In this dispute, Canada attacks Section 129(c)(1) of the US trade legislation as a result of the entry into force of the Uruguay Round Agreements [Uruguay Round Agreements Act (URAA), hereinafter “Section 129”] which provides that a new antidumping or countervailing duty determination made by the Department of Commerce (DOC) or the International Trade Commission (ITC) to bring a previous antidumping, countervailing duty or injury determination into conformity with an adverse WTO panel or Appellate Body report applies only to imports that enter the United States on or after the date that the United States Trade Representative (USTR) directs implementation of the new determination.

Some of the legal analysis in this study derives from joint work between Robert Howse and Susan Esserman on this ruling, “Trade disputes quire fairer arbitration,” FT.com, Sep 12, 2002

This chapter discusses the decision by the arbitrator on suspension of concessions (“retaliation”) in the dispute between the US and the EU regarding the tax treatment of offshore corporate income under US legislation. By way of background, the first part of the chapter (section 2) describes the operation of the US scheme, including as revised after the first round of WTO rulings.

On August 17, 1993, the United States Department of Commerce (USDOC) imposed definitive countervailing duties (CVDs) on carbon steel originating in Germany. The imposition of these duties was based on an investigation by USDOC in which it was determined that certain German producers had benefited from five countervailable subsidy programs at a total ad valorem rate of 0.60 percent.

In United States – Countervailing Measures Concerning Certain Products from the European Communities (WTO Doc. WT/DS212/QB/R, henceforth Certain Products), the Appellate Body (AB) of the World Trade Organization was called upon to revisit the issue of whether the United States can legally impose countervailing duties following the privatization of state-owned enterprises that had received non-recurring subsidies. In twelve cases, the United States Department of Commerce (USDOC) had applied either the “gamma method” or the “same-person method” in assessing the impact of a change of ownership on the continued existence of a benefit from a countervailable subsidy. The European Communities challenged the legality of these methods.

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.

This dispute concerns the imposition of a definitive safeguard measure by the United States on imports of circular welded carbon quality line pipe (“line pipe”) from Korea (WTO DOC. WTO/DS 202/AB/R). The measure was imposed following an investigation conducted by the US International Trade Commission (USITC). The USITC determined in a safeguard investigation initiated on 29 July 1999 that “circular welded carbon quality line pipe . . . is being imported into the United States in such increased quantities as to be a substantial cause of serious injury or the threat of serious injury.” In its investigation, the USITC identified a number of factors apart from increased imports that might have caused serious injury or threat of serious injury to the domestic line pipe industry. The Commission concluded that increased imports were “a cause which is important and not less than any other cause” and that, therefore, the statutory requirement of “substantial cause” had been met.

This study addresses the dispute brought to the World Trade Organization (WTO) by Argentina concerning certain Chilean measures affecting the importation of wheat, wheat flour, oil seeds, edible vegetable oils and sugar. The complaint by Argentina challenged two types of policies – a “price band system” that was applicable to four of those product categories, and safeguards measures that were applicable to three of them. The WTO panel ruled in favor of Argentina on both sets of measures. It found that the price band system violated Article IV of the Agriculture Agreement and Article II of GATT 1994. The safeguards measures, according to the panel, violated various provisions of the Safeguards Agreement, as well as Article XIX of GATT 1994. Chile elected not to appeal the panel ruling regarding the safeguards measures, but did appeal the adverse finding as to the price band system.

This study addresses the disputes brought to the World Trade Organization (WTO) by the European Communities and the United States concerning certain Indian measures affecting the importation of automobiles and components in the form of “completely knocked down” (CKD) and “semi-knocked down” (SKD) kits. The measures in question originated during a time when India employed extensive import licensing requirements, ostensibly for balance of payments purposes. India’s broad licensing regime was challenged in 1997 by the European Communities and the United States, resulting in a settlement with the European Communities and a ruling in favor of the United States pursuant to which India agreed to abolish its import licensing system. Some restrictions in the automotive sector remained, however,which became the subject of this proceeding.

As usual the authors have divided their labor, based on expertise. In particular, the economic analysis in section 4 was the responsibility of Damien Neven; Robert Howse’s own understanding of the costs and benefits of international trade law rules with respect to intellectual property protection in general depends on a rather different framework for analysing the problem. However, in so far as the legal and economic analysis of the Havana Club case itself is concerned, which deals only with trademarks as a form of IP protection, the authors are in agreement.

In August 2001, the United States Department of Commerce (USDOC) issued a preliminary determination that Canadian schemes for allocating standing timber to private harvesters – “stumpage” programs – provided countervailable subsidies to Canadian softwood lumber producers. It also preliminarily determined that critical circumstances existed in the US softwood lumber industry, caused by Canadian imports. Provisional measures were imposed on the basis of a preliminary subsidy rate of 19.31 percent, applicable to all producers/exporters, and applied to all entries of softwood lumber from Canada.

The facts of EC – Sardines are simple enough. A European Communities (EC) regulation stipulated that the designation Sardines could be used on preserved fish only for the genus Sardina pilchardus. The broad rationale claimed for this measure was to prevent consumer confusion. Allegedly European consumers associated the appellation “Sardines” with the pilchardus genus. Subsequently the Codex Alimentarius Commission set an international standard which effectively would allow other types of fish e.g. the genus Sardinops sagax, to use the word Sardine as part of its packaging designation. Peru, which exports Sardinops to Europe could not, under the Community regulation, use the designation Sardines in any shape or manner even though this prohibition would be contrary to the international standard set by the Codex Commission.