(Editor's Note: This is the second part of a two-part article. The first part was published on the April issue of Perspectives.)

V. Procedural Review in Transition

The cases we just analyzed were decided in the eve of conclusion of Uruguay Round trade negotiations. There is no way to know to what extent these cases influenced the agenda on the negotiation tables; but what must be true is that these cases suggest the widespread concern over procedure issues by the GATT member states, and the GATT panel's struggle for its role. The result of the Uruguay Round negotiation is a much more detailed new Antidumping Code, the 1994 Code, as part of the WTO "covered agreements." Rules for both substantive and procedural issues are much more detailed, which makes the new Code more like an administrative manual. Not surprisingly, however, the more detailed 1994 AD Code does not exhaust all the substantive issues in the real world, and one important part of the work for WTO panels and its Appellate Body is to harmonize the substantive rules such as comparison methodology, calculation of "constructed normal value," which is mostly through interpretation of the 1994 Code. On the other hand, the WTO dispute settlement body (DSB) continues its work on procedures; to some extent, it is more preoccupied by the procedural issues than before.

However, the doctrinal context for the DSB's work on procedures is quite different in the post-Uruguay era: there are two important elements that have great impacts on the way the DSB decides procedural issues, one is from within the 1994 Code, the other from without. The one from within is Article 17.6 of the 1994 Code, which provides standard of review for WTO panel adjudication. Article 17.6 offers two levels of deference in WTO DSB review: one is in fact-finding-the WTO panel should defer to the establishment of facts and the evaluation by the member state agencies so far as they are unbiased and objective; the other is interpretation of the 1994 Code-the WTO panel should defer to the member state agencies' "permissible" interpretation. This is not a surprise in antidumping cases, as we can see this principle from United States-Salmon from Norway and other pre-Uruguay cases. But the very fact that it is put into the 1994 Code suggests that it has become an official principle in WTO antidumping adjudication. The other element, from without, is a key rule in the WTO dispute settlement process: burden of proof. In U.S.-Blouses from India, the WTO Appellate Body set forth the doctrine according to which the complainant is to establish a prima facie case of nullification and impairment of its interests and benefits under the WTO rules, and once that prima facie case is established, the burden of proof is shifted to the respondent to demonstrate its consistency with its obligations under WTO covered agreements. Though GATT panels had touched upon this issue from time to time, the doctrine is established and become widespread in U.S.-Blouses from India. These two elements are important to understanding the procedural review in the first five years of procedural review of antidumping cases.

A. Initiating an Antidumping Investigation

The concerns over standing in the early 1990's as we have seen in previous discussion led to a much more detailed Article 5 in the 1994 Code. The hotly debated "representativeness" issue was settled and codified in Article 5.4, which requires that applicant must be able to represent at no less than 25 percent of the total domestic production of the like product. If we put aside the concerns over the wisdom in Article 5.4, this might be a good example of how the GATT/WTO dispute settlement body raises a legal question in its adjudication, and then the agenda is taken over by the lawmaking process which eventually leads to an amendment or specification in legislation-a simpler version of "higher lawmaking process" that Bruce Ackerman has celebrated and Alexander Bickel had been worried about and hoped for in the U.S. domestic context. So it is not totally surprising that the procedural concern over initiating antidumping actions was shifted to other aspects.

One such a shift in the post-Uruguay era is the focus of procedural review moves from the applicants to evidence submitted by the applicants. Article 5.3 of the 1994 Code requires the investigating authority to "examine the accuracy and adequacy of the evidence" in the application. A WTO panel suggested in Mexico-HFCS from the U.S. that this is not a prohibitively high standard for the investigating authorities: "In our view, Article 5.3 only requires the investigating authority to determine whether there is sufficient evidence to justify initiation." (Emphasis added) The WTO Panel continues, "[i]n our view, Article 5.3 cannot be interpreted to require the investigating authority to issue an explanation of how it has resolved all underlying questions of fact at initiation. That is a requirement that arises at later stages of the proceeding . . ." (emphasis original) This standard was tested in another case a few months later, in Guatemala-Cement from Mexico. The WTO Panel suggested that, "Article 5.3 requires the authority to examine, in making this determination, the accuracy and adequacy of the evidence in the application. Clearly, the accuracy and adequacy of the evidence is relevant to the investigating authorities' determination whether there is sufficient evidence to justify the initiation of an investigation. It is however the sufficiency of the evidence, and not its adequacy and accuracy per se, which represents the legal standard to be applied in the case of a determination whether to initiate an investigation." "After a thorough review of all the actions by the Ministry leading up to the initiation of the investigation, we find that no attempt was made to take into account glaring differences in the levels of trade and sales quantities and their possible effects on price comparability. Under these circumstances, an unbiased and objective investigating authority could not in our view have concluded that there was sufficient evidence of dumping to justify the initiation of an anti-dumping investigation."

