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1607 results in Dispute Settlement Reports Online

Page 27 of 81

  • VI - ARTICLE 2.1 OF THE TBT AGREEMENT

  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    13 December 2017
    Print publication:
    06 March 2014, pp 1929-1966

  • Summary

    200. We turn next to address Mexico's appeal of the Panel's finding that Mexico failed to demonstrate that the US “dolphin-safe” labelling provisions are inconsistent with Article 2.1 of the TBT Agreement.

    201. Article 2.1 of the TBT Agreement provides that, with respect to their central government bodies:

    Members shall ensure that in respect of technical regulations, products imported from the territory of any Member shall be accorded treatment no less favourable than that accorded to like products of national origin and to like products originating in any other country.

    202. Article 2.1 of the TBT Agreement consists of three elements that must be demonstrated in order to establish an inconsistency with this provision, namely: (i) that the measure at issue constitutes a “technical regulation” within the meaning of Annex 1.1; (ii) that the imported products must be like the domestic product and the products of other origins; and (iii) that the treatment accorded to imported products must be less favourable than that accorded to like domestic products and like products from other countries. Mexico's appeal concerns only the Panel's finding in respect of the third element, namely, the “treatment no less favourable” standard in Article 2.1. We further note that the United States has not appealed the Panel's finding that Mexican tuna products are “like” tuna products of United States' origin and tuna products originating in any other country within the meaning of Article 2.1 of the TBT Agreement.

  • II - ARGUMENTS OF THE PARTICIPANTS AND THE THIRD PARTICIPANTS

  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    13 December 2017
    Print publication:
    06 March 2014, pp 47-196

  • Summary

    Claims of Error by the European Union – Appellant

    1. Annex V to the SCM Agreement

    35. The European Union asserts that the Panel erred by refusing to rule that the information-gathering procedure under Annex V to the SCM Agreement had been initiated, and by denying a number of related requests. The European Union submits that, in proceeding in the way it did, the Panel failed to make an objective assessment of the matter within the meaning of Article 11 of the DSU and erred in its interpretation and application of Article 7.4 the SCM Agreement and paragraph 2 of Annex V thereto. The European Union requests the Appellate Body to find that the Panel erred in not ruling on whether the Annex V procedure had been initiated, and to complete the analysis and make a finding that the Annex V procedure is initiated by negative consensus or automatically. In addition, and independently of these requests, the European Union urges the Appellate Body to “constantly bear in mind the circumstances of this case”, in particular the withholding of information and non-cooperation by the United States. On that basis, the Appellate Body should preclude the United States from criticizing the Panel for its assessment of the facts or drawing of factual inferences and, “{i}n case of doubt or evidentiary conflict or equipoise, the Appellate Body should rule in favour of the European Union”.

  • II - ARGUMENTS OF THE PARTICIPANTS AND THE THIRD PARTICIPANTS

  • from CHINA – MEASURES RELATED TO THE EXPORTATION OF VARIOUS RAW MATERIALS
  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    03 January 2018
    Print publication:
    06 March 2014, pp 3317-3385

  • Summary

    Claims of Error by China – Appellant

    1. Article 6.2 of the DSU

    16. China requests the Appellate Body to reverse the Panel's finding that Section III of each of the complainants' panel requests, entitled “Additional Restraints Imposed on Exportation”, complies with the requirements of Article 6.2 of the DSU, and to find, instead, that Section III of the panel requests does not comply with Article 6.2, with the exception of the complainants' claims regarding the non-publication of export measures concerning zinc. Consequently, China requests the Appellate Body to reverse the Panel's findings made pursuant to other claims allegedly contained in Section III of the panel requests.

    17. China contends that the Panel correctly concluded that the panel requests set out subsets of claims concerning subsets of measures, rather than raising all claims listed in Section III of the panel requests in relation to all measures listed in that section of the panel requests. However, the panel requests fail to identify which claims were made with respect to which measures. For China, in order to comply with Article 6.2 of the DSU, the complainants were required plainly to connect the 37 listed measures with the 13 listed treaty provisions with sufficient precision to identify the specific combination of measure(s) and claim(s) at issue.

  • I - INTRODUCTION

  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    13 December 2017
    Print publication:
    06 March 2014, pp 29-47

  • Summary

    1. The European Union and the United States each appeals certain issues of law and legal interpretations developed in the Panel Report, United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint) (the “Panel Report”). The Panel was established on 17 February 2006 to consider a complaint by the European Communities regarding a number of US measures affecting trade in large civil aircraft (“LCA”). The European Communities claimed that the United States has provided subsidies to US producers of LCA, namely, The Boeing Company and the McDonnell Douglas Corporation (prior to its merger with Boeing), and that such subsidies are prohibited and/or actionable under the Agreement on Subsidies and Countervailing Measures (the “SCM Agreement”).

