5. Review of Antidumping and Countervailing Duty Determinations
   
   
   6. Judicial, Administrative and Countervailing Duty Determinations
      
      
      a. Antidumping
      

      WTO Standard: Each Member whose national legislation contains provisions on anti-dumping measures shall maintain judicial, arbitral or administrative tribunals or procedures for purpose, inter alia, of the prompt review of administrative actions relating to final determinations and reviews of determinations. . . . Such tribunals or procedures shall be independent of the authorities responsible for the determination or review in question. (AD Agreement, Art. 13)

      b. Countervail

      WTO Standard: Each Member whose national legislation contains provisions on countervailing duty measures shall maintain judicial, arbitral or administrative tribunals or procedures for purpose, inter alia, of the prompt review of administrative actions relating to final determinations and reviews of determinations. . . . Such tribunals or procedures shall be independent of the authorities responsible for the determination or review in question, and shall provide all interested parties who participated in the administrative proceeding and are directly and individually affected by the administrative actions with access to review. (SCM Agreement, Art. 23)

Argentina | Bolivia | Brazil | Canada | Chile | Colombia | Costa Rica | Dominican Republic | Ecuador | El Salvador | Guatemala | Honduras | Jamaica | Mexico | Nicaragua | Panama | Paraguay | Peru | Saint Lucia | Trinidad & Tobago | United States | Uruguay | Venezuela

Argentina

   Preliminary and final determinations, and decisions to suspend, refuse, revoke or terminate investigations are subject to appeal.

   Other decisions taken during the investigation are not subject to appeal.

   Appeals shall lie only for a transfer of jurisdiction and should be made within 10 working days of the notification of the measure appealed against.

   For this purpose, the official publication of a measure is considered sufficient notification. (Decree No. 2121/94, Art. 62).

Bolivia

Brazil

   The regulations shall not provide for any specific procedure regarding judicial review, provided that recourse to the judiciary is guaranteed by Brazilian legislation.

Canada

   Final determinations made by the Deputy Minister of National Revenue (DM) and the Canadian International Trade Tribunal orders and findings are subject to judicial and panel review.

   In addition, subsection 76.1(1) provides that, following a WTO Dispute Settlement Body's recommendation or ruling, the Minister of Finance may request the DM and/or the Tribunal to review any decision, determination, finding or portion thereof.

   Pursuant to subsection 76.(1), and section 96.1 of the Special Import Measures Act (SIMA), an application for judicial review of an order or finding by the Tribunal, or a final determination or decision by the DM, may be made to the Federal Court of Appeal.

   With respect to an order or finding by the Tribunal, subsection 76.(1) provides that the grounds for review are set out in subsection 18.1(4) of the Federal Court Act and 96.1(2) of the SIMA.

   Section 77.011 provides the Canadian Minister for International Trade, the government of NAFTA country and certain persons with access to binational panel review insofar as it applies to a definitive decision regarding goods of that NAFTA country.

Chile

   In current Chilean law, there is no provision of judicial, administrative or other review.

   This issue is being considered in the context of a new law under consideration.

Colombia

   Decree 991/98 does not regulate judicial and administrative reviews.

   With regard to administrative reviews, the rulings issued by the appropriate authority upon the adoption of antidumping measures and countervailing duties are subject to special revocation reviews determined by the same authority that issued the ruling, or by its immediate superior, in cases stipulated in Article 69 et seq. Of the Code of Administrative Law.

   With regard to judicial reviews, the action of nullification contemplated in Article 84 ibidem can be exercised within the jurisdiction of Administrative Law.

Costa Rica

   a. Anti-dumping Each member, whose national legislation contains provisions on anti-dumping measures, shall maintain judicial, arbitral or administrative tribunals or procedures for the purpose, inter alia, of the prompt review of administrative actions relating to final determinations and reviews of determinations [...].

   Such tribunals or procedures shall be independent of the authorities responsible for the determination or review in question.

   b. Countervailing duties Each member whose national legislation contains provisions on countervailing duty measures, shall maintain judicial, arbitral or administrative tribunals or procedures for the purpose, inter alia, of the prompt review of administrative actions relating to final determinations and reviews of determinations [...].

   Such tribunals or procedures shall be independent of the authorities responsible for the determination or review in question, and shall provide all interested parties who participated in the administrative proceeding and are directly and individually affected by the administrative actions with access to review.

   Under Costa Rica's General Public Administration Law, petitions for reconsideration and appeal are allowed against virtually any administration decision.

   Once the administrative procedure has been exhausted, i.e., when the highest authority for the institution whose act is being challenged has issued a ruling on the matter, a judicial appeal of the administrative act may follow.

Dominican Republic

Ecuador

   Appropriate legal action may be taken in the competent administrative courts against definitive decisions determining whether or not anti-dumping or countervailing duties should be applied.

