Dispute settlement
United States - Anti-Dumping Measures on Polyethylene Retail Carrier Bags from Thailand
On 26 November 2008 Thailand requested consultations with the United States with respect to the application by the United States of the practice known as “zeroing” of negative dumping margins in the United States' determination of the margins of dumping in its anti-dumping investigation of Polyethylene Retail Carrier Bags from Thailand. Specifically Thailand requests consultations concerning the USDOC's use in the Final Determination and Amended Final Determination of the practice of “zeroing” negative anti-dumping margins in calculating overall weighted-average margins of dumping in this investigation. Thailand alleges that the effect of this practice was to create artificially margins of dumping where none would otherwise have been found or at a minimum to inflate margins of dumping. Thailand considers the USDOC's use of this practice of “zeroing” in the Final Determination the Amended Final Determination and the Order to be inconsistent with the obligations of the United States under Article VI of the GATT 1994 and in particular under Article 2.4.2 of the Anti-Dumping Agreement.
China - Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products
On 10 April 2007 the United States requested consultations with China concerning: (1) certain measures that restrict trading rights with respect to imported films for theatrical release audiovisual home entertainment products (e.g. video cassettes and DVDs) sound recordings and publications (e.g. books magazines newspapers and electronic publications); and (2) certain measures that restrict market access for or discriminate against foreign suppliers of distribution services for publications and foreign suppliers of audiovisual services (including distribution services) for audiovisual home entertainment products.
Trade Skirmishes and Safeguards
I propose a framework within which to interpret and evaluate the major reforms introduced to the GATT system in its transition to the WTO. In particular I examine the WTO Agreement on Safeguards that has replaced the GATT escape clause (Article XIX) and the Dispute Settlement Process (DSP) that resembles a court of law under the WTO. Using this framework I interpret the weakening of the reciprocity principle under the Agreement on Safeguards as an attempt to reduce efficiency-reducing trade skirmishes. The DSP is interpreted as an impartial arbitrator that announces its opinion about the state of the world when a dispute arises among member countries. I demonstrate that the reforms in the GATT escape clause should be bundled with the introduction of the DSP in order to maintain the incentive-compatibility of trade agreements. The model implies that trade agreements under the WTO lead to fewer trade skirmishes but this effect does not necessarily result in higher payoffs to the governments. The model also implies that the introduction of the WTO court which has no enforcement power can in fact improve the self-enforceability of trade agreements.
China - Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products
On 10 April 2007 the United States requested consultations with China concerning: (1) certain measures that restrict trading rights with respect to imported films for theatrical release audiovisual home entertainment products (e.g. video cassettes and DVDs) sound recordings and publications (e.g. books magazines newspapers and electronic publications); and (2) certain measures that restrict market access for or discriminate against foreign suppliers of distribution services for publications and foreign suppliers of audiovisual services (including distribution services) for audiovisual home entertainment products.
Colombia - Indicative Prices and Restrictions on Ports of Entry
On 12 July 2007 Panama requested consultations with Colombia on (i) indicative prices applicable to specific goods and (ii) restrictions on ports of entry for certain goods.
United States - Continued Existence and Application of Zeroing Methodology
On 2 October 2006 the European Communities requested consultations with the United States concerning its continued application of the “zeroing” methodology. In particular the request for consultations concerns (i) the implementing regulation (19 CFR Section 351) of the US Department of Commerce especially section 351.414(c)(2); and (ii) the Import Administration Antidumping Manual (1997 edition) including the computer program(s) to which it refers. The European Communities claims that based on these regulations the US Department of Commerce continued to apply the “zeroing” methodology in the determinations of the margin of dumping in the final results of the anti-dumping administrative reviews concerning various EC goods and any assessment instructions issued pursuant to those final results.
China - Measures Affecting the Protection and Enforcement of Intellectual Property Rights
On 10 April 2007 the United States requested consultations with China concerning certain measures pertaining to the protection and enforcement of intellectual property rights in China.
China - Measures Affecting Imports of Automobile Parts
On 30 March 2006 the European Communities and the United States and on 13 April 2006 Canada requested consultations with China regarding China's imposition of measures that adversely affect exports of automobile parts from the European Communities the United States and Canada to China. The measures include the following: (a) Policy on Development of Automotive Industry (Order No. 8 of the National Development and Reform Commission 21 May 2004); (b) Measures for the Administration of Importation of Automotive Parts and Components for Complete Vehicles (Decree No. 125) which entered into force on 1 April 2005); and (c) Rules for Determining Whether Imported Automotive Parts and Components Constitute Complete Vehicles (General Administration of Customs Public Announcement No. 4 which entered into force on 1 April 2005; as well as any amendments replacements extensions implementing measures or other measures related.
India - Additional and Extra-Additional Duties on Imports from the United States
On 6 March 2007 the United States requested consultations with India with respect to “additional duties” or “extra additional duties” that India applies to imports from the United States which include (but are not limited to) wines and distilled products (HS2204 2205 2206 and 2208.
United States - Continued Suspension of Obligations in the EC – Hormones Dispute
On 8 November 2004 the European Communities filed a request for consultations with the United States asserting that the United States should have removed its retaliatory measures since the EC has removed the measures found to be WTO-inconsistent in the EC — Hormones case.
Canada - Continued Suspension of Obligations in the EC – Hormones Dispute
On 8 November 2004 the European Communities filed a request for consultations with the United States asserting that the United States should have removed its retaliatory measures since the EC has removed the measures found to be WTO-inconsistent in the EC — Hormones case.
United States - Continued Existence and Application of Zeroing Methodology
On 2 October 2006 the European Communities requested consultations with the United States concerning its continued application of the “zeroing” methodology. In particular the request for consultations concerns (i) the implementing regulation (19 CFR Section 351) of the US Department of Commerce especially section 351.414(c)(2); and (ii) the Import Administration Antidumping Manual (1997 edition) including the computer program(s) to which it refers. The European Communities claims that based on these regulations the US Department of Commerce continued to apply the “zeroing” methodology in the determinations of the margin of dumping in the final results of the anti-dumping administrative reviews concerning various EC goods and any assessment instructions issued pursuant to those final results.
Mexico - Definitive Countervailing Measures on Olive Oil from the European Communities
On 31 March 2006 the European Communities requested consultations with Mexico concerning the imposition by Mexico of definitive countervailing measures on imports of olive oil from the European Communities.
China - Measures Affecting Imports of Automobile Parts
On 30 March 2006 the European Communities and the United States and on 13 April 2006 Canada requested consultations with China regarding China's imposition of measures that adversely affect exports of automobile parts from the European Communities the United States and Canada to China. The measures include the following: (a) Policy on Development of Automotive Industry (Order No. 8 of the National Development and Reform Commission 21 May 2004); (b) Measures for the Administration of Importation of Automotive Parts and Components for Complete Vehicles (Decree No. 125) which entered into force on 1 April 2005); and (c) Rules for Determining Whether Imported Automotive Parts and Components Constitute Complete Vehicles (General Administration of Customs Public Announcement No. 4 which entered into force on 1 April 2005; as well as any amendments replacements extensions implementing measures or other measures related.
