Panel Reports

On 11 October 2002, Brazil requested consultations with the European Communities concerning EC Commission Regulation No. 1223/2002 (“Regulation No. 1223/2002”), of 8 July 2002, which provides a new description of frozen boneless chicken cuts under the EC Combined Nomenclature (“CN”) code 0207.14.10. According to Brazil, this new description includes a salt content to the product that did not exist before and subjects the imports of these products to a higher tariff than that applicable to salted meat (CN code 0210) in the EC’s Schedules under the GATT 1994.

On 20 December 2002, Canada requested consultations with the United States regarding the investigation of the USITC in Softwood Lumber from Canada (Invs. Nos. 701-TA-414 and 731-TA-928 (Final)) and the final definitive anti-dumping and countervailing duties applied as a result of the USITC’s final determination made on 2 May 2002, notice of which was published in the United States Federal Register on 22 May 2002 (Volume 67, Number 99 at pp. 36022-36023) that an industry in the United States is threatened with material injury by reason of imports of softwood lumber from Canada that the Department of Commerce has determined are subsidized and sold in the United States at less than fair value. Canada claimed that, through these measures, the United States has violated its obligations under Article VI:6(a) of the GATT 1994, Articles 1, 3.1, 3.2, 3.3, 3.4, 3.5, 3.7, 3.8, 12 and 18.1 of the Anti-Dumping Agreement and Articles 10, 15.1, 15.2, 15.3, 15.4, 15.5, 15.7, 15.8, 22 and 32.1 of the SCM Agreement.

On 11 October 2002, Brazil requested consultations with the European Communities concerning EC Commission Regulation No. 1223/2002 (“Regulation No. 1223/2002”), of 8 July 2002, which provides a new description of frozen boneless chicken cuts under the EC Combined Nomenclature (“CN”) code 0207.14.10. According to Brazil, this new description includes a salt content to the product that did not exist before and subjects the imports of these products to a higher tariff than that applicable to salted meat (CN code 0210) in the EC’s Schedules under the GATT 1994.

On 1 March 2002, the United States requested consultations with Japan regarding restrictions allegedly imposed by Japan on imports of apples from the United States. The United States’ complaint arose from the maintenance by Japan of quarantine restrictions on apples imported into Japan, which restrictions were said to be necessary to protect against introduction of fire blight. Among the measures the United States complained of were the prohibition of imported apples from orchards in which any fire blight was detected, the requirement that export orchards be inspected three times yearly for the presence of fire blight and the disqualification of any orchard from exporting to Japan should fire blight be detected within a 500 meter buffer zone surrounding such orchard. The United States claimed that these measures might be inconsistent with the obligations of Japan under:

On 1 June 1999, the US requested consultations with the EC in respect of the alleged lack of protection of trademarks and geographical indications (GIs) for agricultural products and foodstuffs in the EC. The US contended that EC Regulation 2081/92, as amended, does not provide national treatment with respect to geographical indications and does not provide sufficient protection to pre-existing trademarks that are similar or identical to a geographical indication. The US considered this situation to be inconsistent with the EC’s obligations under the TRIPS Agreement, including but not necessarily limited to Articles 3, 16, 24, 63 and 65 of the TRIPS Agreement...

On 21 March 2003, Antigua and Barbuda requested consultations with the US regarding measures applied by central, regional and local authorities in the US which affect the cross-border supply of gambling and betting services. Antigua and Barbuda considered that the cumulative impact of the US measures is to prevent the supply of gambling and betting services from another WTO Member to the United States on a cross-border basis. According to Antigua and Barbuda, the measures at issue may be inconsistent with the US obligations under the GATS, and in particular Articles II, VI, VIII, XI, XVI and XVII thereof, and the US Schedule of Specific Commitments annexed to the GATS.

