Australia and WTO Dispute Settlement

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Monthly Bulletin: May 2001

Australia as a Complainant (3)

Korea: Measures affecting imports of fresh, chilled and frozen beef (WT/DS169 and WT/DS161)

On 19 April 2001, Australia, United States (US) and Korea agreed on a reasonable period of time for Korea to implement the recommendations of the DSB, expiring on 10 September 2001. Korea has agreed to consult with Australia and the US during this period with respect to Korea's implementation. The first round of consultations were held in Seoul on 22-23 May 2001.

United States: Safeguard measure on imports of fresh, chilled and frozen lamb meat (WT/DS177 and WT/DS178)

On 1 May 2001, the Appellate Body upheld the Panel's findings that the United States safeguard measure on imported lamb meat was WTO-inconsistent. The DSB adopted the Appellate Body report and the panel report as modified by the Appellate Body report on 16 May 2001. The parties will shortly commence discussions on a reasonable period of time for implementation. Australia and New Zealand have called on the US to comply promptly with the recommendations of the DSB (For full text of Australia's statement to the DSB see p 5).

United States: Continuing Dumping and Subsidy Offset Act of 2000 (Byrd Amendment) (WT/DS217) (Joint consultation request)

Consultations were held on 6 February 2001. Canada and Mexico have requested separate Article XXII consultations concerning the Byrd Amendment (the US had not agreed to their participation in the earlier February consultations). 

Disputes involving Australia as a Third Party (11)

Chile: Price band system and safeguard measures relating to certain agricultural products (WT/DS207)

No new developments. The Panel was established at the 12 March 2001 DSB meeting. 

EC: Measures affecting meat and meat products (Hormones) (WT/DS26)

No new developments. The EC is still facing WTO-authorised retaliation by the US and Canada because of its failure to implement within a reasonable period of time.

United States: Import prohibition of certain shrimp and shrimp products (the shrimp/turtle" case) (WT/DS58)

The Article 21.5 compliance panel - established to review the WTO consistency of the revised US measures - released its confidential Interim Report to the parties on 21 May 2001. The Final Report is expected to be publicly released in mid-June 2001. US media reports of the Interim Report claim the panel has upheld the revised US measures as consistent with the 1998 Appellate Body ruling.

Canada: Measures affecting the importation of milk and the exportation of dairy products (WT/DS103 and WT/DS113)

Australia lodged its third party written submission with the Article 21.5 compliance panel on 18 May 2001. The compliance panel is examining complaints that Canada's implementation measures relating to the exportation of dairy products remain WTO-inconsistent. The first meeting of the parties and third parties was held on 30 May 2001. The Panel had made a preliminary ruling allowing third parties to receive the parties' rebuttal submissions.

United States: Section 110(5) Copyright Act ("Homestyle"exemption) (WT/DS160)

No new developments. As previously reported, the reasonable period of time for the US to implement the recommendations and rulings of the DSB on section 110(5) of the US Copyright Act is 12 months from the adoption of the report, which expires on 27 July 2001.

United States: Definitive safeguard measures on imports of wheat gluten from the EC (WT/DS166)

Following a request by the US Trade Representative, the US International Trade Commission (ITC) in May issued a revised determination that, in its view, renders its actions in connection with initial application of the wheat gluten safeguard not inconsistent with the findings of the Appellate Body. The US had earlier agreed with the EC that it implement the DSB recommendations and rulings by 2 June 2001. Without further action by the US President to extend the original safeguard measure, it will in any case expire on 1 June.

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

No new developments. As previously reported the Panel was established on 11 September 2000 and its membership constituted on 23 October 2000.

United States: Definitive safeguard measures on imports of circular welded carbon quality line pipe from Korea (WT/DS202)

No new developments. As previously reported the Panel has held its first hearing with all parties.

United States: Tax Treatment for Foreign Sales Corporations (WT/DS108)

The Article 21.5 compliance panel, established to review the WTO consistency of the revised US FSC scheme, is now expected to issue its report publicly in August 2001.

Brazil: Export financing program for aircraft (WT/DS46)

No new developments. As previously reported the Article 21.5 compliance panel established to examine the WTO consistency of Brazil's implementation measures relating to export finance programs for aircraft held its oral hearing on 4-5 April 2001.

Canada: Export credits and loans guarantees for regional aircraft (WT/DS222)

No new developments. As previously reported a WTO panel was established on 12 March 2001 to examine Brazil's complaint that the export credits and export financing provided by Canada to its regional aircraft industry are WTO-inconsistent.

Disputes in which Australia has a Policy or Economic Interest (7)

EC: Measures affecting the prohibition of asbestos and asbestos products (WT/DS135)

No new developments. The DSB adopted the Appellate Body report and the Panel report as modified by the Appellate Body Report on 5 April 2001. The reports address a number of important issues including like products and non-violation. The findings are relevant to domestic proposal to control imports and usage of asbestos in Australia.