United States - Measures Relating to Shrimp from Thailand. Customs Bond Directive for Merchandise Subject to Anti-Dumping/Countervailing Duties
On 24 April 2006 Thailand requested consultations with the United States concerning anti-dumping measures on imports of frozen warmwater shrimp. Thailand requests consultations on the United States’ application in the Preliminary Final and Amended Final Determinations of the practice known as “zeroing” negative dumping margins the effect of which was to artificially create margins of dumping and the consequent imposition of definitive anti-dumping measures on imports of certain frozen warmwater shrimp from Thailand.
United States - Measures Relating to Shrimp from Thailand
On 24 April 2006 Thailand requested consultations with the United States concerning anti-dumping measures on imports of frozen warmwater shrimp. Thailand requests consultations on the United States’ application in the Preliminary Final and Amended Final Determinations of the practice known as “zeroing” negative dumping margins the effect of which was to artificially create margins of dumping and the consequent imposition of definitive anti-dumping measures on imports of certain frozen warmwater shrimp from Thailand.
India - Additional and Extra-Additional Duties on Imports from the United States
On 6 March 2007 the United States requested consultations with India with respect to “additional duties” or “extra additional duties” that India applies to imports from the United States which include (but are not limited to) wines and distilled products (HS2204 2205 2206 and 2208.
United States - Final Anti-Dumping Measures on Stainless Steel from Mexico
On 26 May 2006 Mexico requested consultations with the United States concerning a series of final anti-dumping determinations by the US Department of Commerce concerning imports of stainless steel sheet and strip in coils from Mexico for the period between January 1999 and June 2004. It also addresses: (i) certain sections of the US Tariff Act of 1930 as amended; (ii) the Statement of Administrative Action that accompanied the Uruguay Round Agreements; (iii) specific sections of the US Department of Commerce’s regulations codified at Title 19 of the US Code of Federal Regulations; (iv) the 1997 edition of the Import Administration Antidumping Manual; and (v) the methodology employed by the US Department of Commerce to determine the overall margin of dumping for the product subject to the original investigation and administrative reviews whereby the Department disregarded (“zeroed”) negative dumping margins.
Canada - Continued Suspension of Obligations in the EC – Hormones Dispute
On 8 November 2004 the European Communities filed a request for consultations with the United States asserting that the United States should have removed its retaliatory measures since the EC has removed the measures found to be WTO-inconsistent in the EC — Hormones case.
United States - Continued Suspension of Obligations in the EC – Hormones Dispute
On 8 November 2004 the European Communities filed a request for consultations with the United States asserting that the United States should have removed its retaliatory measures since the EC has removed the measures found to be WTO-inconsistent in the EC — Hormones case.
United States - Measures Relating to Shrimp from Thailand
On 24 April 2006 Thailand requested consultations with the United States concerning anti-dumping measures on imports of frozen warmwater shrimp. Thailand requests consultations on the United States’ application in the Preliminary Final and Amended Final Determinations of the practice known as “zeroing” negative dumping margins the effect of which was to artificially create margins of dumping and the consequent imposition of definitive anti-dumping measures on imports of certain frozen warmwater shrimp from Thailand.
United States - Customs Bond Directive for Merchandise Subject to Anti-Dumping/Countervailing Duties
On 24 April 2006 Thailand requested consultations with the United States concerning anti-dumping measures on imports of frozen warmwater shrimp. Thailand requests consultations on the United States’ application in the Preliminary Final and Amended Final Determinations of the practice known as “zeroing” negative dumping margins the effect of which was to artificially create margins of dumping and the consequent imposition of definitive anti-dumping measures on imports of certain frozen warmwater shrimp from Thailand.
United States - Measures Affecting the Cross-Border Supply of Gambling and Betting Services
On 21 December 2007 the WTO issued the dispute panel reports in the case "United States - Measures affecting the cross-border supply of gambling and betting services".
United States - Final Anti-Dumping Measures on Stainless Steel from Mexico
On 26 May 2006 Mexico requested consultations with the United States concerning a series of final anti-dumping determinations by the US Department of Commerce concerning imports of stainless steel sheet and strip in coils from Mexico for the period between January 1999 and June 2004. It also addresses: (i) certain sections of the US Tariff Act of 1930 as amended; (ii) the Statement of Administrative Action that accompanied the Uruguay Round Agreements; (iii) specific sections of the US Department of Commerce’s regulations codified at Title 19 of the US Code of Federal Regulations; (iv) the 1997 edition of the Import Administration Antidumping Manual; and (v) the methodology employed by the US Department of Commerce to determine the overall margin of dumping for the product subject to the original investigation and administrative reviews whereby the Department disregarded (“zeroed”) negative dumping margins.
Brazil - Measures Affecting Imports of Retreaded Tyres
On 20 June 2005 the European Communities requested consultations with Brazil on the imposition of measures that adversely affect exports of retreaded tyres from the EC to the Brazilian market.
United States - Measures Affecting the Cross-Border Supply of Gambling and Betting Services - Recourse 1
On 21 March 2003 Antigua and Barbuda requested consultations with the US regarding measures applied by central regional and local authorities in the US which affect the cross-border supply of gambling and betting services. Antigua and Barbuda considered that the cumulative impact of the US measures is to prevent the supply of gambling and betting services from another WTO Member to the United States on a cross-border basis. According to Antigua and Barbuda the measures at issue may be inconsistent with the US obligations under the GATS and in particular Articles II VI VIII XI XVI and XVII thereof and the US Schedule of Specific Commitments annexed to the GATS.
Japan - Countervailing Duties on Dynamic Random Access Memories from Korea
On 14 March 2006 Korea requested consultations with Japan concerning countervailing duties imposed by Japan on certain Dynamic Random Access Memories (DRAMs) from Korea. According to Korea notice of the imposition of such duties was provided by Japan in Cabinet Order No. 13 and Finance Notice 35 published respectively in Issue No. 4264 and Special Issue No. 17 of the Official Gazette dated 27 January 2006. The request for consultations also concerns certain aspects of the investigation and the determination that led to the imposition of such duties.
European Communities - Anti-Dumping Measure on Farmed Salmon from Norway
On 17 March 2006 Norway requested consultations with the European Communities concerning Council Regulation (EC) No. 85/2006 of 17 January 2006 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of farmed salmon originating in Norway.
Korea - Anti-Dumping Duties on Imports of Certain Paper from Indonesia (WT/DS312) - Recourse 1
On 4 June 2004 Indonesia requested consultations with Korea concerning the imposition of definitive anti-dumping duties by Korea on imports of business information paper and uncoated wood-free printing paper from Indonesia and certain aspects of the investigation leading to the imposition of such duties.