On 20 December 2002, Canada requested consultations with the United States regarding the investigation of the USITC in Softwood Lumber from Canada (Invs. Nos. 701-TA-414 and 731-TA-928 (Final)) and the final definitive anti-dumping and countervailing duties applied as a result of the USITC’s final determination made on 2 May 2002, notice of which was published in the United States Federal Register on 22 May 2002 (Volume 67, Number 99 at pp. 36022-36023) that an industry in the United States is threatened with material injury by reason of imports of softwood lumber from Canada that the Department of Commerce has determined are subsidized and sold in the United States at less than fair value. Canada claimed that, through these measures, the United States has violated its obligations under Article VI:6(a) of the GATT 1994, Articles 1, 3.1, 3.2, 3.3, 3.4, 3.5, 3.7, 3.8, 12 and 18.1 of the Anti-Dumping Agreement and Articles 10, 15.1, 15.2, 15.3, 15.4, 15.5, 15.7, 15.8, 22 and 32.1 of the SCM Agreement.

On 7 October 2002, Argentina requested consultations with the US regarding the final determinations of the US Department of Commerce (“DOC”) and the US International Trade Commission (“ITC”) in the sunset reviews of the anti-dumping duty order on OCTG from Argentina, issued on 7 November 2000 (65 Federal Register 66701) and June 2001 (USITC Pub. No. 3434), respectively, and the DOC’s determination to continue the anti-dumping duty order on OCTG from Argentina, issued on 25 July 2001 (66 Federal Register 38630). Argentina considered that general US laws, regulations, policies and procedures related to the administration of sunset reviews and the application of anti-dumping measures were inconsistent either on their face or as applied with Articles 1, 2, 3, 5, 6, 11, 12, and 18 of the Anti-Dumping Agreement (ADA); Articles VI and X of the General Agreement on Tariffs and Trade (GATT) 1994; and Article XVI:4 of the WTO Agreement. Furthermore, Argentina claimed that the sunset review conducted by the DOC is inconsistent with Articles 2, 5, 5.8, 11.3, 11.4, 12.1, and 12.3 of the ADA. It also claimed that the sunset review conducted by the ITC was inconsistent with Articles 3 and 11.3 of the ADA.

On 27 September 2002, Australia and Brazil requested consultations with the European Communities concerning the export subsidies provided by the EC in the framework of its Common Organisation of the Market for the sugar sector. The requests concerned Council Regulation (EC) No. 1260/2001 of 19 June 2001 on the EC’s common organization of the markets in the sugar sector, and all other legislation, regulations, administrative policies and other instruments relating to the EC regime for sugar and sugar containing products including the rules adopted pursuant to the procedure referred to in Article 42(2) of Council Regulation (EC) No. 1260/2001, and any other provision related thereto. On 14 March 2003, Thailand requested consultations with the European Communities on the same matter.

On 13 September 2002, Canada requested consultations under Article 4.8 of the DSU (urgency procedure) with the United States concerning the final affirmative determination of sales at less than fair value (dumping) with respect to certain softwood lumber products from Canada (Inv. No. A-122-838) announced by the US Department of Commerce (USDOC) on 21 March 2002 pursuant to Section 735 of the Tariff Act of 1930, as amended on 22 May 2002 (Final Determination). The measures at issue include the initiation of the investigation, the conduct of the investigation and the Final Determination. Canada considered these measures and, in particular, the determinations made and methodologies adopted therein by the DOC under authority of the United States Tariff Act of 1930, to violate Articles 1, 2.1, 2.2, 2.4, 2.6, 5.1, 5.2, 5.3, 5.4, 5.8, 6.1, 6.2, 6.4, 6.9 and 9.3 of the Anti-Dumping Agreement and Articles VI and X:3(a) of the GATT 1994.

On 3 May 2002, Canada requested consultations with the United States. The request concerned the final affirmative countervailing duty determination by the US Department of Commerce (File No. C‑122839) issued on 25 March 2002, with respect to certain softwood lumber from Canada. The measures at issue include the initiation and conduct of the investigation, the final determination, provision of expedited reviews, and other matters related to these measures. Canada contended that these measures were inconsistent with, and violate the United States’ obligations under Articles 1, 2, 10, 11, 12, 14, 15, 19, 22 and 32.1 of the SCM Agreement and Articles VI:3 and X:3 of the GATT 1994.

