Elgar International Economic Law series
in this respect: A textual examination of Article 5.4 of the Anti-Dumping Agreement and Article 11.4 of the SCM Agreement reveals that those provisions contain no requirement that an investigating authority examine the motives of domestic producers that elect to support an investigation. Nor do they contain any explicit requirement that support be based on certain motives, rather than on others. The use of the terms ‘expressing support’ and ‘expressly supporting’ clarify that Articles 5.4 and 11.4 require only that authorities ‘determine’ that support has been ‘expressed’ by a sufficient number of domestic producers. Thus, in our view, an ‘examination’ of the ‘degree’ of support, and not the ‘nature’ of support is required. In other words, it is the ‘quantity’, rather than the ‘quality’, of support that is the issue. ... We conclude, therefore, that the texts of Article 5.4 of the Anti-Dumping Agreement and Article 11.4 of the SCM Agreement do not support the reasoning of the Panel. By their terms, those provisions require no more than a formal examination of whether a sufficient number of domestic producers have expressed support for an application. ... The Panel found that the CDSOA ‘will result’ in more applications having the required level of support from domestic industry than would have been the case without the CDSOA and stated that ‘given the low costs of supporting a petition, and the strong likelihood that all producers will feel obliged to keep open their requiring a higher degree of support for the application ensures a genuine...
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