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1628 results in Dispute Settlement Reports Online

Page 37 of 82

  • VII - FINDINGS

  • 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 3584-3895

  • Summary

    Issues Relating to the Panel's Terms of Reference

    1. Preliminary rulings

    7.1 This dispute raises several issues affecting the competence and the terms of reference of the Panel. The Panel recalls that it issued two sets of preliminary rulings concerned, inter alia, with aspects of its terms of reference. As noted, the first phase of the preliminary ruling was issued to the parties on 7 May 2010 and circulated on 18 May. The Panel issued the second phase of its preliminary ruling to the parties on 1 October 2010. At the request of the United States and Mexico, this second phase was circulated only to the third-parties but not to the entire WTO Membership. These preliminary rulings are an integral part of the present findings and are attached to the Panel Reports as an annex (see List of Annexes, pages ii and iii).

    7.2 The Panel made the following rulings in the first phase of its preliminary ruling dated 7 May 2010:

  • (a) The Panel's terms of reference are limited to those measures explicitly identified by bullet points in each of the three sections of the complainants' Panel Requests.

  • (b) Of these measures, the term “related measures” referred to in the last bullet point in each of the listed measures is too broad and unspecific a term and therefore falls outside the Panel's terms of reference.

  • V - 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 2589-2634

  • Summary

    Introduction

    254. Canada and Mexico claimed before the Panel that the COOL measure is inconsistent with the United States' national treatment obligation under Article 2.1 of the TBT Agreement. The Panel found that “the COOL measure, [particularly] in regard to the muscle cut meat labels, violates Article 2.1 because it affords imported livestock treatment less favourable than that accorded to like domestic livestock.” The United States appeals this finding, as well as the Panel's intermediate conclusion that “the COOL measure on its face accords different treatment to imported livestock”. The United States also asserts that the Panel acted inconsistently with its duties under Article 11 of the DSU in reaching certain factual findings on which, according to the United States, the Panel's legal conclusions under Article 2.1 are based.

    255. In addressing the United States' appeal, we first briefly describe the Panel's findings under Article 2.1, followed by a summary of the United States' claims on appeal. We then provide an interpretation of the “treatment no less favourable” requirement of Article 2.1 of the TBT Agreement, followed by a review of the Panel's findings, in the light of the participants' arguments.

    Summary of the Panel's Findings

    256. In examining the consistency of the COOL measure with Article 2.1 of the TBT Agreement, the Panel first found that the COOL measure is a “technical regulation” within the meaning of Annex 1.1 to the TBT Agreement, because it is “mandatory”, applies to an identifiable product or group of products, and, by imposing a country of origin labelling requirement, lays down one or more product characteristics.

  • II - FACTUAL ASPECTS

  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    12 December 2017
    Print publication:
    06 March 2014, pp 2765-2769

  • Summary

    Measures at Issue

    2.1 The claims brought by Canada and Mexico concern the United States' country of origin labelling (COOL) requirements for meat products.

    2.2 Canada submits that the COOL measure consists of the following provisions:

  • (a) the Agricultural Marketing Act of 1946, as amended by the Farm Security and Rural Investment Act of 2002 (“2002 Farm Bill”) and the Food, Conservation, and Energy Act of 2008 (“2008 Farm Bill”);

  • (b) the Interim Final Rule on Mandatory Country of Origin Labelling of Beef, Pork, Lamb, Chicken, Goat Meat, Perishable Agricultural Commodities, Peanuts, Pecans, Ginseng, and Macadamia Nuts, published on 1 August 2008 as 7 CFR Part 65 (“Interim Final Rule (AMS)”) and on Mandatory Country of Origin Labelling of Muscle Cuts of Beef (including Veal), Lamb, Chicken, Goat, and Pork, Ground Beef, Ground Lamb, Ground Chicken, Ground Goat, and Ground Pork, published on 28 August 2008 as 9 CFR Parts 317 and 381 (“Interim Final Rule (FSIS)”);