Turkey - Measures Affecting the Importation of Rice
On 2 November 2005 the United States requested consultations with Turkey concerning the latter’s import restrictions on rice from the United States. According to the request Turkey requires an import license to import rice but fails to grant such licenses to import rice at Turkey’s bound rate of duty. According to the request Turkey also operates a tariff-rate quota for rice imports requiring that in order to import specified quantities of rice at reduced tariff levels importers must purchase specified quantities of domestic rice including from the Turkish Grain Board (TMO) Turkish producers or producer associations (“the domestic purchase requirement”). The request lists more than ten measures through which Turkey has allegedly maintained the foregoing restrictions on rice imports including Decree No. 96/7794 related to the General Assessment of the Regime Regarding Technical Regulations and Standardization for Foreign Trade (Official Gazette No. 22541 1 February 1996 Repeated).
Indisputably Essential
Economic theory has made considerable progress in explaining why sovereign countries cooperate in trade. Central to most theories of trade cooperation are issues of self-enforcement: The threat of reprisal by an aggrieved party maintains the initial balance of concessions and prevents opportunism. However economic scholarship has been less coherent in explaining why countries choose to settle and enforce their trade disputes with the help of an impartial third party a “trade court”. Typically economists focusing on the purpose of trade agreements have assumed away the very reasons why institutions are needed since under standard assumptions neither defection from the rules nor disputes are expected to occur. This paper is a step towards the formulation of a coherent economic theory of dispute settlement. It challenges traditional models of enforcement (primarily concerned with acts of punishment) for being insufficient in explaining the existence of dispute settlement institutions. We perform a comprehensive analysis of the economics of dispute settlement institutions and demonstrate to what extent the literatures of trade cooperation and dispute institutions are (and should be) interlinked. On the basis of these theories we show that dispute settlement institutions in trade agreements may assume a variety of roles including that of an information repository and disseminator an honest broker an arbitrator and calculator of damages an active information gatherer or an adjudicator.
Japan - Countervailing Duties on Dynamic Random Access Memories from Korea
On 14 March 2006 Korea requested consultations with Japan concerning countervailing duties imposed by Japan on certain Dynamic Random Access Memories (DRAMs) from Korea. According to Korea notice of the imposition of such duties was provided by Japan in Cabinet Order No. 13 and Finance Notice 35 published respectively in Issue No. 4264 and Special Issue No. 17 of the Official Gazette dated 27 January 2006. The request for consultations also concerns certain aspects of the investigation and the determination that led to the imposition of such duties.
Brazil - Measures Affecting Imports of Retreaded Tyres
On 20 June 2005 the European Communities requested consultations with Brazil on the imposition of measures that adversely affect exports of retreaded tyres from the EC to the Brazilian market.
Mexico - Anti-Dumping Duties on Steel Pipes and Tubes from Guatemala
On 17 June 2005 Guatemala requested consultations with Mexico concerning the definitive anti-dumping duties imposed by Mexico against imports of steel pipes and tubes from Guatemala and the investigation leading thereto. According to Guatemala the anti-dumping duties concerned and the investigation leading thereto are inconsistent with Mexico’s obligations
Chile - Price Band System and Safeguard Measures Relating to Certain Agricultural Products - Recourse 1
On 5 October 2000 Argentina requested consultations with Chile concerning: the price band system established by Law 18.525 (as subsequently amended by Law 18.591 and Law 19.546) as well as implementing regulations and complementary and/or amending provisions; and the provisional safeguard measures adopted on 19 November 1999 by Decree No. 339 of the Ministry of Economy and the definitive safeguard measures imposed on 20 January 2000 by Decree No. 9 of the Ministry of Economy on the importation of various products including wheat wheat flour and edible vegetal oils. Argentina considered that these measures raised questions concerning the obligations of Chile under various agreements. According to Argentina the provisions with which the measures relating to the said price band system are inconsistent include but are not limited to the following: Article II of the GATT 1994 and Article 4 of the Agreement on Agriculture. According to Argentina the provisions with which the safeguard measures are inconsistent include but are not limited to the following: Articles 2 3 4 5 6 and 12 of the Safeguards Agreement and Article XIX:1(a) of the GATT 1994
United States - Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina - Recourse 1
On 7 October 2002 Argentina requested consultations with the US regarding the final determinations of the US Department of Commerce (“DOC”) and the US International Trade Commission (“ITC”) in the sunset reviews of the anti-dumping duty order on OCTG from Argentina issued on 7 November 2000 (65 Federal Register 66701) and June 2001 (USITC Pub. No. 3434) respectively and the DOC’s determination to continue the anti-dumping duty order on OCTG from Argentina issued on 25 July 2001 (66 Federal Register 38630). Argentina considered that general US laws regulations policies and procedures related to the administration of sunset reviews and the application of anti-dumping measures were inconsistent either on their face or as applied with Articles 1 2 3 5 6 11 12 and 18 of the Anti-Dumping Agreement (ADA); Articles VI and X of the General Agreement on Tariffs and Trade (GATT) 1994; and Article XVI:4 of the WTO Agreement. Furthermore Argentina claimed that the sunset review conducted by the DOC is inconsistent with Articles 2 5 5.8 11.3 11.4 12.1 and 12.3 of the ADA. It also claimed that the sunset review conducted by the ITC was inconsistent with Articles 3 and 11.3 of the ADA.
United States - Anti-Dumping Measure on Shrimp from Ecuador
On 17 November 2005 Ecuador requested consultations with the United States concerning the final affirmative determination of sales at less than fair value with respect to certain frozen warmwater shrimp from Ecuador published by the United States Department of Commerce (DOC) on 23 December 2004 the amended final determination of sales at less than fair value on 1 February 2005 and the accompanying anti-dumping duty order. According to Ecuador it has concerns particularly about the DOC’s practice of “zeroing” negative anti-dumping margins based on which the DOC issued the foregoing determinations and order. Ecuador considers that the foregoing determinations and order are inconsistent with Article VI of the GATT 1994 and Articles 1 2.1 2.2 2.4 2.4.2 5.8 6.10 9.2 9.3 9.4 and 18.1 of the Anti-Dumping Agreement.
United States - Measures Relating to Zeroing and Sunset Reviews
On 24 November 2004 Japan requested consultations with the United States concerning (1) the USDOC’s “zeroing” practice in anti-dumping investigations administrative reviews sunset reviews and also in assessing the final anti-dumping duty liability on entries upon liquidation; (2) the USDOC’s “irrefutable presumption” in sunset reviews; and (3) the waiver provisions of US law which in sunset reviews oblige the USDOC in certain situations to find a likelihood of continuation or recurrence of dumping without performing a substantive review.
