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12383 results in International Trade Law

Page 335 of 620

  • IV - BACKGROUND AND OVERVIEW OF THE MEASURES AT ISSUE

  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    13 December 2017
    Print publication:
    06 March 2014, pp 2574-2588

  • Summary

    237. Before commencing our analysis of the issues of law and legal interpretations raised in this appeal, we provide an overview of the measures at issue and briefly outline certain pertinent facts and background information, as identified by the Panel. For additional details in this regard, recourse should be had to the Panel Reports.

    238. Before the Panel, Canada and Mexico challenged the following five measures: (i) the “COOL statute”; (ii) the “2009 Final Rule (AMS)”; (iii) the “Vilsack letter”; (iv) the “Interim Final Rule (AMS)”, and (v) the “Interim Final Rule (FSIS)”. The Panel assessed the first two of these instruments—the COOL statute and its implementing regulations, that is, the 2009 Final Rule (AMS)—together as the “COOL measure”. The Panel determined, however, “that the Vilsack letter should be considered as a separate measure distinguishable from the COOL statute and the 2009 Final Rule (AMS)”, and the complainants have not appealed such finding. The Panel decided not to make findings or recommendations on the Interim Final Rule (AMS) or the Interim Final Rule (FSIS), because they had expired prior to the establishment of the Panel. This is also not appealed. The principal measure at issue in this appeal is the COOL measure.

  • United States - Anti-Dumping Measures on Certain Shrimp and Diamond Sawblades from China (WT/DS422): Report of the Panel

  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    12 December 2017
    Print publication:
    06 March 2014, pp 7109-7172

  • Summary

    INTRODUCTION

    On 28 February and on 22 July 2011, China requested consultations with the United States concerning an alleged “zeroing” practice by the United States Department of Commerce (USDOC) in its anti-dumping measures on two products from China: (i) certain frozen warmwater shrimp (hereafter “Shrimp”), and (ii) diamond sawblades and parts thereof (hereafter “Diamond Sawblades”).

    On 13 October 2011, China requested the establishment of a panel pursuant to Article XXIII of the GATT 1994, Articles 4 and 6 of the DSU and Article 17.4 of the Anti-Dumping Agreement.

    At its 25 October 2011 meeting, the Dispute Settlement Body (DSB) established this Panel pursuant to the request of China in document WT/DS422/3, in accordance with Article 6 of the DSU.

    The Panel's terms of reference are the following:

    To examine, in the light of the relevant provisions of the covered agreements cited by the parties to the dispute, the matter referred to the DSB by China in document WT/DS422/3 and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements.

    Following the agreement of the parties, the Panel was composed on 21 December 2011 as follows:

    Chairman: Mr Alberto Juan Dumont

    Members: Mr Ernesto Fernández

    Ms Stephanie Sin Far Lee

    The European Union, Honduras, Japan, Korea, Thailand and Viet Nam reserved their rights to participate in the Panel proceedings as third parties.

    After consulting with the parties and seeking the views of the third parties, and in view of a joint “Agreement on Procedures” submitted by the parties, the Panel decided not to hold any substantive meetings with the parties and/or third parties.

    The Panel submitted its Interim Report to the parties on 5 April 2012 and submitted its Final Report to the parties on 3 May 2012.

    FACTUAL ASPECTS

    USDOC Determinations in the Shrimp and Diamond Sawblades Investigation

    This dispute concerns the alleged use by the USDOC of zeroing in the calculation of margins of dumping in its original investigations in the Shrimp and Diamond Sawblades anti-dumping proceedings.

  • VII - NASA/USDOD ALLOCATION OF PATENT RIGHTS – SPECIFICITY

  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    13 December 2017
    Print publication:
    06 March 2014, pp 321-351

  • Summary

    Introduction

    724. We turn now to the European Union's claim concerning the Panel's finding that, on the assumption that the allocation of patent rights under the contracts and agreements between NASA/USDOD and Boeing constitutes a subsidy under Article 1.1 of the SCM Agreement, it would not be specific within the meaning of Article 2.1 of that Agreement. We provide a summary of the Panel's findings in section B. Next, we discuss the Panel's arguendo approach in section C. The European Union's claims on appeal are assessed in sections D, E, and F.

