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1607 results in Dispute Settlement Reports Online

Page 55 of 81

  • United States – Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada - Recourse by Canada to Article 21.5 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (WT/DS257): Report of the Panel

  • World Trade Organization
  • Book:
    Dispute Settlement Reports 2005
    Published online:
    13 December 2017
    Print publication:
    30 August 2007, pp 11401-11580

  • Summary

    PROCEDURAL BACKGROUND

    On 17 February 2004, the Dispute Settlement Body (“DSB”) adopted the recommendations and rulings in the reports of the original panel and the Appellate Body in US – Softwood Lumber IV.

    In respect of pass-through, the original panel concluded that:

    “the USDOC's failure to conduct a pass-through analysis in respect of upstream transactions for log and lumber inputs between unrelated entities was inconsistent with Article 10 SCM Agreement and Article VI:3 of GATT 1994.”

    More specifically, the original panel found that:

    “the USDOC's failure to conduct a pass-through analysis in respect of logs sold by tenure-holding timber harvesters (whether or not also lumber producers) to unrelated sawmills producing subject softwood lumber; and in respect of lumber sold by tenureholding harvester/sawmills to unrelated lumber re-manufacturers was inconsistent with Article 10 and thus Article 32.1 SCM Agreement, and with Article VI:3 of GATT 1994.”

    The original panel therefore upheld Canada's claim that the United States’ imposition of countervailing duties in respect of such transactions was inconsistent with Articles 10 and 32.1 SCM Agreement and Article VI:3 of GATT 1994.

    The United States appealed from the original panel's pass-through conclusion. The Appellate Body stated that the United States “contend[ed] that the [original panel] erred in finding that a pass-through analysis is required in respect of sales of logs from tenure-holding sawmills producing softwood lumber to unrelated sawmills, and for sales of lumber by tenure-holding sawmills to unrelated lumber remanufacturers.” According to the Appellate Body, the United States ”[did] not appeal the [original panel's] finding that, where a subsidy is received by an independent timber harvester, a pass-through analysis is required in respect of sales to unrelated sawmills or unrelated remanufacturers”.

    In respect of pass-through, the Appellate Body stated that it upheld the original panel's finding that:

    “USDOC's failure to conduct a pass-through analysis in respect of arm's length sales of logs by tenured harvesters/sawmills to unrelated sawmills is inconsistent with Articles 10 and 32.1 of the SCM Agreement and Article VI:3 of the GATT 1994.”

  • United States – Subsidies on Upland Cotton (WT/DS267) Report of the Appellate Body

  • World Trade Organization
  • Book:
    Dispute Settlement Reports 2005
    Published online:
    13 December 2017
    Print publication:
    30 August 2007, pp 3-282

  • Summary

    INTRODUCTION

    The United States and Brazil each appeals certain issues of law and legal interpretations developed in the Panel Report, United States – Subsidies on Upland Cotton (the “Panel Report”). The Panel was established on 18 March 2003 to consider claims by Brazil regarding various United States measures that Brazil alleged constituted actionable subsidies within the meaning of Part III of the Agreement on Subsidies and Countervailing Measures (the “SCM Agreement”), prohibited subsidies within the meaning of Part II of the SCM Agreement, export subsidies within the scope of the Agreement on Agriculture, and/or subsidies actionable under Article XVI of the General Agreement on Tariffs and Trade 1994 (the “GATT 1994”). Brazil also alleged that certain of these measures were inconsistent with Article III:4 of the GATT 1994. The United States argued that some of the measures were domestic support measures that were exempt from certain actions by virtue of paragraphs (a) and (b) of Article 13 of the Agreement on Agriculture.

    The Panel Report was circulated to Members of the World Trade Organization (the “WTO”) on 8 September 2004. In paragraph 7.194 of its Report, the Panel made the following findings with respect to whether certain measures fell within its terms of reference:

    The Panel rules that the following measures, as addressed in document WT/DS267/7, are within its terms of reference:

  • (i) export credit guarantees to facilitate the export of United States upland cotton, and other eligible agricultural commodities;

  • (ii) production flexibility contract payments and market loss assistance payments[.]