Japan: Measures affecting agricultural products (Varietal testing) (WT/DS76)

No new developments.

EC: Regime for the Importation, Sale and Distribution of Bananas (WT/DS27)

No new developments. As previously reported both the US and Ecuador have announced bilateral agreements with the EC in this dispute. The EC's proposed new regime is not WTO-consistent and will require the EC to obtain two waivers. The US has agreed to work actively to secure acceptance of the EC's request for the necessary WTO waivers.

Brazil: Measures affecting patent protection (WT/DS199)

No new developments.

United States: Section 129(c)(1) of the Uruguay Round Agreements Act (WT/DS221) (Consultation request)

No new developments.

European Communities: Tariff rate quota on corn gluten feed from the United States (WT/DS223) (Consultation request)

No new developments.

Canada: Patent Protection Term (WT/DS170)

No new developments. As previously reported, the arbitrator has determined that a reasonable period of time for implementation by Canada of the DSB's recommendations and rulings in relation to this matter is 10 months expiring on 12 August 2001.

India: Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products (WT/DS90)

No new developments. 

Meetings of the Dispute Settlement Body: May 2001

The DSB, consisting of all the Members of the WTO, met on 16 May 2001. The next regular DSB meeting will be held on 20 June 2001. Australia uses DSB meetings to monitor progress and to register its views on disputes of interest. The agenda of the May DSB meetings was as follows (any Australian interventions are indicated):

DSB Meeting 16 May 2001

Australia registered its continuing interest in this issue and queried the following points:

  • what progress Japan has made towards formal notification of the final outcomes of the dispute given this appears to be taking longer than might have been anticipated under WTO time frames;
  • what actions have been taken in Japan to accommodate the final outcomes in terms of any regulatory changes; and
  • when might all the actions result in a final conclusion to this issue
    • Turkey: Restrictions on Imports of Textile and Clothing Products (WT/DS34)

Panel was not established as Egypt opposed the request.

Panel was not established as Peru opposed the request.

Australia made the following statement:

Australia welcomes the adoption of the reports and wishes to thank the Panel and the Appellate Body, as well as the Secretariat, for their work.

The comprehensive nature of the findings made by the Panel and the Appellate Body confirm Australia's view that the United States' measure is inconsistent with its obligations under Article XIX of GATT 1994 and the Agreement on Safeguards.

The Panel and the Appellate Body found that the United States applied an overly broad definition of domestic industry by including growers and feeders of live lambs as part of the domestic industry of lamb meat producers. In addition, the United States' conclusions of threat of serious injury were flawed because the data it collected were not sufficiently representative of the industry. The United States was also found to have acted inconsistently by failing to demonstrate that the increase in imports was a result of "unforeseen developments" as required by Article XIX of GATT 1994.

The Appellate Body upheld Australia's claim that the United States failed to demonstrate that the domestic industry was in fact threatened with serious injury. The Appellate Body also ruled that the United States International Trade Commission, in making its determination, failed to apply the required causation standard set out in Article 4 of the Safeguards Agreement.

Taken together, these findings confirm that imports were not in fact threatening to cause serious injury to the United States domestic industry. The findings clearly indicate that the United States failed to establish any justifiable basis for the application of safeguard measures. Indeed, given the extent and nature of the fundamental inconsistencies in the United States' approach in this case, there is clearly no legal basis or justification for the safeguard measures that have been applied by the United States in this instance.

Australia recalls that the United States' safeguard measure has been in place since July 1999. In line with Article 21.1 of the Dispute Settlement Understanding, we call on the United States to comply promptly with the DSB rulings and recommendation. It is Australia's view that the only way in which the United States can implement the Panel and Appellate Body findings is to remove the safeguard measure without delay. Early withdrawal of the measure would be appropriate and desirable and an important demonstration of the United States' commitment to meeting its WTO obligations.

Australia looks forward to receiving early advice from the United States of its intentions in respect of implementation, as provided for in Article 21.3 of the DSU. Australia stands ready to engage in constructive discussions with the United States with the objective of ensuring prompt implementation.

The proposed French candidate was agreed.

WTO Disputes involving complaints against the United States's use of trade remedies

There are listed below the various WTO disputes involving complaints in relation to the United States's  use of so-called trade remedies (that is, anti-dumping duties, safeguard measures, countervailing measures) with the most current disputes listed first. It is notable that 10 of the 24 complaints pursued by other WTO Members involve measures imposed by the US Government in response to petitions from the US steel industry. While a number of the disputes are pending, in every dispute where a result has been handed down particular aspects of the US measure have been found to be inconsistent with the WTO Agreements.

