Australia and WTO dispute settlement

Monthly Bulletin: November 2000

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Managing WTO Disputes : Institutional Arrangements

The Department has established the Trade Law Branch in the Trade Negotiations Division. The Branch includes additional resources for Australia's participation in WTO disputes. The Trade Law Branch takes the lead role in initiating and defending Australia in WTO disputes.

Assistance to exporters and industry groups on WTO issues is provided through the WTO Disputes Investigation and Enforcement Mechanism launched by Mr Vaile in 1999. Under the Mechanism, any Australian exporter can seek Government support and assistance in circumstances where other WTO Member governments may not be honouring their obligations under the WTO Agreements. The Mechanism sets up a partnership between exporters and the Government to exercise Australia's WTO rights for the benefit of exporters, and Australia as a whole. Assistance via the Mechanism is available to all actual or would-be exporters whether as individual entities or as industry associations, no matter the exporter's size or the product specialisation. There is no pre-qualification level for access or any charge for use of the mechanism.

The Trade Law Branch is also available to advise State and Territory Governments on the WTO aspects of State and Territory proposals or measures involving the use of trade or trade related actions.

Resources permitting, the Trade Law Branch will consider requests to address business, community and educational groups with an interest in the WTO generally, the rights and obligations of WTO membership, the WTO's dispute settlement system and the WTO Disputes Investigation and Enforcement Mechanism.

For more information or for assistance, contact us at wto.disputes@dfat.gov.au 

Update on Australian Involvement in Specific Disputes

Australia is currently the complaining party in two WTO disputes and is involved in several other disputes as an interested third party. There are presently no complaints against Australia.

Australia as a Complainant
Korea: Measures on Imports of Beef (WT/DS169)

Korea appealed the panel report that upheld the complaints of Australia and the United States that Korea's imported beef regime was inconsistent with a number of WTO provisions. The Appellate Body is scheduled to release its report on 11 December 2000.

Contact : wto.disputes@dfat.gov.au 

United States : Safeguard Measures on Imports of Lamb Meat (WT/DS178)

A confidential interim report from the panel favoured the arguments put forward by Australia and New Zealand. The panel is scheduled to issue its final report at the end of this year (although there may be translation or other delays).

All parties have rights of appeal. There is a maximum 60 days to lodge an appeal from the date of circulation of a panel report.

Contact : wto.disputes@dfat.gov.au 

Disputes involving Australia as a Third Party

EC: Beef Hormones (WT/DS26)

The EC is currently facing WTO-authorized retaliation by USA and Canada because of its failure to implement. Australia has formally registered its expectation that, consistent with its WTO rights, any settlement or compensation arrangements with Canada and the USA will not discriminate against Australia's beef exports.

Contact : wto.disputes@dfat.gov.au 

United States: Restrictions on shrimps (the "shrimp/turtle" case) (WT/DS58)

The United States has introduced measures that allow for the lifting of the import embargo against certain WTO members. Australia has regained access for prawns for its northern and southern prawn fishing regions. The US has also been supportive in regional initiatives, including on the Indian Ocean and SE Asian Regional Agreement on Turtle Conservation, which is due to be signed early in 2001. However, the US has continued to maintain its import restrictions based upon a unilaterally determined environmental standard (TEDs use). Australia considers that cooperative approaches offer a more appropriate avenue for addressing turtle conservation issues and encourages all concerned countries to participate constructively in such efforts.

Malaysia has requested a panel to examine the WTO-consistency of the revised US measures. The Minister for Trade has agreed to Australia's participation as a third party.

Contact : wto.disputes@dfat.gov.au 

Canada: Dairy Assistance Measures (WT/DS103)

Canada has until the end of this year to bring its dairy export arrangements (including measures at provincial level) into conformity with its WTO obligations. The WTO consistency of some of Canada's proposed arrangements has been questioned.

Contact : wto.disputes@dfat.gov.au  

United States: "Homestyle" Copyright Legislation (WT/DS160)

US measures which exempt restaurants and bars from music royalty requirements were found to be WTO-inconsistent. The EC has sought arbitration on the reasonable period of time the US should be accorded to bring its measures into conformity. The outcome of the dispute protects the royalty rights of Australian musicians in the US.

Contact : wto.disputes@dfat.gov.au 

United States: Safeguard measures on wheat gluten (WT/DS166)

A panel upheld an EC complaint that US safeguard action on EC wheat gluten was WTO inconsistent. The US appealed the panel's findings. The Appellate Body is expected to report in late December or early in the New Year.

Contact : wto.disputes@dfat.gov.au 

United States: Measures treating export restraints as subsidies (WT/DS194)

A panel was established on 11 September. Systemic issues relating to the definition of a subsidy and to the nature of WTO obligations in relation to mandatory legislation.

Contact : wto.disputes@dfat.gov.au 

United States: Safeguard measures on certain line pipe (WT/DS202)

A panel has been composed to examine Korea's complaint. Australia's involvement is based on a systemic interest in the operation of the Safeguards Agreement.

Contact : wto.disputes@dfat.gov.au 

Other Disputes in which Australia has a Policy or Economic Interest

Japan: Varietal testing of horticultural products (WT/DS76)

The United States and Japan continue to negotiate on replacement arrangements. Australia has formally registered its WTO rights to replacement arrangements that do not discriminate against Australia's horticultural exports to Japan.

Contact : wto.disputes@dfat.gov.au 

EC:  Bananas (WT/DS27)

The United States is currently applying WTO-authorized retaliatory measures against EC exports following findings that the EC revised access arrangements applying to imports of bananas from the Caribbean and Latin America remained WTO-inconsistent. The EC has announced that it is considering a transitional tariff quota regime on a "first-come, first-served basis" and would be seeking to negotiate a tariff-only system. These proposals may have longer-term implications for a number of tariff quota arrangements, including country-allocated quotas (such as those applied to Australian beef and sugar).