Chile - Price Band System and Safeguard Measures Relating to Certain Agricultural Products - Recourse 1
On 5 October 2000 Argentina requested consultations with Chile concerning: - the price band system established by Law 18.525 (as subsequently amended by Law 18.591 and Law 19.546) as well as implementing regulations and complementary and/or amending provisions; and - the provisional safeguard measures adopted on 19 November 1999 by Decree No. 339 of the Ministry of Economy and the definitive safeguard measures imposed on 20 January 2000 by Decree No. 9 of the Ministry of Economy on the importation of various products including wheat wheat flour and edible vegetal oils. Argentina considered that these measures raised questions concerning the obligations of Chile under various agreements. According to Argentina the provisions with which the measures relating to the said price band system are inconsistent include but are not limited to the following: Article II of the GATT 1994 and Article 4 of the Agreement on Agriculture. According to Argentina the provisions with which the safeguard measures are inconsistent include but are not limited to the following: Articles 2 3 4 5 6 and 12 of the Safeguards Agreement and Article XIX:1(a) of the GATT 1994
United States - Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina - Recourse 1
On 7 October 2002 Argentina requested consultations with the US regarding the final determinations of the US Department of Commerce (“DOC”) and the US International Trade Commission (“ITC”) in the sunset reviews of the anti-dumping duty order on OCTG from Argentina issued on 7 November 2000 (65 Federal Register 66701) and June 2001 (USITC Pub. No. 3434) respectively and the DOC’s determination to continue the anti-dumping duty order on OCTG from Argentina issued on 25 July 2001 (66 Federal Register 38630). Argentina considered that general US laws regulations policies and procedures related to the administration of sunset reviews and the application of anti-dumping measures were inconsistent either on their face or as applied with Articles 1 2 3 5 6 11 12 and 18 of the Anti-Dumping Agreement (ADA); Articles VI and X of the General Agreement on Tariffs and Trade (GATT) 1994; and Article XVI:4 of the WTO Agreement. Furthermore Argentina claimed that the sunset review conducted by the DOC is inconsistent with Articles 2 5 5.8 11.3 11.4 12.1 and 12.3 of the ADA. It also claimed that the sunset review conducted by the ITC was inconsistent with Articles 3 and 11.3 of the ADA.
European Communities - Selected Customs Matters
On 21 September 2004 the United States requested consultations with the European Communities concerning the Communities’ administration of laws and regulations pertaining to the classification and valuation of products for customs purposes and its failure to institute tribunals or procedures for the prompt review and correction of administrative action on customs matters.
Political & Quasi-Adjudicative Dispute Settlement Models in European Union Free Trade Agreements
In this paper interpretation and application dispute settlement provisions of European Union (EU) Free Trade Agreements (FTAs) signed between 1963 and 2006 are analysed. This will be through the two models of Dispute Settlement in International Law: the political and adjudicative. Political elements of dispute settlement mechanisms in Public international Law and General Agreement of Tariffs and Trade (GATT) served to establish those of the EU FTAs. Adjudicative and quasi-adjudicative elements of dispute settlement mechanisms of Public International Law and World Trade Organization (WTO) Law were used as parameters to set up those of the EU FTAs. These parameters also helped to define a new and unique hybrid model. The features of this model were found in Agreements with trade issues other than FTAs. It is possible however for future FTAs to incorporate them. The hybrid model is based on an adjudicative framework and includes both political and adjudicative elements. In conclusion it was found that even though WTO Members incorporated adjudicative elements in the Dispute Settlement Understanding (DSU) the EU did not incorporate them bilaterally for a further five years. Furthermore since the creation of the DSU in 1995 the EU has established more FTAs based on a political model than on a quasi-adjudicative. Consequently the quasi-adjudicative dispute settlement model has not represented a clear trend in EU FTAs.
European Communities - Measures Affecting the Approval and Marketing of Biotech Products
On 13 May 2003 the United States requested consultations with the EC concerning certain measures taken by the EC and its member States affecting imports of agricultural and food imports from the United States. Regarding EC-level measures the United States asserted that the moratorium applied by the EC since October 1998 on the approval of biotech products has restricted imports of agricultural and food products from the United States. Regarding member State-level measures the United States asserted that a number of EC member States maintain national marketing and import bans on biotech products even though those products have already been approved by the EC for import and marketing in the EC.
United States - Measures Relating to Zeroing and Sunset Reviews
On 24 November 2004 Japan requested consultations with the United States concerning (1) the USDOC’s “zeroing” practice in anti-dumping investigations administrative reviews sunset reviews and also in assessing the final anti-dumping duty liability on entries upon liquidation; (2) the USDOC’s “irrefutable presumption” in sunset reviews; and (3) the waiver provisions of US law which in sunset reviews oblige the USDOC in certain situations to find a likelihood of continuation or recurrence of dumping without performing a substantive review.
United States - Final Dumping Determination on Softwood Lumber from Canada - Recourse 1
On 13 September 2002 Canada requested consultations under Article 4.8 of the DSU (urgency procedure) with the United States concerning the final affirmative determination of sales at less than fair value (dumping) with respect to certain softwood lumber products from Canada (Inv. No. A-122-838) announced by the US Department of Commerce (USDOC) on 21 March 2002 pursuant to Section 735 of the Tariff Act of 1930 as amended on 22 May 2002 (Final Determination). The measures at issue include the initiation of the investigation the conduct of the investigation and the Final Determination. Canada considered these measures and in particular the determinations made and methodologies adopted therein by the DOC under authority of the United States Tariff Act of 1930 to violate Articles 1 2.1 2.2 2.4 2.6 5.1 5.2 5.3 5.4 5.8 6.1 6.2 6.4 6.9 and 9.3 of the Anti-Dumping Agreement and Articles VI and X:3(a) of the GATT 1994.
European Communities - Selected Customs Matters
On 21 September 2004 the United States requested consultations with the European Communities concerning the Communities’ administration of laws and regulations pertaining to the classification and valuation of products for customs purposes and its failure to institute tribunals or procedures for the prompt review and correction of administrative action on customs matters.
United States - Laws, Regulations and Methodology for Calculating Dumping Margins ("Zeroing")
On 12 June 2003 the European Communities requested consultations with the United States concerning a methodology used by the US among others in the calculation of dumping margins known as “zeroing”. The “zeroing” methodology generally speaking involves treating specific price comparisons which do not show dumping as zero values in the calculation of a weighted average dumping margin. The request concerned specific provisions of the US Tariff Act of 1930 and the Department of Commerce implementing regulation as well as US Department of Commerce methodology and its determinations in specific cases involving products imported from the European Communities.
United States - Investigation of the International Trade Commission in Softwood Lumber from Canada - Recourse 1
On 20 December 2002 Canada requested consultations with the United States regarding the investigation of the USITC in Softwood Lumber from Canada (Invs. Nos. 701-TA-414 and 731-TA-928 (Final)) and the final definitive anti-dumping and countervailing duties applied as a result of the USITC’s final determination made on 2 May 2002 notice of which was published in the United States Federal Register on 22 May 2002 (Volume 67 Number 99 at pp. 36022-36023) that an industry in the United States is threatened with material injury by reason of imports of softwood lumber from Canada that the Department of Commerce has determined are subsidized and sold in the United States at less than fair value. Canada claimed that through these measures the United States has violated its obligations under Article VI:6(a) of the GATT 1994 Articles 1 3.1 3.2 3.3 3.4 3.5 3.7 3.8 12 and 18.1 of the Anti-Dumping Agreement and Articles 10 15.1 15.2 15.3 15.4 15.5 15.7 15.8 22 and 32.1 of the SCM Agreement.
