The Panel in US. Countervailing and Anti-Dumping Measures (China) also addressed the issue of whether the obligation in Article 19.3 applies only to administrative reviews, and not to original investigations. The Panel recalled that the Appellate Body had found, in US – Anti- Dumping and Countervailing Duties (China), that the United States had "acted inconsistently with its obligations in Article 19.3 in the context of four sets of original investigations".21 The Panel considered that if Article 19.3 only applied to administrative reviews it would frustrate the object and purpose of the SCM Agreement, and that the United States had not demonstrated that the application of Article 19.3 to original investigations was "unworkable": "Were we to accept the United States argument, the obligation in Article 19.3 (and, by necessary implication, the obligation in Article 19.4) would be triggered only by a final legal assessment of the amount of a countervailing duty. Under the United States system, such an assessment is in principle not made unless and until an administrative review is carried out; however, if no administrative review is requested, then the cash deposit rate ultimately becomes the final rate. This would mean that an investigating authority operating in a retrospective system of duty assessment could conduct a countervailing duty investigation, determine the precise amount of the 13 Panel Report, US – Countervailing and Anti-Dumping Measures (China), paras. 7.323-7.324.
The Panel in US. Large Civil Aircraft (2nd Complaint) referred to the sixth recital of the Preamble (and also Article I) of the Agreement on Government Procurement, in the context of interpreting the definition of a subsidy found in Article 1 of the SCM Agreement. The Panel concluded that transactions properly characterized as purchases of services are excluded from the scope of Article 1 of the SCM Agreement, which expressly refers to purchases of "goods" but omits any reference to purchases of services (on appeal, the finding was declared moot and of no legal effect). In the course of its analysis, the Panel observed that "while the SCM Agreement was being negotiated, the parties to the plurilateral Tokyo Round Procurement Code were in the process of extending the scope and coverage of that agreement to cover purchases of services" and referred to the sixth recital of the Preamble (and also to Article I) of the WTO Agreement on Government Procurement.3 Current as of: June 2020
