General Thoughts on the Standard of 'Cogent Reasons' in the Treatment of WTO Jurisprudence

摘要

In recent decisions, two WTO panels have examined legal questions that the Appellate Body had already addressed in two previous disputes. In China - Rare Earths and United States - Countervailing and Anti-Dumping Measures (China), the panels dealt respectively with, (ⅰ) the question of whether Article (ⅩⅩ) of the General Agreement on Tariffs and Trade 1994 (GATT) is available to justify export duties on certain raw materials, otherwise prohibited under China's Protocol of Accession to the WTO, and (ⅱ) the question of whether Article 19-3 of the Agreement on Subsidies and Countervailing Measures (SCM Agreement) prohibits the imposition of simultaneous anti-dumping and countervailing measures against the same imports when they come from non-market economies. These same legal questions were resolved by the Appellate Body in the disputes China -Raw Materials- and US - Double remedies. On the first question, the answer was that Article (ⅩⅩ) of the GATT is not available to justify the type of export duties at issue. With respect to the second question, the answer is that Article 19-3 of the SCM Agreement requires the avoidance of double remedies to counter the same imports coming from non-market economies.