SUMMARY OF KEY PANEL FINDINGS. ASCM Art. 1.1 (a): (1): (iv) (definition of a subsidy – financial contribution): The Panel first concluded that an “export restraint” cannot constitute government-entrusted or government-directed provision of goods in the sense of subpara. (iv) of Art. 1.1(a)(1), and thus does not constitute a “financial contribution” within the meaning of Art. 1.1. According to the Panel, the “entrusts or directs” standard of subpara. (iv) requires an “explicit and affirmative action of delegation or command”, rather definition of a subsidy – than mere government intervention in the market by itself which leads to a particular result or effect. • Nature of the US law at issue (mandatory vs discretionary): To answer the ultimate question of whether the United States was in violation of the ASCM, the Panel examined whether the US law at issue “required” the USDOC (i.e. executive branch of the government) to treat export restraints as “financial contributions” in CVD investigations. Having found that the US statute, as interpreted in light of the SAA and the Preamble to the CVD Regulations, did not require the USDOC to treat export restraints as “financial contribution” and that there was no measure in the form of a US “practice” that required the treatment of export restraints as a “financial contribution”, the Panel concluded that the statute at issue did not violate Art. 1.1.
SUMMARY OF KEY PANEL FINDINGS. SPS Art. 5.1 (risk assessment): The Panel found that Australia was in violation of Art. 5.1 and by implication, therefore, of the general obligations of Art. 2.2. Reiterating the three requirements laid down previously by the Appellate Body that are essential to constitute a “risk assessment”, the Panel noted that for a measure to be “based on” a risk assessment there needs to be a “rational relationship” between the measure and the risk assessment, and that none of the experts consulted by the Panel could find any justification in Australia's risk assessment measure for the requirement that salmon be “consumer-ready”. Based on the same rationale, the Panel found that the ban on the imports of salmon enacted by the Tasmanian government was also in violation of Arts. 5.1 and 2.2. • SPS Art. 5.5 (prohibition on discrimination and disguised restriction on international trade): The Panel concluded that Australia was not in violation of Art. 5.5, as it found that although Australia was employing different levels of protection to different, but sufficiently comparable, situations, the different treatment was scientifically justified, and not arbitrary or unjustifiable and the different treatment was thus not a disguised restriction on international trade.
SUMMARY OF KEY PANEL FINDINGS. GATT Art. XIX:1(a)(unforeseen developments and the effect of GATT obligations): The Panel found that Ukraine acted inconsistently with this provision because the Ukrainian competent authorities did not provide in their published report a demonstration of the circumstances – unforeseen developments and the effect of GATT obligations – that must be satisfied before a safeguard measure can be imposed.
SUMMARY OF KEY PANEL FINDINGS. GATT Arts. I:1 (most-favoured-nation treatment) and II:1(b) (schedules of concessions – other duties or charges): The Panel concluded that the measures at issue had the effect of suspending the Dominican Republic’s most-favoured-nation treatment obligation in Art. I:1, as well as the prohibition on other duties or charges in connection with importation within the meaning of Art. II:1(b). • GATT Art. XIX:1(a) (applicability of emergency action on imports of particular products): As a consequence, the Panel concluded that the measures suspended the Dominican Republic’s obligations under GATT within the meaning of Art. XIX:1(a) and that the provisions of GATT Art. XIX and the SA were applicable.
SUMMARY OF KEY PANEL FINDINGS. ADA Art. 18.4 (conformity with the ADA): The Panel held that the US authority's practice in the application of “facts available” was not a measure that could be the subject of a claim. First, because such practice could be changed by the authority as long as it provided a reason for the change. Moreover, according to past WTO jurisprudence, a law can only be found inconsistent with WTO obligations if it mandates a violation. Second, the “practice” challenged by India was not within the scope of Art. 18.4, which only refers to “laws, regulations and administrative procedures”. • ADA Art. 6.8 and Xxxxx XX(3) (evidence – facts available): (as applied claim) The Panel found that the US authority acted inconsistently with the ADA in finding that SAIL had failed to provide necessary information in response to questionnaires during the course of the investigation and in consequently basing their determination entirely on “facts available”, because the information provided by SAIL met all criteria laid down in Annex II(3) and, therefore, it was a must for the US authority to use that information in their determination. (as such claim) The Panel rejected India's claim that the US legislation required resort only to “facts available” in circumstances in which Art. 6.8 and Annex II(3) do not permit submitted information to be disregarded. As for India's argument that the US authority's practice reflected a policy where “facts available” were relied upon in circumstances outside the scope of Xxxxx XX(3), the Panel stated that this was a mere exercise of discretion, and the legislation itself did not, on its face, mandate WTO-inconsistent behaviour. • ADA Art. 15 (S&D treatment): The Panel rejected India's claim under Art. 15, first sentence, stating that the provision imposed no specific or general obligation on the United States to undertake any particular action with respect to India's status as a developing country. The Panel also rejected India's claim under the second sentence of the Article, stating that it only requires administrative authorities to explore the possibilities of constructive remedies and cannot be understood to require any particular outcome.