    725. Before proceeding, we wish to clarify three aspects about the scope of the appeal that is before us. First, we note that, before the Panel, the European Communities challenged: (i) the allocation of patent rights under NASA/USDOD contracts and agreements; and (ii) the allocation of rights over the data produced under the relevant NASA/USDOD contracts and agreements. The Panel rejected both claims. The European Union's appeal is directed only at the Panel's finding concerning the patent rights and does not include the Panel's finding on the data rights. This was confirmed by the European Union during the oral hearing.

    726. Second, we observe that the European Communities challenged the patent rights allocation under NASA/USDOD contracts and agreements independently from its challenge to the payments and other support provided to Boeing under certain NASA/USDOD contracts and agreements.

  • ANNEX STATEMENT OF AVAILABLE EVIDENCE

  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    12 December 2017
    Print publication:
    06 March 2014, pp 1769-1792

  • Summary

    The evidence set out below is evidence available to the European Communities at this time regarding the existence and nature of the subsidies subject to this dispute, and the adverse effects caused by them to the interests of the European Communities. It is further supported by business confidential internal Airbus documents that are summarized below. The European Communities reserves the right to supplement or alter this list in the future, as required.

    (a) Existence and Nature of the Subsidization

    The evidence currently available to the European Communities includes the following documents. The European Communities' request for consultations describes in more detail the nature of these subsidies.

    H.B. 2294, 58th Leg., 2d Spec. Sess. (Wash. 2003)

    Final Bill Report, H.B. 2294

    Memorandum of Agreement for Project Olympus between the Boeing Company and the State of Washington, dated as of 19 December 2003, available at http://www.effwa.org/pdfs/boeing_olympus.pdf

    Project Olympus Master Site Development and Location Agreement between the Boeing Company and the State of Washington, dated as of 19 December 2003, available at http://www.effwa.org/pdfs/boeing_olympus.pdf

    First Amendment to Project Olympus Master Site Development and Location Agreement between the Boeing Company and the State of Washington, dated as of 19 December 2003, available at http://www.effwa.org/pdfs/boeing_amended.pdf

  • VIII - FINDINGS AND CONCLUSIONS IN THE APPELLATE BODY REPORT WT/DS403/AB/R

  • from PHILIPPINES - TAXES ON DISTILLED SPIRITS
  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    13 December 2017
    Print publication:
    06 March 2014, pp 4263-4264

  • Summary

    261. In the appeal of the Panel Report, Philippines – Taxes on Distilled Spirits (complaint by the United States, WT/DS403/R) (the “US Panel Report”), for the reasons set out in this Report, the Appellate Body:

    (a) with respect to Article III:2, first sentence, of the GATT 1994:

  • (i) upholds the Panel's finding, in paragraph 7.85 of the US Panel Report, that each type of imported distilled spirit at issue in this dispute—gin, brandy, vodka, whisky, and tequila—made from non-designated raw materials is “like” the same type of domestic distilled spirit made from designated raw materials, within the meaning of Article III:2, first sentence, of the GATT 1994;

  • (ii) finds that the Panel did not act inconsistently with Article 11 of the DSU in its evaluations of the products' physical characteristics, of the Philippine market for distilled spirits, and of tariff classification;

  • (iii) upholds, as a consequence, the Panel's finding, in paragraphs 7.90 and 8.2(a) of the US Panel Report, that the Philippines has acted inconsistently with Article III:2, first sentence, of the GATT 1994 by imposing on each type of imported distilled spirit at issue in this dispute—gin, brandy, rum, vodka, whisky, and tequila—internal taxes in excess of those applied to “like” domestic distilled spirits of the same type made from designated raw materials; and

