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1628 results in Dispute Settlement Reports Online

Page 33 of 82

  • V - LEGAL CHARACTERIZATION OF THE MEASURE AT ISSUE

  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    13 December 2017
    Print publication:
    06 March 2014, pp 1920-1929

  • Summary

    178. Before the Panel, Mexico challenged the consistency of the US “dolphin-safe” labelling provisions with Articles I:1 and III:4 of the GATT 1994 and Article 2 of the TBT Agreement. Before proceeding to examine the substance of Mexico's claims, the Panel stated that it would determine, as a threshold matter, whether, as contended by Mexico, the measure at issue constitutes a “technical regulation” to which Article 2 of the TBT Agreement applies.

    179. In its analysis of this question, the Panel applied what it described as a “three-tier test” and made three intermediate findings. First, the Panel found that the measure at issue applies to an “identifiable” product or group of products, namely, “tuna products” as defined in the DPCIA and Section 216.3 of Title 50 of the United States Code of Federal Regulations. Second, the Panel found that the measure at issue sets out the conditions under which tuna products may be labelled “dolphin-safe” and that it thus establishes “labelling requirements, as they apply to a product, process or production method” within the meaning of Annex 1.1 to the TBT Agreement. Third, the Panel found that the measure at issue establishes “labelling requirements, compliance with which is mandatory”. The United States does not contest the first two intermediate findings made by the Panel. Instead, its appeal focuses on the Panel's finding that the measure at issue establishes labelling requirements “with which compliance is mandatory” and the Panel's conclusion that the US measure therefore constitutes a “technical regulation” within the meaning of Annex 1.1.

  • United States - Measures Affecting the Production and Sale of Clove Cigarettes (WT/DS406):Report of the Appellate Body

  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    12 December 2017
    Print publication:
    06 March 2014, pp 5751-5864

  • Summary

    INTRODUCTION

    The United States appeals certain issues of law and legal interpretations developed in the Panel Report, United States – Measures Affecting the Production and Sale of Clove Cigarettes (the “Panel Report”). The Panel was established on 20 July 2010 to consider a complaint by Indonesia with respect to a measure adopted by the United States that prohibits cigarettes with characterizing flavours, other than tobacco or menthol.

    Before the Panel, Indonesia claimed that the United States acted inconsistently with its substantive and procedural obligations under the Agreement on Technical Barriers to Trade (the “TBT Agreement”) and the General Agreement on Tariffs and Trade 1994 (the “GATT 1994”). In particular, Indonesia claimed that Section 907(a)(1)(A) of the United States Federal Food, Drug and Cosmetic Act (the “FFDCA”)—as amended by the Family Smoking Prevention and Tobacco Control Act (the “FSPTCA”)—was inconsistent with Articles 2.1, 2.2, 2.5, 2.8, 2.9, 2.10, 2.12, and 12.3 of the TBT Agreement. Alternatively, Indonesia claimed that Section 907(a)(1)(A) was inconsistent with Article III:4 of the GATT 1994, and could not be justified under Article XX(b) thereof.

    The Panel Report was circulated to Members of the World Trade Organization (the “WTO”) on 2 September 2011. The Panel found that Section 907(a)(1)(A) was inconsistent with Article 2.1 of the TBT Agreement because it accorded to imported clove cigarettes less favourable treatment than that accorded to like menthol cigarettes of national origin. Having found that Section 907(a)(1)(A) was inconsistent with Article 2.1 of the TBT Agreement, the Panel declined to rule on Indonesia's alternative claim under Article III:4 of the GATT 1994 and on the United States’ related defence under Article XX(b) of the GATT 1994.

    The Panel further found that the United States acted inconsistently with Article 2.9.2 of the TBT Agreement by failing to notify to WTO Members, through the Secretariat, the products to be covered by the proposed Section 907(a)(1)(A), together with a brief indication of its objective and rationale, at an appropriate early stage when amendments and comments were still possible. The Panel also found that the United States acted inconsistently with Article 2.12 of the TBT Agreement by not allowing an interval of no less than six months between the publication and the entry into force of Section 907(a)(1)(A).

  • V - PROCEDURES UNDER ANNEX V TO THE SCM AGREEMENT

  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    13 December 2017
    Print publication:
    06 March 2014, pp 221-251

  • Summary

    A. Introduction

    480. On appeal, the European Union challenges a preliminary ruling made by the Panel with respect to the absence, in this dispute, of a procedure pursuant to Annex V to the SCM Agreement. Annex V, entitled “Procedures for Developing Information Concerning Serious Prejudice”, provides for an information-gathering procedure to be conducted in disputes where it is claimed that a Member has, through subsidization, caused adverse effects in the form of serious prejudice to the interests of another Member. Such process is to be initiated by the DSB and facilitated by a representative of the DSB. It is to be carried out within 60 days of establishment of the panel and is intended to facilitate the panel's subsequent review of the dispute.

