WORLD TRADE
ORGANIZATIONG/ADP/AHG/W/155
20 October 2003
(03-5545)
Committee on Anti-Dumping Practices
Working Group on ImplementationOriginal:  English
ARTICLE 13 – JUDICIAL, ARBITRAL OR ADMINISTRATIVE REVIEW
Paper by the United States
The following communication, dated 20 October 2003, has been received from the Permanent
Mission of the United States.
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Article 13 of the Anti-Dumping Agreement requires Members to maintain judicial, arbitral or
administrative tribunals to provide prompt and independent review of administrative actions relating
to final determinations and reviews of determinations.  US law provides that parties1 that were
involved in a final determination or the final results of a review may have recourse to independenttribunals to challenge such determination of either the US Department of Commerce (“Commerce”)
or the US International Trade Commission (“Commission”).
2  Specifically, parties may challenge the
final agency determination before the following independent US courts:  the Court of International
Trade (“CIT”), the Court of Appeals for the Fede ral Circuit (“CAFC”), a nd the US Supreme Court.
Alternatively, in certain cases involving subject merchandise from Canada or Mexico, parties have the
option of appearing before a dispute panel established under the North American Free Trade
Agreement (“NAFTA”).
CIT
Except in certain circumstances involving subject merchandise from Canada or Mexico, the
CIT has exclusive jurisdiction to review the determinations of Commerce and the Commission,meaning that no other court may hear such cases.
3  The CIT will review the agency’s final
determination to determine whether it is supported by substantial evidence on the record and
otherwise in accordance with law.4  US law provides that the following determinations (inclusive of
final determinations and review of determinations) are reviewable by the CIT:
1. Commerce/Commission final determinations in investigations;
                                                     
1 This paper uses the term “parties” to refer to intere sted parties that were parties to the segment of the
administrative challenge for which the final determination or results is being challenged.  In other words, in
order to challenge an agency determination discussed in this paper, the party must qualify as an interested party(as defined in 19 U.S.C. § 1677(9)) and have participated in the administrative proceeding before Commerce orthe Commission.
2 19 U.S.C. § 1516a (2003).
3 28 U.S.C. § 1581 (2003).
4 19 U.S.C. § 1516a(b)(1)(B)(i) (2003).G/ADP/AHG/W/155
Page 2
2. Commerce/Commission final results in most types of reviews (including
administrative reviews to determine the final amount of duty to be assessed, and
sunset reviews);5
3. Commerce final determinations to suspend an investigation pursuant to a price
undertaking;
4. Commission final determinations regarding a price undertaking’s elimination of
injurious effect;
5. Commerce determinations that a particular type of merchandise is within the class or
kind of merchandise subject to an order;
6. Commerce/Commission determinations in  anti-dumping duty proceedings made to
implement an adverse WTO dispute settlement report.6
In addition, US law also provides for the possibility of CIT review of additional agency
determinations to determine whether they are “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law."7  The following additional determinations are subject to
judicial review under this standard:
1. Commerce determinations not to initiate an investigation based on a petition;
2. Commission determinations not to review a determination based on changed
circumstances;
3. Commission preliminary determinations of no material injury, threat of material
injury, or material retardation8; and
4. Certain Commerce/Commission determinations in five-year reviews when there has
been no response by domestic interested parties or when parties have provided aninadequate response.
9
Once Commerce or the Commission publishes notice of its determination or Commerce
publishes notice of the anti-dumping duty order, a party has 30 days to initiate a challenge to that
determination with the CIT.10  Among its powers, the CIT has authority to issue injunctions to prevent
the liquidation of an interested party’s entries in many circumstances.11
                                                     
5 Final determinations in reviews not subject to this standard are discussed below.
6 19 U.S.C. § 1516a(a)(2)(B)(i) (2003).
7 19 U.S.C. § 1516a(b)(1)(A), (B)(ii) (2003).
8 Such a negative determination by the Commission at the preliminary stage of an investigation
terminates the investigation under US law.  19 U.S.C. § 1673b(a)(1).
9 19 U.S.C. § 1516a(a)(1)(A) - (D) (2003).
