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Exploring WTO dispute settlement in US Anti-dumping Act 1916: An easy case?

Philip De Keyser ^*

• I. Introduction
• II. Background
  • A. The US Antidumping Act of 1916: an obscure hybrid?
  • B. From Geneva Steel to Geneva: Procedural background to the case
• III. Overview of the reports
  • A. The panel reports
    • 1. Procedural and other preliminary issues
      • (a) No `enhanced' third party rights
      • (b) Methodology for examination of the 1916 Act and its surroundings
      • (c). Relationship between art. III:4 and VI GATT
      • (d) Relationship between art. VI GATT and the Anti-dumping Agreement
      • (e) Jurisdiction to hear claims against the 1916 Act as such
    • 2. Applicability of art. VI GATT 1994
    • 3. Application of the mandatory vs. discretionary law distinction
    • 4. Violations of the anti-dumping provisions
      • (a) The injury requirements of art. VI:1 GATT
      • (b) The type of anti-dumping measures allowed under the GATT 1994
      • (c) Other violations
    • 5. Other claims
    • 6. Recommendations
  • B. Overview of the Appellate Body report
    • 1. Enhanced third party rights
    • 2. Jurisdiction of the panel to hear claims against the 1916 Act as such
      • (a) General
      • (b) Timely objection against jurisdiction
      • (c) Jurisdiction to consider claims against the 1916 Act as such
    • 3. Mandatory and discretionary legislation
    • 4. Applicability of art VI GATT and the Anti-Dumping Agreement to the 1916 Act
    • 5. Violation of art. VI:2 of the GATT 1994 and certain provisions of the Anti-Dumping Agreement
    • 6. Conditional appeals: Articles III:4 and XI GATT and article XVI:4 WTO Agreement
• IV. Comments
  • A. Substantive aspects of the case
    • 1. The `black letter law': essential holdings of panel of Appellate Body
    • 2. Implications for antitrust law?
  • B. Some methodological and procedural issues addressed in the case
    • 1. "Multiple complaints" issues: separate panel proceedings on both claims and no enhanced third party rights
    • 2. Objections against jurisdiction
    • 3. Examination of domestic law
    • 4. The distinction between mandatory and discretionary legislation
    • 5. Judicial economy
    • 6. Suggestions of means to secure compliance WITH FINDINGS
• IV. Concluding remarks

* Lic.jur. (Katholieke Universiteit Leuven, 2000), LL.M (Harvard University, 2001). This paper is a revised version of a seminar paper written in the framework of the Jean Monnet Seminar at Harvard Law School (Spring 2001). The author would like to express his indebtedness to in particular Prof. J.H.H. Weiler, who through his teaching stimulated the author's interest in WTO law; Sung-Joon Cho, who was always there with thoughtful suggestions, Zaid Al-Ali, who was his `sparring partner' during the seminar presentation of this paper, and Gaspar Bergman. Of course all errors are entirely to be attributed to the author. He would also like to thank the Belgian-American Educational Foundation, whose financial support made inter alia this paper possible. The author is currently an attorney at Stibbe (dept. of administrative law, Brussels) and can be reached by e-mail at: pdekeyse@post.harvard.edu

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© Philip De Keyser 2001