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1628 results in Dispute Settlement Reports Online

Page 36 of 82

  • VI - INTERIM REVIEW

  • 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 3571-3584

  • Summary

    6.1 On 18 February 2011, the Panel issued its Interim Reports to the parties. On 4 March 2011, the United States, the European Union, Mexico, and China submitted written requests for review of precise aspects of the Interim Reports pursuant to Article 15.2 of the DSU. On 18 March 2011, the United States, the European Union, Mexico, and China submitted written comments on each other's requests for interim review. No party requested an additional meeting with the Panel.

    6.2 The numbering of paragraphs and footnotes in the Final Reports has changed from the Interim Reports. The text below refers to the paragraph and footnote numbers in the Interim Reports regarding which the parties requested review. The parties submitted several editorial revisions as well as other linguistic changes, which were not contested by the other parties; the Panel also made minor editorial and non-substantive consequential changes as a result of other adjustments. Such editorial, minor and non-substantial changes were made to paragraphs 7.2, 7.4, 7.60, 7.63, 7.68, 7.79, 7.80, 7.82, 7.83, 7.85, 7.86, 7.88, 7.89, 7.90, 7.91, 7.96, 7.97, 7.102, 7.124, 7.151, 7.195, 7.221, 7.224, 7.227, 7.229, 7.231, 7.232, 7.233, 7.234, 7.246, 7.327 7.345, 7.352, 7.375, 7.376, 7.383, 7.389, 7.394, 7.404, 7.407, 7.415, 7.455, 7.456, 7.457, 7.459, 7.463, 7.464, 7.468, 7.469, 7.471, 7.495, 7.504, 7.505, 7.508, 7.512, 7.516, 7.518, 7.585, 7.588, 7.594, 7.599, 7.616, 7.623, 7.754, 7.781, 7.783, 7.860, 7.878, 7.879, 7.880, 7.965, and 7.1011; and footnotes 54, 524, 525, 526, 527, 546, 680, 1091, 1206, 1232, 1233 and 1234.

  • IV - BACKGROUND AND OVERVIEW 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 1917-1920

  • Summary

    172. This dispute arises out of a challenge brought by Mexico against certain legal instruments of the United States establishing the conditions for the use of a “dolphin-safe” label on tuna products. In particular, Mexico identified the following legal instruments as the object of its challenge: the United States Code, Title 16, Section 1385 (the “Dolphin Protection Consumer Information Act” or “DPCIA”); the United States Code of Federal Regulations, Title 50, Section 216.91 and Section 216.92 (the “implementing regulations”); and a ruling by a US federal appeals court in Earth Island Institute v. Hogarth (the “Hogarth ruling”). Taken together, the DPCIA, the implementing regulations, and the Hogarth ruling set out the requirements for when tuna products sold in the United States may be labelled as “dolphin-safe”. More specifically, they condition eligibility for a “dolphin-safe” label upon certain documentary evidence that varies depending on the area where the tuna contained in the tuna product is harvested and the type of vessel and fishing method by which it is harvested. In particular, tuna caught by “setting on” dolphins is currently not eligible for a “dolphin-safe” label in the United States, regardless of whether this fishing method is used inside or outside the Eastern Tropical Pacific Ocean (the “ETP”). The DPCIA and the implementing regulations also prohibit any reference to dolphins, porpoises, or marine mammals on the label of a tuna product if the tuna contained in the product does not comply with the labelling conditions spelled out in the DPCIA.

  • II - FACTUAL ASPECTS

  • 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 3552-3558

  • Summary

    Background

    2.1 This dispute concerns China's use of certain export restraints on the exportation of certain forms of bauxite, coke, fluorspar, magnesium, manganese, silicon carbide, silicon metal, yellow phosphorus and zinc (the “raw materials”). The complainants identify the following as four types of restraints that China imposes on the exportation of these raw materials: (1) export duties; (2) export quotas; (3) export licensing; and (4) minimum export price requirements. The complainants challenge the existence of these restraints as well as aspects of the allocation and administration of export quotas, export licences and minimum export prices, and the alleged non-publication of certain measures.

    Products at Issue

    2.2 The various forms of the nine raw materials at issue either occur naturally or have undergone initial processing. The following chart identifies the particular raw materials at issue in this dispute by category, product name, product name short form, 2009 Chinese HS Number, and 2009 Chinese Commodity Codes. This chart takes into account the parties' submissions, responses to questions and the Panel's preliminary ruling (discussed in paragraphs 1.10 to 1.13 above).

    Measures at Issue

    2.3 The United States, the European Union and Mexico collectively identified 40 specific measures in their Panel Requests15 in connection with their claims concerning export duties, export quotas, export licensing requirements and minimum export price requirements. These include measures concerning the imposition of these restraints, as well as aspects of the allocation, administration and the alleged non-publication of certain measures.