On 5 March 2002, India requested consultations with the EC concerning the conditions under which the EC accords tariff preferences to developing countries under its current scheme of generalized tariff preferences (“GSP scheme”). India presented this request pursuant to Article 4 of the DSU, Article XXIII:1 of the GATT 1994 and paragraph 4(b) of the so-called Enabling Clause. India considered that the tariff preferences accorded by the EC under the special arrangements, (i) for combating drug production and trafficking and (ii) for the protection of labour rights and the environment, create undue difficulties for India’s exports to the EC, including for those under the general arrangements of the EC’s GSP scheme, and nullify or impair the benefits accruing to India under the most favoured nation provisions of Article I:1 of the GATT 1994 and paragraphs 2(a), 3(a) and 3(c) of the Enabling Clause. In India’s view, the conditions under which the EC accorded tariff preferences under the special arrangements could not be reconciled with the requirements provided in paragraphs 2(a), 3(a) and 3(c) of the Enabling Clause.

On 30 January 2002, Japan requested consultations with the United States in respect of the final determinations of both the United States Department of Commerce (DOC) and the United States International Trade Commission in the full sunset review of the anti-dumping duties imposed on imports of corrosion-resistant carbon steel flat products from Japan. These determinations were issued on 2 August 2000 and 21 November 2000, respectively. Japan claimed that these determinations were erroneous and based on deficient rulings, procedures and provisions pertaining to the United States Tariff Act of 1930, as amended (“the Act”) and related regulations. Japan further claimed that the procedures and provisions of the Act and related regulations as well as the above determinations were inconsistent with, inter alia, Articles VI and X of GATT 1994; Articles 2, 3, 5, 6 (including Annex II), 11, 12, and 18.4 of the Anti-Dumping Agreement; and Article XVI:4 of the WTO Agreement.

On 7 November 2001, Brazil requested consultations with Argentina in respect of the definitive anti-dumping duties imposed by Argentina on imports of poultry from Brazil, classified under Mercosur tariff line 0207.11.00 and 0207.12.00. These measures were adopted by the Ministry of Economy of Argentina in Resolution 574 from 21 July 2000, published in the Argentinean Official Gazette on 24 July 2000. Brazil considered that the definitive anti-dumping duties imposed, as well as the investigation conducted by the Argentinean Authorities might have been flawed and based on erroneous or deficient procedures, inconsistent with Argentina’s obligations under Articles 1, 2, 3, 4, 5, 6, 9, 12 and Annex II of the Anti-Dumping Agreement, Article VI of the GATT 1994, and Articles 1 and 7 of the Customs Valuation Agreement.

On 21 December 2000, Brazil requested consultations with the EC as regards definitive anti-dumping duties imposed by Council Regulation (EC) No. 1784/2000 concerning imports of malleable cast iron tube or pipe fittings originating, inter alia, in Brazil. Brazil considered that the EC’s establishment of the facts was not proper and that its evaluation of these facts was not unbiased and objective, both at the provisional and definitive stage, particularly in relation to the initiation and conduct of the investigation (including the evaluation, findings and determination of dumping, injury and causal link between them). Brazil also challenged the evaluation and findings made in relation to the “community interest”. In sum, Brazil considered that the EC had infringed Article VI of GATT 1994 and Articles 1, 2, 3, 4 ,5 , 6, 7, 9, 11, 12 and 15 of the Anti-dumping Agreement.

On 20 March 2001, Peru requested consultations with the EC concerning Regulation (EEC) 2136/89 which, according to Peru, prevents Peruvian exporters to continue to use the trade description “sardines” for their products. Peru submitted that, according to the relevant Codex Alimentarius standards (STAN 94-181 rev. 1995), the species “sardinops sagax sagax” are listed among those species which can be traded as “sardines”. Peru, therefore, considered that the above Regulation constitutes an unjustifiable barrier to trade, and, hence, in breach of Articles 2 and 12 of the TBT Agreement and Article XI:1 of GATT 1994. In addition, Peru argues that the Regulation is inconsistent with the principle of non-discrimination, and, hence, in breach of Articles I and III of GATT 1994.

