WT/DS162/R/Add.1 Page 72
Agreement are the three types of anti‑dumping measures set forth in the Anti‑Dumping Agreement. In the Appellate Body’s words:
"According to Article 17.4, a "matter" may be referred to the DSB only if one of the relevant three anti‑dumping measures is in place. This provision, when read together with Article 6.2 of the DSU, requires a panel request in a dispute brought under the Anti‑Dumping Agreement to identify, as the specific measure at issue, either a definitive anti‑dumping duty, the acceptance of a price undertaking, or a provisional measure. This requirement to identify a specific anti‑dumping measure at issue in a panel request in no way limits the nature of the claims that may be brought concerning alleged nullification or impairment of benefits or the impeding of the achievement of any objective in a dispute under the Anti‑Dumping Agreement. As we have observed earlier, there is a difference between the specific measure at issue – in the case of the Anti‑Dumping Agreement, one of the three types of anti‑dumping measure described in Article 17.4 – and the claims or the legal basis of the complaint referred to the DSB relating to those specific measures. In coming to this conclusion, we note that the language of Article 17.4 of the Anti‑Dumping Agreement is unique to that Agreement."246
The United States argues that, similarly, in light of the reasoning of the panel in Brazil ‑ Measures Affecting Desiccated Coconut which was affirmed by the Appellate Body, the Panel has no jurisdiction to decide a claim under Article VI of the GATT 1994. The panel in that case found that: "Article VI of GATT 1994 is not independently applicable to a dispute to which the SCM Agreement is not applicable,"247 relying on language parallel to Article 1 of the Anti‑Dumping Agreement.
Japan considers that the particular finding of the Appellate Body in Guatemala - Cement cited by the United States has no relevance to the present panel proceeding. The Guatemala - Cement case dealt with the issue of whether a provisional or definitive anti‑dumping duty had been levied before the relevant panel process was initiated. In the present case, however, the subject of the deliberations is not an anti‑dumping duty or a price undertaking, but action other than anti‑dumping duties or price undertakings. Thus, the findings of the panel or the Appellate Body in Guatemala-Cement on this particular issue do not apply here.
With regard to the term "action" in Article 18.1 and footnote 24 of the Anti‑Dumping Agreement, the United States notes that, like the term "measure" in Article 1 of the Anti‑Dumping Agreement, the term "action" in Article 18.1 and footnote 24 of the Anti‑Dumping Agreement is modified. In particular, Article 18.1 refers to a "specific action against dumping." A "specific" action against dumping is one that regulates particular import transactions, such as can take place through the imposition of duties, an injunction, a quantitative restriction or valuation procedures. An action is one that is "against dumping," meanwhile, if it is designed to counteract dumping.
The United States considers that, when Article 18.1 and footnote 24 are read together, it can be seen that they mean that a Member can take a specific action against dumping if it is consistent with, and not in violation of, the provisions of the GATT 1994.
246 The United States refers to the Appellate Body Report on Guatemala - Cement, Op. Cit., para. 79. (emphasis added by the United States).
247 The United States refers to the Panel Report on Brazil ‑ Measures Affecting Desiccated Coconut, adopted on 20 March 1997, WT/DS22/R, para. 278 (hereinafter "Brazil – Desiccated Coconut").