In US Sample Clauses

In US. Cotton Yarn, which concerned a safeguard measure of the United States on imports of cotton yarn from Pakistan (see paragraph 53 below), the Panel found that the United States violated Article 6.2 by excluding from the scope of the "domestic industry" the vertically integrated fabric producers that produced yarn for their own internal use. The Appellate Body upheld the Panel's finding49, inter alia because the definition of domestic industry is "product-oriented and not producer-oriented, and […] the definition must be based on the products 50 produced by the domestic industry which are to be compared with the imported product in terms of their being like or directly competitive".51

In US. Countervailing and Anti-Dumping Measures (China), the complainant made a claim under Article 19, but failed to specify a particular paragraph of Article 19 in its panel request. The Appellate Body, in addressing whether China's panel request was consistent with the requirements of Article 6.2 of the DSU, described the various provisions of Article 19. The Appellate Body stated:

In US. Customs Bond Directive, the Panel examined a claim that an enhanced bond requirement (EBR) for certain shrimp, imposed pursuant to the Amended Customs Bond Directive (Amended CBD) was inconsistent with Article 9 of the Anti-Dumping Agreement and Article 19 of the SCM Agreement. The Appellate Body upheld the Panel's finding that bonds provided under the Amended CBD are not anti-dumping duties or countervailing duties, fall outside the scope of Articles 9 of the Anti-Dumping Agreement and 19 of the SCM Agreement, and consequently are not inconsistent as such with Articles 9.1, 9.2, 9.3 and 9.3.1 of the Agreement nor with Articles 19.2, 19.3 and 19.4 of the SCM Agreement:3 "A bond under the Amended CBD secures the payment of a duty. A bond, by itself, is not a duty as it does not entail any transfer of money from the importer to the government. Therefore, the EBR imposed pursuant to the Amended CBD cannot be characterized as a 'duty' within the meaning of Article 9 of the Anti-Dumping Agreement and Article 19 of the SCM Agreement."4

In US. Wool Shirts and Blouses, months after US – Underwear, the Panel followed a different approach: "In our view, the wording of Article 6.2 and 6.3 of the ATC makes it clear that all relevant economic factors, namely, all those factors listed in Article 6.3 of the ATC, had to be addressed by CITA, whether subsequently discarded or not, with an appropriate explanation. The wording of paragraph 3, which reads '… the Member shall examine the effect of those imports on the state of the particular industry, as reflected in changes in such relevant economic variables as output, productivity, utilization of capacity, inventories, market share, exports, wages, employment, domestic prices, profits and investment.', (emphasis added) implies two requirements. First, the relevant economic variables must be examined. Second, output, productivity, utilization of capacity, etc. ... are relevant economic variables. The wording of Article 6.3 of the ATC '... the Member shall examine the effects ... on the state of the particular industry, as reflected in changes in such relevant economic variables as output, productivity, etc ' makes clear that each of the listed factors is not only relevant but must be examined. Effectively, the listed economic variables are examples of relevant economic variables, they are presumed to be 'relevant economic variables' and must be examined by the importing country in its determination." The wording of the first sentence of Article 6.3 of the ATC imposes on the importing Member the obligation to examine, at the time of its determination, at least all of the factors listed in that paragraph. The importing Member may decide – in its assessment of whether or not serious damage or actual threat thereof has been caused to the domestic industry – that some of these factors carry more or less weight. At a minimum, the importing Member must be able to demonstrate that it has considered the relevance or otherwise of each of the factors listed in Article 6.3 of the ATC. The last part of Article 6.3 of the ATC, which states that 'none of which, either alone or combined with other factors, can necessarily give decisive guidance', confirms that some consideration and a relevant and adequate explanation have to be provided of 77 G/TMB/R/64, paras. 23-24.

In US. Cotton Yarn, the US determination under Article 6.2 had been based on contemporaneous industry data regarding the market situation; in the Panel proceeding, Pakistan presented later official data concerning the same facts, in order to demonstrate that the industry data were flawed. The Panel considered those data. On appeal, the Appellate Body found that this action exceeded the Panel’s mandate under Article 11 of the DSU:: "[A] panel reviewing the due diligence exercised by a Member in making its determination under Article 6 of the ATC has to put itself in the place of that Member at the time it makes its determination. Consequently, a panel must not consider evidence which did not exist at that point in time. A Member cannot, of course, be faulted for not having taken into account what it could not have known when making its determination. If a panel were to examine such evidence, the panel would, in effect, be conducting a de novo review and . . . . making its projections with the benefit of hindsight and would, in effect, be reinvestigating the market situation and substituting its own judgment for that of the Member. . . . Moreover, if a Member that has exercised due diligence in complying with its obligations of investigation, evaluation and explanation, were held responsible before a panel for what it could not have known at the time it made its determination, this would undermine the right afforded to importing Members under Article 6 to take 29 Panel Report, US – Underwear, para. 7.26.