On 17 January 2001, Canada requested consultations with the US concerning Section 129(c)(1) of the Uruguay Round Agreements Act (the “URAA”) and the Statement of Administrative Action accompanying the URAA. In Canada’s view, in a situation in which the DSB has ruled that the US has, in an anti-dumping or countervailing duty proceeding, acted inconsistently with US obligations under the AD or SCM Agreements, the US law prohibits the US from complying fully with the DSB ruling. Under US law, determinations whether to levy anti-dumping or countervailing duties are made after the imports occur. With regard to imports that occurred prior to a date on which the US directs compliance with the DSB ruling, the measures require US authorities to disregard the DSB ruling in making such determinations, even where the determination whether to levy anti-dumping or countervailing duties is made after the date fixed by the DSB for compliance. In such circumstances, determinations by the US to levy anti-dumping or countervailing duties would be inconsistent with its obligations under the AD or SCM Agreements. Canada considered that these measures are inconsistent with US obligations under Article 21.3 of the DSU, in the context of Articles 3.1, 3.2, 3.7 and 21.1 of the DSU; Article VI of the GATT 1994; Articles 10 and note 36, 19.2, 19.4 and note 51, 21.1, 32.1, 32.2, 32.3, and 32.5 of the SCM Agreement; Articles 1, 9.3, 11.1, 18.1-4 and note 12 of the AD Agreement; and Article XVI:4 of the WTO Agreement.

On 10 November 2000, the EC requested consultations with the US in respect of countervailing duties imposed by the US on imports of certain corrosion-resistant carbon steel flat products (“corrosion resistant steel”), dealt with under US case number C-428-817. This dispute related, in particular, to the final results of a full sunset review of the above measure, carried out by the US Department of Commerce (“DOC”) and published in the US Federal Register No. 65 FR 47407 of 2 August 2000. In this decision, the DOC found that revocation of the countervailing duty order would be likely to lead to continuation or recurrence of a countervailable subsidy. The EC considered that this finding is inconsistent with the obligations of the US under the SCM Agreement and, in particular, in breach of Articles 10, 11.9 and 21 (notably 21.3) thereof.

On 6 November 2000, Turkey requested consultations with Egypt concerning an anti-dumping investigation by the Egyptian Ministry of Trade and Supply with respect to imports of rebar from Turkey. The investigation was completed and the final report released on 21 October 1999. As a result of the investigation, anti-dumping duties were imposed, ranging from 22.63-61.00 per cent ad valorem. Turkey considered that: Egypt made determinations of injury and dumping in that investigation without a proper establishment of the facts and based on an evaluation of the facts that was neither unbiased nor objective; during the investigation of material injury or threat thereof and the causal link, Egypt acted inconsistently with Articles 3.1, 3.2, 3.4, 3.5, 6.1 and 6.2 of the Anti-Dumping Agreement; and during the investigation of sales at less than normal value, Egypt violated Article X:3 of the GATT 1994, as well as Articles 2.2, 2.4, 6.1, 6.2, 6.6, 6.7 and 6.8, and Annex II, Paragraphs 1, 3, 5, 6 and 7 and Annex I, Paragraph 7 of the Anti-Dumping Agreement.

On 4 October 2000, India requested consultations with the United States concerning: final affirmative determinations of sales of certain cut-to-length carbon quality steel plate products from India at less than fair value by US Department of Commerce (DOC) on 13 December 1999 and affirmed on 10 February 2000; interpretation and use of provisions relating to facts available in the anti-dumping and countervailing duty investigations by DOC; and determination and interpretation by the US International Trade Commission (ITC) of negligibility, cumulation and material injury caused by the said Indian steel imports. India considered that these determinations are erroneous and based on deficient procedures contained in various provisions of US anti-dumping and countervailing duty law. According to India, these determinations and provisions raise questions concerning the obligations of the United States under the GATT 1994, the Anti-Dumping Agreement, the SCM Agreement, and the Agreement establishing the WTO (WTO Agreement). India considered that the provisions of these agreements with which these measures and determinations appear to be inconsistent, include, but are not limited to, the following: Articles VI and X of the GATT 1994; Articles 1, 2, 3 (especially 3.3), 5 (especially 5.8), 6 (especially 6.8), 12, 15, 18.4 and Annex II of the Anti-Dumping Agreement; Articles 10, 11 (especially 11.9), 15 (especially 15.3), 22 and 27 (especially 27.10) of the SCM Agreement; Article XVI of the WTO Agreement.