El Salvador

   Decisions announced by national authorities shall be subject to the appeals provided for by each country's domestic law.

   Appeals provided for in the juridical instruments of Central American integration may be filed against decisions announced by the regional organs (Article 43). In those cases in which the interested parties are producers, exporters or importers in Central America, the Executive Committee can take up the case and put forward a consensus recommendation to the country that has applied the measure (Chapter II, Central American Regulations on Unfair Trade Practices).

Guatemala

   Decisions announced by national authorities shall be subject to the appeals provided for by each country's domestic law.

   Appeals provided for in the juridical instruments of Central American integration may be filed against decisions announced by the regional organs (Article 43). In those cases in which the interested parties are producers, exporters or importers in Central America, the Executive Committee can take up the case and put forward a consensus recommendation to the country that has applied the measure (Chapter II, Central American Regulations on Unfair Trade Practices).

Honduras

   Decisions announced by national authorities shall be subject to the appeals provided for by each country's domestic law.

   Appeals provided for in the juridical instruments of Central American integration may be filed against decisions announced by the regional organs (Article 43). In those cases in which the interested parties are producers, exporters or importers in Central America, the Executive Committee can take up the case and put forward a consensus recommendation to the country that has applied the measure (Chapter II, Central American Regulations on Unfair Trade Practices).

Jamaica

   An application may be made to the Supreme Court to review and set aside

         (a) a final determination of the Commission under section 30;

         (b) a decision of the Commission under section 31 to review or not review an undertaking;

         (c) any order, finding, ruling or determination of the Commission.

   An application may be made on the grounds that the Commission has

         (a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise the jurisdiction of the Commission;

         (b) erred in law in making the determination, order or finding, whether or not the error appears on the face of the record; or

         (c) based on the determination, order or finding or an erroneous finding of fact that was made in perverse or capricious manner or without regard to the material before the Commission.

   An application may be made under this section by any person directly affected by the determination, or finding.

Mexico

   Judicial Review Articles 13 of the Antidumping Agreement and 23 of the Agreement on Subsidies of the 1994 GATT indicate that members must maintain judicial, arbitral or administrative tribunals or procedures aimed at prompt review of administrative measures related to final decisions and their review.

   They also indicate that such tribunals must be independent of the authorities responsible for the investigation or review in question.

   In the case of Mexico, reviews are held before the Fiscal Tribunal of the Federation.

   In order for a final decision on unfair trade practices to be contested before the Fiscal Tribunal of the Federation, the Appeal of Revocation (Article 94 of the Law) must first be exhausted.

   This is carried out and settled in accordance with the provisions of the Fiscal Code of the Federation.

   The objection before the Upper Chamber of the Tribunal is conducted through a proceeding in accordance with the provisions of the Fiscal Code (Article 95 of the Law).

   Article 239 bis of the Fiscal Code of the Federation reads as follows: "The Upper Chamber of the Fiscal Tribunal of the Federation, officially or at the justified request of the corresponding Regional Chamber of the Secretariat of Treasury and Public Credit, may settle proceedings which, due to their special features, so merit".

   These features are assumed by proceedings in which:

         I. The value of the business is one hundred times the general minimum wage in effect for the geographic area of the Federal District on an annual basis.

         II. For its settlement it is necessary to establish the direct interpretation of a law for the first time or to establish the scope of the essential parts of a contribution. If the Upper Chamber decides to exercise the authority referred to in this article officially, it shall so inform the Regional Chamber before the latter admits the answer to the complaint. The petition by the aforementioned Secretariat may be presented before such admission is decided upon, in writing addressed to the Upper Chamber, through the corresponding Regional Chamber and accompanied by the necessary records. When the Regional Chamber proposes that a matter be settled by the Upper Chamber, it shall agree to send the latter the petition in the writ admitting the answer to the complaint. The Regional Chamber shall notify the parties personally of the decisions of the Upper Chamber admitting the petition or officially deciding to settle the proceeding.

   When notification is made, they shall be required to indicate a domicile for receiving notifications at the seat of the Upper Chamber and to designate a person authorized to receive them; or in the case of the authorities, they shall be required to indicate such seat to their representatives, warning the parties themselves that if they do not do so they will be notified by public notice of the decision handed down by the Upper Chamber. Once the proceedings of the trial have been closed, the Regional Chamber shall transmit the original file to the Upper Chamber.

   After this has been received, the President of the Upper Chamber shall appoint a reporting judge. "The purpose of the appeal for annulment is that the Secretariat itself revoke, modify, or confirm the decision contested. Decisions handed down upon settling this appeal are final".

   Decisions that are not appealed in the period established by the Fiscal Code of the Federation shall be considered accepted and may not be contested before the Fiscal Tribunal of the Federation.