Another shift in initiating an antidumping action is notification. There are two notification rules under the 1994 Code. One is pre-initiation notification under Article 5.5, and the other is initiation notification under Article 12. In comparison with Article 5 of the 1979 Code, Article 5.5 in 1994 Code is a new rule, which requires that ". . . after receipt of a properly documented application and before proceeding to initiate an investigation, the authorities shall notify the government of the exporting Member concerned." In Guatemala-Cement from Mexico, the WTO Panel found that "by failing to notify Mexico before the date of publication of the notice of initiation, in this case Guatemala failed to act consistently with the requirements of Article 5.5 . . ." The WTO Panel further notes that, "[a] key function of the notification requirements of the ADP Agreement is to ensure that interested parties, including Members, are able to take whatever steps they deem appropriate to defend their interests." Once the investigating authority decides to launch the antidumping investigation, it is required by Article 12.1 to give a public notice. Article 12.1 is based upon Article 6.6 of the 1979 Code, though the practice of initiation notification among AD Code members was started earlier, notably, by Australia. Again, like the pre-initiation notification, the procedural requirement is not meant to be high. In Guatemala-Cement from Mexico, the WTO Panel suggests that, "[g]iven the function and context of Article 12.1 in the AD Agreement, we interpret this provision as imposing a procedural obligation on the investigating agency to publish a notice and notify interested parties after it has taken a decision that there is sufficient evidence to proceed with an initiation. The Panel is of the view that Article 12.1 is not concerned with the substance of the decision to initiate an investigation, which is dealt with in Article 5.3." Thus, "on the basis of the plain meaning of the text of Article 12.1, and its context, we conclude that the notice of initiation need not contain a summary of the factors or analysis underlying, or a statement of the investigating authority's conclusion regarding, the exclusion of some producers from consideration as the relevant domestic industry by the investigating authority in satisfying itself that there is sufficient evidence of injury to justify initiation." This is because "[w]hile we believe that the interests of the parties and the public in transparency of anti-dumping proceedings would be better served by a notice of initiation which included information concerning such aspects of a decision to initiate as the investigating authority's conclusion concerning the relevant domestic industry, we can find no requirement to do so in the Agreement." Evidence and notification rules are designed, as sometimes acknowledged by the WTO panels, to create information for relevant governments and private parties, in order for them to present their cases, as the WTO panel suggests in Guatemala-Cement from Mexico: "[w]e consider that a key function of the transparency requirements of the AD Agreement is to ensure that interested parties, including Members, are able to take whatever steps they deem appropriate to defend their interests." Thus, through the above shift of focuses in procedural review, i.e., from preoccupation with the representativeness of applicants to evidence and notification, the WTO regulatory framework, through its panel adjudication, is encouraging the move towards a more adversary system.

B. Positive Evidence and Objective Examination

As has been noted earlier, there is not substantial change in the text of positive evidence and objective examination rule in the 1994 Code. As we can see from Korea-Resins from the U.S., the positive evidence doctrine is closely tied to the final determination notification rule under Article 12.2 of the AD Code. Therefore, the whole point of "positive evidence" requirement is that evidence for injury determination should be made available or accessible to the interested parties including the governmental agencies of the exporting country. This was further confirmed by the WTO Panel in Thailand-Iron from Poland. Like Korea-Resins from the U.S., in this recent case, the Thai government submitted to the WTO Panel for consideration some confidential documents including internal Thai government reports and working documents which were disclosed neither to the Polish government nor to the private interested parties during the process of investigation or in the public notice of final determination. Relying upon Korea-Resins from the U.S., the Polish government objected to the use of secret document as post hoc evidence for Thailand's injury determination. In terms of legal doctrine, the WTO Panel confirmed what the GATT Panel said before:

"Nevertheless, because the Polish firms (and/or their legal counsel) did not have access to the reasoning or analysis contained in this confidential document (and other such documents) in the course of the Thai AD investigation or at least from the time of the final determination, and because Poland did not have access to the reasoning in these documents prior to these WTO Panel proceedings, we do not consider that such the reasoning contained exclusively in these documents can be considered to constitute 'positive evidence' or an indication of an 'objective examination' within the meaning of Article 3.1 AD that can be taken into account by us as an additional statement of the reasoning supporting the Thai affirmative determination."

