Dispute Settlement Reports 2001 Vol. 13 : Pages 6479 to 6953

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ISBN: 9780521835985 | 0521835984
Cover: Hardcover
Copyright: 10/25/2004

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The Dispute Settlement Reports of the World Trade Organization (WTO) include Panel and Appellate Body reports, as well as arbitration awards, in disputes concerning the rights and obligations of WTO members under the provisions of the Marrakesh Agreement. These are the WTO authorized and paginated reports in English. An essential addition to the library of all practising and academic trade lawyers, and needed by students worldwide taking courses in international economic or trade law. Volume XIII reports on import prohibition of certain shrimp and shrimp products (United States), anti-dumping investigation of high fructose corn syrup (HFCS) from the United States (Mexico), and measures affecting the importation of milk and the exportation of dairy products (Canada).

United States - Import Prohibition of Certain Shrimp and Shrimp Products - Recourse to Article 21.5 of the DSU by Malaysia (WTIDS58)

Report of the Appellate Body

6481

(1)

I. INTRODUCTION

6482

(3)

II. ARGUMENTS OF THE PARTICIPANTS AND THE THIRD PARTICIPANTS

6485

(14)

A. Claims of Error by Malaysia - Appellant

6485

(4)

1. Terms of Reference

6485

(1)

2. The Chapeau of Article XX of the GATT 1994

6486

(3)

B. Arguments of the United States - Appellee

6489

(4)

1. Terms of Reference

6489

(1)

2. The Chapeau of Article XX of the GATT 1994

6490

(3)

C. Arguments of the Third Participants

6493

(16)

1. Australia

6493

(1)

2. European Communities

6494

(1)

3. Hong Kong, China

6495

(1)

4. India

6496

(1)

5. Japan

6497

(1)

6. Mexico

6497

(1)

7. Thailand

6498

(1)

III. PRELIMINARY PROCEDURAL MATTER

6499

(1)

IV. ISSUES RAISED IN THIS APPEAL

6499

(2)

V. TERMS OF REFERENCE

6501

(8)

VI. THE CHAPEAU OF ARTICLE XX OF THE GATT 1994

6509

(17)

A. The Nature and the Extent of the Duty of the United States to Pursue International Cooperation in the Protection and Conservation of Sea Turtles

6511

(9)

B. The Flexibility of the Revised Guidelines

6520

(6)

VII. FINDINGS AND CONCLUSIONS

6526

(3)

Report of the Panel

6529

(3)

I. INTRODUCTION

6532

(2)

A. Terms of Reference

6533

(1)

B. Panel Composition

6534

(1)

II. FACTUAL ASPECTS

6534

(10)

A. Conservation Issues

6534

(2)

B. History of the Case

6536

(4)

1. Section 609: the 1996 Guidelines

6536

(2)

2. Panel Proceedings

6538

(2)

C. Reasonable Period of Time

6540

(1)

D. Implementation

6540

(4)

1. Section 609: the 1999 Revised Guidelines

6540

(4)

III. MAIN ARGUMENTS OF THE PARTIES

6544

(49)

A. Procedural Issues

6544

(6)

1. Terms of Reference

6544

(1)

2. Submissions from Non-Governmental Organizations

6545

(2)

3. Burden of Proof

6547

(3)

B. Violation of Article XI

6550

(1)

C. Justification under Article XX

6551

(42)

1. General Comments

6551

(1)

2. Article XX(g)

6552

(2)

3. Chapeau

6554

(66)

(a) General Compliance Issues

6554

(3)

(b) Unjustifiable Discrimination

6557

(30)

(i) Cumulative Assessment of the Aspects Found to Constitute Unjustifiable Discrimination

6557

(1)

(ii) Efforts to Negotiate and Whether a WTO Member is Obliged to Seek or Obtain International Consensus

6558

(1)

(a) Efforts to Negotiate

6558

(1)

(b) Whether a WTO Member is Obliged to Seek or Obtain International Consensus Before Resorting to the Measure at Issue

6566

(7)

(iii) Other Aspects

6573

(1)

(a) Consideration of the Situation of Exporting Countries in the Revised Guidelines