    • The Panel also ruled, in paragraph 7.196 of its Report, that:

    … in its request for consultations in document WT/DS267/1, Brazil provided a statement of available evidence with respect to export credit guarantees under the GSM 102, GSM 103 and SCGP programmes relating to upland cotton and eligible agricultural commodities other than upland cotton, as required by Article 4.2 of the SCM Agreement.

    With respect to the substantive issues raised by the parties, the Panel set out the following conclusions in paragraph 8.1 of its Report:

  • (a) Article 13 of the Agreement on Agriculture is not in the nature of an affirmative defence;

  • (b) PFC payments, DP payments, and the legislative and regulatory provisions which establish and maintain the DP programme, do not satisfy the condition in paragraph (a) of Article 13 of the Agreement on Agriculture;

  • United States – Subsidies on Upland Cotton (WT/DS267): Table of Annexes J to O

  • World Trade Organization
  • Book:
    Dispute Settlement Reports 2005
    Published online:
    12 December 2017
    Print publication:
    30 August 2007, pp 2295-2746

  • Summary

    Article 13 of the Agreement on Agriculture

    Australia has argued that Article 13 of the Agreement on Agriculture is an affirmative defence. How do you reconcile this with your view that the conditions in Article 13 are a “prerequisite” to the availability of a right or privilege? Australia Would other third parties have any comments on Australia's assertion? 3rd parties, in particular Argentina, Benin, China, Chinese Taipei

    Argentina agrees with Australia that Article 13 of the Agreement on Agriculture is an affirmative defence and that in these proceedings the United States therefore carries the burden of proof on the question of whether its subsidies conform with the terms of Article 13.

    According to the Appellate Body in US-Shirts and Blouses:

    ” … the burden of proof rests upon the party, whether complaining or defending, who asserts the affirmative of a particular claim or defence. If that party adduces evidence sufficient to raise a presumption that what is claimed is true, the burden then shifts to the other party, who will fail unless it adduces sufficient evidence to rebut the presumption”.

    As stated by Brazil in Paragraph 112 of its first written submission, in the case of claims of violation of the positive obligations of the WTO Agreement, it is the complaining party that has the burden of providing a prima facie case of violation. However, in the case of affirmative defences, such as Articles XX and XI:2(c)(i), the Appellate Body itself established that it is only reasonable that the burden of establishing such a defence should rest upon the party asserting it.

    According to the standards established by the Appellate Body, Article 13 of the Agreement on Agriculture is a provision in the nature of an affirmative defence. As such, it does not create new obligations for Members, but limits the scope of certain provisions of the SCM Agreement and the GATT 1994 subject to certain conditions. Nor does it alter the legal nature of Members’ measures, but simply permits Members to maintain those measures exempt from actions, if the measures meet the conditions specified in Article 13(a), (b) or (c).

  • United States – Anti-Dumping Measures on Oil Country Tubular Goods (OCTG) from Mexico (WT/DS282): Report of the Panel

  • World Trade Organization
  • Book:
    Dispute Settlement Reports 2005
    Published online:
    13 December 2017
    Print publication:
    30 August 2007, pp 10225-10618

  • Summary

    INTRODUCTION

    On 18 February 2003, the Government of Mexico requested consultations with the Government of the United States of America (United States) pursuant to Article 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), Article XXII:1 of the General Agreement on Tariffs and Trade 1994 (GATT 1994), and Article 17.3 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the AD Agreement) regarding the final determinations of the United States Department of Commerce (USDOC) and the United States International Trade Commission (USITC) in the sunset and fourth administrative reviews of oil country tubular goods (OCTG) from Mexico, as well as certain United States laws, regulations, procedures, administrative provisions and practice. Mexico and the United States held consultations on 4 April 2003, but they failed to settle the dispute.

    On 29 July 2003, Mexico requested the Dispute Settlement Body (DSB) to establish a panel pursuant to Article XXIII of the GATT 1994, Article 6 of the DSU and Article 17 of the AD Agreement.