In footnotes, the WTO Panel acknowledged that it "noted" what the Korea-Resins from the U.S. did. However, this does not seem to be a simple repeat of the previous doctrine: a key difference between the two cases is the rationale given by the two panels. By contrast with the ambiguity in Korea-Resins from the U.S., as we have noted earlier, the rationale given by the WTO Panel is much clearer. It is because "without timely access to relevant information in the course of the investigation and to the essential facts prior to the final determination, interested parties would be denied a meaningful opportunity to defend their interests during the investigation, and without access to the disclosed factual basis and reasoning supporting the determination at least from the time of the final determination, interested parties and WTO Members would be unable to assess whether bringing a WTO dispute settlement complaint relating to the determination would be fruitful." This rationale, as I have suggested in my discussion of initiation notification rules, seems to point to a direction of adversary system in WTO adjudication. "Positive evidence" doctrine is to create information necessary for the interested parties to build their own cases, thus, the benefits of the transparency rules is that parties themselves are empowered to control their own cases. This, however, as the Panel noted, does not work against the WTO dispute settlement, rather, it strengthens it: "[s]uch disclosed factual basis and reasoning may also serve as the basis for panel review in the context of WTO dispute settlement. We view this as an essential aspect of the requirements concerning dispute settlement and meaningful panel review under the DSU and the AD Agreement."

VI. Procedural Review and Professionalism

The rise and development of procedural rules in anti-dumping cases in GATT/WTO is part of a larger movement in the general GATT/WTO jurisprudence and structures. This movement is sometimes identified as a move towards legalism in the regulation of world economy, a move from diplomacy to rule-based trade regulatory framework, sometimes as a process of judicialization. As can see from the above, efforts to develop procedural review at GATT/WTO level were taken mainly as a response to the concerns over misuse and abuse of antidumping actions in domestic legal system for protectionist purpose. In that sense, the constant issue in the GATT/WTO antidumping framework is the balance between legitimate concern over "dumping" on the one hand, and the potential of abuse of the domestic antidumping actions on the other. The particular sensitivity of antidumping issues and delicacy of political legitimacy concerns provided both internal dynamics and discipline for the GATT/WTO dispute settlement to struggle for its role in between relevancy and legitimacy. That means that from time to time, the GATT/WTO panels must demonstrate both the courage to step into the conflicts on the one hand, and the wisdom of its intervention on the other. For the latter, it must demonstrate that its intervention is principled, reasoned, and, to some extent, the panels are self-restrained. The import of legal concepts such as burden of proof and deference principle in the 1994 Antidumping Code is the best example of this latter point. The eventual triumph of lawyers over diplomats, as that of the judges over "lay judges" in European history, seems to suggest that professionalism prevailed as the main response to the constant challenges and procedural review seemed to become a critical conceptual and practical instrument for the GATT/WTO dispute settlement to achieve its objectives. Moreover, professionalism does not stop at the legal concepts and structures. If professionalism was basically established with consolidation of the GATT/WTO panel's power to adjudicate antidumping cases and the expansion of panelists from diplomats to non-governmental trade experts in the 1980s, the styles of procedural review in the 1980s, pre-WTO 1990s and WTO period are different. As far as procedure is concerned, there seems to be a subtle move from Continental inquisitional to adversary form of adjudication. As we can see from above, this was accomplished through a shift of focus from "representativeness" of applicants to the evidence presented by applicants, and notification procedures; through reinterpretation of the purposes of "positive evidence" by the WTO panels. That, however, only underscores more weight given to the procedures, a higher degree of reliance upon the parties vis-à-vis the panels in WTO antidumping adjudication, and in the meantime, a higher degree of expectation that the parties actively take part in the whole process of antidumping actions vis-à-vis sole reliance upon adjudication. However, procedural review and professionalism is more complicated than a simple and happy story about a legal or social movement toward transparency. One does not have to go as far as MacIntyre does in order to raise some skepticism about what procedural review and its underlying professionalism have or have failed to achieve: is there a clear dichotomy between procedure and substance? Even if we are to limit ourselves on procedural issues, has procedural review achieved its main objective at all? These questions may sound conceptual, but they also have important practical implications.

VII. The Practical Implications for China

The procedural review and transparency movement in WTO antidumping jurisprudence is a brand new phenomenon in the area of international regulation of world economy. It makes the WTO rules and its adjudication more like a code of international administrative law; in comparison with the "international administration" during the era of the League of Nations, it is unprecedentally intrusive. However, given the bitter experience of the Chinese exporters and manufacturers with the antidumping laws in WTO member countries, the procedural review in Geneva might be primarily a good news: once China acceded into the WTO, it offers some legal safeguards for their rights and legitimate interests, and China could take advantage of the procedural review in Geneva to curb abuse of antidumping actions by its trading partners. But that doesn't mean that benefits can be automatically obtained. If the membership is a matter of time, an obvious challenge is how to fully take advantage of opportunities.

