Page 624 - Manual Of Operating Practices For Trade Remedy Investigations

Relevant Wto Jurisprudence

not itself establish evidentiary standards applicable to the initiation of sunset
reviews. Such standards, if they exist, must be found elsewhere " .
6
24.125. In the US – Countervailing and Anti-Dumping Measures (China)
(DS449), the Panel, in the process of interpreting and applying Article X: 3(b) of the
GATT 1994, stated that:

"… The neutral wording of Article 23 confirms that such interested parties
may well include domestic interested parties who would seek to challenge
a decision by an administrative agency that is beneficial to the exporters in
a particular case" .
7
24.126. The Panel in Mexico – Olive Oil (DS341) noted that certain provisions of
the SCM Agreement leave considerable discretion to Members to define their own
procedures:

“…in general, unless a specific procedure is set forth in the Agreement the
precise procedures for how investigating authorities will implement those
obligations are left to the Members to decide" .
8
XXI. SAFEGUARD INVESTIGATIONS

24.127. In the US – Line Pipe, the Appellate Body referred to two basic inquiries
that are conducted in interpreting the Agreement on Safeguards: (i) "is there a
right to apply a safeguard measure?"; and (ii) "if so, has that right been exercised,
through the application of such a measure, within the limits set out in the treaty?".
The Appellate Body emphasized that these two inquiries are "separate and distinct"
and should not be "confused" by the treaty interpreter: ":
[There are] basic inquiries that are conducted in interpreting the Agreement
on Safeguards. These two basic inquiries are: first, is there a right to apply
a safeguard measure? And, second, if so, has that right been exercized,
through the application of such a measure, within the limits set out in the
treaty? These two inquiries are separate and distinct. They must not be
confused by the treaty interpreter. One necessarily precedes and leads to
the other. First, the interpreter must inquire whether there is a right, under
the circumstances of a particular case, to apply a safeguard measure. For

6 Appellate Body Report, US – Carbon Steel, paras. 111-112.
7 Panel Report, US – Countervailing and Anti-Dumping Measures (China), para 454.
8 Panel Report, Mexico – Olive Oil, fn. 63.

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