In US. Countervailing and Anti-Dumping Measures (China), the complainant made a claim under Article 19, but failed to specify a particular paragraph of Article 19 in its panel request. The Appellate Body, in addressing whether China's panel request was consistent with the requirements of Article 6.2 of the DSU, described the various provisions of Article 19. The Appellate Body stated:
In US. Customs Bond Directive, the Panel examined a claim that an enhanced bond requirement (EBR) for certain shrimp, imposed pursuant to the Amended Customs Bond Directive (Amended CBD) was inconsistent with Article 9 of the Anti-Dumping Agreement and Article 19 of the SCM Agreement. The Appellate Body upheld the Panel's finding that bonds provided under the Amended CBD are not anti-dumping duties or countervailing duties, fall outside the scope of Articles 9 of the Anti-Dumping Agreement and 19 of the SCM Agreement, and consequently are not inconsistent as such with Articles 9.1, 9.2, 9.3 and 9.3.1 of the Agreement nor with Articles 19.2, 19.3 and 19.4 of the SCM Agreement:3 "A bond under the Amended CBD secures the payment of a duty. A bond, by itself, is not a duty as it does not entail any transfer of money from the importer to the government. Therefore, the EBR imposed pursuant to the Amended CBD cannot be characterized as a 'duty' within the meaning of Article 9 of the Anti-Dumping Agreement and Article 19 of the SCM Agreement."4
In US. Countervailing and Anti-Dumping Measures (China), involving the same complainant and respondent as in US – Anti-Dumping and Countervailing Duties (China), the Panel addressed whether Article 19.3 "obliges an investigating authority to assess the existence of double remedies when concurrently imposing CVDs and anti-dumping duties calculated under an NME methodology and if so, whether such an obligation applies not only to administrative reviews, but also to original investigations, in the context of a retrospective system of duty assessment".12 The United States argued that the Appellate Body's interpretation in US – Anti-Dumping and Countervailing Duties (China) did not relate to the phrase "in the appropriate amounts" within Article 19.3. The Panel rejected this argument:
In US. Cotton Yarn, the US determination under Article 6.2 had been based on contemporaneous industry data regarding the market situation; in the Panel proceeding, Pakistan presented later official data concerning the same facts, in order to demonstrate that the industry data were flawed. The Panel considered those data. On appeal, the Appellate Body found that this action exceeded the Panel’s mandate under Article 11 of the DSU:: "[A] panel reviewing the due diligence exercised by a Member in making its determination under Article 6 of the ATC has to put itself in the place of that Member at the time it makes its determination. Consequently, a panel must not consider evidence which did not exist at that point in time. A Member cannot, of course, be faulted for not having taken into account what it could not have known when making its determination. If a panel were to examine such evidence, the panel would, in effect, be conducting a de novo review and . . . . making its projections with the benefit of hindsight and would, in effect, be reinvestigating the market situation and substituting its own judgment for that of the Member. . . . Moreover, if a Member that has exercised due diligence in complying with its obligations of investigation, evaluation and explanation, were held responsible before a panel for what it could not have known at the time it made its determination, this would undermine the right afforded to importing Members under Article 6 to take 29 Panel Report, US – Underwear, para. 7.26.
In US. Cotton Yarn, which concerned a safeguard measure of the United States on imports of cotton yarn from Pakistan (see paragraph 53 below), the Panel found that the United States violated Article 6.2 by excluding from the scope of the "domestic industry" the vertically integrated fabric producers that produced yarn for their own internal use. The Appellate Body upheld the Panel's finding49, inter alia because the definition of domestic industry is "product-oriented and not producer-oriented, and […] the definition must be based on the products 50 produced by the domestic industry which are to be compared with the imported product in terms of their being like or directly competitive".51
In US. Wool Shirts and Blouses, months after US – Underwear, the Panel followed a different approach: "In our view, the wording of Article 6.2 and 6.3 of the ATC makes it clear that all relevant economic factors, namely, all those factors listed in Article 6.3 of the ATC, had to be addressed by CITA, whether subsequently discarded or not, with an appropriate explanation. The wording of paragraph 3, which reads '… the Member shall examine the effect of those imports on the state of the particular industry, as reflected in changes in such relevant economic variables as output, productivity, utilization of capacity, inventories, market share, exports, wages, employment, domestic prices, profits and investment.', (emphasis added) implies two requirements. First, the relevant economic variables must be examined. Second, output, productivity, utilization of capacity, etc. ... are relevant economic variables. The wording of Article 6.3 of the ATC '... the Member shall examine the effects ... on the state of the particular industry, as reflected in changes in such relevant economic variables as output, productivity, etc ' makes clear that each of the listed factors is not only relevant but must be examined. Effectively, the listed economic variables are examples of relevant economic variables, they are presumed to be 'relevant economic variables' and must be examined by the importing country in its determination." The wording of the first sentence of Article 6.3 of the ATC imposes on the importing Member the obligation to examine, at the time of its determination, at least all of the factors listed in that paragraph. The importing Member may decide – in its assessment of whether or not serious damage or actual threat thereof has been caused to the domestic industry – that some of these factors carry more or less weight. At a minimum, the importing Member must be able to demonstrate that it has considered the relevance or otherwise of each of the factors listed in Article 6.3 of the ATC. The last part of Article 6.3 of the ATC, which states that 'none of which, either alone or combined with other factors, can necessarily give decisive guidance', confirms that some consideration and a relevant and adequate explanation have to be provided of 77 G/TMB/R/64, paras. 23-24.