10 19 U.S.C. § 1516a(a)(2)(A) (2003).  As detailed in 19 U.S.C. § 1516a(a), only final determinations
by Commerce or the Commission may be challenged (this includes a preliminary negative injury determination,
which terminates an investigation, and thus is equivalent to a final determination).  The deadline to challenge a
decision by Commerce as to whether a particular type of merchandise is within the subject merchandisedescribed in an anti-dumping duty order, however, is based on the date such determination is mailed.
11 19 U.S.C.  § 1516a(c)(2) (2003).  An injunction by the CIT can ensure that any entry covered by the
injunction is liquidated (assessed) consistent with the ou tcome of the court challenge.  In other words, through a
combination of the United States’ retrospective system and the US courts’ ability to provide injunctive relief,
parties may be assured that the correct amount of anti-dumping duties will be assessed on each entry.G/ADP/AHG/W/155
Page 3
Right of Appeal - CAFC, Supreme Court
Besides a right of judicial review before the CIT, an interested party can appeal a final
decision rendered by the CIT to the CAFC.12  An interested party seeking to appeal a CIT decision
must file a notice of appeal within 60 days of the CIT’s decision.13  The interested party can also
request a stay or injunction pending appeal to prevent enforcement of the CIT decision during
appeal.14  In reviewing CIT decisions, the CAFC applies the same statutory standard of review that the
CIT applied in reviewing the administrative record.15
After the CAFC issues a decision, the interest ed party can petition the Supreme Court for a
writ of certiorari, i.e. right to appeal.16
Binational NAFTA Panels
In cases involving merchandise from a NAFTA country - i.e., Mexico and Canada - parties
may choose to challenge a final determination or final result of Commerce or the Commission before
a NAFTA dispute settlement panel instead of before the US federal courts.17  After providing
appropriate notice, within 31 days of publication or notice of the final determination or final result,
parties can request the formation of a panel, which will be made up of independent panelists from the
two NAFTA countries involved in the dispute.18  Under the NAFTA, the panel is to issue a final
decision within 315 days of the parties’ request for a panel.19  A panel’s decision is binding on the
parties involved for the matter at issue.20
NAFTA decisions are not reviewable by the CIT, nor are they appealable to the CAFC or the
Supreme Court.21  Instead, NAFTA panel decisions only may be appealed in specified circumstances
by one of the governments involved to an Extraordinary Challenge Committee.22
For anti-dumping determinations, the CIT and NAFTA panels are comparable to the extent
that they have the same jurisdiction and are to apply the same standard of review and the same laws.23
However, both the NAFTA Agreement and US law re quire parties to choose between a NAFTA panel
and the CIT; a party may not maintain simultaneous challenges of the same determination before both
bodies.  Once a claim is before a NAFTA panel, an interested party generally no longer has recourse
to US federal courts.24
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12 28 U.S.C. § 1295(a)(5).  See generally  28 U.S.C. § 2645(c).
13 28 U.S.C. § 2645(c); Fed. R. App. P. 3; Fed. R. App. P. 4(a)(1).
14 Fed. R. App. P. 8(a).
15 See Ta Chen Stainless Steel Pipe, Inc. v. United States , 298 F.3d 1330, 1335 (Fed. Cir. 2002), cert.
denied , 155 L. Ed. 2d 1059, 71 U.S.L.W. 3721, 123 S. Ct. 2073 (US 19 May 2003) (No. 02-1141); 19 U.S.C.
§ 1516a(b)(1)  (2003).
16 28 U.S.C. § 1254.
17 19 U.S.C. § 1516a(g) (2003).  When NAFTA panel review is requested, the administrative
determination is no longer reviewable by the CIT.
18 NAFTA, arts. 1901.2, Annex 1901.2(1), 1904.4, 1904.5.
19 NAFTA, art. 1904.14.
20 NAFTA, art. 1904.9.
21 NAFTA, art. 1904.11.
22 NAFTA, art. 1904.13, Annex 1904.13.
23 NAFTA, arts. 1904.2, 1904.3, Annex 1911.
24 NAFTA, art. 1904.11; 28 U.S.C. § 1581(i).