Introduction

The WTO Anti-Dumping (AD) Agreement requires that anti-dumping duties be reviewed at least every five years (Art. 11.3); pursuant to this requirement, domestic trade authorities in the United States are charged with the task of making a determination as to whether, after five years, revoking the duties would be likely to lead to continuation or recurrence of dumping (Commerce) and of material injury (US International Trade Commission, or USITC). This is called a Sunset Review; a negative determination of likelihood, either with respect to dumping or injury, will result in the duties expiring, the “sun” setting, as it were.

The WTO Appellate Body (AB) ruling that is the subject of this chapter resulted from a challenge by Japan to a number of aspects of Commerce's approach to the Sunset Review undertaken with regard to anti-dumping duties that had been imposed on certain steel imports. Japan challenged both the general administrative practice of the Commerce Department as codified in that department's Sunset Policy Bulletin, and also the methodologies actually applied by Commerce in this particular investigation, in coming to its conclusions.

Legal issues

When can legal norms “as such” be challenged as violations of WTO rules, independent of their application?

In the Panel proceeding below, Japan argued that the United States Department of Commerce (USDOC) Sunset Policy Bulletin “as such” violated provisions of the Anti-Dumping Agreement.