  • (c) the Final Rule on Mandatory Country of Origin Labelling of Beef, Pork, Lamb, Chicken, Goat Meat, Perishable Agricultural Commodities, Peanuts, Pecans, Ginseng, and Macadamia Nuts, published on 15 January 2009 as 7 CFR Part 65 (the “2009 Final Rule (AMS)”);

  • (d) the letter to “Industry Representative” from the United States Secretary of Agriculture, Thomas J. Vilsack, of 20 February 2009 (the “Vilsack letter”); and

  • (e) any modifications, administrative guidance, directives or policy announcements issued in relation to items (a) through (d) above.

  • VI - APPLICABILITY OF ARTICLE XX

  • 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 3414-3428

  • Summary

    270. In this section, we address China's claim that Article XX of the GATT 1994 is available as a defence to China in relation to export duties found to be inconsistent with China's obligations under Paragraph 11.3 of China's Accession Protocol.

    The Panel's Findings

    271. The Panel began its interpretation of Paragraph 11.3 of China's Accession Protocol by observing that Paragraph 11.3 “does not include any express reference to Article XX of the GATT 1994, or to provisions of the GATT 1994 more generally”. In so doing, the Panel drew a contrast between the text of Paragraph 11.3 and the language contained in Paragraph 5.1 of China's Accession Protocol—”without prejudice to China's right to regulate trade in a manner consistent with the WTO Agreement”—which the Appellate Body examined in China – Publications and Audiovisual Products. In particular, the Panel noted that Paragraph 11.3 contains only a “specific set of exceptions: those covered by Annex 6 and those covered by GATT Article VIII”. For the Panel, the language in Paragraph 11.3, together with the “omission of general references to the WTO Agreement or to the GATT 1994”, suggest that WTO Members did not intend to incorporate the defences available under Article XX into Paragraph 11.3.540 The Panel also found no support in the provisions of China's Accession Working Party Report for the proposition that China could invoke Article XX of the GATT 1994 to justify violations of Paragraph 11.3 of China's Accession Protocol.

  • VIII - WASHINGTON STATE BUSINESS AND OCCUPATION (B&O) TAX RATE REDUCTION

  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    13 December 2017
    Print publication:
    06 March 2014, pp 351-374

  • Summary

    Financial Contribution – Revenue Foregone

    801. We next turn to the United States' appeal of the Panel's finding that the reduction in the Washington State B&O tax rate applicable to commercial aircraft and component manufacturers under Washington State House Bill 2294 constitutes a financial contribution under Article 1.1(a)(1)(ii) of the SCM Agreement. In subsection 1, we set out a summary of the Panel's findings. In subsection 2, we consider the circumstances in which government revenue otherwise due is foregone within the meaning of Article 1.1(a)(1)(ii). Finally, in subsection 3, we assess the United States' claim on appeal.

    1. The Panel's Findings

    802. The Panel reviewed the Appellate Body's reasoning in US – FSC and US – FSC (Article 21.5 – EC) concerning the administration of tax and the foregoing of government revenue that is otherwise due within the meaning of Article 1.1(a)(1)(ii) of the SCM Agreement. The test applied by the panel in US – FSC involved “examining the situation that would have existed but for the measure in question and determining whether there would have been a higher tax liability in the absence of the measure”. The Panel observed that the Appellate Body in that dispute expressed some reservations about whether the “but for” test is an appropriate general test that should apply in all situations.

  • IX - MEXICO'S CLAIMS UNDER ARTICLES I:1 AND III:4 OF THE GATT 1994

  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    13 December 2017
    Print publication:
    06 March 2014, pp 2000-2001

  • Summary

    402. Mexico submits that the Panel erred in exercising judicial economy with respect to Mexico's claims under Articles I and III of the GATT 1994, thereby acting inconsistently with its obligations under Article 11 of the DSU, and requests the Appellate Body to complete the legal analysis by ruling on these claims. The United States counters that the Panel “addressed ‘all aspects of Mexico's claims, including non-discrimination aspects under Article 2.1, and other aspects under Article[s] 2.2 and 2.4’, such that it was not ‘necessary for it to consider separately and additionally Mexico's claims under Articles I:1 and III:4 of the GATT 1994.’” The United States further submits that Mexico has not explained why the use of judicial economy by the Panel is a failure to assist the DSB in making recommendations and rulings that would help settle the dispute.