6573

(1)

(b) The Ruling of the United States Court of International Trade

6581

(1)

6584

(1)

(d) Phase-in Period

6586

(1)

6587

(5)

(a) Lack of Flexibility

6587

(3)

(b) Due Process

6590

(2)

(d) Disguised Restriction on International Trade

6592

(1)

IV. SUMMARY OF THIRD PARTY SUBMISSIONS

6593

(25)

1. Australia

6593

(5)

2. Ecuador

6598

(1)

3. European Communities

6599

(6)

4. Hong Kong, China

6605

(1)

5. India

6606

(1)

6. Japan

6607

(1)

7. Mexico

6608

(5)

8. Thailand

6613

(5)

V. FINDINGS

6618

(45)

A. General Approach to the Issues Before the Panel

6618

(2)

B. Preliminary Issues

6620

(5)

1. Terms of Reference of the Panel

6620

(2)

2. Date on which the Panel Should Assess the Facts

6622

(1)

3. Admissibility of Submissions from Non-Governmental Organizations

6622

(1)

4. Burden of Proof

6623

(2)

C. Violation of Article XI:1 of the GATT 1994

6625

(1)

D. Application of Article XX of the GATT 1994

6625

(54)

1. Preliminary Remarks

6625

(3)

2. Consistency of the Implementing Measure with Paragraph (g) of Article XX of the GATT 1994

6628

(2)

3. Arbitrary or Unjustifiable Discrimination Between Countries where the Same Conditions Prevail: the Question of International Negotiations

6630

(15)

(a) Extent of the US Obligation to Negotiate and/or Reach an International Agreement on the Protection and Conservation of Sea Turtles

6630

(12)

(i) Abuse or Misuse of Rights under Article XX as a Standard for Determining the Extent of an Obligation to Negotiate and/or Enter into an International Agreement

6630

(7)

(ii) Obligation to Negotiate v. Obligation to Reach an International Agreement

6637

(2)

(iii) The Inter-American Convention as a Benchmark of Serious Good Faith Efforts in this Case

6639

(3)

(iv) Conclusion

6642

(1)

(b) Assessment of the Consistency of the Implementing Measure

6642

(3)

(i) Serious Good Faith Efforts by the End of the Reasonable Period of Time

6642

(1)

(ii) Serious Good Faith Efforts as of the Date the Matter Was Referred to this Panel

6643

(2)

6645

(1)

4. Other Requirements Related to Arbitrary or Unjustifiable Discrimination Between Countries where the Same Conditions Prevail

6645

(16)

(a) Claims Relating to the Findings of "unjustifiable discrimination" in the Appellate Body Report

6645

(12)

(i) Introduction

6645

(1)

(ii) The Insufficient Flexibility of the 1996 Guidelines, in Particular the Absence of Consideration of the Different Conditions that May Exist in the Territories of Exporting Nations

6646

(6)

(iii) The Prohibition of Importation of Shrimp Caught in Uncertified Countries, Including when that Shrimp Had Been Caught Using Teds

6652

(2)

(iv) Phase-in Period

6654

(2)

(v) Transfer of Technology

6656

(1)

(b) Claims Relating to "arbitrary discrimination"

6657

(4)

(i) Lack of Flexibility

6657

(2)

(ii) Due Process

6659

(2)

6661

(1)

5. Disguised Restriction on International Trade

6661

(2)

VI. CONCLUSIONS

6663

(1)

VII. CONCLUDING REMARKS

6664

(1)

ANNEX: REVISED GUIDELINES PURSUANT TO SECTION 609, 8 JULY 1999

6665

(10)

Mexico - Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) from the United States - Recourse to Article 21.5 of the DSU by the United States (WT/DS132)

Report of the Appellate Body

6675

(1)

I. INTRODUCTION

6676

(3)

II. ARGUMENTS OF THE PARTICIPANTS AND THE THIRD PARTICIPANT

6679

(7)

A. Claims of Error by Mexico - Appellant

6679

(3)

1. The Panel's Treatment of Alleged Deficiencies in the Proceedings

6679

(1)

