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45 Colum. J. Transnat'l L. 196 (2006)


This essay is about the application of procedural approaches in the US-Zeroing case that serve to highlight potential problems with Appellate Body decision-making. Those problems go to central issues of judicial restraint, including concerns surrounding standards of review, appellate fact-finding, and notions of justiciability and ripeness. This essay will begin with an analysis of US-Zeroing's approach in applying the specialized standard of review under the Antidumping Agreement, arguing that it fails to adhere to the obligation of deference to permissible Member State interpretations of WTO antidumping obligations. It then examines the fact-finding procedures applied by the Appellate Body, which raise troubling concerns about the Appellate Body's failure to confer deference to the reasonable factual findings of Member States and WTO panels. Finally, it concludes with a discussion of the Appellate Body's rejection of the mandatory/discretionary doctrine, a key tool that restricts the jurisdictional authority of the WTO. The essay concludes that the Appellate Body in US-Zeroing circumvented the particularized standard of review required under the Antidumping Agreement, took upon itself the unacceptable task of appellate fact-finding, and inappropriately expanded the authority of WTO panels to hear facial challenges of agency measures. Rather than adhere to an approach of deference as required by the WTO commitments, the Appellate Body engaged in de novo review of both the law and the facts to reach its preferred result on zeroing.


Reprinted with permission of the Columbia Journal of Transnational Law.



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