    403. We recall that the principle of judicial economy “allows a panel to refrain from making multiple findings that the same measure is inconsistent with various provisions when a single, or a certain number of findings of inconsistency, would suffice to resolve the dispute.” Consequently, “[a] panel need only address those claims which must be addressed in order to resolve the matter in issue in the dispute.” Nonetheless, the Appellate Body also cautioned that:

    [t]he principle of judicial economy has to be applied keeping in mind the aim of the dispute settlement system.

  • II - FACTUAL ASPECTS

  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2012
    Published online:
    12 December 2017
    Print publication:
    06 March 2014, pp 676-677

  • Summary

    2.1 This dispute concerns various alleged prohibited and actionable subsidies provided to and benefiting the United States' producers of large civil aircraft (the “U.S. LCA industry”), including, in particular, The Boeing Company and McDonnell Douglas Corporation prior to its merger with Boeing:

  • (i) Subsidies provided by state and local authorities. The European Communities alleges that U.S. states and localities, where research, development, production and headquarters facilities of the U.S. LCA industry are located, transfer in various ways economic resources to the U.S. LCA industry. In this respect, the European Communities challenges measures in the States of Washington, Kansas and Illinois, and their municipalities.

  • (ii) Subsidies provided by the federal government. The European Communities alleges that the U.S. Federal Government transfers economic resources to the U.S. LCA industry on terms more favourable than available on the market or not at arm's length through certain measures applied by NASA, DOD, DOC, DOL and through certain federal tax incentives.

    • 2.2 A detailed description of the measures at issue is contained in the European Communities' request for establishment, reproduced at Annex B of this report.

  • II - FACTUAL ASPECTS

  • 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 4285-4328

  • Summary

    The Excise Tax

    2.1 The measure at issue in the present case is defined by the European Union as “the excise tax regime in force in the Philippines with respect to distilled spirits”, or simply the “excise tax regime”. Similarly, the United States refers to the measure at issue as the “Philippines tax system for distilled spirits.”14 For ease of reference, we will refer to the measure at issue as the “excise tax”. As described by the complainants in their respective panel requests, the “excise tax” is regulated through the following instruments:

  • (a) Section 141 of the National Internal Revenue Code of 1997, Republic Act No. 8424, as subsequently amended, particularly by Section 1 of Republic Act No. 9334;

  • (b) Republic Act No. 8240, an Act amending Sections 138, 139, 140 and 142 of the National Internal Revenue Code, as amended, and for other Purposes;

  • (c) Revenue Regulations No. 02-97 Governing Excise Taxation on Distilled Spirits, Wines and Fermented Liquors, implementing the relevant provisions of Republic Act No. 8240;

  • (d) Revenue Regulations No. 17-99, Implementing Sections 141, 142, 143 and 145(A) and (C) (1), (2), (3) and (4) of the National Internal Revenue Code of 1997 relative to the Increase of the Excise Tax on Distilled Spirits, Wines, Fermented Liquors and Cigars and Cigarettes Packed by Machine by Twelve Per Cent (12%) on 1 January 2000;

  • (e) Revenue Regulations No. 9-2003 Amending Certain Provisions of Revenue Regulations No. 1-97 and Revenue Regulations No. 2-97 Relative to the Excise Taxation of Alcohol Products, Cigars and Cigarettes for the Purpose of Prescribing the Rules and Procedures To Be Observed in the Establishment of the Current Net Retail Price of New Brands and Variants of New Brands of Alcohol and Tobacco Products;.

Page 37 of 82