  • (iv) reverses the Panel's finding, in paragraph 7.77 of the US Panel Report, to the extent that it stands for the proposition that all distilled spirits at issue in this dispute are “like products”, regardless of types, within the meaning of Article III:2, first sentence, of the GATT 1994;

  • VI - INTERIM REVIEW

  • from PHILIPPINES - TAXES ON DISTILLED SPIRITS
  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    13 December 2017
    Print publication:
    06 March 2014, pp 4330-4340

  • Summary

    6.1 The Panel issued its interim reports to the parties on 4 May 2011. On 25 May, as foreshadowed in item (l) of the Timetable for the Panel Proceedings and in accordance to Article 15 of the DSU as well as paragraph 16 of the Working Procedures, the European Union, the United States and the Philippines requested the Panel to review precise aspects of the interim reports. On 8 June, as foreshadowed in item (m) of the Timetable for the Panel Proceedings, the parties submitted written comments on each other's comments and requests for interim review. Neither party requested an interim review meeting with the Panel.

    6.2 Where appropriate, the Panel has modified certain aspects of its interim reports, in the light of the parties' comments and requests, as explained below. The Panel has also made certain revisions and corrections for the purposes of clarity and accuracy. Section VI of these reports summarizes these changes. References to paragraph numbers and footnote numbers used in Section VI are to those in the interim reports, except as otherwise noted.

    Interim Review Changes to the Descriptive Sections

    6.3 The United States requests the inclusion of a new paragraph before paragraph 2.1 of the interim reports so as to clarify the relationship between the descriptive and findings sections of the reports and “how the Panel has based its legal conclusions on the facts before it.”

  • V - ARTICLE III:2, FIRST SENTENCE, OF THE GATT 1994

  • from PHILIPPINES - TAXES ON DISTILLED SPIRITS
  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    13 December 2017
    Print publication:
    06 March 2014, pp 4211-4232

  • Summary

    109. We begin with the Philippines' appeal of the Panel's findings that imported distilled spirits made from non-designated raw materials and domestic distilled spirits made from designated raw materials are “like products” within the meaning of Article III:2, first sentence, of the GATT 1994 and that, as a consequence, by subjecting imported distilled spirits made from non-designated raw materials to internal taxes in excess of those applied to “like” domestic distilled spirits made from designated raw materials, the Philippines acts in a manner inconsistent with Article III:2, first sentence, of the GATT 1994.

    110. Specifically, the Philippines challenges the Panel's findings that: (i) all distilled spirits at issue in this dispute are “like products”, whether imported or domestic, and irrespective of the raw materials from which they are made; and (ii) each type of imported distilled spirit at issue in this dispute made from non-designated raw materials is “like” the same type of domestic distilled spirit made from designated raw materials.

    111. We address first the Philippines' appeal of the Panel's finding that each type of imported distilled spirit at issue in this dispute made from non-designated raw materials is “like” the same type of domestic distilled spirit made from designated raw materials. In so doing, we review the Panel's findings on the specific factors it examined in its analysis of “likeness” under Article III:2, first sentence, of the GATT 1994.

  • X - FINDINGS AND CONCLUSIONS

  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    13 December 2017
    Print publication:
    06 March 2014, pp 2001-2002

  • Summary

    407. For the reasons set out in this Report, the Appellate Body:

    (a) finds that the Panel did not err in characterizing the measure at issue as a “technical regulation” within the meaning of Annex 1.1 to the TBT Agreement;

    (b) finds that the Panel erred in its interpretation and application of the phrase “treatment no less favourable” in Article 2.1 of the TBT Agreement; reverses the Panel's finding, in paragraphs 7.374 and 8.1(a) of the Panel Report, that the US “dolphin-safe” labelling provisions are not inconsistent with Article 2.1 of the TBT Agreement; and finds instead that the US “dolphin-safe” labelling provisions are inconsistent with Article 2.1 of the TBT Agreement;

