WTO Dispute Settlement Mechanism(7)

nder the GATT/WTO consistently consider that, under Article XXIII of the GATT, they have the jurisdiction to deal with claims against legislation as such. Such ruling is also confirmed by the WTO practice.
However, panels can never substitute domestic authorities of their role in interpreting national law. Panels have to find their appropriate approaches to domestic law. In this respect, in general, as summarized by the Appellate Body in US-1998 Act (DS176), “the municipal law of WTO Members may serve not only as evidence of facts, but also as evidence of compliance or non-compliance with international obligations. Under the DSU, a panel may examine the municipal law of a WTO Member for the purpose of determining whether that Member has complied with its obligations under the WTO Agreement. Such an assessment is a legal characterization by a panel”. 9
IV Special Rules for Claims against Anti-dumping Legislation as Such
（i）Introduction
In US-1916 Act (DS136/DS162), the United States appeals the Panel's finding that it had jurisdiction to consider the claims that the 1916 Act as such is inconsistent with Article VI of the GATT 1994 and the AD Agreement. According to the United States, Members cannot bring a claim of inconsistency with the AD Agreement against legislation as such independently from a claim of inconsistency of one of the three anti-dumping measures specified in Art. 17.4, i.e., a definitive anti-dumping duty, a price undertaking or, in some circumstances, a provisional measure.
In examining the legal basis for the Panel's jurisdiction to consider the claims of inconsistency made in respect of the 1916 Act as such, the Appellate Body begins with Art. 1.1 of the DSU, which states, in relevant part: “The rules and procedures of this Understanding shall apply to disputes brought pursuant to the consultation and dispute settlement provisions of the agreements listed in Appendix 1 to this Understanding (referred to in this Understanding as the ‘covered agreements’).” The Appellate Body rules that, “[f]or the DSU to apply to claims that the 1916 Act as such is inconsistent with Article VI of the GATT 1994 and the Anti-Dumping Agreement, a legal basis to bring the claims must be found in the GATT 1994 and the Anti-Dumping Agreement, respectively”. They also note that in the present case, “the European Communities and Japan both brought their claims of inconsistency with Article VI of the GATT 1994 and the Anti-Dumping Agreement pursuant to Article XXIII of the GATT 1994 and Article 17 of the Anti-Dumping Agreement”. 10
Since legal basis for claims against legislation as such under the GATT 1994 has generally been discussed above, the author will not give unnecessary detail in this respect and means to focus here on the issu

e of the legal basis for claims brought under the AD Agreement, Art. 17.4 of the AD Agreement bears great relevance here. Then the author will examine some relevant aspects of the Appellate Body Report on US-1916 Act (DS136/DS162).
(ii) General Legal Basis under Art. 17 of the AD Agreement
In this respect, the Appellate Body rules: 11
“[…] Just as Articles XXII and XXIII of the GATT 1994 create a legal basis for claims in disputes relating to provisions of the GATT 1994, so also Article 17 establishes the basis for dispute settlement claims relating to provisions of the Anti-Dumping Agreement. In the same way that Article XXIII of the GATT 1994

《WTO Dispute Settlement Mechanism(7)(第8页)》