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Canada – Export Credits and Loan Guarantees for Regional Aircraft (WT/DS222/R) A Comment

  • Robert Howse (a1) and Damien J. Neven (a2)

This panel report represents another installment in the long-standing litigation between Canada and Brazil over subsidization of sales of commuter jets by both countries. The report addresses a set of claims by Brazil closely related to prior claims concerning the practices of the Export Development Corporation as well as industrial policy entities in the Canadian province of Quebec. Brazil specifically challenged certain recent transactions where these federal and provincial entities provided certain kinds of financing assistance in connection with the sale of Bombardier aircraft (namely to Air Wisconsin, Atlantic Coast Airlines, Comair, Kendell, and Air Nostrum). For the most part the panel applied existing jurisprudence on export subsidies to the factual record. In particular, the panel applied a “private investor principle”, verifying in all instances whether the conditions that were granted by the export development and industrial policy agencies were more favorable than the conditions that were available from alternative private sources.

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1 See the India – Autos panel, where the first step in the analysis in determining whether there could be res judicata was to consider whether certain legal claims and measures already adjudicated were identical to those now before the panel. (paras. 7.83–7.103). The India – Autos panel never reached the issue of whether res judicata actually applies in WTO proceedings but began with investigating whether, assuming res judicata did apply, the criteria of identity of claims and measures could be met in this particular case. Having determined that they could not, the panel considered it unnecessary to provide a definitive answer to the question of whether res judicata is available in WTO law. In the Argentina – Poultry case the panel rejected an argument that res judicata applied with respect to previous proceedings in a non-WTO forum, MERCOSUR, but it also seemed to question whether res judicata could exist even as between an earlier and later WTO proceeding. In Argentina – Poultry, the panel seemed to confuse the issue of whether the res judicata could apply in later proceedings between the same parties on the same matter, with the question of whether panel rulings have binding precedential authority, i.e. are stare decisis in different matters between different parties (which of course they are not).

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World Trade Review
  • ISSN: 1474-7456
  • EISSN: 1475-3138
  • URL: /core/journals/world-trade-review
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