   This period is determined in Article 121 of the Fiscal Code of the Federation, which stipulates that the appellate brief must be presented to the authority having issued (Secretariat of Commerce and Industrial Development) or implemented (Secretariat of Treasury and Public Credit) the action contested, within 45 days after its notification has taken effect. Nevertheless, in the case of decisions that may be subject to review through a mechanism for the settlement of disputes, contained in an international treaty or convention to which Mexico is a party, the period for filing the Appeal for Annulment begins to run after the period provided for in the treaty or convention in question has elapsed (Article 98, part 1 of the Law).

   The parties concerned who resort to the appeal for annulment or to the proceeding for annulment before the Upper Chamber of the Fiscal Tribunal of the Federation may secure payment of the final countervailing duty as provided for in Article 98, part III, of the Law.

   Review of final decisions through alternative mechanisms for the settlement of disputes Final decisions determining final countervailing duties or the actions that implement them may be appealed by the parties concerned through mechanisms for the settlement of disputes in matters of international unfair trade practices contained in the international treaties or conventions to which Mexico is a party (Article 97 of the Law).

   If the parties concerned decide to contest a final decision through these alternative mechanisms for settlement, they may not resort to the appeal for annulment or the proceeding before the Upper Chamber of the Fiscal Tribunal of the Federation for review of the same final decision.

   Neither may they contest, before the alternative mechanism for the settlement of disputes, the decisions arising from the appeal or from the proceeding, as provided for by Article 97, part I, of the Law.

   The parties concerned who appeal to a mechanism for the settlement of disputes may secure payment of the final countervailing duty, in accordance with the provisions of Article 98, part III, of the Law.

   Independently from the formal requirements indicated in each international convention, when it is the government of Mexico that initiates a mechanism of this kind, the following rules (Article 117 of the Regulations) must be observed:

         1. The party concerned that chooses to appeal to such mechanisms must present a petition in writing containing the following data:

               a. The party's name or firm name and domicile, as well as the party's legal representative, including telephone and fax numbers;

               b. The domiciles of the parties concerned that appear on the list of remittance;

               c. Identification of the final decision that is contested and the authority from which it arises and, when appropriate, the reference to the official publication thereof or, in the event of not being published, the date on which notification of the decision contested was received;

               d. Description of the procedure in which the party participated; and

               e. The infringements or injuries caused the party by the final decision.

         2. Once the petition has been presented, the Secretariat must request, as provided for in the international treaty or convention in question, initiation of the proceeding for the settlement of disputes.

   Currently there is the alternative mechanism for the settlement of disputes governed by Chapter XIX of the North American Free Trade Agreement (NAFTA), which consists in review before a binational panel of a final resolution arising from the investigating authority of Mexico, Canada or the United States against imports originating in one of the other two countries. This review procedure is governed in detail in Article 1904 of NAFTA and in its Rules of Procedure.

Nicaragua

   Decisions announced by national authorities shall be subject to the appeals provided for by each country's domestic law.

   Appeals provided for in the juridical instruments of Central American integration may be filed against decisions announced by the regional organs (Article 43). In those cases in which the interested parties are producers, exporters or importers in Central America, the Executive Committee can take up the case and put forward a consensus recommendation to the country that has applied the measure (Chapter II, Central American Regulations on Unfair Trade Practices).

Panama

Paraguay

   The resolutions mentioned in Articles 18 and 23 may be appealed in the contentious- administrative jurisdiction, pursuant to the time periods and procedures established in the laws in force on the Contentious-Administrative Jurisdiction.

Peru

Santa Lucia

Trinidad and Tobago

   A person aggrieved by an Order which imposes a duty may appeal to the Tax Appeal Board in accordance with the Tax Appeal Board Act. (Sec. 27).

United States

   Any interested party to an AD or CVD proceeding may contest a final determination or review by Commerce or the ITC by filing an action in the U.S. Court of International Trade (CIT).

   In order to obtain judicial review, a summons must be filed within 30 days of the publication of the agency's final determination.

   The standard of review followed by the CIT is whether the agency's determination is supported by "substantial evidence on the record" or "otherwise in accordance with law".

   Final determinations in AD or CVD proceedings involving products of Canada or Mexico may be reviewed by a panel under Chapter 19 of the North American Free Trade Agreement (NAFTA) instead of by the CIT.

   A NAFTA panel decides whether U.S. law was applied correctly by Commerce and the ITC by following the standard of review in U.S. law.

Uruguay

   Interministerial resolutions ordering the initiation of the corresponding review or extension procedure shall be published in the Official Journal and notified to the interested parties appearing in the proceedings; resolutions which do not give rise to such initiation shall be notified solely to the requesting party.

Venezuela

   The decisions of the Commission on Antidumping and Subsidies can be reviewed judicially by the Corte Primera de lo Contencioso Administrativo.

   Likewise, the decision of the Technical Secretariat may be reviewed in the Administrative body.

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