2. Article 3 of the Anti-Dumping Agreement: "Threat of Material Injury"

6680

(2)

3. Article 12.7 of the DSU and Article 17.6 of the Anti-Dumping Agreement: "Reasoning of the Panel"

6682

(1)

B. Arguments of the United States - Appellee

6682

(3)

1. The Panel's Treatment of Alleged Deficiencies in the Proceedings

6682

(1)

2. Article 3 of the Anti-Dumping Agreement: "Threat of Material Injury"

6683

(1)

3. Article 12.7 of the DSU and Article 17.6 of the Anti-Dumping Agreement: "Reasoning of the Panel"

6684

(1)

C. Arguments of the Third Participant

6685

(2)

1. European Communities

6685

(1)

III. ISSUES RAISED IN THIS APPEAL

6686

(1)

IV. THE PANEL'S TREATMENT OF ALLEGED DEFICIENCIES IN THE PROCEEDINGS

6687

(11)

A. Mexico's Conduct Before the Panel and the Consequences

6688

(4)

B. The Nature of Mexico's "Objections"

6692

(6)

V. ARTICLE 3 OF THE ANTI-DUMPING AGREEMENT: "THREAT OF MATERIAL INJURY"

6698

(9)

A. Likelihood of Increased Imports

6698

(7)

B. Likely Impact of Imports on the Domestic Industry

6705

(2)

VI. ARTICLE 12.7 OF THE DSU AND ARTICLE 17.6 OF THE ANTI-DUMPING AGREEMENT: "REASONING OF THE PANEL"

6707

(8)

A. Article 12.7 of the DSU: "Basic Rationale"

6707

(5)

1. The Panel's Finding Concerning Article 3.4 of the Anti-Dumping Agreement

6709

(2)

2. The Panel's Finding Concerning Article 3.1 of the Anti-Dumping Agreement

6711

(1)

B. Article 17.6(ii) of the Anti-Dumping Agreement: "Permissible Interpretation"

6712

(3)

VII. FINDINGS AND CONCLUSIONS

6715

(2)

Report of the Panel

6717

(2)

I. INTRODUCTION AND FACTUAL BACKGROUND

6719

(2)

II. FINDINGS AND RECOMMENDATIONS REQUESTED BY THE PARTIES

6721

(1)

III. MAIN ARGUMENTS OF THE PARTIES

6721

(49)

A. First Written Submission of the United States

6721

(9)

1. SECOFI Disregarded the Panel's Conclusion that it Made an Insufficient Finding of the Likelihood of Increased Imports

6723

(3)

2. SECOFI did not Address the DSB's Rulings Regarding the Analysis of the Likely Impact of the Dumped Imports

6726

(3)

3. SECOFI did not Adequately Explain its Analysis in Critical Respects

6729

(1)

B. First Written Submission of Mexico

6730

(9)

1. Introduction

6730

(2)

2. Mexico has Complied with the Recommendations and Rulings of the Dispute Settlement Body

6732

(7)

(a) SECOFI Has Examined the Probable Impact of HFCS Imports on the Domestic Industry and Has Determined Threat of Injury on the Basis of the Industry as a Whole

6732

(2)

(b) SECOFI Has Analysed the Potential Effects of the Alleged Restraint Agreement on the Likelihood of Substantially Increased Importation in a Manner Consistent with Article 3.7(I) of the AD Agreement

6734

(3)

6737

(2)

3. Conclusion

6739

(1)

C. Second Written Submission of the United States

6739

(3)

1. SECOFI's Finding of Likelihood of Increased Imports was Based on Conjecture Rather than Evidence

6740

(1)

2. SECOFI did not Adequately Analyze the Likely Impact of the Dumped Imports

6741

(1)

3. SECOFI did not Adequately Explain its Analysis in Critical Respects

6742

(1)

D. Second Written Submission of Mexico

6742

(14)

1. Introduction

6742

(2)

2. Mexico Complied with the Conclusions and Recommendation of the Panel and the Dispute Settlement Body

6744

(12)

(a) SECOFI Examined the Probable Impact of HFCS Imports on the Domestic Industry and has Determined Threat of Injury on the Basis of the Industry as a Whole