    2. The European Communities' claims before the Panel related to measures from three US States and municipalities therein, as well as to a number of US Federal Government measures, all allegedly providing subsidies to Boeing, as follows:

    (a) State and local measures:

    (i) State of Washington and municipalities therein: the provision of tax incentives by the State of Washington through five measures under House Bill 2294 (“House Bill 2294”); the provision of tax reductions from the City of Everett's business and occupation (“B&O”) tax pursuant to Ordinance No. 2759-04; and the provision of various incentives, including training facilities and infrastructure improvements, in connection with the production of Boeing's 787 under the Project Olympus Master Site Development and Location Agreement between the Boeing Company and the State of Washington (the “MSA”);[…]

  • IV - ARGUMENTS OF THE PARTIES

  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    13 December 2017
    Print publication:
    06 March 2014, pp 2063-2147

  • Summary

    First Written Submissions

    1. Mexico

    (a) Introduction

    4.1 For over twenty years, yellowfin tuna caught by the Mexican fishing fleet in the Eastern Tropical Pacific (“ETP”) have been denied effective access to the US market by virtue of various GATT and WTO inconsistent measures. Sales of Mexican yellowfin tuna in the US market have been severely restricted. Initially, the exclusion took the form of an absolute embargo on the importation of Mexican tuna and tuna products. Notwithstanding that the embargo was lifted, the United States found a new way to prevent Mexican tuna from competing in the US market.

    4.2 The essence of the current dispute relates to the prohibition of the use of a US dolphin-safe label on imports of tuna products from Mexico, while such a label is permitted to be used on tuna products from other countries, including the United States.

    4.3 Even though Mexico has maintained a sound and environmentally sustainable method for fishing for tuna and participated in all multilateral initiatives to protect dolphins while fishing for tuna, Mexican tuna products are prohibited by the US measures from using a dolphin-safe label, while tuna caught in other fisheries that have not adopted comparable measures to protect dolphins are able to benefit from a dolphin-safe label.

    4.4 The US measures are inconsistent with the fundamental obligations of non-discrimination contained in Articles I:1 and III:4 of the GATT, because they grant other foreign tuna and tuna products an advantage in the US marketplace that has not been accorded immediately and unconditionally to Mexican tuna and tuna products, and accord Mexican tuna and tuna products treatment less favourable than that accorded to US tuna and tuna products in the US marketplace.

  • IV - ARGUMENTS OF THE PARTIES

  • 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 4329-4329

  • Summary

    4.1 The arguments of the parties, as set forth in the executive summaries of their written submissions and oral statements to the Panel, are attached to these reports as Annexes (A, C, E and F) (see List of Annexes, pages iv and v). The replies of the parties to questions and the parties' comments on each other's replies to questions are not attached to these reports as annexes. They are, however, reflected in the findings section of these reports where relevant.

  • III - PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS

  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    12 December 2017
    Print publication:
    06 March 2014, pp 2769-2769

  • Summary

    Canada

    3.1 Canada requests that the Panel find that:

  • (a) the COOL measure of the United States is inconsistent with its obligations under the TBT Agreement, in particular Articles 2.1 and 2.2; and

  • (b) the COOL measure of the United States is inconsistent with its obligations under the GATT 1994, in particular Articles III:4, X:3(a) and XXIII:1(b).

    • 3.2 Canada therefore requests that the Panel recommend that the United States bring the COOL measure into conformity with its obligations under the TBT Agreement and the GATT 1994, subject to the provision of Article 26.1 of the DSU in respect of GATT Article XXIII:1(b).

    Mexico

    3.3 Mexico requests that the Panel find that:

  • (a) the COOL measures are inconsistent with Articles III:4 and X:3 of the GATT 1994 and Articles 2.1, 2.2, 2.4 and 12 of the TBT Agreement; and

  • (b) the COOL measures nullify or impair benefits accruing to Mexico under the GATT 1994 within the meaning of Article XXIII:1(b) of the GATT 1994.

    • 3.4 Mexico requests that the Panel make such recommendations that are necessary for the United States to bring itself into conformity with these provisions.

    United States

    3.5 The United States requests that the Panel reject the claims made by Canada and Mexico in their entirety.

  • VI - ARTICLE 2.2 OF THE TBT AGREEMENT

  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    13 December 2017
    Print publication:
    06 March 2014, pp 2634-2697

  • Summary

    Introduction

    351. We turn now to the appeals relating to the Panel's finding that the COOL measure is inconsistent with Article 2.2 of the TBT Agreement. In ruling on the claims raised by Canada and by Mexico under Article 2.2 of the TBT Agreement, the Panel found that the COOL measure is “trade-restrictive”; that the objective pursued by the United States through the COOL measure is “to provide consumer information on origin”; and that this objective is “legitimate” within the meaning of Article 2.2. Ultimately, the Panel sustained the claims of the complainants and found that “the COOL measure violates Article 2.2 because it does not fulfil the objective of providing consumer information on origin with respect to meat products”.

    352. Each of the participants challenges aspects of the Panel's interpretation of Article 2.2 of the TBT Agreement and the application of its chosen legal framework to the COOL measure. The United States requests us to reverse the Panel's ultimate conclusion that the COOL measure is inconsistent with Article 2.2, whereas both Canada and Mexico request us to uphold this finding. In the event that we accept the United States' appeal and reverse the Panel's finding that “the COOL measure violates Article 2.2 because it does not fulfil the objective of providing consumer information on origin with respect to meat products”, both Canada and Mexico request us to complete the analysis and find that the COOL measure is inconsistent with Article 2.2 because it is more trade restrictive than necessary to fulfil a legitimate objective.