    At its meeting on 29 August 2003, the DSB established a Panel pursuant to the request by Mexico in document WT/DS282/2, in accordance with Article 6 of the DSU. At that meeting, the parties to the dispute also agreed that the Panel should have standard terms of reference. The terms of reference are, therefore, the following:

    To examine, in the light of the relevant provisions of the covered agreements cited by Mexico in document WT/DS282/2, the matter referred to the DSB by Mexico in that document, 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 11 February 2004, the parties agreed to the following composition of the Panel:

    Chairman: Mr. Christer Manhusen

    Members: Mr. Alistair James Stewart

    Ms. Stephanie Sin Far Man

    Argentina, Canada, China, the European Communities, Japan, Chinese Taipei and Venezuela reserved their third-party rights.

    The Panel met with the parties on 25-26 May 2004 and on 17-18 August 2004. It met with the third parties on 26 May 2004.

  • European Communities – Customs Classification of Frozen Boneless Chicken Cuts (WT/DS269, WT/DS286): Report of the Appellate Body

  • World Trade Organization
  • Book:
    Dispute Settlement Reports 2005
    Published online:
    13 December 2017
    Print publication:
    30 August 2007, pp 9157-9294

  • Summary

    INTRODUCTION

    The European Communities, as appellant, and Brazil and Thailand, as other appellants, each appeal certain issues of law and legal interpretations developed in the Panel Reports, European Communities – Customs Classification of Frozen Boneless Chicken Cuts (the “Panel Reports”). The Panel was established to consider complaints by Brazil and Thailand concerning certain measures of the European Communities, pertaining to the classification of frozen boneless salted chicken cuts for tariff treatment.

    Brazil and Thailand claimed before the Panel that Commission Regulation (EC) No. 1223/2002 (“EC Regulation 1223/2002”) and Commission Decision No. 2003/97/EC (“EC Decision 2003/97/EC”) resulted in tariff treatment for frozen boneless salted chicken cuts that is less favourable than that provided for in the European Communities’ Schedule LXXX (the “EC Schedule”), in violation of Article II:1(a) and/or Article II:1(b) of the General Agreement on Tariffs and Trade 1994 (the “GATT 1994”). More particularly, Brazil and Thailand alleged that, through the challenged measures, “the European Communities changed its customs classification so that those products, which had previously been classified under subheading 0210.90.20 and were subject to an ad valorem tariff of 15.4%, are now classified under subheading 0207.41.10 and are subject to a tariff of 102.4€/100kg/net as well as being potentially subject to special safeguard measures pursuant to Article 5 of the Agreement on Agriculture.”

    Brazil and Thailand also claimed before the Panel that, although Commission Regulation (EC) No. 1871/2003 (“EC Regulation 1871/2003”) and Commission Regulation (EC) No. 2344/2003 (“EC Regulation 2344/2003”) were not mentioned specifically in their requests for the establishment of a panel, these Regulations must be considered as part of the challenged measures because they are “closely related” to and based on the same principle of long-term preservation, as set out in the challenged measures. Brazil and Thailand also alleged that the specific products at issue were “frozen boneless salted chicken cuts that have been deeply and homogeneously impregnated with salt in all parts with a total salt content of not less than 1.2% by weight”, and that the terms of reference are not limited to products with a salt content between 1.2 and 3 per cent.

  • United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services (WT/DS285): Report of the Panel

  • World Trade Organization
  • Book:
    Dispute Settlement Reports 2005
    Published online:
    12 December 2017
    Print publication:
    30 August 2007, pp 5797-6348

  • Summary

    INTRODUCTION

    In a communication dated 13 March 2003, Antigua and Barbuda (hereinafter also “Antigua”) requested consultations with the United States, pursuant to Article 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) and Article XXIII of the General Agreement on Trade in Services (GATS) regarding measures applied by central, regional and local authorities in the United States of America that affected the cross-border supply of gambling and betting services. Antigua attached to its communication an Annex listing US Federal and State measures whose cumulative impact resulted, according to Antigua, in making unlawful the supply of gambling and betting services on a cross-border basis. In a communication dated 1 April 2003, Antigua issued a communication containing a corrected Annex aiming at clarifying “some of the references to the US legislation” which were contained in the original Annex.