On 13 June 2000, Korea requested consultations with the United States in respect of the definitive safeguard measure imposed by the United States on imports of circular welded carbon quality line pipe (line pipe). Korea noted that on 18 February 2000 the United States proclaimed a definitive safeguard measure on imports of line pipe (subheadings 7306.10.10 and 7306.10.50 of the Harmonized Tariff Schedule of the United States). In that proclamation, the United States announced that the proposed date of introduction of the measure was 1 March 2000 and that the measure was expected to remain in effect for 3 years and 1 day. Korea considered that the US procedures and determinations that led to the imposition of the safeguard measure as well as the measure itself contravened various provisions contained in the Safeguards Agreement and the GATT 1994. In particular, Korea considers that the measure is inconsistent with the United States’ obligations under Articles 2, 3, 4, 5, 11 and 12 of the Safeguards Agreement; and Articles I, XIII and XIX of the GATT 1994.

On 3 April 2000, Pakistan requested consultations with the US in respect of a transitional safeguard measure applied by the United States, as of 17 March 1999, on combed cotton yarn (United States category 301) from Pakistan (see US Federal Register of 12 March 1999, document 99-6098). In accordance with Article 6.10 of the Agreement on Textiles and Clothing (ATC), the United States had notified the TMB on 5 March 1999 that it had decided to unilaterally impose a restraint, after consultations as to whether the situation called for a restraint had failed to produce a mutually satisfactory solution. In April 1999, the TMB examined the US restraint pursuant to Article 6.10 of the ATC and recommended that the US restraint should be rescinded. On 28 May 1999, in accordance with Article 8.10 of the ATC, the United States notified the TMB that it considered itself unable to conform to the recommendations issued by the TMB. Despite a further recommendation of the TMB pursuant to Article 8.10 of the ATC that the United States reconsider its position, the United States continued to maintain its unilateral restraint and thus the matter remained unresolved. Pakistan claimed as follows: - the transitional safeguards applied by the United States are inconsistent with the United States’ obligations under Articles 2.4 of the ATC and not justified by Article 6 of the ATC; - the US restraint does not meet the requirements for transitional safeguards set out in paragraphs 2, 3, 4 and 7 of Article 6 of the ATC.

On 18 November 1999, Japan requested consultations with the United States in respect of the preliminary and final determinations of the US Department of Commerce and the US International Trade Commission on the anti-dumping investigation of Certain Hot Rolled Steel Products from Japan issued on 25 and 30 November 1998, 12 February 1999, 28 April 1999 and 23 June 1999. Japan considered that these determinations are erroneous and based on deficient procedures under the US Tariff Act of 1930 and related regulations. The Japanese complaint also concerned certain provisions of the Tariff Act of 1930 and related regulations. Japan claimed violations of Articles VI and X of the GATT 1994 and Articles 2, 3, 6 (including Annex II), 9 and 10 of the Anti-Dumping Agreement.

On 6 October 1998, the EC requested consultations with India concerning certain measures affecting the automotive sector being applied by India. The EC stated that the measures include the documents entitled “Export and Import Policy, 1997-2002”, “ITC (HS Classification) Export and Import Policy 1997-2002” (“Classification”), and “Public Notice No. 60 (PN/97-02) of 12 December 1997, Export and Import Policy April 1997-March 2002”, and any other legislative or administrative provision implemented or consolidated by these policies, as well as MoUs signed by the Indian Government with certain manufacturers of automobiles. The EC contended that: under these measures, imports of complete automobiles and of certain parts and components were subject to a system of non-automatic import licenses. in accordance with Public Notice No. 60, import licenses might be granted only to local joint venture manufacturers that had signed an MoU with the Indian Government, whereby they undertook, inter alia, to comply with certain local content and export balancing requirements. The EC alleged violations of Articles III and XI of GATT 1994, and Article 2 of the TRIMs Agreement.