A. Participation by Industries

When faced antidumping actions taken by importing countries, many Chinese exporters and manufacturers choose not to respond. This is not necessarily because of the cultural aversion to litigation-unfamiliarity with the antidumping proceedings, the concerns of legal costs, the burdensome questionnaires, and confidentiality of information, etc., could be the reasons. And yet under current WTO jurisprudence and structure, even it is not required, it is critical for the parties to participate in the proceedings in order to protect their interests. One possibility of reducing the costs to each individual exporter to participate in the proceedings is to let the non-governmental trade associations to play a more active role. In many of the cases we studied in this paper, domestic trade associations are actively involved in the antidumping investigations in addition to the manufacturers or exporters themselves. These trade associations or their counsels keep a close contact with the investigating authorities in the importing country, answer questions and contest their legal positions or procedural defects. Article 11 of the 1997 Antidumping Duty Regulations allows domestic manufacturers of like product and "associations concerned" to file petition for the antidumping investigations; petitioners and "interested parties" can attend hearings in the process of antidumping and countervailing investigation. In practice, there are some trade associations representing exporters started to do so. The issue is that such functions should be more institutionalized and expand to other industries.

B. Bureaucratic Culture and Procedures

On the other hand, procedural review and transparency movement in WTO jurisprudence also suggests a serious challenge to China once it acceded to WTO, i.e., China's antidumping actions will be subject to WTO panel review. China would realize that what works for her interests can also work against herself, and as Professor William Alford has pointed out, law is a double-edged sword.
Traditionally, the Common Law style of procedure is not a familiar concept in China. What might be surprising for the governmental agencies in China will be the detailed review by the WTO panels now. There are tremendous efforts to improve administrative procedure in China in recent years. The Legislative Act of 2000 is an example of the most recent efforts to improve administrative procedures. Even so, judicial supervision in China in general tends to be weak, at least by the Common Law standard. The Chinese investigating authorities will probably face a much "harder-look" review standard in Geneva than in their domestic courts. While China is not unique on this issue, since this is also true with the investigating authorities in the U.S. and E.U., they may face more difficulty as the disparity between their domestic judicial review and WTO panel review appears to be larger. It takes time and tremendous efforts for the individual bureaucrats in these investigating authorities to get familiar with the WTO procedures, to improve their own procedures, and to follow those procedures.

C. Beyond the Procedural Review

There is a further issue that may be less immediately practical but more fundamental: for her own interests, both immediate and long-term, China has to go beyond procedural review after it's successfully acceded to WTO. Liberal reformers may have good reasons to endorse the WTO jurisprudence on procedural review and transparency; but it would be naïve and politically problematic to be indulged completely in the elegance of the rhetoric of procedural review, transparency, or professionalism. In Anglo-Saxon legal history, it is not a secret that from time to time, procedural slogans are used in order to achieve substantive policies. And for this reason, procedural rhetoric, even if with all sincerity, does not solve or even address all the problems. One example for China is that procedural review in WTO would not help in her most difficult issue with antidumping actions in the U.S.-the "non-market economy" (NME) standard. Ultimately, the legitimacy and efficacy of procedural review depends upon its relevancy-its ability to address real concerns and, hopefully, solve real problems. Of course there is no reason why only China will be trapped into the technicalities of the procedural review or transparency jurisprudence; every WTO member faces this issue. But a good reason that China should perhaps be more careful than others is that she's dealing with many issues or concerns simultaneously in a relatively shorter period of time. In the end, regardless of what happens to China's accession and what kind of impact that China would have on WTO, we cannot escape from this question: is procedural review doing the job in solving our procedural concerns at all? If we recall from previous parts of this paper that the GATT/WTO antidumping framework was called upon to deal with the procedural "harassment" issue, and then look at the developments of WTO antidumping jurisprudence, it seems clear that it offers very little remedy to that concern. What we've got so far seems to be a kind "procedural war remedy": when the importing country initiate antidumping actions, what the exporting country get from WTO is to launch another action in Geneva to scrutinize the first antidumping actions-it is so detailed that it almost constitutes a counteraction against the procedural harassment occurs in the first place. The "procedural war remedy" may look very professional and technical, but it has a fatal problem: as an ex post facto remedy, it doesn't help very much, after all. Thus, there is always a question, as suggested by some scholars, of whether the antidumping rules should be all together be "dumped" and replaced with an international competition or antitrust code. That is an additional reason that China or any member country should adopt a pragmatic-which is not necessarily cynical-approach to procedural review in WTO.

(The author is an S.J.D. candidate at Harvard Law School. This paper was presented at the Conference on China and the World Trade Organization held at Australian National University in Canberra, Australia, March 16-17, 2001. All footnotes and references are omitted and are available from the author upon request.)