United States - Final Dumping Determination on Softwood Lumber from Canada - Recourse 1
On 13 September 2002 Canada requested consultations under Article 4.8 of the DSU (urgency procedure) with the United States concerning the final affirmative determination of sales at less than fair value (dumping) with respect to certain softwood lumber products from Canada (Inv. No. A-122-838) announced by the US Department of Commerce (USDOC) on 21 March 2002 pursuant to Section 735 of the Tariff Act of 1930 as amended on 22 May 2002 (Final Determination). The measures at issue include the initiation of the investigation the conduct of the investigation and the Final Determination. Canada considered these measures and in particular the determinations made and methodologies adopted therein by the DOC under authority of the United States Tariff Act of 1930 to violate Articles 1 2.1 2.2 2.4 2.6 5.1 5.2 5.3 5.4 5.8 6.1 6.2 6.4 6.9 and 9.3 of the Anti-Dumping Agreement and Articles VI and X:3(a) of the GATT 1994.
Mexico - Tax Measures on Soft Drinks and Other Beverages
On 16 March 2004 the United States requested consultations with Mexico concerning certain tax measures imposed by Mexico on soft drinks and other beverages that use any sweetener other than cane sugar.
Japan - Import Quotas on Dried Laver and Seasoned Laver
On 1 December 2004 Korea requested consultations with Japan concerning Japan’s import quotas on dried laver and seasoned laver. According to the request for consultations Korea believes that Japan’s extremely restrictive import quotas on dried laver and seasoned laver are inconsistenté.
United States - Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada - Recourse 1
On 3 May 2002 Canada requested consultations with the United States. The request concerned the final affirmative countervailing duty determination by the US Department of Commerce (File No. C‑122839) issued on 25 March 2002 with respect to certain softwood lumber from Canada. The measures at issue include the initiation and conduct of the investigation the final determination provision of expedited reviews and other matters related to these measures. Canada contended that these measures were inconsistent with and violate the United States’ obligations under Articles 1 2 10 11 12 14 15 19 22 and 32.1 of the SCM Agreement and Articles VI:3 and X:3 of the GATT 1994.
Mexico - Definitive Anti-Dumping Measures on Beef and Rice (Complaint with Respect to Rice)
On 16 June 2003 the United States requested consultations with Mexico concerning its definitive anti-dumping measures on beef and long grain white rice as well as certain provisions of Mexico’s Foreign Trade Act and its Federal Code of Civil Procedure.
United States - Investigation of the International Trade Commission in Softwood Lumber from Canada - Recourse 1
On 20 December 2002 Canada requested consultations with the United States regarding the investigation of the USITC in Softwood Lumber from Canada (Invs. Nos. 701-TA-414 and 731-TA-928 (Final)) and the final definitive anti-dumping and countervailing duties applied as a result of the USITC’s final determination made on 2 May 2002 notice of which was published in the United States Federal Register on 22 May 2002 (Volume 67 Number 99 at pp. 36022-36023) that an industry in the United States is threatened with material injury by reason of imports of softwood lumber from Canada that the Department of Commerce has determined are subsidized and sold in the United States at less than fair value. Canada claimed that through these measures the United States has violated its obligations under Article VI:6(a) of the GATT 1994 Articles 1 3.1 3.2 3.3 3.4 3.5 3.7 3.8 12 and 18.1 of the Anti-Dumping Agreement and Articles 10 15.1 15.2 15.3 15.4 15.5 15.7 15.8 22 and 32.1 of the SCM Agreement.
United States - Anti-Dumping Measures on Oil Country Tubular Goods (OCTG) from Mexico
On 18 February 2003 Mexico requested consultations with the US as regards several anti-dumping measures imposed by the US on imports of OCTG from Mexico including the final determinations in some administrative and sunset reviews; and the US authorities’ determination regarding the continuation of the anti-dumping orders. In addition to these measures Mexico’s request includes a number of laws regulations and administrative practices (such as “zeroing”) used by the US authorities in the above determinations. Mexico considers that the above anti-dumping measures are incompatible with Articles 1 2 3 6 11 and 18 of the Anti-Dumping Agreement Articles VI and X of the GATT 1994 and Article XVI:4 of the WTO Agreement.
United States - Laws, Regulations and Methodology for Calculating Dumping Margins ("Zeroing")
On 12 June 2003 the European Communities requested consultations with the United States concerning a methodology used by the US among others in the calculation of dumping margins known as “zeroing”. The “zeroing” methodology generally speaking involves treating specific price comparisons which do not show dumping as zero values in the calculation of a weighted average dumping margin. The request concerned specific provisions of the US Tariff Act of 1930 and the Department of Commerce implementing regulation as well as US Department of Commerce methodology and its determinations in specific cases involving products imported from the European Communities.
Korea - Anti-Dumping Duties on Imports of Certain Paper from Indonesia (WT/DS312)
On 4 June 2004 Indonesia requested consultations with Korea concerning the imposition of definitive anti-dumping duties by Korea on imports of business information paper and uncoated wood-free printing paper from Indonesia and certain aspects of the investigation leading to the imposition of such duties.
Mexico - Tax Measures on Soft Drinks and Other Beverages
On 16 March 2004 the United States requested consultations with Mexico concerning certain tax measures imposed by Mexico on soft drinks and other beverages that use any sweetener other than cane sugar.
European Communities - Customs Classification of Frozen Boneless Chicken Cuts - Complaint by Brazil
On 11 October 2002 Brazil requested consultations with the European Communities concerning EC Commission Regulation No. 1223/2002 (“Regulation No. 1223/2002”) of 8 July 2002 which provides a new description of frozen boneless chicken cuts under the EC Combined Nomenclature (“CN”) code 0207.14.10. According to Brazil this new description includes a salt content to the product that did not exist before and subjects the imports of these products to a higher tariff than that applicable to salted meat (CN code 0210) in the EC’s Schedules under the GATT 1994.
European Communities - Customs Classification of Frozen Boneless Chicken Cuts - Complaint by Thailand
On 11 October 2002 Brazil requested consultations with the European Communities concerning EC Commission Regulation No. 1223/2002 (“Regulation No. 1223/2002”) of 8 July 2002 which provides a new description of frozen boneless chicken cuts under the EC Combined Nomenclature (“CN”) code 0207.14.10. According to Brazil this new description includes a salt content to the product that did not exist before and subjects the imports of these products to a higher tariff than that applicable to salted meat (CN code 0210) in the EC’s Schedules under the GATT 1994.
United States - Countervailing Measures Concerning Certain Products from the European Communities - Recourse 1
On 10 November 2000 the EC requested consultations with the US concerning the continued application by the United States of countervailing duties on a number of products. In particular the EC claimed that the application of the “same person” methodology by the US and the continued imposition of duties based on it are in breach of Articles 10 19 and 21 of the SCM Agreement because there is no proper determination of a benefit to the producer of the goods under investigation as required by Article 1.1(b) of the SCM Agreement. The EC included in this request for consultations 14 US countervailing duty orders1 where this “same person” methodology was applied. All these cases involve alleged non-recurring subsidies granted to firms prior to a change of ownership.