6744

(4)

(b) SECOFI Analysed the Potential Effects of the Alleged Restraint Agreement on the Likelihood of Substantially Increased Importation, in a Manner Consistent with Article 3.7(I) of the AD Agreement

6748

(4)

6752

(4)

3. Conclusions

6756

(1)

E. Oral Statement of the United States

6756

(7)

1. The Restraint Agreement and Article 3.7(i)

6757

(3)

2. Analysis of Likely Impact and Article 3.4

6760

(3)

3. Notice and Article 12

6763

(1)

F. Oral Statement of Mexico

6763

(7)

1. SECOFI Examined the Probable Impact of Corn Syrup (HFCS) Imports on the Domestic Industry and Determined Threat of Injury on the Basis of the Industry as a Whole

6764

(3)

2. Effects of the Restraint Agreement on the Likelihood of Substantially Increased Importation

6767

(1)

3. Mexico Complied with the Provisions of Articles 12.2 and 12.2.2 of the AD Agreement

6768

(2)

4. Conclusion

6770

(1)

IV. ARGUMENTS OF THE THIRD PARTIES

6770

(4)

A. Oral Statement of the European Communities

6770

(2)

B. Joint Statement of Jamaica and Mauritius

6772

(2)

V. INTERIM REVIEW

6774

(2)

VI. FINDINGS

6776

(17)

A. Introduction

6776

(2)

B. Finding of Likelihood of Increased Imports

6778

(8)

C. Analysis of Likely Impact of Imports on the Domestic Industry

6786

(6)

D. Adequacy of Notice of Redetermination

6792

(1)

VII. CONCLUSIONS AND RECOMMENDATION

6793

(2)

ANNEX A

ANSWERS OF MEXICO TO QUESTIONS FROM THE PANEL

6795

(28)

ANSWERS OF THE UNITED STATES TO QUESTIONS FROM THE PANEL

6823

(6)

COMMENTS BY THE UNITED STATES ON NEW FACTUAL INFORMATION SUBMITTED BY MEXICO

A-6826

Canada - Measures Affecting the Importation of Milk and the Exportation of Dairy Products - Recourse to Article 21.5 of the DSU by New Zealand and the United States (WT/DS103, WT/DS113)

Report of the Appellate Body

6829

(1)

I. INTRODUCTION

6830

(3)

II. ARGUMENTS OF THE PARTICIPANTS AND THIRD PARTICIPANT

6833

(12)

A. Claims of Error by Canada - Appellant

6833

(4)

1. Article 9.1(c) of the Agreement on Agriculture - "payments"

6833

(1)

2. Article 9.1(c) of the Agreement on Agriculture - "financed by virtue of governmental action"

6834

(3)

3. Article 10.1 of the Agreement on Agriculture and Article 3.1 of the SCM Agreement

6837

(1)

B. Arguments of New Zealand - Appellee

6837

(2)

1. Article 9.1(c) of the Agreement on Agriculture - "payments"

6837

(1)

2. Article 9.1(c) of the Agreement on Agriculture - "financed by virtue of governmental action"

6838

(1)

3. Article 10.1 of the Agreement on Agriculture

6839

(1)

C. Arguments of the United States - Appellee

6839

(4)

1. Article 9.1(c) of the Agreement on Agriculture - "payments"

6840

(1)

2. Article 9.1(c) of the Agreement on Agriculture - "financed by virtue of governmental action"

6841

(2)

3. Article 10.1 of the Agreement on Agriculture and Article 3.1 of the SCM Agreement

6843

(1)

D. Arguments of the European Communities - Third Participant

6843

(2)

1. Article 9.1(c) of the Agreement on Agriculture - "payments"

6844

(1)

2. Article 9.1(c) of the Agreement on Agriculture - "financed by virtue of governmental action"

6844

(1)

III. ISSUE RAISED IN THIS APPEAL

6845

(1)

IV. ARTICLE 9.1(C) OF THE AGREEMENT ON AGRICULTURE

6845

(16)

A. "Payments"

6846

(11)

B. "Financed by Virtue of Governmental Action"

6857

(4)

