Here's a comment we wrote in our Dispute Settlement Commentary for the DS491 panel report right at the end of last year:
U.S. ITC Tie Vote under WTO Law
Normally, there are six commissioners who serve on the U.S. International Trade Commission at a given time. In certain cases that come before them, these commissioners vote on whether there has been injury to the domestic industry. In this regard, under U.S. Code Section 1677(11)(B), if there is an evenly split vote between the ITC commissioners on whether dumped or subsidized imports are causing injury in an antidumping or countervailing duty investigation, the ITC shall be considered to have made an affirmative determination on this question.
Indonesia challenged this provision "as such," arguing that it violates the "special care" provisions of AD Agreement Article 3.8 and SCM Agreement Article 15.8. The Panel rejected this claim, but it referred to an argument by Indonesia that may give rise to a future complaint on this issue. In particular, Indonesia argued the following:
86. Article X:3(a) of the GATT 1994 provides additional contextual guidance supporting the interpretation that Articles 3.8 of the Anti-Dumping Agreement and 15.8 of the SCM Agreement require threat of injury determinations to be made in a reasonable, even-handed and impartial manner. Article X:3(a) requires that measures be administered in a "uniform, impartial and reasonable manner." "Impartial" is defined as "favoring no one side or party more than another; without prejudice or bias; fair; just."
While the Panel rejected Indonesia's argument based on GATT Article X:3(a) as contextual guidance for its Article 3.8 and Article 15.8 claim, it is possible that Article X:3(a) on its own could provide a more convincing basis for a claim against the tie vote provision. Article X:3(a) states: "Each Member shall administer in a uniform, impartial and reasonable manner all its laws, regulations, decisions and rulings of the kind described in paragraph 1 of this Article." There is something inherently odd about a judicial authority reaching an affirmative determination without either a majority in support of its conclusion or a tie-breaking mechanism that points toward an affirmative conclusion. It is possible that a complainant could convince a panel that such a rule constitutes "administration" of U.S. anti-dumping/countervailing duty laws in a non-uniform, partial or unreasonable manner.
And now here's an excerpt from a Canadian consultations request (DS535) circulated yesterday (but drafted last December, so I don't mean to take credit here!):
F. The US International Trade Commission Tie Vote Provision
35. The US International Trade Commission ("ITC") determines whether the US industry is injured or threatened with material injury in the United States. The ITC is normally composed of six Commissioners.
36. Section 771(11) of the Tariff Act of 1930 provides that where the Commissioners are evenly divided as to whether a determination of the ITC should be affirmative or negative, the ITC is deemed to have made an affirmative determination of:
a. material injury to the industry of the United States;
b. threat of material injury to such industry; or
c. material retardation of the establishment of an industry in the United States, as the case may be, by reason of imports of the product under investigation.
37. Section 771(11) prevents the United States from making an objective examination of injury, threat of injury or material retardation in its determinations as it creates an institutional bias in favour of affirmative results that is "as such" inconsistent with Article 3.1 of the Anti-Dumping Agreement and Article 15.1 of the SCM Agreement.
38. Finally, section 771(11) results in the United States administering its laws, regulations, and decisions in a manner that is not uniform, impartial, and reasonable because of the institutional bias it creates in favour of affirmative results in injury, threat of injury, or material retardation decisions which is "as such" inconsistent with Article X:3(a) of the GATT 1994.
This won't be an easy claim to win, but I do think Canada has chosen the right provisions to try. At the same time, I wonder how serious Canada is about pursuing this case (there are several other claims on systemic issues as well), as it is possible that raising some or all of these claims against the United States right now is part of a broader NAFTA negotiation strategy.