Article 17.6(ii) of the WTO Anti-Dumping Agreement: Waiting for Chekhov’s Gun to Go Off

Abstract

Abstract Article 17.6(ii) of the WTO Anti-Dumping Agreement is a one-of-a-kind treaty norm that sets out a deferential standard of review for issues of law by requiring panels to accept any ‘permissible’ interpretation. The Appellate Body’s approach to analysis under Article 17.6(ii), which precluded a finding of two competing interpretations being permissible, has long remained a point of criticism by the USA, a frequent respondent in anti-dumping disputes. In the wake of the first arbitration award under the Multi-Party Interim Appeal Arbitration Aarrangement (MPIA), which seeks to give more effect to the deferential standard of review, this article emphasizes the unprecedented character of Article 17.6(ii) in international law, argues that expectations of how it would operate arose from a misapprehension of Chevron deference in US law and that the whole issue may be another reason for having a separate dispute settlement track for trade remedies.