    Antigua and the United States held consultations on 30 April 2003, but these consultations did not resolve the dispute. Consequently, in a communication dated 12 June 2003, Antigua requested the DSB to establish a Panel. At its meeting on 21 July 2003, the DSB established a Panel pursuant to the request of Antigua in document WT/DS285/2, in accordance with Article 6 of the Dispute Settlement Understanding. At that meeting, the parties to the dispute agreed that the Panel should have standard terms of reference. The terms of reference are, therefore, the following:

    “To examine, in the light of the relevant provisions of the covered agreements cited by Antigua and Barbuda in document WT/DS285/2, the matter referred to the DSB by Antigua and Barbuda in that document, 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 15 August 2003, Antigua requested the Director-General to determine the composition of the Panel, pursuant to paragraph 7 of Article 8 of the DSU. This paragraph provides:

    “If there is no agreement on the panelists within 20 days after the date of the establishment of a panel, at the request of either party, the Director-General, in consultation with the Chairman of the DSB and the Chairman of the relevant Council or Committee, shall determine the composition of the panel by appointing the panelists whom the Director-General considers most appropriate in accordance with any relevant special or

  • United States – Subsidies on Upland Cotton (WT/DS267): Table of Annex I-12 to Annex I-28

  • World Trade Organization
  • Book:
    Dispute Settlement Reports 2005
    Published online:
    13 December 2017
    Print publication:
    30 August 2007, pp 1799-2292

  • Summary

    BRAZIL's INTRODUCTORY COMMENTS

    Brazil's response to the US 22 December 2003 Comments Concerning Brazil's Econometric Model (“US Critique”) is divided into two parts. First, Brazil provides some introductory comments setting the US Critique into perspective. And, second, Brazil offers Professor Sumner's detailed response to the US critique.

    The United States Critique initially focuses on proving a point that has never been contested by Brazil, i.e., that the Sumner model is not exactly like the FAPRI model. As Professor Sumner points out, he never claimed that his model was identical to the FAPRI model. The United States points to no contradictions between what Professor Babcock has stated and what Professor Sumner stated in Annex I or his other statements concerning the links between his model and the FAPRI model. Nevertheless, while there are differences between the Sumner model and the FAPRI model, the record is undisputed that the core elements of the FAPRI model – the hundreds of demand and supply equations – are identical. The differences in Professor Sumner's model are primarily the result of his use of the CARD international cotton model and additions to the FAPRI model made by Professor Sumner. The additions were necessary to enable the FAPRI/CARD modelling framework to respond to the questions before this Panel.

    The United States Critique asserts that Professor Sumner's choice of baselines has prejudiced the outcome to such an extent that his results are not usable. But the record shows that the significant acreage, production, export and price effects found in Professor Sumner's Annex I results using the CARD international cotton model and the amended FAPRI US crops model based off the (recalibrated) FAPRI preliminary November 2002 baseline are essentially the same even when used against other baselines. The United States first argued that Professor Sumner should have used the FAPRI 2003 baseline. Professor Sumner responded by running his model on that later baseline. There were no significant changes between Annex I and those results for either the period from MY 1999- 2002 or in the period from MY 2003-2007. The United States Critique raises a new argument that Professor Sumner manipulated the FAPRI preliminary November 2002 baseline.

  • European Communities - Export Subsidies on Sugar, Complaint by Australia (WT/DS265): Report of the Panel

  • World Trade Organization
  • Book:
    Dispute Settlement Reports 2005
    Published online:
    13 December 2017
    Print publication:
    30 August 2007, pp 6499-6776

  • Summary

    INTRODUCTION

    This proceeding was initiated by three complaining parties, Australia, Brazil and Thailand.