Contact : wto.disputes@dfat.gov.au 

United States: Foreign Sales Corporations (FSC) taxation measures (WT/DS108)

The US FSC arrangements, which are available for exports to any destination, were found to be prohibited export subsidies. The EC has recently requested a panel to examine the consistency of US implementing measures.

Contact : wto.disputes@dfat.gov.au 

Chile: Trade-related environment measures on swordfish (WT/DS193)

The EC has requested the establishment of a panel to consider Chilean laws which prevent Spanish swordfish vessels from unloading or transshipping product in Chilean ports. Chile claims that the matter is a conservation rather than a trade issue and has sought dispute settlement proceedings under UNCLOS. Australia has an interest in the use of port state measures from both a fish conservation and trade perspective. A panel is likely to be established at the 12 December meeting of the Dispute Settlement Body.

Contact : wto.disputes@dfat.gov.au 

EC: Measures on asbestos (WT/DS135)

The panel found that French bans on chrysotile asbestos were justified by GATT exceptions provisions which permit measures necessary for the protection of human life and health (Article XX (b) of GATT 1994.). The panel engaged three Australian scientific experts to advise panel members on scientific issues. In its defence, the EC incorporated certain evidence from amicus submissions (submissions from NGOs) to the panel. Canada has appealed the findings.

The Appellate Body has developed special working procedures for the handling of amicus submissions in the appeal. Those procedures were debated at a special session of the WTO General Council on 22 November.

The outcome of this dispute may have implications for domestic measures applied or under consideration in regard to chrysotile asbestos.

Contact : wto.disputes@dfat.gov.au

Meeting of the Dispute Settlement Body : 17 November 2000

The Dispute Settlement Body (DSB) consists of all the members of the WTO and meets each month in Geneva. Australia uses the DSB meetings to monitor progress and to register its views on disputes of interest.

The agenda of the meeting of 17 November was as follows (any Australian interventions are indicated):

1.                  Surveillance of implementation of recommendations adopted by the DSB:

European Communities regime for the importation, sale and distribution of bananas: status report by the European Communities
Japan measures affecting agricultural products (varietal testing): status report by Japan

While not intervening at this meeting, Australia has regularly raised in the DSB our strong interest in horticultural exports to Japan and the need for assurances from Japan that new measures for testing fruit products will not discriminate against Australian exports.

Canada 

measures affecting the importation of milk and the exportation of dairy products: status report by Canada

Australia did not intervene in this meeting but is monitoring Canadian implementation carefully.

India

quantitative restrictions on imports of agricultural, textile and industrial products: status report by India

This dispute is between the US and India. Australia resolved its dispute with India on the same issues in March 1998.

Turkey restrictions on imports of textile and clothing products: status report by Turkey

 2.                  India measures affecting the automotive sector: Request for the establishment of a panel by the European Communities

3.                  Philippines measures affecting trade and investment in the motor vehicle sector: Request for the establishment of a panel by the United States

4. Argentina definitive anti-dumping measures on imports of ceramic floor tiles from Italy: Request for the establishment of a panel by the European Communities

5. Chile measures affecting the transit and importation of swordfish: Request for the establishment of a panel by the European communities

6. Guatemala definitive anti-dumping measures on grey portland cement from Mexico: Report of the Panel

7. Adoption of the 2000 draft annual report of the DSB

Australia supported adoption of the annual report.

8. Other business - Amicus curiae briefs

Australia participated in a discussion regarding the Appellate Body's decision to develop procedures for accepting submissions from non-WTO Members in the Asbestos dispute. A special session of the WTO General Council was held on 22 November to discuss the same matter. Australia's statement to the General Council is repeated below:

  1. first, whether Members should provide guidance to the Appellate Body and Panels concerning the treatment of amicus briefs
  2. second, if Members agree that guidance should be provided, what should be the content of that guidance
  3. finally, how should Members provide this guidance to the Appellate Body and Panels. We consider that a pragmatic approach is required on this issue. Clearly, the General Council has the authority to adopt guidelines providing guidance to the Appellate Body and Panels on how amicus briefs should be handled. We note that the General Council, in July 1996, adopted Guidelines for Arrangements on Relations with NGOs under Article V:2 of the Marrakesh Agreement (WT/L/62), and suggest that the approach taken could also be an appropriate avenue or model for guidelines on amicus briefs.
  1. the need to fully respect and preserve the rights of WTO Members
  2. the need to preserve the special character of the WTO as an intergovernmental body with binding treaty rights and obligations
  3. the need to be responsive to public interest in the WTO's work

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This email is a monthly bulletin on Australian involvement in WTO Dispute Settlement, from the Trade Law Branch of the Department of Foreign Affairs and Trade. If you want to be removed from the mailing list please send an email to wto.disputes@dfat.gov.au  with "unsubscribe" in the subject line. To subscribe please send an email to wto.disputes@dfat.gov.au  with "subscribe" in the subject line and your contact details in the body of the email. Further information on Australia's involvement in WTO dispute settlement can be found at www.dfat.gov.au/trade/negotiations/wto_disputes.html


The Monthly Bulletin is an overview of Australian involvement in WTO Dispute Settlement from the WTO Trade Law Branch of the Department of Foreign Affairs and Trade . It updates Australian involvement in specific WTO disputes and, more generally, in disputes in which Australia has a policy or economic interest. Also included are the agendas of meetings of the WTO Dispute Settlement Body (DSB), with specific reference to any Australian interventions.

For more information and copies of previous issues, visit Australia and WTO dispute settlement.

For more general information relating to the Doha Round of Trade negotiations, see the WTO Doha Round Bulletin.