AD       anti-dumping duties

CVD      countervailing duties

ADA      Agreement on Anti-Dumping

SCM      Agreement on Subsidies and Countervailing Measures

SA       Agreement on Safeguards

ATC      Agreement on Textiles and Clothing

US AD steel pipe from Italy(complaint by EC) - WT/DS225

Who won? In progress

US industry Steel

Description of dispute

In two cases (WT/DS225 & 213) the US Department of Commerce has recommended continuation of AD/CVD measures, in spite of the EC claim that the amounts of dumping and subsidy are below the current de minimis levels. The EC has challenged both reviews as being inconsistent with the ADA.

Status of dispute

Consultations held on 21 March 2001

US s 129 Uruguay Act(complaint by Canada) - WT/DS221

Who won? In progress

US industry N/A

Description of dispute

Canada claims that section 129 of this US Act is WTO-inconsistent because it effectively means that if the DSB has ruled that the US has acted inconsistently with the ADA or SCM, the US is prohibited from complying with the DSB ruling.

Status of dispute

Consultations held on 1 March 2001

US CVD steel from Brazil (complaint by Brazil) WT/DS218

Who won? In progress

US industry Steel

Description of dispute

The US imposed CVD on certain carbon steel products from Brazil after finding that privatised companies benefited from pre-privatisation subsidies. Brazil claims the practice has been found to be WTO-inconsistent in US bismuth steel.

Status of dispute

Consultations held on 17 January 2001

US Continued Dumping and Subsidy Offset Act 2000 (complaint by Australia, Brazil, Chile, EC, India, Indonesia, Japan, Korea & Thailand) WT/DS217

Who won? In progress

US industry Various

Description of dispute

The so-called Byrd amendment signed into law in October 2000 provides that the proceeds from anti-dumping and countervailing duty cases shall be paid to the US companies responsible for bringing the cases. A number of countries have challenged its WTO-consistency.

Status of dispute

Consultations held on 6 February 2001

US safeguard measure on steel wire rod and welded line pipe (complaint by EC) WT/DS214

Who won? In progress

US industry Steel

Description of dispute

On 1 March 2000 the US introduced two safeguard measures on imports of steel wire rod and imports of welded line pipe under the form of a tariff increase above a tariff quota. The EC contends the measures are inconsistent with the SA.

Status of dispute

Consultations held on 26 January 2001 (see also WT/DS202)

US CVD on German steel (complaint by EC) WT/DS213

Who won? In progress

US industry Steel

Description of dispute

See description for WT/DS225.

Status of dispute

Consultations held on 8 December 2000 and 21 March 2001

US CVD on certain steel and pasta products (complaint by EC) WT/DS212

Who won? In progress

US industry Steel

Description of dispute

The US has taken the view that its loss in US bismuth steel (WT/DS138) only applies to the British Steel case and had no impact on the 14 other US Department of Commerce measures against privatised EC firms (almost all in steel sector). The EC has challenged this interpretation and the use of the change in ownership methodology.

Status of dispute

Consultations held on 7 December 2000 and 3 April 2001

US AD steel plate from India (complaint by India) WT/DS206

Who won? In progress

US industry Steel

Description of dispute

The US imposed AD duties on carbon quality steel plate products from India. India complained the measure was inconsistent with the ADA.

Status of dispute

Consultations held 21 November 2000

US safeguard measures on line pipe from Korea (complaint by Korea) WT/DS202

Who won? In progress

US industry Steel

Description of dispute

The US imposed a 3 year definitive safeguard measure on imports of circular welded line pipe. Korea claims the measure is inconsistent with the SA.

Status of dispute

Active panel. (see also WT/DS214)

US CVD regulations treating export restraints as subsidies (complaint by Canada) WT/DS194

Who won? In progress

US industry Various

Description of dispute

A US Statement of Administrative Action treats a restraint on exports of a product as a countervailable subsidy to other products (those made using or incorporating the restricted product) if the domestic price of the restricted product is affected by the restraint. Canada claims this measure is inconsistent with the SCM.

Status of dispute

Active panel

US safeguards measure on cotton yarn(complaint by Pakistan) WT/DS192

Who won? Pakistan*

US industry Textiles

Description of dispute

The US imposed a transitional safeguard measure on combed cotton yarn from Pakistan. Pakistan claims the measure is inconsistent with the ATC. The Panel found the measure inconsistent with the ATC.

Status of dispute

*Panel report circulated on 31 May 2001. Parties may appeal.

US AD measure on hot-rolled steel (complaint by Japan) WT/DS184

Who won? Japan#

US industry Steel

Description of dispute

The US imposed anti-dumping duties on certain hot-rolled steel products from Japan. A WTO panel found that particular aspects of the AD calculation were inconsistent with the ADA.

