Page 614 - MANUAL OF SOP

Relevant Wto Jurisprudence

24.97. The Panel in WTO Dispute US – Oil Country Tubular Goods Sunset Reviews
(DS-268) articulated further the freedom of an investigating authority to choose
its own methodology to determine the likelihood of continuation or recurrence of
dumping, cautioning that the investigating authority would nevertheless need to
act with an appropriate degree of diligence:

"Article 11.3 requires investigating authorities to terminate an anti-dumping
duty not later than five years from its imposition unless they determine in a
review initiated before then that dumping and injury are likely to continue
or recur should the duty be revoked. Article 11.3 does not, however, set
out a specific methodology for making such determinations. In principle,
therefore, investigating authorities are not restricted in the choice of
methodology they will follow in making their sunset determinations. In their
choice of methodology, however, the investigating authorities should have
regard to both "investigatory and adjudicatory aspects" of sunset reviews
and make forward-looking determinations on the basis of evidence relating
to the past. They must arrive at reasoned conclusions on the basis of positive
evidence. In so doing, the investigating authorities may not remain passive.
Rather, the authorities have to act with an 'appropriate degree of diligence."
24.98. The Panel in a WTO Dispute US – Shrimp II (Viet Nam) (DS429) held that the
nature of an investigating authority's determination in a review conducted pursuant
to Article 11.2 is the same as in a sunset review conducted pursuant to Article 11.3:

"Turning to the nature and character of the obligation imposed on the
investigating authority, we note that like Article 11.3, Article 11.2 does
not prescribe any specific methodology for or criteria to be considered by
the authority in determining whether there is a need for the 'continued
imposition of the duty'. However, as noted above, the Appellate Body did
indicate that Article 11.3 envisages a process combining both investigatory
and adjudicatory aspects and assigns an active rather than a passive decision-
making role to the authorities. The same considerations apply, in our view, to
the review provided for in Article 11.2, and when the conditions set therein
are met, Article 11.2 imposes an obligation on the authority to undertake a
review of the need for the continued imposition of the duty and to make a
determination in that respect."

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