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Relevant Wto Jurisprudence

24.91. In WTO Dispute for assessing the essential character of the necessity
involved in the continuation of duty under Article 11.3, the Panel in the US – DRAMS
(DS-296) stated the following:

"We note that the necessity of the measure is a function of certain objective
conditions being in place, i.e. whether circumstances require continued
imposition of the anti-dumping duty. That being so such continued
imposition must, in our view, be essentially dependent on, and therefore
assignable to, a foundation of positive evidence that circumstances demand
it. In other words, the need for the continued imposition of the duty must
be demonstrable on the basis of the evidence adduced."
24.92. In WTO Dispute US – Corrosion-Resistant Steel Sunset Review (DS-244) the
Appellate Body reached the following general conclusions:

"This language in Article 11.3 makes clear that it envisages a process
combining both investigatory and adjudicatory aspects. In other words,
Article 11.3 assigns an active rather than a passive decision-making role to
the authorities. The word 'review' used in the article suggest that authorities
conducting a sunset review must act with an appropriate degree of diligence
and arrive at a reasoned conclusion on the basis of information gathered
as part of a process of reconsideration and examination. In view of the use
of the word 'likely' in Article 11.3, an affirmative likelihood determination
may be made only if the evidence demonstrates that dumping would be
probable if the duty were terminated—and not simply if the evidence
suggests that such a result might be possible or plausible."

24.93. The Appellate Body in a WTO Dispute US – Oil Country Tubular Goods
Sunset Reviews (DS-268) while giving a decision interpreted the text of Article 11.3
and stated:

"Article 11.3, on its face, does not mention, either explicitly or by way of
reference, any evidentiary standard that should or must apply to the self-
initiation of sunset reviews. Article 11.3 contemplates initiation of a sunset
review in two alternative ways, as is evident through the use of the word
'or'. Either the authorities make their determination in a review initiated 'on
their own initiative', or they make their determination in a review initiated
'upon a duly substantiated request made by or on behalf of the domestic
industry' “.

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