  • VII - FINDINGS

  • from CHINA – MEASURES RELATED TO THE EXPORTATION OF VARIOUS RAW MATERIALS
  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    03 January 2018
    Print publication:
    06 March 2014, pp 3584-3895

  • Summary

    Issues Relating to the Panel's Terms of Reference

    1. Preliminary rulings

    7.1 This dispute raises several issues affecting the competence and the terms of reference of the Panel. The Panel recalls that it issued two sets of preliminary rulings concerned, inter alia, with aspects of its terms of reference. As noted, the first phase of the preliminary ruling was issued to the parties on 7 May 2010 and circulated on 18 May. The Panel issued the second phase of its preliminary ruling to the parties on 1 October 2010. At the request of the United States and Mexico, this second phase was circulated only to the third-parties but not to the entire WTO Membership. These preliminary rulings are an integral part of the present findings and are attached to the Panel Reports as an annex (see List of Annexes, pages ii and iii).

    7.2 The Panel made the following rulings in the first phase of its preliminary ruling dated 7 May 2010:

  • (a) The Panel's terms of reference are limited to those measures explicitly identified by bullet points in each of the three sections of the complainants' Panel Requests.

  • (b) Of these measures, the term “related measures” referred to in the last bullet point in each of the listed measures is too broad and unspecific a term and therefore falls outside the Panel's terms of reference.

  • V - ARTICLE 2.1 OF THE TBT AGREEMENT

  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    13 December 2017
    Print publication:
    06 March 2014, pp 2589-2634

  • Summary

    Introduction

    254. Canada and Mexico claimed before the Panel that the COOL measure is inconsistent with the United States' national treatment obligation under Article 2.1 of the TBT Agreement. The Panel found that “the COOL measure, [particularly] in regard to the muscle cut meat labels, violates Article 2.1 because it affords imported livestock treatment less favourable than that accorded to like domestic livestock.” The United States appeals this finding, as well as the Panel's intermediate conclusion that “the COOL measure on its face accords different treatment to imported livestock”. The United States also asserts that the Panel acted inconsistently with its duties under Article 11 of the DSU in reaching certain factual findings on which, according to the United States, the Panel's legal conclusions under Article 2.1 are based.

    255. In addressing the United States' appeal, we first briefly describe the Panel's findings under Article 2.1, followed by a summary of the United States' claims on appeal. We then provide an interpretation of the “treatment no less favourable” requirement of Article 2.1 of the TBT Agreement, followed by a review of the Panel's findings, in the light of the participants' arguments.

    Summary of the Panel's Findings

    256. In examining the consistency of the COOL measure with Article 2.1 of the TBT Agreement, the Panel first found that the COOL measure is a “technical regulation” within the meaning of Annex 1.1 to the TBT Agreement, because it is “mandatory”, applies to an identifiable product or group of products, and, by imposing a country of origin labelling requirement, lays down one or more product characteristics.

  • II - FACTUAL ASPECTS

  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    12 December 2017
    Print publication:
    06 March 2014, pp 2765-2769

  • Summary

    Measures at Issue

    2.1 The claims brought by Canada and Mexico concern the United States' country of origin labelling (COOL) requirements for meat products.

    2.2 Canada submits that the COOL measure consists of the following provisions:

  • (a) the Agricultural Marketing Act of 1946, as amended by the Farm Security and Rural Investment Act of 2002 (“2002 Farm Bill”) and the Food, Conservation, and Energy Act of 2008 (“2008 Farm Bill”);

  • (b) the Interim Final Rule on Mandatory Country of Origin Labelling of Beef, Pork, Lamb, Chicken, Goat Meat, Perishable Agricultural Commodities, Peanuts, Pecans, Ginseng, and Macadamia Nuts, published on 1 August 2008 as 7 CFR Part 65 (“Interim Final Rule (AMS)”) and on Mandatory Country of Origin Labelling of Muscle Cuts of Beef (including Veal), Lamb, Chicken, Goat, and Pork, Ground Beef, Ground Lamb, Ground Chicken, Ground Goat, and Ground Pork, published on 28 August 2008 as 9 CFR Parts 317 and 381 (“Interim Final Rule (FSIS)”);

  • (c) the Final Rule on Mandatory Country of Origin Labelling of Beef, Pork, Lamb, Chicken, Goat Meat, Perishable Agricultural Commodities, Peanuts, Pecans, Ginseng, and Macadamia Nuts, published on 15 January 2009 as 7 CFR Part 65 (the “2009 Final Rule (AMS)”);

  • (d) the letter to “Industry Representative” from the United States Secretary of Agriculture, Thomas J. Vilsack, of 20 February 2009 (the “Vilsack letter”); and

  • (e) any modifications, administrative guidance, directives or policy announcements issued in relation to items (a) through (d) above.

Page 27 of 81