Page 613 - MANUAL OF SOP

Manual of OP for Trade Remedy Investigations

24.94. The Panel in EC – Tube or Pipe Fittings (DS-219) understood the "phrase
'where warranted' in Article 11.2 to denote circumstances furnishing good and
sufficient grounds for, or justifying, the self-initiation of a review-

“Where an investigating authority determines such circumstances to exist,
an investigating authority must self-initiate a review. Such a review, once
initiated, will examine whether continued imposition of the duty is necessary
to offset dumping, whether the dumping would be likely to continue or
recur, or both. This article therefore provides a review mechanism to ensure
that Members comply with the rule contained in Article 11.1."

24.95. In WTO Dispute US – Corrosion-Resistant Steel Sunset Review (DS-244) the
panel underlined the importance of the need for sufficient positive evidence on
which to base the likelihood determination:

"The requirement to make a 'determination' concerning likelihood,
therefore, precludes an investigating authority from simply assuming that
likelihood exists. In order to continue the imposition of the measure after
the expiry of the five-year application period, it is clear that the investigating
authority has to determine, based on positive evidence, that termination of
the duty is likely to lead to continuation or recurrence of dumping and injury.
An investigating authority must have a sufficient factual basis to allow it to
draw reasoned and adequate conclusions concerning the likelihood of such
continuation or recurrence."

24.96. In WTO Dispute EU – Footwear (China) (DS-405) the Panel found that
dumping and injury if found would make the investigation strong and thus would
support the continuation of duty but also said that this could not be the sole basis
for extending the continuation of duty:

"In our view, a failure to examine relevant factors set out in the substantive
provisions of Article 3 in the determination of likelihood of continuation or
recurrence of injury could preclude an investigating authority from reaching
a 'reasoned conclusion', which would result in a violation of Article 11.3 of
the AD Agreement. However, we recall that a determination of injury under
Article 3 is not required under Article 11.3. Thus, we do not consider that
all factors relevant to an injury determination under Article 3 are necessarily
relevant to a determination of likelihood of continuation or recurrence of
injury under Article 11.3."

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