    481. We begin in section B by outlining the preliminary procedural issue raised by the European Communities at the outset of the Panel proceedings, and the Panel's disposition of it. We then set out in section C an overview of the claims and arguments on appeal. Our analysis is set out in section D, and is divided into two main parts: (i) the European Union's request for reversal of certain statements and findings by the Panel set forth in paragraph 7.22 of its Report; and (ii) the European Union's request for completion of the analysis, including its request that we make four specific findings, as well as two additional requests relating to the alleged withholding of information by the United States and its alleged non-cooperation in the Annex V procedure. Our conclusions are set out in section E.

  • I - INTRODUCTION

  • from CHINA – MEASURES RELATED TO THE EXPORTATION OF VARIOUS RAW MATERIALS
  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    03 January 2018
    Print publication:
    06 March 2014, pp 3310-3317

  • Summary

    1. China and the United States each appeals certain issues of law and legal interpretations developed in the Panel Report, China – Measures Related to the Exportation of Various Raw Materials, Complaint by the United States (WT/DS394/R) (the “US Panel Report”); China and the European Union each appeals certain issues of law and legal interpretations developed in the Panel Report, China – Measures Related to the Exportation of Various Raw Materials, Complaint by the European Union (WT/DS395/R) (the “EU Panel Report”); and China and Mexico each appeals certain issues of law and legal interpretations developed in the Panel Report, China – Measures Related to the Exportation of Various Raw Materials, Complaint by Mexico (WT/DS398/R) (the “Mexico Panel Report”) (collectively, the “Panel Reports”). The Panel was established to consider complaints by the United States, the European Union, and Mexico (the “complainants”) regarding the consistency of certain measures imposed by China on the exportation of certain forms of bauxite, coke, fluorspar, magnesium, manganese, silicon carbide, silicon metal, yellow phosphorous, and zinc (the “raw materials”) with the General Agreement on Tariffs and Trade 1994 (the “GATT 1994”), the Protocol on the Accession of the People's Republic of China (“China's Accession Protocol”), and the Report of the Working Party on the Accession of China (“China's Accession Working Party Report”).

    2. Before the Panel, the complainants challenged four types of restraints imposed by China on the exportation of the raw materials: (i) export duties; (ii) export quotas; (iii) export licensing; and (iv) minimum export price requirements.

  • China - Countervailing and Anti-Dumping Duties on Grain Oriented Flat-Rolled Electrical Steel from the United States (WT/DS414):Report of the Appellate Body

  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    12 December 2017
    Print publication:
    06 March 2014, pp 6251-6368

  • Summary

    INTRODUCTION

    China appeals certain issues of law and legal interpretations developed in the Panel Report, China – Countervailing and Anti-Dumping Duties on Grain Oriented Flat-Rolled Electrical Steel from the United States (the “Panel Report”). The Panel was established on 25 March 2011 to consider a complaint by the United States concerning China's measures imposing anti-dumping and countervailing duties on grain oriented flat-rolled electrical steel (“GOES”) from the United States, as set forth in the Ministry of Commerce of the People's Republic of China (“MOFCOM”) Announcement No. 21 of 10 April 2010 and its annexes (the “Final Determination”).

    The anti-dumping and countervailing duty investigations at issue in this dispute were initiated as a result of an application filed by two Chinese steel producers, namely, Wuhan Iron and Steel (Group) Corporation (“WISCO”) and Baosteel Group Corporation (“Baosteel”). The applicants alleged that 27 US federal and state laws provided countervailable subsidies to producers of GOES in the United States. Further, the applicants alleged that dumped and subsidized imports of GOES from the United States, and dumped imports of GOES from Russia, caused, and threatened to cause, injury to the Chinese domestic industry. MOFCOM initiated the anti-dumping and countervailing duty investigations at issue on 1 June 2009 with respect to imports of GOES from the United States. Two exporters/producers of GOES in the United States—AK Steel Corporation (“AK Steel”) and ATI Allegheny Ludlum Corporation (“ATI”)—registered as respondents in both investigations. The period of anti-dumping and countervailing duty investigations was from 1 March 2008 to 28 February 2009, and the period of injury investigation was from 1 January 2006 to 31 March 2009.

    On 10 April 2010, MOFCOM issued its Final Determination. MOFCOM calculated ad valorem subsidy rates of 11.7% for AK Steel, 12% for ATI, and 44.6% for “all others”, namely, US exporters/producers that did not register for the investigations and were unknown to MOFCOM. MOFCOM calculated a dumping margin of 7.8% for AK Steel, 19.9% for ATI, and 64.8% for “all others”. Moreover, MOFCOM conducted a cumulative assessment of injury and causation, and collectively took into account GOES imports from both Russia and the United States.