  • VI - ARTICLE 2.1 OF THE TBT AGREEMENT

  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    13 December 2017
    Print publication:
    06 March 2014, pp 1929-1966

  • Summary

    200. We turn next to address Mexico's appeal of the Panel's finding that Mexico failed to demonstrate that the US “dolphin-safe” labelling provisions are inconsistent with Article 2.1 of the TBT Agreement.

    201. Article 2.1 of the TBT Agreement provides that, with respect to their central government bodies:

    Members shall ensure that in respect of technical regulations, products imported from the territory of any Member shall be accorded treatment no less favourable than that accorded to like products of national origin and to like products originating in any other country.

    202. Article 2.1 of the TBT Agreement consists of three elements that must be demonstrated in order to establish an inconsistency with this provision, namely: (i) that the measure at issue constitutes a “technical regulation” within the meaning of Annex 1.1; (ii) that the imported products must be like the domestic product and the products of other origins; and (iii) that the treatment accorded to imported products must be less favourable than that accorded to like domestic products and like products from other countries. Mexico's appeal concerns only the Panel's finding in respect of the third element, namely, the “treatment no less favourable” standard in Article 2.1. We further note that the United States has not appealed the Panel's finding that Mexican tuna products are “like” tuna products of United States' origin and tuna products originating in any other country within the meaning of Article 2.1 of the TBT Agreement.

  • 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 47-196

  • Summary

    Claims of Error by the European Union – Appellant

    1. Annex V to the SCM Agreement

    35. The European Union asserts that the Panel erred by refusing to rule that the information-gathering procedure under Annex V to the SCM Agreement had been initiated, and by denying a number of related requests. The European Union submits that, in proceeding in the way it did, the Panel failed to make an objective assessment of the matter within the meaning of Article 11 of the DSU and erred in its interpretation and application of Article 7.4 the SCM Agreement and paragraph 2 of Annex V thereto. The European Union requests the Appellate Body to find that the Panel erred in not ruling on whether the Annex V procedure had been initiated, and to complete the analysis and make a finding that the Annex V procedure is initiated by negative consensus or automatically. In addition, and independently of these requests, the European Union urges the Appellate Body to “constantly bear in mind the circumstances of this case”, in particular the withholding of information and non-cooperation by the United States. On that basis, the Appellate Body should preclude the United States from criticizing the Panel for its assessment of the facts or drawing of factual inferences and, “{i}n case of doubt or evidentiary conflict or equipoise, the Appellate Body should rule in favour of the European Union”.

  • II - ARGUMENTS OF THE PARTICIPANTS AND THE THIRD PARTICIPANTS

  • 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 3317-3385

  • Summary

    Claims of Error by China – Appellant

    1. Article 6.2 of the DSU

    16. China requests the Appellate Body to reverse the Panel's finding that Section III of each of the complainants' panel requests, entitled “Additional Restraints Imposed on Exportation”, complies with the requirements of Article 6.2 of the DSU, and to find, instead, that Section III of the panel requests does not comply with Article 6.2, with the exception of the complainants' claims regarding the non-publication of export measures concerning zinc. Consequently, China requests the Appellate Body to reverse the Panel's findings made pursuant to other claims allegedly contained in Section III of the panel requests.

    17. China contends that the Panel correctly concluded that the panel requests set out subsets of claims concerning subsets of measures, rather than raising all claims listed in Section III of the panel requests in relation to all measures listed in that section of the panel requests. However, the panel requests fail to identify which claims were made with respect to which measures. For China, in order to comply with Article 6.2 of the DSU, the complainants were required plainly to connect the 37 listed measures with the 13 listed treaty provisions with sufficient precision to identify the specific combination of measure(s) and claim(s) at issue.

  • I - INTRODUCTION

  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    13 December 2017
    Print publication:
    06 March 2014, pp 29-47

  • Summary

    1. The European Union and the United States each appeals certain issues of law and legal interpretations developed in the Panel Report, United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint) (the “Panel Report”). The Panel was established on 17 February 2006 to consider a complaint by the European Communities regarding a number of US measures affecting trade in large civil aircraft (“LCA”). The European Communities claimed that the United States has provided subsidies to US producers of LCA, namely, The Boeing Company and the McDonnell Douglas Corporation (prior to its merger with Boeing), and that such subsidies are prohibited and/or actionable under the Agreement on Subsidies and Countervailing Measures (the “SCM Agreement”).

    2. The European Communities' claims before the Panel related to measures from three US States and municipalities therein, as well as to a number of US Federal Government measures, all allegedly providing subsidies to Boeing, as follows:

    (a) State and local measures:

    (i) State of Washington and municipalities therein: the provision of tax incentives by the State of Washington through five measures under House Bill 2294 (“House Bill 2294”); the provision of tax reductions from the City of Everett's business and occupation (“B&O”) tax pursuant to Ordinance No. 2759-04; and the provision of various incentives, including training facilities and infrastructure improvements, in connection with the production of Boeing's 787 under the Project Olympus Master Site Development and Location Agreement between the Boeing Company and the State of Washington (the “MSA”);[…]

  • IV - ARGUMENTS OF THE PARTIES

  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    13 December 2017
    Print publication:
    06 March 2014, pp 2063-2147

  • Summary

    First Written Submissions

    1. Mexico

    (a) Introduction

    4.1 For over twenty years, yellowfin tuna caught by the Mexican fishing fleet in the Eastern Tropical Pacific (“ETP”) have been denied effective access to the US market by virtue of various GATT and WTO inconsistent measures. Sales of Mexican yellowfin tuna in the US market have been severely restricted. Initially, the exclusion took the form of an absolute embargo on the importation of Mexican tuna and tuna products. Notwithstanding that the embargo was lifted, the United States found a new way to prevent Mexican tuna from competing in the US market.

