United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina – Recourse by Argentina to Article 21.5 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (WT/DS268): Report of the Appellate Body

Summary

INTRODUCTION

The United States and Argentina each appeals certain issues of law and legal interpretations developed in the Panel Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina, Recourse to Article 21.5 of the DSU by Argentina (the “Panel Report”). The Panel was established to consider a complaint by Argentina concerning the consistency with the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the “Anti-Dumping Agreement”) and the Marrakesh Agreement Establishing the World Trade Organization (the “WTO Agreement”) of measures taken by the United States to comply with the recommendations and rulings of the Dispute Settlement Body (the “DSB”) in the original proceedings in US – Oil Country Tubular Goods Sunset Reviews.

In the original proceedings, Argentina challenged various aspects of United States laws, regulations, and procedures relating to the conduct of sunset reviews. For purposes of these proceedings pursuant to Article 21.5 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (the “DSU”), the relevant laws and regulations are those relating to the waiver of an exporter's right to participate in the review conducted by the United States Department of Commerce (the “USDOC”). At the time of the original proceedings, two waiver situations were contemplated under United States laws and regulations: (i) the so-called “affirmative waiver”, where an exporter explicitly waives its right to participate pursuant to Section 751(c)(4)(A) of the United States Tariff Act of 1930 (the “Tariff Act”); and (ii) the so-called “deemed waiver”, where an exporter, through silence or failure to submit a complete substantive response to a notice of initiation of a sunset review by the USDOC, was “deemed” to have waived its right to participate pursuant to Section 351.218(d)(2)(iii) of the United States Code of Federal Regulations (the “Regulations”). Argentina also challenged in the original proceedings several aspects of the sunset review conducted by the USDOC and the United States International Trade Commission (the “USITC”) of the anti-dumping duty order on oil country tubular goods (“OCTG”) imported from Argentina.