SUMMARY OF KEY PANEL FINDINGS. ASCM Art. 1.1(a): (1): (iii) (definition of a subsidy – financial contribution): The Panel concluded that the US authorities' determination that the Canadian provincial stumpage programme constituted a “financial contribution” by the government within the terms of Art. 1.1(a)(iii) was not inconsistent with the ASCM. The Panel considered that the Canadian government act of allowing companies to cut the trees amounted to the “supply” of standing timber, which is a good within the meaning of Art. 1.1(a)(1)(iii). • ASCM Art. 14 and 14(d) (benefit – calculation of amount of subsidy): The Panel concluded that the US authorities acted inconsistently with Art. 14 and 14(d) by using the US stumpage prices instead of the prevailing market conditions for the product at issue in Canada, the country of provision or purchase, as required by Art. 14(d), in determining whether a “benefit” accrued from the Canadian government to the recipient. • ASCM Art. 1.1(b) (definition of a subsidy – benefit): The Panel found that where a downstream producer of subject merchandise is unrelated to the allegedly subsidized upstream producer of the input, an authority is not allowed to simply assume that a benefit has passed through. Therefore, by failing to examine whether the independent lumber producers had paid an arm's-length price for the logs they purchased, the US authorities' determination that a benefit had accrued to those producers was inconsistent with the ASCM. • As such challenge:2 The Panel rejected Canada's as such challenge of the US statute and regulations on expedited and administrative review, as it did not mandate/require the US authorities to act inconsistently with the ASCM.
SUMMARY OF KEY PANEL FINDINGS. GATT Art. II:1(b) (schedules of concessions): The Panel found that a measure can be found to be inconsistent with Art. II:1(b), first sentence, on the basis of its design and structure, and that it is not necessary to provide evidence of actual transactions or adverse trade effects. The Panel also found that Art. II:1(b), first sentence, prohibits Members from exceeding their tariff bindings by even de minimis amounts. Finally, the Panel confirmed that Members cannot balance less favourable tariff treatment of some imports against more favourable treatment of others. Thus, a Member may not impose customs duties in excess of bound rates for some imports even if it imposes customs duties below bound rates for others. The Panel found that the first to sixth measures at issue were inconsistent with Art. II:1(b), first sentence, because they resulted in the imposition of customs duties in excess of Russia's bound rates. The Panel also found that the seventh to eleventh measures were inconsistent with Art. II:1(b), first sentence, because they resulted in the imposition of customs duties in excess of Russia's bound rates whenever the customs value of an import fell below a certain break-even value.
SUMMARY OF KEY PANEL FINDINGS. ADA Art. 2.4.2 (dumping determination – zeroing): The Panel found that the United States Department of Commerce “USDOC” acted inconsistently with the first sentence of Art. 2.4.2 by using “zeroing” in calculating margins of dumping under the weighted-average-to-weighted-average methodology in the context of an original investigation.
SUMMARY OF KEY PANEL FINDINGS. SPS Arts. 1, 5.1, 5.2 and 2.2 (scope of SPS measures, risk assessment, sufficient scientific evidence): The Panel found that Section 727 satisfied the two conditions in Art. 1 for a measure to be considered an SPS measure under the SPS Agreement. The Panel concluded that Section 727 was inconsistent with Arts. 5.1 and 5.2 because it was not based on a risk assessment that took into account the factors set forth in Art. 5.2. It was also found inconsistent with Art. 2.2 because it was maintained without sufficient scientific evidence. • SPS Arts. 5.5, 2.3 (prohibition on discrimination) and 8 (control, inspection and approval procedures): The Panel found that Section 727 was inconsistent with Art. 5.5 because the distinction in the appropriate levels of protection for poultry products from China and for poultry products from other WTO Members was arbitrary or unjustifiable and that such a distinction resulted in discrimination against China. The inconsistency of Section 727 with Art. 5.5 necessarily implied its inconsistency with Art. 2.3. The Panel concluded that Section 727 was inconsistent with Art. 8 because it had caused an undue delay in the Food Safety and Inspection Service approval procedures.
SUMMARY OF KEY PANEL FINDINGS. GATT Art. I:1 (most-favoured-nation treatment): The Panel found that the additional duties applied only to products from China and thus failed to accord to products originating in China an advantage granted to the like product originating in all other WTO Members. • GATT Art. II:1 (schedules of concessions): The Panel found that the additional duties were ordinary customs duties applied in excess of the rates to which the United States bound itself in its Schedule, and accorded imports from China “less favourable treatment” than that provided in the United States’ Schedule. • GATT Art. XX(a) (exceptions – necessary to protect public morals): The Panel considered that the “standards of right and wrong” invoked by the United States (including norms against theft, misappropriation and unfair competition) could, “at least at a conceptual level”, be covered by the term “public morals” within the meaning of GATT Art. XX(a). The Panel focused its analysis on the contribution of the measures to the pursued public morals objective as invoked by the United States. The Panel found that the United States had not provided an explanation that demonstrated a genuine relationship of ends and means between the imposition of duties on the products and the public morals objective as invoked by the United States.