V. ARTICLE 10.1 OF THE AGREEMENT ON AGRICULTURE

6861

(1)

VI. ARTICLE 3.1 OF THE SCM AGREEMENT

6862

(1)

VII. FINDINGS AND CONCLUSIONS

6863

(2)

Report of the Panel

6865

(2)

I. INTRODUCTION

6867

(2)

(i) Terms of Reference

6869

(1)

(ii) Composition of Panel

6869

(1)

II. PRELIMINARY RULINGS

6869

(11)

1. Canada's Request Concerning Business Confidential Information

6869

(6)

(i) The Panel's Decision

6873

(2)

2. The European Communities Request Concerning Access to the Rebuttals for Third Parties

6875

(7)

(i) The Panel's Decision

6878

(2)

III. FACTUAL ASPECTS

6880

(2)

(i) Previous System

6880

(1)

(ii) Previous Panel and Appellate Body Judgements

6880

(1)

(iii) Canada's Implementation Measures

6881

(1)

(iv) Regulatory Amendments at the Provincial Level

6882

(1)

IV. MAIN ARGUMENTS

6882

(26)

1. Burden of Proof

6882

(1)

2. General

6883

(9)

3. Article 9(1)(c) of the Agreement on Agriculture

6892

(8)

(i) "payments"

6892

(4)

(ii) "financed by virtue of governmental action"

6896

(4)

4. Article 10.1 of the Agreement on Agriculture

6900

(7)

5. Articles 3.3 and 8 of the Agreement on Agriculture

6907

(1)

6. Articles 1 and 3 of the SCM Agreement

6907

(1)

V. THIRD PARTIES ARGUMENTS

6908

(7)

A. Australia

6908

(4)

1. General

6908

(1)

2. Article 9.1 (c) of the Agreement on Agriculture

6909

(1)

(i) "payments"

6909

(1)

(ii) "financed by virtue of governmental action"

6909

(1)

3. Article 3 and 8 of the Agreement on Agriculture

6910

(1)

4. Article 10.1 of the Agreement on Agriculture

6910

(1)

5. Article 3 of the SCM Agreement

6911

(1)

B. European Communities

6912

(3)

1. Article 9.1 (c) of the Agreement on Agriculture

6912

(1)

(i) "financed by virtue of governmental action"

6912

(1)

2. Article 10.1 of the Agreement on Agriculture

6913

(2)

VI. FINDINGS

6915

(36)

A. Agreement on Agriculture

6915

(20)

1. Burden of Proof

6915

(2)

2. Article 9.1(c)

6917

(25)

(a) Introduction

6917

(1)

(b) "Payments"

6917

(10)

6927

(16)

(i) Arguments by the Parties

6927

(1)

(ii) Textual and Contextual Analysis of "financed by virtue of'

6928

(2)

(iii) General Analysis by the Panel

6930

(4)

(iv) Does Governmental Action Prevent Canadian Producers from Selling Milk Produced Outside their Quota on the Domestic Market?

6934

(1)

(v) Does Governmental Action Oblige Canadian Milk Processors to Export All Milk Contracted as Commercial Export Milk, and, Accordingly, Penalize the Diversion of Commercial Export Milk to the Domestic Market?

6935

(1)

The Federal Dairy Products Marketing Regulations

6935

(3)

Provincial Measures

6938

(1)

Quebec

6939

(1)

Ontario

6939

(3)

Other Canadian Milk-Exporting Provinces

6942

(5)

(vi) Conclusion

6943

(1)

(d) Payment "on the export of an agricultural product"

6943

(1)

(e) Conclusion Regarding Article 9.1(c)

6944

(1)

3. Article 3.3

6944

(1)

4. Article 10.1

6945

(2)

5. Article 8

6947

(1)

B. SCM Agreement

6947

(4)

VII. CONCLUSIONS AND RECOMMENDATIONS

6951

(1)

VIII. ANNEX

6952

1. Abbreviations Used for Dispute Settlement Cases Referred to in the Report

6952

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Dispute Settlement Reports 2001 Vol. 13 : Pages 6479 to 6953

Summary

Table of Contents

Supplemental Materials