    4.2 The essence of the current dispute relates to the prohibition of the use of a US dolphin-safe label on imports of tuna products from Mexico, while such a label is permitted to be used on tuna products from other countries, including the United States.

    4.3 Even though Mexico has maintained a sound and environmentally sustainable method for fishing for tuna and participated in all multilateral initiatives to protect dolphins while fishing for tuna, Mexican tuna products are prohibited by the US measures from using a dolphin-safe label, while tuna caught in other fisheries that have not adopted comparable measures to protect dolphins are able to benefit from a dolphin-safe label.

    4.4 The US measures are inconsistent with the fundamental obligations of non-discrimination contained in Articles I:1 and III:4 of the GATT, because they grant other foreign tuna and tuna products an advantage in the US marketplace that has not been accorded immediately and unconditionally to Mexican tuna and tuna products, and accord Mexican tuna and tuna products treatment less favourable than that accorded to US tuna and tuna products in the US marketplace.

  • IV - ARGUMENTS OF THE PARTIES

  • 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 4329-4329

  • Summary

    4.1 The arguments of the parties, as set forth in the executive summaries of their written submissions and oral statements to the Panel, are attached to these reports as Annexes (A, C, E and F) (see List of Annexes, pages iv and v). The replies of the parties to questions and the parties' comments on each other's replies to questions are not attached to these reports as annexes. They are, however, reflected in the findings section of these reports where relevant.

  • III - PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS

  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    12 December 2017
    Print publication:
    06 March 2014, pp 2769-2769

  • Summary

    Canada

    3.1 Canada requests that the Panel find that:

  • (a) the COOL measure of the United States is inconsistent with its obligations under the TBT Agreement, in particular Articles 2.1 and 2.2; and

  • (b) the COOL measure of the United States is inconsistent with its obligations under the GATT 1994, in particular Articles III:4, X:3(a) and XXIII:1(b).

    • 3.2 Canada therefore requests that the Panel recommend that the United States bring the COOL measure into conformity with its obligations under the TBT Agreement and the GATT 1994, subject to the provision of Article 26.1 of the DSU in respect of GATT Article XXIII:1(b).

    Mexico

    3.3 Mexico requests that the Panel find that:

  • (a) the COOL measures are inconsistent with Articles III:4 and X:3 of the GATT 1994 and Articles 2.1, 2.2, 2.4 and 12 of the TBT Agreement; and

  • (b) the COOL measures nullify or impair benefits accruing to Mexico under the GATT 1994 within the meaning of Article XXIII:1(b) of the GATT 1994.

    • 3.4 Mexico requests that the Panel make such recommendations that are necessary for the United States to bring itself into conformity with these provisions.

    United States

    3.5 The United States requests that the Panel reject the claims made by Canada and Mexico in their entirety.

  • VI - ARTICLE 2.2 OF THE TBT AGREEMENT

  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    13 December 2017
    Print publication:
    06 March 2014, pp 2634-2697

  • Summary

    Introduction

    351. We turn now to the appeals relating to the Panel's finding that the COOL measure is inconsistent with Article 2.2 of the TBT Agreement. In ruling on the claims raised by Canada and by Mexico under Article 2.2 of the TBT Agreement, the Panel found that the COOL measure is “trade-restrictive”; that the objective pursued by the United States through the COOL measure is “to provide consumer information on origin”; and that this objective is “legitimate” within the meaning of Article 2.2. Ultimately, the Panel sustained the claims of the complainants and found that “the COOL measure violates Article 2.2 because it does not fulfil the objective of providing consumer information on origin with respect to meat products”.

    352. Each of the participants challenges aspects of the Panel's interpretation of Article 2.2 of the TBT Agreement and the application of its chosen legal framework to the COOL measure. The United States requests us to reverse the Panel's ultimate conclusion that the COOL measure is inconsistent with Article 2.2, whereas both Canada and Mexico request us to uphold this finding. In the event that we accept the United States' appeal and reverse the Panel's finding that “the COOL measure violates Article 2.2 because it does not fulfil the objective of providing consumer information on origin with respect to meat products”, both Canada and Mexico request us to complete the analysis and find that the COOL measure is inconsistent with Article 2.2 because it is more trade restrictive than necessary to fulfil a legitimate objective.

Page 36 of 82