  • VIII - CONCLUSIONS AND RECOMMENDATION

  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    12 December 2017
    Print publication:
    06 March 2014, pp 1759-1762

  • Summary

    Conclusions

    8.1 We recall that in this dispute, the claims of the European Communities with respect to the challenged measures fall into two categories. First, the European Communities claims that two of the alleged subsidies, namely the tax breaks provided by the U.S. Federal Government pursuant to legislation concerning foreign sales corporations and exclusion of extraterritorial income and the tax incentives provided by the State of Washington under the legislation adopted in 2003, are prohibited under Articles 3.1(a) and 3.2 of the SCM Agreement. Second, the European Communities claims that all of the alleged subsidies are actionable under the SCM Agreement and that by using these subsidies the United States causes adverse effects to the interests of the European Communities, in violation of Article 5(c) of the SCM Agreement.

    8.2 With respect to the European Communities' prohibited subsidy claims under Articles 3.1(a) and 3.2 of the SCM Agreement, we conclude that:

  • (a) the FSC/ETI measures that have been challenged by the European Communities and that were in force at the time of the Panel's establishment are inconsistent with Articles 3.1(a) and 3.2 of the SCM Agreement;

  • (b) the European Communities has not demonstrated that the Washington State tax measures provided for in HB 2294 are inconsistent with Articles 3.1(a) and 3.2 of the SCM Agreement.

  • 1 - INTRODUCTION

  • from PHILIPPINES - TAXES ON DISTILLED SPIRITS
  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    13 December 2017
    Print publication:
    06 March 2014, pp 4170-4172

  • Summary

  • The Philippines and the European Union each appeals certain issues of law and legal interpretations developed in the Panel Reports, Philippines – Taxes on Distilled Spirits (the “Panel Reports”). The Panel was established to consider complaints by the European Union and the United States regarding the consistency of the Philippines' excise tax regime applicable to distilled spirits with Article III:2, first and second sentences, of the General Agreement on Tariffs and Trade 1994 (the “GATT 1994”).

  • Pursuant to a joint request from the European Union and the United States, the Panel issued its findings in the form of a single document containing two separate reports with common descriptive and analytical sections but separate conclusions and recommendations for each complaining party, each of which bears only the document symbol for that report. The Panel Reports were circulated to Members of the World Trade Organization (the “WTO”) on 15 August 2011.

  • Before the Panel, the European Union and the United States claimed that the Philippines has acted inconsistently with Article III:2, first and second sentences, of the GATT 1994, in applying different tax treatment to distilled spirits produced from the sap of the nipa, coconut, cassava, camote, or buri palm, or from juice, syrup, or sugar of the cane (“designated raw materials”), and to distilled spirits made from other raw materials (“non-designated raw materials”). For the reasons set out in its Reports, the Panel found, in relation to the complaint by the European Union, that the Philippines has acted inconsistently with its obligations under Article III:2, first sentence, of the GATT 1994.

  • II - ARGUMENTS OF THE PARTICIPANTS AND THE THIRD PARTICIPANTS

  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    13 December 2017
    Print publication:
    06 March 2014, pp 1852-1916

  • Summary

    Claims of Error by the United States – Appellant

    1. Annex 1.1 to the TBT Agreement and the Definition of “Technical Regulation”

  • The United States requests the Appellate Body to reverse the Panel's finding that the measure at issue is a “technical regulation” within the meaning of Annex 1.1 to the TBT Agreement. The United States asserts that such reversal would also dispose of Mexico's claims under Article 2 of the TBT Agreement. Therefore, the United States further requests the Appellate Body to declare moot and of no legal effect the Panel's findings with respect to Article 2 of the TBT Agreement.

  • The United States alleges that the Panel erred in finding that the measure at issue is a “technical regulation”, because compliance with the measure is not “mandatory” within the meaning of Annex 1.1 to the TBT Agreement. The United States maintains that the Panel's interpretation of the word “mandatory” is indistinguishable from the term “requirement”. However, because the word “requirement” is used in both the definition of “technical regulation” in Annex 1.1 and in the definition of “standard” in Annex 1.2, a finding that compliance with certain labelling requirements is “mandatory” within the meaning of Annex 1.1 must be based on considerations other than the fact that a document establishes criteria for the use of a certain label.

  • […]

  • VI - INTERIM REVIEW

  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    12 December 2017
    Print publication:
    06 March 2014, pp 882-918

  • Summary

    Introduction

    6.1 On 15 September 2010, the Panel submitted its Interim Report to the parties. On 27 October 2010, both parties submitted written requests for review of precise aspects of the Interim Report. On 17 November 2010, the parties submitted comments on each other's requests for review. Neither party requested that the Panel hold an interim review meeting.

    6.2 Pursuant to Article 15.3 of the DSU, the findings of the final panel report must include a discussion of the arguments made by the parties at the interim review stage. This section of the Panel Report provides such a discussion. As Article 15.3 makes clear, this section forms part of the Panel's findings.

    6.3 The Panel explains below its response to issues of a substantive nature raised by the parties in their comments on the Interim Report. The Panel has also corrected a number of typographical and other non-substantive errors throughout the Report, including those identified by the parties, which are not referred to specifically below.

    6.4 Due to changes as a result of our review, the numbering of paragraphs and footnotes in the Final Report has changed from the Interim Report. The text below refers to the paragraph and footnote numbers in the Interim Report regarding which the parties requested review.

Page 33 of 82