United States - Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada - Recourse 1
On 3 May 2002 Canada requested consultations with the United States. The request concerned the final affirmative countervailing duty determination by the US Department of Commerce (File No. C‑122839) issued on 25 March 2002 with respect to certain softwood lumber from Canada. The measures at issue include the initiation and conduct of the investigation the final determination provision of expedited reviews and other matters related to these measures. Canada contended that these measures were inconsistent with and violate the United States’ obligations under Articles 1 2 10 11 12 14 15 19 22 and 32.1 of the SCM Agreement and Articles VI:3 and X:3 of the GATT 1994.
United States - Countervailing Duty Investigation on Dynamic Random Access Memory Semiconductors (DRAMS) from Korea
On 30 June 2003 Korea requested consultations with the United States concerning the US authorities’ affirmative preliminary and final countervailing duty determinations the preliminary injury determination and any subsequent determinations that may be made during the injury investigation on DRAMs and DRAM modules from Korea. Korea is also challenging all related laws and regulations including Section 771 of the US Tariff Act of 1930 and 19 CFR 351 respectively.
Japan - Measures Affecting the Importation of Apples - Recourse 1
On 1 March 2002 the United States requested consultations with Japan regarding restrictions allegedly imposed by Japan on imports of apples from the United States. The United States’ complaint arose from the maintenance by Japan of quarantine restrictions on apples imported into Japan which restrictions were said to be necessary to protect against introduction of fire blight. Among the measures the United States complained of were the prohibition of imported apples from orchards in which any fire blight was detected the requirement that export orchards be inspected three times yearly for the presence of fire blight and the disqualification of any orchard from exporting to Japan should fire blight be detected within a 500 meter buffer zone surrounding such orchard. The United States claimed that these measures might be inconsistent with the obligations of Japan under:
United States - Anti-Dumping Measures on Oil Country Tubular Goods (OCTG) from Mexico
On 18 February 2003 Mexico requested consultations with the US as regards several anti-dumping measures imposed by the US on imports of OCTG from Mexico including the final determinations in some administrative and sunset reviews; and the US authorities’ determination regarding the continuation of the anti-dumping orders. In addition to these measures Mexico’s request includes a number of laws regulations and administrative practices (such as “zeroing”) used by the US authorities in the above determinations. Mexico considers that the above anti-dumping measures are incompatible with Articles 1 2 3 6 11 and 18 of the Anti-Dumping Agreement Articles VI and X of the GATT 1994 and Article XVI:4 of the WTO Agreement.
European Communities - Countervailing Measures on Dynamic Random Access Memory Chips from Korea (WT/DS299)
On 25 July 2003 Korea requested consultations with the European Communities concerning the EC’s provisional countervailing measures and any final countervailing measures which may be finalized and implemented later this year against dynamic random access memory chips (“DRAMs”) from Korea. According to Korea when considering the determinations with respect to the provisional measures against the DRAMs from Korea which have already been implemented and any final measures on the same products which may be finalized and implemented later this year the European Commission failed to comply with various WTO substantive and procedural requirements including demonstration of the existence of a financial contribution and a benefit conferred and demonstration of specificity of the subsidies concerned.
Mexico - Definitive Anti-Dumping Measures on Beef and Rice (Complaint with Respect to Rice)
On 16 June 2003 the United States requested consultations with Mexico concerning its definitive anti-dumping measures on beef and long grain white rice as well as certain provisions of Mexico’s Foreign Trade Act and its Federal Code of Civil Procedure.
European Communities - Customs Classification of Frozen Boneless Chicken Cuts - Complaint by Thailand
On 11 October 2002 Brazil requested consultations with the European Communities concerning EC Commission Regulation No. 1223/2002 (“Regulation No. 1223/2002”) of 8 July 2002 which provides a new description of frozen boneless chicken cuts under the EC Combined Nomenclature (“CN”) code 0207.14.10. According to Brazil this new description includes a salt content to the product that did not exist before and subjects the imports of these products to a higher tariff than that applicable to salted meat (CN code 0210) in the EC’s Schedules under the GATT 1994.
European Communities - Customs Classification of Frozen Boneless Chicken Cuts - Complaint by Brazil
On 11 October 2002 Brazil requested consultations with the European Communities concerning EC Commission Regulation No. 1223/2002 (“Regulation No. 1223/2002”) of 8 July 2002 which provides a new description of frozen boneless chicken cuts under the EC Combined Nomenclature (“CN”) code 0207.14.10. According to Brazil this new description includes a salt content to the product that did not exist before and subjects the imports of these products to a higher tariff than that applicable to salted meat (CN code 0210) in the EC’s Schedules under the GATT 1994.
European Communities - Export Subsidies on Sugar - Complaint by Brazil
On 27 September 2002 Australia and Brazil requested consultations with the European Communities concerning the export subsidies provided by the EC in the framework of its Common Organisation of the Market for the sugar sector. The requests concerned Council Regulation (EC) No. 1260/2001 of 19 June 2001 on the EC’s common organization of the markets in the sugar sector and all other legislation regulations administrative policies and other instruments relating to the EC regime for sugar and sugar containing products including the rules adopted pursuant to the procedure referred to in Article 42(2) of Council Regulation (EC) No. 1260/2001 and any other provision related thereto. On 14 March 2003 Thailand requested consultations with the European Communities on the same matter.
European Communities - Export Subsidies on Sugar - Complaint by Thailand
On 27 September 2002 Australia and Brazil requested consultations with the European Communities concerning the export subsidies provided by the EC in the framework of its Common Organisation of the Market for the sugar sector. The requests concerned Council Regulation (EC) No. 1260/2001 of 19 June 2001 on the EC’s common organization of the markets in the sugar sector and all other legislation regulations administrative policies and other instruments relating to the EC regime for sugar and sugar containing products including the rules adopted pursuant to the procedure referred to in Article 42(2) of Council Regulation (EC) No. 1260/2001 and any other provision related thereto. On 14 March 2003 Thailand requested consultations with the European Communities on the same matter.
European Communities - Export Subsidies on Sugar - Complaint by Australia
On 27 September 2002 Australia and Brazil requested consultations with the European Communities concerning the export subsidies provided by the EC in the framework of its Common Organisation of the Market for the sugar sector. The requests concerned Council Regulation (EC) No. 1260/2001 of 19 June 2001 on the EC’s common organization of the markets in the sugar sector and all other legislation regulations administrative policies and other instruments relating to the EC regime for sugar and sugar containing products including the rules adopted pursuant to the procedure referred to in Article 42(2) of Council Regulation (EC) No. 1260/2001 and any other provision related thereto. On 14 March 2003 Thailand requested consultations with the European Communities on the same matter.
Dominican Republic - Measures Affecting the Importation and Internal Sale of Cigarettes
On 8 October 2003 Honduras requested consultations with the Dominican Republic concerning certain measures affecting the importation and internal sale of cigarettes. This request is a new and expanded version of a complaint filed by Honduras on 28 August 2003 (WT/DS300/1).
