies.
Judicial review of trade remedy determinations takes place at three levels:
multilateral, regional and domestic. Unlike the first two, domestic judicial review
of such determinations had largely escaped academic attention until the
publication of this book. As the first major research project on this subject, the
book fills a big gap and provides solid ground for future researchers.
The book covers a wide range of countries. It includes chapters addressing the
judicial review systems of not only the so-called traditional users of trade remedies
such as the United States, the European Union, Canada and Australia but also
those of a number of new frequent users. Geographically, users from all regions of
the world are covered. Similarly, in terms of levels of development, the book has a
mixed coverage.Although the principal standard for selection seems to be the level
of trade remedies activity of the relevant country, the book also covers countries,
such as Japan, which are not such big users of these measures. Further, given their
economic significance, the book covers countries like China although the level of
judicial review activity in those countries has so far been minimal. Hence, in this
book, the reader will find explanations with respect to the judicial review systems
of most major trading partners that are users of trade remedies. Such wide
coverage makes the book a valuable reference for businesses, government officials
and academics interested in trade remedies.
In terms of the depth of country-specific analyses, the chapters provide the
reader with the information that would be needed in order to assess the
functioning and effectiveness of a judicial review system. On the basis of such
information, an exporter subjected to a trade remedy measures by an importing
country would be able to decide whether it would be feasible to initiate a judicial
review proceeding before that country’s courts. Each chapter provide information
about the fundamentals of the judicial review system of the country concerned,
including competent courts and their powers, reviewable determinations, parties
JOURNAL OF WORLD TRADE
1164
eligible to bring a case, standard of review, procedural rules, implementation of
court decisions, the level of judicial review activity and the patterns in the court
decisions made so far.
Given the number of countries covered and the diversity of the legal systems
involved, the book identifies many differences among different judicial review
systems. However, in the overall conclusions where the Editor provides a
horizontal assessment of country chapters, several common problems are also
identified. The two main problems are presented as the length of judicial review
proceedings and the high level of deference to investigating authorities. In what
follows, I present my views on how these two issues may be addressed in order to
improve the effectiveness of the domestic judicial review of trade remedy
determinations.
2 LENGTH OF JUDICIAL REVIEW PROCEEDINGS
That court proceedings take too long is the kind of criticism all lawyers are used
to make and to hear. It is therefore not surprising that this has been identified as a
problem with respect to the domestic judicial review of trade remedies. All the
more so given that in all the countries examined in this book, there is at least one
level of appeal mechanism after the review by lower courts. As suggested in the
conclusions of the book, it is rather difficult to propose a solution with respect to
this particular problem. That said, one step that might be taken in this regard
would be to impose a maximum deadline for the completion of a judicial review
proceeding. Not surprisingly, however, such an idea would pose several problems.
The first problem would be the modalities of such a modification.How could
such a deadline be imposed? The obvious option would be to amend the relevant
provisions of the WTO’s three trade remedy agreements. But, amending these
agreements would require negotiations which in itself is problematic. Even the
on-going Doha negotiations would not provide a realistic opportunity for a
change in this regard. It should be recalled that not all three agreements on trade
remedies have provisions on judicial review. Unlike the Anti-Dumping Agreement
(AD Agreement) and the Agreement on Subsidies and Countervailing Measures
(SCM Agreement) which address judicial review almost with identical language,
the Agreement on Safeguards (SG Agreement) is silent in this regard. The SG
Agreement is not part of the mandate for Doha negotiations either. Further, as far
as the negotiations on the AD and SCM Agreements are concerned, the chances
of completing Doha negotiations within the near future are slim. Even in the
unlikely event of an imminent return to the negotiating table, the relatively
advanced stage in terms of the identification of issues for negotiations would make
DOMESTIC JUDICIAL REVIEW OF TRADE REMEDIES 1165
it almost impossible to add judicial review to the agenda. Adopting a consensus
decision that adds to the treaty would also be a route.
Assuming it is possible to make a textual change in this regard, the next
problem would be the substance of that change. What exactly would the textual
modification say? The most obvious option would be to impose a deadline for the
completion of the proceeding.This, however, would pose internal problems within
Members’justice systems since it would amount to subjecting the judicial review
of trade remedies to a legal regime different from other judicial review
proceedings. Such selective treatment would likely cause political reaction and
possibly constitutional challenges in the legislative process.
Therefore, changing WTO rules in a way that would impose tighter
disciplines on Members, with respect to the duration of judicial review
proceedings does not seem realistic.
However, the relevant Committees in theWTO may provide appropriate fora
to discuss this problem.The Committees are bodies where Members can raise any
issue relating to the implementation of the relevant agreement, including, in the
case of trade remedies, judicial review of investigating authorities’determinations.
