A Note on Evidentiary Scope of Review in WTO Anti-Dumping Disputes

Abstract

A WTO panel reviewing consistency of a national anti-dumping investigation with the WTO Anti-dumping Agreement faces the issue of whether to include in its review confidential information that was not previously available to the WTO member whose exporters had been subject to investigation. The provisions of the WTO Anti-dumping Agreement fail to provide a clear guidance to the panel faced with this issue. On the one hand, admitting all relevant information provided to the panel, including confidential information, enhances a WTO panels ability to make an informed decision. On the other hand, admitting previously undisclosed information is arguably prejudicial to the complainant country that had to make the decision to bring the case to the panel without being completely informed of all available facts. This unsettled question as to the evidentiary scope of a WTO panels review is lately resolved by the Appellate Bodys decision in Thailand - H-Beams. The Appellate Body expanded the authority of a WTO panel to admit evidence, holding that a panel is not prevented from examining analysis and reasoning in documents that had not been disclosed to interested parties during a national anti-dumping investigation.