    (c) finds that the Panel erred in concluding, in paragraphs 7.620 and 8.1(b) of the Panel Report, that it has been demonstrated that the measure at issue is more trade restrictive than necessary to fulfil the United States' legitimate objectives, taking account of the risks non-fulfilment would create; and therefore reverses the Panel's finding that the measure at issue is inconsistent with Article 2.2 of the TBT Agreement;

    (d) rejects Mexico's claim that the Panel erred in finding that the United States' objective of “contributing to the protection of dolphins, by ensuring that the US market is not used to encourage fishing fleets to catch tuna in a manner that adversely affects dolphins” is a legitimate objective within the meaning of Article 2.2 of the TBT Agreement;

    […]

  • United States - Measures Affecting the Production and Sale of Clove Cigarettes (WT/DS406):Report of the Panel

  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    12 December 2017
    Print publication:
    06 March 2014, pp 5865-6224

  • Summary

    INTRODUCTION

    On 7 April 2010, Indonesia requested consultations with the United States pursuant to Article 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (“DSU”), Article XXII of the General Agreement on Tariffs and Trade 1994 (“GATT 1994”), Article 11 of the Agreement on the Application of Sanitary and Phytosanitary Measures (“SPS Agreement”) and Article 14 of the Agreement on Technical Barriers to Trade (“TBT Agreement”) with respect to “the measure applied by the Government of the United States regarding the ban of clove cigarettes”. Indonesia and the United States held consultations on 13 May 2010. However, no mutually agreed solution was found.

    On 9 June 2010, Indonesia requested the establishment of a panel pursuant to Article 6 of the DSU.

    At its meeting on 20 July 2010, the DSB established a panel pursuant to the request of Indonesia in document WT/DS406/2, in accordance with Article 6 of the DSU.

    The Panel's terms of reference are the following:

    “To examine, in the light of the relevant provisions of the covered agreements cited by the parties to the dispute, the matter referred to the DSB by Indonesia in document WT/DS406/2 and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements.”

    On 9 September 2010, the parties agreed to the following composition of the Panel:

    Chairman: Mr Ronald Saborío Soto

    Members: Mr Ichiro Araki

    Mr Hugo Cayrús

    Brazil, Colombia, Dominican Republic, the European Union, Guatemala, Mexico, Norway and Turkey have reserved their rights to participate in the Panel proceedings as third parties.

    proceedings as third parties. 1.7 The Panel held its first substantive meeting with the parties on 13 and 14 December 2010. The session with the third parties was held on 14 December 2010. The second substantive meeting was held on 15 February 2011.

    On 13 April 2011, the Panel issued the descriptive section of its draft report to the parties. The Panel issued its Interim Report to the parties on 27 May 2011. The Panel issued its Final Report on 24 June 2011.

  • ANNEX IV - PROCEDURAL RULING AND ADDITIONAL PROCEDURES REGARDING PUBLIC OBSERVATION OF THE ORAL HEARING

  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    13 December 2017
    Print publication:
    06 March 2014, pp 2715-2718

  • Summary

    United States – Certain Country of Origin Labelling (COOL) Requirements

    AB-2012-3

    Procedural Ruling

  • On 5 April 2012, we received a joint communication from the participants in the above appellate proceedings. In that letter, Canada and the United States request that we allow observation by the public of the oral hearing. Mexico indicates that it does not object to allowing such public observation of the hearing, but requests that we reflect in our report that its position in these proceedings is without prejudice to its systemic views on the matter.

  • Specifically, Canada and the United States jointly request that all WTO Members and the public be allowed to observe the statements and answers to questions of the participants and third participants that agree to make their statements and answers public. The participants observe that nothing in the Understanding on Rules and Procedures Governing the Settlement of Disputes (the "DSU") or the Working Procedures for Appellate Review (the "Working Procedures") precludes the Appellate Body from authorizing public observation of the oral hearing. The participants also rely on the rulings by the Appellate Body in eight previous proceedings authorizing public observation of the oral hearing

Page 335 of 620