In this regard, Committee work can be undertaken in two ways. First, a Member
complaining about the length of a specific judicial review proceeding may bring
the matter to the attention of the Committee.This would allow that Member to
make comments on the issue and to direct questions to the Member whose
judicial review proceeding is concerned.This is what we call sometimes the WTO
active transparency mechanism, because not only do WTO Members have important
transparency notification obligations, in committees, they can ask any questions or
raise any relevant matter with the expectation that the other concerned
Member(s) will respond and explain its (their) position.
Second, as far as the judicial review under the AD Agreement is concerned,
the Working Group on Implementation, which is a sub-body of the
Anti-Dumping Committee, seems to be an appropriate place to exchange views
and share concerns about judicial review. Importantly, judicial review is one of the
nine topics which have been referred to the Group by the Anti-Dumping
Committee.
1
So far, the Group has discussed papers submitted by several Members
explaining their respective judicial review systems but has not had a systemic
discussion on those two issues.
2
Although the Group is not empowered to take
binding decisions, over the years, it has proved to be an appropriate forum for
1For a list of topics that are currently before the Group for discussion, see the summary report of
the Group’s October 2012 meeting (G/ADP/AHG/R/32), para. 2.
2See, for instance, G/ADP/AHG/W/150 (New Zealand); G/ADP/AHG/W/153 (Canada);
G/ADP/AHG/W/155 (United States); G/ADP/AHG/W/158 (European Union); G/ADP/AHG/
W/163 (Turkey);G/ADP/AHG/W/165 (South Africa).
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informal discussions among Members on practical issues concerning anti-dumping
proceedings. Further, discussions in the Group have, in some instances, also lead to
the adoption of recommendations by the Anti-Dumping Committee.
3
Though
not legally binding, such recommendations provide Members with useful guidance
on certain aspects of anti-dumping investigations. Therefore, resumption of
discussions in the Working Group on the topic of judicial review may well lead to
a recommendation regarding the length of judicial review proceedings.
3 DEFERENCE TO INVESTIGATING AUTHORITIES
The most important conclusion of the book seems to be that in most of the
countries examined the high level of deference to the investigating authority
undermines the effectiveness of the judicial review. In this regard, the book draws a
line between developing and developed countries. In developed countries the high
level of deference is reported to be the result of the standard of review that the
courts have to apply whereas in developing countries it seems to be related to the
lack of experience on the part of the judges handling the cases. Thus, the book
concludes that as far as the situation in developing countries is concerned, two
measures can be taken in order to eliminate the problems, namely establishment of
specialized courts and training of judges. It notes that for various reasons, including
budget implications, creation of specialized courts may not be a feasible option.
With respect to training, the book argues that this would allow the judges to take a
more active approach in terms of evaluating the substance of investigating
authorities’determinations rather than limiting it to procedural matters.
With respect to the training of judges, the book recognizes that this is a
delicate issue and that it should be addressed with caution.Yet it suggests ways in
which such training may be obtained, including from the investigating authorities
of the importing country concerned and through various bilateral or regional
meetings with the judges of other countries. Given that many of the country
chapters on developing countries identify the judges’lack of experience with
trade remedies as a problem and propose training as a solution, this aspect merits
further reflection.
4
3See, for instance, the recommendation on the timing of the notification under Art. 5.5 of the AD
Agreement (G/ADP/5); the recommendation on the periods of data collection for anti-dumping
investigations (G/ADP/6); the recommendation on the indicative list of elements relevant to a
decision on a request for extension of time to provide information (G/ADP/7); and the
recommendation on the time-period to be considered in making a determination of negligible
import volumes for purposes of Art. 5.8 of the AD Agreement (G/ADP/10).
4As far as deference to investigating authorities is concerned, another obvious, and probably more
effective and long-lasting, measure would be the adoption of a standard of review to govern
domestic judicial review. However, as for the duration of judicial review proceedings, it would be
DOMESTIC JUDICIAL REVIEW OF TRADE REMEDIES 1167
There is no doubt that a good understanding of trade remedies is essential to
the conduct of effective judicial review. It is also true that whatever the subject
matter of a judicial review case, the judge’s job is to follow the standard of review
applicable in the relevant jurisdiction and on that basis decide whether a
challenged governmental action is illegal. Arguably, to do this, the judge does not
need to be an expert in the substantive subject matter of the case.Typically, the
courts that conduct the judicial review of trade remedies also deal with cases
involving other governmental actions. Hence, it would not be logical to expect the
judge to be an expert of the subject matter of each administrative action that
he/she reviews.
However, the highly technical nature of trade remedies justifies a different
approach. Further, trade remedies are imposed through an investigative process that
is heavily regulated in the WTO agreements which are binding for WTO
Members. I recognize that there are also other governmental actions that are
affected by international treaties. However, in the case of trade remedies, the
investigations are to be conducted in accordance with the detailed rules and
principles set forth in the WTO agreements and the leeway accorded to WTO
Members is limited. Trade remedies represent a new area for most of the
developing countries that are now active users of such measures. Unlike countries
like the United States, Canada and the European Union, etc. where trade remedies
emerged in response to the needs of national industries and evolved in light of
ensuing circumstances, developing countries took over the set of rules that were
agreed upon internationally, without having any national experience in this field.
