Elgar International Economic Law series
12. Standard of review The Appellate Body, in its report on US – Lead and Bismuth II, was confronted with the issue of whether the standard of review in the context of the SCM Agreement should be identical to that practised in the WTO Anti-dumping agreement (Article 17.6 AD Agreement) or, conversely, whether the generic standard of review enshrined in Art. 11 DSU was also applicable in the SCM Agreement context. The Appellate Body ruled that, in the absence of specific language mandating an exception (similar to that embedded in Art. 17.6 of the WTO Anti-Dumping Agreement), the generic standard of review was applicable in the SCM Agreement context as well.1 Although we have yet to see a case where the choice of a standard of review had an impact on the outcome of a dispute, it is generally perceived that the generic standard of review is less deferential towards an investigating authority than its anti-dumping-specific counterpart.2 Nevertheless, and telling of the lack of practical implication of the choice of standard of review (that is, the generic or the anti-dumping specific standard), the Panel on US – Softwood Lumber VI, did not consider it ‘either necessary or appropriate to conduct separate analyses of the USITC determination’3 involving a single injury determination with respect to both subsidized and dumped imports, under the two Agreements. The Panel did indicate that, given the similarity of the countervailing duty process and the anti-dumping process, inconsistent results are to be avoided. In other words, the standard of...
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