    In communications dated 27 September 2002, Australia and Brazil requested consultations with the European Communities pursuant to Article 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (“DSU”), Article XXII:1 of the General Agreement on Tariffs and Trade 1994 (“GATT 1994”), Article 19 of the Agreement on Agriculture, and Articles 4.1 and 30 of the Agreement on Subsidies and Countervailing Measures (“SCM Agreement”), with respect to export subsidies provided by the European Communities to its sugar industry. Australia and Brazil held consultations with the European Communities in Geneva on 21 and 22 November 2002 but these consultations did not result in a resolution of the dispute.

    On 14 March 2003, pursuant to Article 4 of the DSU, Article XXIII of the GATT 1994, Article 19 of the Agreement on Agriculture, and Articles 4 and 30 of the SCM Agreement, Thailand requested consultations with the European Communities with respect to certain subsidies provided by the European Communities in the sugar sector. Consultations were held in Geneva on 8 April 2003 but failed to resolve the dispute.

    On 21 July 2003, Australia, Brazil and Thailand requested the establishment of a panel pursuant to Articles 4.7 and 6 of the DSU and Article XXIII:2 of the GATT 1994.

    At its meeting on 29 August 2003, the Dispute Settlement Body (DSB) established a panel pursuant to the requests of Australia (WT/DS265/21); Brazil (WT/DS266/21); and Thailand (WT/DS283/2), in accordance with Article 6 of the DSU. At that meeting, the parties to the dispute agreed to establish a single panel pursuant to Article 9.1 of the DSU with standard terms of reference.

    Terms of reference

    The terms of reference are the following:

    “To examine, in the light of the relevant provisions of the covered agreements cited by Australia in document WT/DS265/21, by Brazil in document WT/DS266/21 and by Thailand in document WT/DS283/2, the matters referred therein to the DSB by Australia, Brazil and Thailand, and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements.”

  • Japan – Measures Affecting the Importation of Apples - Recourse to Article 21.5 of the Understanding on Rules and Procedures Governing the Settlement of Disputes by the United States (WT/DS245): Report of the Panel

  • World Trade Organization
  • Book:
    Dispute Settlement Reports 2005
    Published online:
    13 December 2017
    Print publication:
    30 August 2007, pp 7911-8130

  • Summary

    INTRODUCTION

    On 10 December 2003, the Dispute Settlement Body (“DSB”) adopted its recommendations and rulings in the dispute Japan - Measures Affecting the Importation of Apples (the “Japan – Apples Panel Report”). Having found Japan's phytosanitary measure for imported US apples to be inconsistent with its obligations under the Agreement on the Application of Sanitary and Phytosanitary Measures (“SPS Agreement”), the DSB recommended that Japan bring its measure into conformity with that agreement. On 30 January 2004, the United States and Japan concluded an agreement pursuant to Article 21.3(b) of the Understanding on Rules and Procedures Governing the Settlement of Disputes (“DSU”) that the reasonable period of time available to Japan to implement the DSB's recommendations and rulings would expire on 30 June 2004.

    On 19 July 2004, the United States requested authorization from the DSB to suspend tariff concessions and other related obligations with respect to Japan under the General Agreement on Tariffs and Trade 1994 (GATT 1994), pursuant to Article 22.2 of the DSU.

    At the meeting of the DSB held on 30 July 2004, Japan informed the DSB that it had amended its measures on 30 June 2004 to implement the DSB's recommendations and rulings within the reasonable period of time. At the same meeting, the United States requested the establishment of a panel pursuant to Article 21.5 of the DSU. The DSB agreed that the Article 21.5 request be referred to the Original Panel. The DSB also agreed, at the request of Japan, that the matter would be referred to arbitration to determine the level of suspension of concessions, pursuant to Article 22.6 of the DSU. Japan and the United States agreed that the arbitration proceedings would be suspended until after the adoption of the panel report under Article 21.5. If the Article 21.5 Panel found that Japan had acted inconsistently with its WTO obligations, then the Article 22.6 arbitrator would automatically resume its work.

Page 55 of 81