European Communities - Measures Affecting Trade in Commercial Vessels
On 3 September 2003 Korea requested consultations with the European Communities concerning certain measures by the EC and its member States in favour of their shipbuilding industry which according to Korea are inconsistent with their WTO obligations. These measures are as follows: - EC Regulation 1177/2002 (“TDM Regulation”) and EC Regulation 1540/98 as well as the EC member States’ implementing provisions. These measures provide for subsidies in favour of commercial vessels in various forms; - The provision by the EC and the member States of subsidies in support of commercial vessels built in the EC in form of (a) operational aid granted on a contractual basis in forms such as grants export credits guarantees or tax breaks (b) restructuring aid (c) regional or other investment aid (d) research and development aid (e) environmental protection aid and (f) insolvency and closure aid.
United States - Measures Affecting the Cross-Border Supply of Gambling and Betting Services
On 21 March 2003 Antigua and Barbuda requested consultations with the US regarding measures applied by central regional and local authorities in the US which affect the cross-border supply of gambling and betting services. Antigua and Barbuda considered that the cumulative impact of the US measures is to prevent the supply of gambling and betting services from another WTO Member to the United States on a cross-border basis. According to Antigua and Barbuda the measures at issue may be inconsistent with the US obligations under the GATS and in particular Articles II VI VIII XI XVI and XVII thereof and the US Schedule of Specific Commitments annexed to the GATS.
European Communities - Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs
On 1 June 1999 the US requested consultations with the EC in respect of the alleged lack of protection of trademarks and geographical indications (GIs) for agricultural products and foodstuffs in the EC. The US contended that EC Regulation 2081/92 as amended does not provide national treatment with respect to geographical indications and does not provide sufficient protection to pre-existing trademarks that are similar or identical to a geographical indication. The US considered this situation to be inconsistent with the EC’s obligations under the TRIPS Agreement including but not necessarily limited to Articles 3 16 24 63 and 65 of the TRIPS Agreement...
European Communities - Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs
On 1 June 1999 the US requested consultations with the EC in respect of the alleged lack of protection of trademarks and geographical indications (GIs) for agricultural products and foodstuffs in the EC. The US contended that EC Regulation 2081/92 as amended does not provide national treatment with respect to geographical indications and does not provide sufficient protection to pre-existing trademarks that are similar or identical to a geographical indication. The US considered this situation to be inconsistent with the EC’s obligations under the TRIPS Agreement including but not necessarily limited to Articles 3 16 24 63 and 65 of the TRIPS Agreement...
Korea - Measures Affecting Trade in Commercial Vessels
On 21 October 2002 the European Communities requested consultations with Korea on certain measures establishing subsidies to its shipbuilding industry which according to the European Communities are inconsistent with Korea’s obligations under the SCM Agreement. These measures are as follows: - Corporate restructuring subsidies in the form of debt forgiveness debt and interest relief and debt-to-equity swaps provided through government-owned and government-controlled banks; - Special taxation on in-kind contribution and the special taxation on spin-off scheme provided in the Special Tax Treatment Control Law which establishes two tax programmes limited to companies under corporate restructuring and provided tax concessions to Daewoo; - Pre-shipment loans and advance payment refund guarantees provided by the state-owned Export-Import Bank of Korea (“KEXIM”) to all Korean shipyards
United States - Subsidies on Upland Cotton
On 27 September 2002 Brazil requested consultations with the United States regarding prohibited and actionable subsidies provided to US producers users and/or exporters of upland cotton as well as legislation regulations statutory instruments and amendments thereto providing such subsidies (including export credits) grants and any other assistance to the US producers users and exporters of upland cotton (“US upland cotton industry”). Brazil contended that these measures were inconsistent with the obligations of the United States under the following provisions: Articles 5(c) 6.3(b) (c) and (d) 3.1(a) (including item (j) of the Illustrative List of Export Subsidies in Annex I) 3.1(b) and 3.2 of the SCM Agreement; Articles 3.3 7.1 8 9.1 and 10.1 of the Agreement on Agriculture; and Article III:4 of GATT 1994. Brazil was of the view that the US statutes regulations and administrative procedures listed above were inconsistent with these provisions as such and as applied. On 9 October and 11 October 2002 Zimbabwe and India respectively requested to join the consultations. On 14 October 2002 Argentina and Canada requested to join the consultations. The United States informed the DSB that it had accepted the requests of Argentina and India to join the consultations.
United States - Countervailing Duty Investigation on Dynamic Random Access Memory Semiconductors (DRAMS) from Korea (DS 296)
On 30 June 2003 Korea requested consultations with the United States concerning the US authorities’ affirmative preliminary and final countervailing duty determinations the preliminary injury determination and any subsequent determinations that may be made during the injury investigation on DRAMs and DRAM modules from Korea. Korea is also challenging all related laws and regulations including Section 771 of the US Tariff Act of 1930 and 19 CFR 351 respectively.
Standards of review in WTO panel proceedings
Whenever WTO panels are called upon to examine a WTO Member’s measure or law the question of the applicable standard of review arises. In some cases the issue is clear and not argued by the parties. In other cases the substantive outcome of the dispute may well depend on the standard of review applied by the panel. Not surprisingly a routine criticism by WTO Members who have lost disputes in Geneva has been that panels have applied the wrong standard of review because it was either too intrusive or too deferential. Claus-Dieter Ehlermann who served as member and Chairman of the Appellate Body from 1995 until 2002 noted at the end of his term in office that ‘the question of standard of review has become one of the most controversial areas of Appellate Body jurisprudence’.
Implementation of panel and Appellate Body rulings: An overview
This chapter provides a brief overview of the rules governing the implementation of WTO panel and Appellate Body reports. It focuses on the steps that a prevailing complaining party needs to take to secure the implementation of the rulings and recommendations of the panel and the Appellate Body as adopted by the WTO Dispute Settlement Body (DSB). It is written for the non-specialist who is interested in the general principles of implementation.
Jurisdiction in WTO dispute settlement
This chapter addresses jurisdiction of the WTO rules and procedures under the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU).
Suspension of concessions and retaliation under the Agreement on Safeguards: The recent US – Steel Safeguards case
The United States by Presidential Proclamation of 5 March 2002 adopted far-reaching safeguard measures on ten steel product groupings in the form of additional tariffs of up to 30 per cent for a duration of three years becoming effective 20 March 2002.
The WTO dispute settlement system and its operation: A brief overview of the first ten years
The WTO dispute settlement system plays a central role in clarifying and enforcing the legal obligations contained in the various WTO agreements. It is generally agreed among WTO Members that the WTO dispute settlement system has functioned reasonably well in its first ten years although the jurisprudence emanating from this system has not been without its critics from both the public and private sectors of a large cross-section of the WTO membership. The purpose of this chapter however is not to analyse or comment on the jurisprudence that the system has produced; such analysis and commentary must be left to the Members themselves and to legal scholars and commentators. Rather the purpose of this chapter is to provide a brief overview of the system and how it has operated in the first ten years of its existence (1995–2004) including the extent to which the system has been used by Members; the nature of the cases brought to the system; and Members’ compliance record with respect to adverse panel and Appellate Body reports.
