GENERAL ISSUES

A. GENERAL ISSUES

1. Standard of Review

  7.1 In light of the claims and arguments made by the parties in the course of these Panel proceedings, we recall, at the outset of our examination, the standard of review we must apply to the matter before us.

  7.2 93 Article 11 of the DSU sets forth the appropriate standard of review for panels for all covered agreements except the Anti-dumping Agreement. Article 11 imposes upon panels a comprehensive

  93 Article 11 of the DSU, entitled "Function of Panels", states: "The function of panels is to assist the 93 Article 11 of the DSU, entitled "Function of Panels", states: "The function of panels is to assist the

  7.3 Article 17.6 of the Anti-dumping Agreement sets forth the special standard of review applicable to anti-dumping disputes. It provides:

  “(i)

  in its assessment of the facts of the matter, the panel shall determine whether the authorities’ establishment of the facts was proper and whether their evaluation of those facts was unbiased and objective. If the establishment of the facts was proper and the evaluation was unbiased and objective, even though the panel might have reached a different conclusion, the evaluation shall not be overturned;”

  “(ii) the panel shall interpret the relevant provisions of the Agreement in accordance with customary rules of interpretation of public international law. Where the panel finds that a relevant provision of the Agreement admits of more than one permissible interpretation, the panel shall find the authorities’ measure to be in conformity with the Agreement if it rests upon one of those permissible interpretations.”

  7.4 Thus, together, Article 11 of the DSU and Article 17.6 of the Anti-dumping Agreement set out the standard of review we must apply with respect to both the factual and legal aspects of our

  examination of the claims and arguments raised by the parties. 94

  7.5 In light of this standard of review, in examining the claims under the Anti-dumping Agreement in the matter referred to us, we must evaluate whether the Korean measure at issue is consistent with relevant provisions of the Anti-dumping Agreement. We must find it consistent if we find that the KTC has properly established the facts and evaluated them in an unbiased and objective manner, and that its determinations rest upon a "permissible" interpretation of the relevant provisions. Our task is not to perform a de novo review of the information and evidence on the record of the anti- dumping investigation at issue, nor to substitute our judgment for that of the KTC, even though we might have arrived at a different determination were we examining the record ourselves.

2. Burden of Proof

  7.6 We recall that the general principles applicable to burden of proof in WTO dispute settlement require that a party claiming a violation of a provision of the WTO Agreement by another Member must assert and prove its claim. 95 In these Panel proceedings, Indonesia, which has challenged the

  consistency of Korea's measure, thus bears the burden of demonstrating that the measure is not consistent with the relevant provisions of the Agreement. Indonesia also bears the burden of establishing that its claims are properly before us. We also note that it is generally for each party

  asserting a fact to provide proof thereof. 96 In this respect, therefore, it is also for Korea to provide evidence for the facts which it asserts. We also recall that a prima facie case is one which, in the

  absence of effective refutation by the other party, requires a panel, as a matter of law, to rule in favour of the party presenting the prima facie case.

  94 Appellate Body Report, United States – Anti-Dumping Measures on Certain Hot-Rolled Steel Products

3. Treaty Interpretation

  7.7 We note that many of the claims raised by Indonesia in these proceedings require us to interpret various provisions of the Anti-dumping Agreement.

  7.8 We note that Article 3.2 of the DSU indicates that Members recognise that the WTO dispute settlement system serves to clarify the provisions of the covered agreements "in accordance with customary rules of interpretation of public international law". In this regard, the Appellate Body, in United States – Gasoline, refers to "a fundamental rule of treaty interpretation [which] has received its

  most authoritative and succinct expression in the Vienna Convention on the Law of Treaties" 97 ("Vienna Convention"), and cites Article 31.1 thereof, which reads as follows:

  ARTICLE 31 General rule of interpretation

  1. A treaty shall be interpreted in good faith in accordance with the ordinary

  meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 98

  7.9 According to the Appellate Body, "[this] general rule of interpretation has attained the status of a rule of customary or general international law. As such, it forms part of the 'customary rules of

  interpretation of public international law'" 99 . We shall, therefore, follow the provisions of Article 31.1 of the Vienna Convention when interpreting the provisions of the Anti-dumping Agreement referred

  to by the parties in these proceedings and base our interpretation on the text of the provision under consideration in its context and in light of the object and purpose of the Anti-dumping Agreement.