There are two compelling issues involved in US – Countervailing Duty Investigation of DRAMS. First, there is the question of whether creditors were ‘entrusted or directed’ to make financial contributions to Hynix, a large South Korean DRAM producer. This was the main topic addressed by the Appellate Body (AB) and is the focus of the François–Palmeter paper. Second, there is there is the question of injury assessment and nonattribution. Because the US did not appeal the Panel's decision, this aspect of the WTO dispute was not considered by the AB.

We review the WTO Appellate Body report on United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina (WT/DS268/AB/R, 29 November 2004). This dispute is one of several that deals with sunset reviews of antidumping-duty orders. In its ruling, the AB reasserts a rigid distinction between mandatory and discretionary law, and sets a very high standard for Member challenges to laws or practices that allow for violations of WTO obligations but do not mandate such behavior. We argue that this ruling is unfortunate, because it diminishes scope of and incentives for ‘as-such’ challenges to laws and practices, which have a potentially useful role to play in the world trading system. The AB ruling also overlooks the purpose and objectives of sunset reviews – to ensure that duty orders are not extended when their removal would generate no harm to an import competing industry – by failing to impose sufficient discipline on their conduct. We argue that a sunset review requires an evaluation of competitive conditions in the industry and of the reasons and incentives for dumping, in order that the investigating authority can judge whether the removal of a duty order would lead to a continuation or recurrence of dumping and injury. The Appellate Body's rulings in this and other similar cases have the effect of relieving the investigating authority of this responsibility and thereby render the sunset review process virtually meaningless.

This paper reviews the WTO Appellate Body Report on United States – Anti-Dumping Measures on Oil Country Tubular Goods (OCTG) from Mexico (WT/DS282/AB/R 2 November 2005). This dispute concerns the disciplines imposed by the Anti-Dumping Agreement on WTO Members seeking to extend their anti-dumping measures beyond the original five-year period through a so-called sunset review. Our analysis focuses on the Appellate Body's finding in this case that no causation analysis is required in sunset reviews, and addresses the AB's approach towards the legal instrument that provides for the US policy in terms of sunset reviews, the Sunset Policy Bulletin. We conclude that the Anti-Dumping Agreement, as interpreted by the Appellate Body in this and other similar cases, imposes only minimal disciplines of a general nature on Members wishing to extend the anti-dumping measure beyond its original five-year period. We argue that the ‘textual’ argument relied on to support this deferential approach is weak and has resulted in undermining the practical effect of, what was considered to be, one of the major achievements of the Uruguay Round Anti-Dumping Agreement: limiting the life span of an anti-dumping measure to five years. From an economic perspective, Panels and the Appellate Body are simply debating the wrong type of questions. The prospective nature required by a sunset review analysis raises questions such as why exporters engaged in dumping in the first place, and what the conditions of the industry were so that the dumped imports caused injury. At the moment, sunset reviews seem adrift as panels and the Appellate Body fail to give guidance to Members on how to do a more economically sound and informed review.