A brief introduction to countermeasures in the WTO dispute settlement system
The Scandinavian sagas of the early Middle Ages portrayed Iceland as a state without central coercive authority where judgements or awards were often enforced through mediation and ultimately the taking of hostages. In this respect today’s WTO community still very much looks like Iceland ten centuries ago. There is no ‘WTO police’ to send trade ministers to jail if they do not comply with recommendations and rulings of the Dispute Settlement Body (DSB) the political entity supervising the WTO dispute settlement system.
Confidentiality issues under the DSU: Fact-finding process versus confidentiality
The Dispute Settlement Understanding (DSU) is one of the fundamental achievements of the Uruguay Round. The new dispute settlement system has been sometimes called the ‘crown jewel’ of the WTO. Indeed the DSU modified the world trading system significantly by offering a system of binding dispute settlement based on legal rules and procedures. Such a transformation was a welcome change from the diplomatically based dispute system under the GATT 1947 which was textually weak and seriously flawed.
Amicus curiae participation in WTO dispute settlement: Reflections on the past decade
The advent of the WTO has triggered countless debates regarding sovereignty. The process of conforming domestic laws for the purpose of WTO accession and the obligation to comply with a dispute panel or Appellate Body decision have both fuelled fears that an international organization such as the WTO compromises Members’ domestic authority and international sovereignty. Amicus curiae participation in WTO disputes has been evolving against this context. Amicus curiae participation has been described by critics as inappropriately elevating the status of private actors – no matter how big or small – to that of a government. In contrast proponents of amicus curiae participation argue that transparency and participation will strengthen public support for the WTO and thus ultimately strengthen the institution.
Contingent trade remedies and WTO Dispute Settlement: Some particularities
A great deal of attention has been given in recent years to WTO dispute settlement in respect of contingent trade remedies. Although the majority of the disputes have involved and much of the interest has focused on anti-dumping there have been numerous disputes relating to countervailing and safeguard measures as well. Given the widespread use of contingent trade remedies by numerous WTO Members the attention given to their treatment in dispute settlement is unlikely to diminish in the near-term.
Administration of evidence in WTO dispute settlement proceedings
I would like to discuss the use of evidence in a changing WTO dispute settlement landscape shaped by increasingly fact-intensive cases. The recent US – Upland Cotton and Korea – Commercial Vessels disputes brought under Articles 5 and 6 of the Agreement on Subsidies and Countervailing Measures (SCM Agreement) and the numerous sanitary and phytosanitary (SPS) cases are prominent examples of this trend which is likely to increase. In such cases WTO panelists demand and request from the parties (and even third parties) detailed factual information. I want to provide you with a sense of the means by which such facts are produced. I will start by describing how parties have a relatively free hand to produce multiple types of evidence because there are no WTO ‘rules of evidence’. I then discuss how panels have used their freedom to accept and consider – but not always use – multiple types of evidence in making factual findings. I will highlight new – at least for traditionalists of the General Agreement on Tariffs and Trade (GATT) – forms of establishing facts such as affidavits expert testimony and live witnesses appearing before panels. I suggest ways that Members faced with such new types of evidence can raise objections and call into question their reliability. Finally I will address the situation how when one Member faces difficulty in securing information from a non-cooperating Member adverse inferences or best information available could or have been used by panels.
Special challenges at the appellate stage: A case study
The appellate phase of the US – Steel Safeguards case presented certain challenges from a practical perspective that were unusual in nature. This chapter examines those special challenges after first explaining the appellate process in general terms.
Due process in WTO disputes
The principle of ‘due process’ (also called ‘fundamental fairness’ ‘procedural fairness’ or ‘natural justice’) broadly requires administrative and judicial proceedings to be fair. Administrative and judicial systems attempt to achieve due process by exercising their discretion in a fair manner and by developing procedural or evidentiary rules explaining how rights duties powers and liabilities are administered. As will be seen in this chapter the principle of due process is difficult to define precisely because the demands of fairness depend on the circumstances. For example it may be necessary to balance an individual’s interest in additional procedures with the value and cost of such procedures. Thus in particular circumstances due process might require a full trial whereas in other circumstances basic notice and the right to speak might be sufficient. Considerations of due process might also conflict. For instance parties’ rights to be heard and give evidence might weigh in favour of the last minute introduction of evidence. On the other hand the need for equality between the parties and their right to have sufficient time to respond and challenge evidence might weigh against its introduction. Discretion is required to resolve such conflicts.
Panels’ consultations with scientific experts: The right to seek information under Article 13 of the DSU
Commercial disputes brought under the auspices of the WTO are becoming more and more complex. As a consequence of the increasingly judicial nature of the WTO dispute settlement system parties submit increasingly sophisticated legal but also – and this is a relatively new trend – factual arguments. By their very nature instruments such as the Agreement on Sanitary and Phytosanitary Measures (SPS Agreement) or the Agreement on Technical Barriers to Trade (TBT Agreement) mean that WTO panels have to adjudicate disputes entailing scientific issues. But disputes brought under the GATT 1994 have also raised contested scientific issues relating to human health and to the conservation of natural resources. Moreover in the new ‘legalized’ WTO dispute settlement system as opposed to the more ‘diplomatic’ procedures used under the GATT 1947 parties tend to increasingly dispute factual evidence.
The role of lawyers in the WTO dispute settlement system
Before entering the subject matter a terminological specification is necessary. By ‘lawyers’ one can refer both to advocates and more generally to ‘jurists’. In this chapter I will refer to lawyers as advocates in their capacity as representatives of parties in proceedings before the WTO dispute settlement organs (the panels and the Appellate Body). I will also focus on their role as legal advisers to interested private parties; these are first of all enterprises de facto involved and directly affected by the outcome of these proceedings. Other private parties have also to be considered such as Non-Governmental Organizations (NGOs) when they have an interest of a general nature in the result of a given case in the light of the interest they pursue.
Consultations and the panel process in the WTO dispute settlement system
The WTO dispute settlement system is a rules-based system as opposed to a negotiation-conciliation-mediation type of dispute resolution mechanism. The system includes procedural steps that can be triggered by any WTO Member dissatisfied with another Member’s measure considered to be inconsistent with any provision of the WTO Agreement. The system allows the dissatisfied Member to obtain a legal ruling by an independent adjudicative body on its rights and obligations under the relevant agreements. The dispute settlement system of the WTO is thus quasi-judicial: independent and autonomous bodies are responsible for adjudication of disputes although formally subject to the overall authority of the Dispute Settlement Body (DSB). The jurisdiction of the DSB and therefore that of the adjudicating bodies (i.e. panels and the Appellate Body) operating under its authority has been accepted by all WTO Members through their ratification of the WTO treaty. Thus a WTO Member cannot refuse to participate in a WTO dispute settlement procedure if a complaint is brought against it.