In US. Countervailing and Anti-Dumping Measures (China), involving the same complainant and respondent as in US – Anti-Dumping and Countervailing Duties (China), the Panel addressed whether Article 19.3 "obliges an investigating authority to assess the existence of double remedies when concurrently imposing CVDs and anti-dumping duties calculated under an NME methodology and if so, whether such an obligation applies not only to administrative reviews, but also to original investigations, in the context of a retrospective system of duty assessment".12 The United States argued that the Appellate Body's interpretation in US – Anti-Dumping and Countervailing Duties (China) did not relate to the phrase "in the appropriate amounts" within Article 19.

In US. Ripe Olives from Spain, the Panel rejected the European Union's argument that the USITC was prevented from considering sections of the market, i.e., customer groups in the context of its injury analysis, because those sections had not been explicitly included the USITC's definition of the domestic industry: 16.1. We find no support, however, for the different proposition espoused by the European Union, which is that an investigating authority may only consider sections of a market while undertaking an injury analysis when it has explicitly identified these sections in the definition of the domestic industry. There is no reason that an investigating authority's analysis of market segments would necessarily imply that the final injury determination was not made with respect to the domestic industry as defined by the investigating authority. We therefore disagree that the USITC's analysis of market segments posed a risk of distortion. In particular, in this case the three customer groups collectively represented the whole market. Their analysis by the USITC would thus not necessarily leave parts of the domestic industry unexamined. We therefore do not see any material risk of distortion arising from the fact that the USITC did not incorporate into its definition of the domestic industry reference to the various market segments it later analysed. … We consequently reject the European Union's claim that the USITC was prevented from considering customer groups because such customer groups were not explicitly referred to in the definition of the domestic industry."7

In US. Wool Shirts and Blouses, the Panel examined whether a certain United States transitional safeguard measure was consistent with Article 6. With respect to the relationship between Articles 2.4 and 6, the Panel indicated as follows: "Since we conclude that the safeguard action taken by the United States violated the provisions of Article 6 of the ATC, it is our view that the United States applied a restraint not authorized under the ATC, which, therefore, constitutes also a violation of Article 2.4 of the ATC."126 124 G/TMB/R/61, para. 53. 125 Panel Report, US – Underwear, paras. 7.15-7.16. 126 Panel Report, US – Wool Shirts and Blouses, para. 7.59. For same conclusion see Panel Report, US

In US. Softwood Lumber IV the Appellate Body upheld the Panel's finding and rejected a narrow interpretation of the term "goods" in Article 1.1(a)(1)(iii). In the course of its analysis, the Appellate Body stated that: "[T]o accept Canada's interpretation of the term 'goods' would, in our view, undermine the object and purpose of the SCM Agreement, which is to strengthen and improve GATT disciplines relating to the use of both subsidies and countervailing measures, while, recognizing at the same time, the right of Members to impose such measures under certain conditions. It is in furtherance of this object and purpose that Article 1.1(a)(1)(iii) recognizes that subsidies may be conferred, not only through monetary transfers, but also by the provision of non-monetary inputs. Thus, to interpret the term 'goods' in Article 1.1(a)(1)(iii) narrowly, as Canada would have us do, would permit the circumvention of subsidy disciplines in cases of financial contributions granted in a form other than money, such as through the provision of standing timber for the sole purpose of severing it from land and processing it."11

In US. Government Obligations. At such time as any Note shall be deemed paid as aforesaid, it shall no longer be secured by or entitled to the benefits of the Indenture Estate or this Indenture, except that (i) such Note shall be entitled to the benefits of the portions of the Indenture Estate described in Granting Clauses (4), (5) and (8), to the extent such portions relate to such moneys or U.S. Government Obligations deposited with the Lease Indenture Trustee, (ii) the provisions of Sections 2.8 and 2.9 shall continue to apply to such Note and (iii) the duties and immunities of the Lease Indenture Trustee hereunder shall continue with respect to such Note. Notwithstanding the foregoing, the Owner Lessor shall not make or cause to be made the deposit of moneys or property provided for by this Section 9.1(b) unless it shall have delivered to the Lease Indenture Trustee an opinion or opinions of counsel reasonably satisfactory to the Lease Indenture Trustee to the effect that the deposit of such moneys or U.S. Government Obligations by the Owner Lessor or other defeasance of the Lessor Notes will not cause a Tax Event and that all conditions to such defeasance hereunder have been complied with.