Australia and WTO dispute settlement

Monthly Bulletin - December 2004/January 2005

In this issue

Recent Developments

US – Sunset Review of Anti-Dumping Measures on Oil Ccountry Tubular Goods from Argentina (DS268)

At its 17 December meeting, the Dispute Settlement Body adopted the Appellate Body and Panel reports concerning anti-dumping measures applied by the United States on oil country tubular goods from Argentina.

US – measures affecting the cross-border supply of gambling and betting services (DS285)

On 13 January, the United States notified its decision to appeal in this matter (a Panel Report was issued on 10 November 2004). As background, the dispute concerns a complaint by Antigua and Barbuda that various US laws addressing gambling and related activities were inconsistent with commitments taken by the United States pursuant to the General Agreement on Trade in Services (GATS). Antigua and Barbuda has also cross-appealed on some issues.

Dominican Republic – Measures Affecting the Import and Internal Sale of Cigarettes (WT/DS302/R)

On 24 January, the Dominican Republic notified its decision to appeal on the grounds that the Panel erred by concluding that the Dominican Republic’s “tax stamp requirement” was not justified under Article XX (d) of the GATT.

European Communities – Measures Affecting Meat and Meat Products (Hormones) (WT/DS320 and WT/DS321)

Consultations in November 2004 failed to resolve these two related disputes, which relate to the legitimacy of the continued retaliation by the United States and Canada, despite EC claims of compliance with the findings in the EC—Hormones disputes (WT/DS108). The EC has requested the establishment of panels to consider the respondents’ failure respectively to initiate an Article 21.5 compliance panel, alleging non-compliance with provisions under the GATT 1994 and the DSU. At the DSB’s January 2005 meeting, each responding party exercised its right to block a first Panel request.

United States – Tax Treatment for “Foreign Sales Corporations” (WT/DS108)

Consultations in early January failed to satisfactorily resolve this dispute. On 13 January, the EC – in a second recourse to DSU Article 21.5 – requested the establishment of a panel to examine the consistency of US measures replacing FSC export subsidy measures relating to agriculture and manufactured products previously found to be WTO inconsistent. At the DSB’s January 2005 meeting, the responding party exercised its right to block a first Panel request.

European Communities – Selected Customs Matters (DS315)

Consultations in November 2004 failed to resolve this dispute over alleged nonconformity in the administration of the European Communities’ customs regime. The EC exercised its right to block a first Panel request.

Australia as a Complainant

European Communities – Export Subsidies on Sugar (WT/DS/265)

The EC notified the DSB on 13 January 2005 of its decision to appeal. Australia notified its decision to cross appeal on 25 January. Brazil and Thailand also cross-appealed on the same grounds. Australia seeks appellate review of the Panel’s decision to exercise judicial economy in declining to examine Australia’s claims under the Agreement on Subsidies and Counterveiling Measures (“SCM Agreement). The Appellate Body will conduct hearings in early March, and the AB Report will be issued by April. Copies of the EC’s appeal notice and Australia’s cross appeal notice are available on the WTO website. Australia’s written submission will be posted shortly on the DFAT website.

As background, the Panel (in a report issued on 15 October 2004) found in favour of the complainants, Australia, Brazil and Thailand, holding that the export subsidy schemes on sugar granted by the EC are in breach of the EC’s obligations for the reduction of such subsidies under the Agriculture Agreement.

See Australia’s responses to questions from the Panel and the EC, along with its rebuttal submission and oral statements.

European Communities – Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs (WT/DS290)

The Panel’s report was issued to the parties (Australia, the US and the EC) on a confidential basis on 21 December 2004. The Panel report is expected to be publicly released in March 2005. This dispute involves complaints by Australia and the United States with regard to the WTO consistency of the EC regime for the protection of geographical indications for foodstuffs and agricultural products in the EC.

See

United States – Continued Dumping and Subsidy Offset Act of 2000 (the “Byrd Amendment”) (WT/DS217 and WT/DS234)

The DSB, at its 25 January meeting, agreed to adopt the draft decision jointly requested by Australia and the United States with respect to a bilateral Understanding in the Byrd Amendment dispute. This Understanding preserves indefinitely Australia’s right to retaliate if the United States remains in breach of its WTO obligations. Identical decisions were adopted on the Thailand/United States and Indonesia/United States Understandings in this dispute.  Earlier, at the December 2004 DSB meeting, Chile had joined the seven other complainants in gaining DSB authorisation to retaliate against the US pursuant to an arbitration award issued on 31 August.

Australia as a Respondent

Australia – Certain Measures Affecting the Importation of Fresh Fruit and Vegetables (WT/DS270)

No new developments.  (A panel was established in August 2003 at the request of the Philippines but has not yet been composed.)

Australia – Certain Measures Affecting the Importation of Fresh Pineapple Fruit (WT/DS/271)

No new developments.  (Consultations were held in November 2002 at the request of the Philippines, but no panel has been established.)

Australia – Quarantine Regime for Imports (WT/DS287)

No new developments. (A panel was established in November 2003 at the request of the European Communities but has not yet been composed.)

Selected disputes involving Australia as a Third Party

Canada – Measures Relating to Exports of Wheat (WT/DS276)

No new developments.

Japan – Measures Affecting the Importation of Apples (WT/ DS245)

No new developments.

European Communities: Measures Affecting the Approval and Marketing of Biotech Products (WT/DS291, 292 and 293)

No new developments.

United States –  Subsidies on Upland Cotton (WT/DS267)

This dispute concerns a challenge by Brazil with regard to US cotton subsidies under the Agriculture Agreement, the Subsidies Agreement and GATT 1994. The Panel issued its final report to the parties on 8 September 2004. The US notified its Notice of Appeal of the Panel’s ruling on 18 October 2004. Australia is a third participant in the appeal and lodged its Third Participant’s Submission on 16 November 2004.

See Australia’s submissions to the Panel and the Appellate Body

Meetings of the Dispute Settlement Body

DSB Meeting - 17 December 2004

At the December DSB meeting Chile joined seven other parties in gaining DSB authorisation to retaliate against the US in the Byrd Amendment dispute. The DSB adopted the Appellate Body and Panel reports in Argentina’s challenge to US sunset reviews of anti-dumping measures.

DSB Meeting – 25 January 2004

The DSB, at its 25 January meeting, agreed to adopt the draft decision jointly requested by Australia and the United States with respect to a bilateral understanding in the Byrd Amendment dispute. Identical decisions were adopted on the Thailand/United States and Indonesia/United States understandings on Byrd. Separately, all four panel requests on the DSB agenda (EC Customs, USFSC and the EC’s retaliation in the EC-Hormones disputes; referred to above) were blocked by the responding party.

The DSB will next meet on 17 February 2005.