Page 615 - MANUAL OF SOP

Manual of OP for Trade Remedy Investigations

24.99. In WTO Dispute US DRAMS (DS296), the panel interpreted Article 11.2 in
the following manner-

“Article 11.2 provides for a review of 'whether the injury would be likely to
continue or recur if the duty were removed or varied' (emphasis supplied).
In conducting an Article 11.2 injury review, an investigating authority may
examine the causal link between injury and dumped imports. If in the context
of a review of such a causal link, the only injury under examination is an
injury that may recur following revocation (i.e., future rather than present
injury), an investigating authority must necessarily be examining whether
that future injury would be caused by dumping with a commensurately
prospective timeframe. To do so, the investigating authority would first need
to have established a status regarding the prospects of dumping. For these
reasons, we do not agree that Article 11.2 precludes a priori the justification
of continued imposition of anti-dumping duties when there is no present
dumping.”

24.100. The Panel in WTO Dispute US – DRAMS (DS296) also rejected the
argument that Article 11.2 requires the immediate revocation of an anti-dumping
duty in case of a finding of "no dumping".

"Furthermore, [the] argument that Article 11.2 requires the immediate
revocation of an anti-dumping duty in case of a finding of 'no dumping'
(e.g., when a retrospective assessment finds that no duty is to be levied)
is also inconsistent with note 22 of the AD Agreement. Note 22 states
that, in cases where anti-dumping duties are levied on a retrospective
basis, 'a finding in the most recent assessment proceeding … that no duty
is to be levied shall not by itself require the authorities to terminate the
definitive duty'. If [this] interpretation of Article 11.2 were accurate, then an
investigating authority would be obligated under Article 11.2 to terminate
an anti-dumping duty upon making such a finding, and note 22 would be
meaningless. In our view, this confirms a finding that the absence of present
dumping does not in and of itself require the immediate termination of an
anti-dumping duty pursuant to Article 11.2."
24.101. In WTO Dispute Mexico – Anti-Dumping Measures on Rice(DS295), the
Panel and the Appellate Body examined Article 89D of Mexico's Foreign Trade Act
under Article 9.5 and with Article 19.3 of the SCM Agreement. The Panel found

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