Given this predominantly international nature of trade remedies, the developing
country judge needs to keep abreast of international developments in this field.
This will necessarily require an extra effort in the learning process because of the
difficulty in accessing the relevant sources of information and the language skills
needed to read and understand such sources.
More specifically, to build that knowledge, the judge will have to read what
has been written about trade remedies in other jurisdictions and to follow
developments in theWTO. Obviously, it would be for the judge to then decide to
what extent that knowledge should affect the judicial review process in his/her
jurisdiction, but gaining the knowledge would undoubtedly contribute to the
quality of the review.To give an example, it would be very difficult to argue before
difficult, if not impossible, to achieve this through an amendment to the relevant WTO
agreements. In my view, the identification of such a standard of review through decisions from the
WTO Committees in charge of trade remedies would be feasible and very useful in terms of
providing guidance in this regard. As far as the particular standard is concerned, I think that a
good starting point for the discussions to take place in these Committees could be the standard of
review set forth in Art. 17.6(i) of the AD Agreement, namely the proper identification of facts and
their unbiased and objective evaluation by the investigating authorities.
JOURNAL OF WORLD TRADE
1168
a WTO Member judge that the Member’s law prohibits the use of the zeroing
methodology in dumping determinations if the judge does not know what this is.
In order to decide on this claim, the judge will have to study this methodology
and its impact on dumping calculations. Most probably, the judge would have
difficulty finding this information from domestic sources and would necessarily
have to consult foreign/international sources.This is yet another illustration of the
dependence of domestic law on international law: because of the international
nature of trade remedies, the domestic law has to feed itself from international law
on a regular basis.
What should be the modalities of such training? As noted in the book, the
issue of the training of judges is a sensitive one. In this regard, the modalities
referred to in the book seem appropriate.The closest source of knowledge would
be the investigating authority of the importing country. Typically, in most
developing countries, the investigators are more familiar with the mechanics and
the law of trade remedies than the judges.Therefore, that knowledge can usefully
be shared with the judges conducting the judicial review of the authority’s
determinations. This can be done through conferences or working groups.
However, caution should be exercised in two regards. First, this training should be
organized in a way that would respect the separation of powers. Its sole objective
should be to familiarize the judges with the mechanics and the international legal
basis of trade remedies. It should not involve a discussion of whether or not certain
practices are permitted under the domestic trade remedies law of the importing
country. Second, it should always be borne in mind that the investigating
authority’s knowledge will necessarily reflect its own interpretation of the relevant
(international and domestic) rules. It is generally known that most rules in the
WTO’s trade remedies agreements are interpreted differently by different WTO
members, by different panels and by the WTO’s Appellate Body. Hence, the judges
should bear this in mind when listening to the explanations made by their
investigating authorities.
The second and possibly parallel avenue would be to have the WTO involved
in this training process.There are three reasons that make the WTO an appropriate
forum in the training of judges. First, as noted above, all national laws on trade
remedies have to be in conformity with the relevant WTO agreement.That is, the
WTO agreements are in a sense the source of national trade remedies laws. Hence,
in terms of substance, training in the WTO agreements by the WTO secretariat
would address the source of the national trade remedies laws of participating
judges. Second, over the years, the WTO has developed a significant body of
jurisprudence on those agreements. Needless to say that, such jurisprudence has no
binding value at domestic court level. However, taking into consideration the
diversity of legal issues discussed in the WTO panel and Appellate Body reports,
DOMESTIC JUDICIAL REVIEW OF TRADE REMEDIES 1169
acquiring familiarity with WTO jurisprudence likely would be beneficial to
judges. Third, as an international forum, the WTO will allow the judges to meet
their counterparts from other countries, exchange views and share experiences
with them.
4 CONCLUSION
The book ‘Domestic Judicial Review of Trade Remedies – Experiences of the Most Active
WTO Members’ is a significant contribution to academic knowledge in the field of
trade remedies law. It represents a comprehensive source on the judicial review
systems of the most active users of trade remedies. It also identifies two common
problems, namely the length of judicial review proceedings and the high level of
deference accorded by domestic courts the investigating authorities’
determinations. The identification of these two problems is as important a
contribution of this book as the in-depth analyses provided in its country chapters.
The WTO seems to be the right place to address both of these problems. As far as
the issue of time is concerned, it would be up to Members to raise this in the
relevant WTO Committees and encourage discussions.With respect to the level of
deference, as far as the situation in developing countries is concerned, the WTO
secretariat can discuss the matter with Members and then design training programs
that take into consideration the specific needs of judges and the political sensitivity
of the matter. Training by the investigating authorities of the importing country
may also be a useful option.
Elimination of these problems will significantly increase the effectiveness of
judicial review at domestic level and further the rule of law in the application of
trade remedies. Arguably, it will also alleviate the burden on WTO dispute
settlement because the better judicial review at domestic level the less will be the
number of cases filed in the WTO.
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1170