Status of dispute

#US has notified its intention to appeal against Panel decision.

US AD measures on stainless steel coil & plate (complaint by Korea) WT/DS179

Who won? Korea

US industry Steel

Description of dispute

The US Department of Commerce imposed anti-dumping duties on stainless steel plate and sheet from Korea. The WTO panel found that the US acted inconsistently with the ADA in its investigations.

Status of dispute

Implementation (reasonable period of time expires 1 September 2001)

US lamb safeguards (complaint by Australia and NZ) WT/DS177,178

Who won? Australia, NZ

US industry Lamb meat producers and lamb growers

Description of dispute

The US imposed a safeguard measure in the form of a tariff rate quota on imports of lamb meat from NZ and Australia. A WTO panel and Appellate Body found that the US acted inconsistently with the SA in imposing the safeguard.

Status of dispute

Implementation

US CVD investigation for live cattle(complaint by Canada) WT/DS167

Who won? In progress

US industry Live cattle

Description of dispute

The US initiated a CVD investigation on 22 December 1998 with respect to live cattle from Canada. Canada claimed the investigation initiation was inconsistent with the SCM.

Status of dispute

Pending consultations

US wheat gluten (complaint by EC) WT/DS166

Who won? EC

US industry Wheat gluten

Description of dispute

US introduced a safeguard on imports of wheat gluten in the form of quantitative restrictions for 3 years (starting in June 1998). The WTO Panel and Appellate Body (on 22 December 2000) concluded that the US measure violated the SA.

Status of dispute

Implementation (reasonable period of time ends 2 June 2001)

US bismuth steel (complaint by EC) WT/DS138

Who won? EC

US industry Steel

Description of dispute

In May 2000, the WTO Appellate Body confirmed a panel's finding that countervailing duties imposed by the US Department of Commerce on British Steel's exports of lead and bismuth steel from the UK were in breach of the SCM. The Appellate Body found that the US could not assume that the benefits of pre-privatisation subsidies had passed through to the new owners.

Status of dispute

Implementation. US announced at DSB July 2000 meeting that it had implemented, but see WT/DS212.

US 1916 AD Act (complaint by EC and Japan) WT/DS136, 162

Who won? EC, Japan

US industry N/A

Description of dispute

The EC and Japan claimed that the US Anti-Dumping Act of 1916 was WTO-inconsistent. Two separate WTO panels and a joint Appellate Body found that the Act was inconsistent with a number of provisions of the WTO Agreements. The US Administration has indicated that the political decision on whether the US should comply, offer compensation or have to face retaliation is still under consideration.

Status of dispute

Implementation (reasonable period of time ends 26 July 2001).

US DRAMS (dynamic random access memory semi-conductors of 1 MB or above) (complaint by Korea) WT/DS99

Who won? Korea

US industry Semi-conductor

Description of dispute

US imposed anti-dumping duties against DRAMS from Korea. Korea complained that the US decision to maintain AD even after 3 years of no evidence of dumping was inconsistent with the ADA. Panel found in favour of Korea. Korea requested compliance panel after disagreed with US implementing measure. The parties settled dispute when agreed to a sunset clause in the AD order.

Status of dispute

Implementation. Notified mutual settlement to DSB.

US CVD on salmon imports from Chile (complaint by Chile) WT/DS97

Who won? In progress

US industry Live salmon

Description of dispute

The US initiated a CVD investigation against imports of salmon from Chile. Chile claims the initiation is inconsistent with the SCM.

Status of dispute

Pending consultations

US AD duties on colour TV receivers from Korea (complaint by Korea) WT/DS89

Who won? US agreed to revoke AD order

US industry TV receivers

Description of dispute

The US imposed AD on imports of colour TV receivers from Korea. Korea claims the US measure violates the ADA. Korea withdrew the request for a panel because US revoked the imposition of AD.

Status of dispute

Settled without litigation

US safeguard measure against broom corn broom imports (complaint by Colombia) WT/DS78

Who won? Settled

US industry Broom

Description of dispute

The US adopted a safeguard measure against imports of brooms and corn brooms. Colombia claims this measure is inconsistent with the SA

Status of dispute

Settled without litigation

US AD measures against solid urea imports from Germany (complaint by EC) WT/DS63

Who won? Settled

US industry Fertiliser

Description of dispute

The US imposed AD on exports of solid urea from Germany. The EC contends these measures are inconsistent with the ADA.

Status of dispute

Settled without litigation

US AD investigation against chilled tomatoes from Mexico (complaint by Mexico) WT/DS49

Who won? Settled

US industry Tomato

Description of dispute

Mexico claimed the US anti-dumping investigation on fresh and chilled tomatoes imported from Mexico was inconsistent with the ADA.

Status of dispute

Settled without litigation

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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.

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