In US. Wool Shirts and Blouses, the Panel examined whether a certain United States transitional safeguard measure was consistent with Article 6. With respect to the relationship between Articles 2.4 and 6, the Panel indicated as follows: "Since we conclude that the safeguard action taken by the United States violated the provisions of Article 6 of the ATC, it is our view that the United States applied a restraint not authorized under the ATC, which, therefore, constitutes also a violation of Article 2.4 of the ATC."126 124 G/TMB/R/61, para. 53. 125 Panel Report, US – Underwear, paras. 7.15-7.16. 126 Panel Report, US – Wool Shirts and Blouses, para. 7.59. For same conclusion see Panel Report, US – Underwear, paras. 7.70-7.71
In US. Dollars and (ii) upon presentation of a demand by the beneficiary thereof accompanied by the required documentation in compliance with the terms and conditions of each such Letter of Credit. At the time of Issuance the terms and conditions of each Letter of Credit shall be subject to approval by the Issuing Bank and the Company. In no event may the term of (i) any Standby Letter of Credit issued hereunder to purchase Inventory exceed 120 days (except that such Letters of Credit may provide for automatic renewal), (ii) any other Standby Letter of Credit exceed one year (except that such Letters of Credit may provide for automatic extensions for periods of up to one year) or (iii) the term of any Commercial Letter of Credit exceed 90 days, and all Letters of Credit issued hereunder shall expire no later than the date that is ten (10) calendar days prior to the Facility Expiry Date. Any Letter of Credit containing an automatic renewal provision shall also contain a provision pursuant to which, notwithstanding any other provisions thereof, it shall expire no later than the date that is fifteen (15) calendar days prior to the Facility Expiry Date, and a provision pursuant to which the Issuing Bank may, by notice to the beneficiary of such Letter of Credit at least thirty days (30) prior to the expiration of its term, elect not to renew such Letter of Credit for an additional term.
In US. If a malicious actor or botnet (a volunteer or hacked collection of computers controlled by networked software coordinating the actions of the computers) obtains a majority of the processing power dedicated to mining on any digital asset network, including the bitcoin network or ether network, it may be able to alter the blockchain by constructing alternate blocks if it is able to solve for such blocks faster than the remainder of the miners on the blockchain can add valid blocks. In such alternate blocks, the malicious actor or botnet could control, exclude or modify the ordering of transactions, though it could not generate new digital assets or transactions using such control. Using alternate blocks, the malicious actor could “double-spend” its own digital assets (i.e., spend the same digital assets in more than one transaction) and prevent the confirmation of other users’ transactions for so long as it maintains control. To the extent that such malicious actor or botnet does not yield its majority control of the processing power or the digital asset community does not reject the fraudulent blocks as malicious, reversing any changes made to the blockchain may not be possible. Such changes could adversely affect an investment in us. For example, in late May and early June 2014, a mining pool known as XXxxx.xx approached and, during a 24- to 48-hour period in early June may have exceeded, the threshold of 50 percent of the processing power on the bitcoin network. To the extent that XXxxx.xx did exceed 50 percent of the processing power on the network, reports indicate that such threshold was surpassed for only a short period, and there are no reports of any malicious activity or control of the blockchain performed by XXxxx.xx. Furthermore, the processing power in the mining pool appears to have been redirected to other pools on a voluntary basis by participants in the XXxxx.xx pool, as had been done in prior instances when a mining pool exceeded 40 percent of the processing power on the bitcoin network. The approach towards and possible crossing of the 50 percent threshold indicate a greater risk that a single mining pool could exert authority over the validation of digital asset transactions. To the extent that the digital assets ecosystems do not act to ensure greater decentralization of digital asset mining processing power, the feasibility of a malicious actor obtaining in excess of 50 percent of the processing power on any digital asset network (e.g....
In US. Countervailing Measures (China), the Panel undertook a fact-intensive analysis to determine whether an unbiased, objective investigating authority would have found information provided in industry petitions to be "'adequate evidence tending to prove or indicate' that the Government of China provides a financial contribution by directing a private body to carry out the function of providing goods to domestic producers". The Panel did not find "any information" in the petitions that demonstrated how the Government of China "gives responsibility to" or "exercises authority over" a private body in China insofar as "the government exercises its authority over a private body in order to effectuate a financial contribution." As such, the Panel found that the investigating authority's initiation of two countervailing duty investigations was inconsistent with Article 11.3.6
