Australia and WTO dispute settlement

Monthly Bulletin - August 2003

In this issue

Recent Developments

EC:  Measures affecting the approval and marketing of biotech products (WT/DS291, 292 and 293)

At the 29 August DSB Meeting a single panel was established following requests by the U.S., Canada and Argentina for a panel to examine the EC moratorium on the approval of genetically modified organisms and the marketing and import bans on genetically modified products maintained by several EC Member states.  The EC blocked an earlier request at the 18 August DSB but could not block the second request. 

Australia, Chile, China, Chinese Taipei, Colombia, El Salvador, Honduras, New Zealand, Norway, Peru, Thailand and Uruguay reserved third party rights in the dispute.  It is expected that a number of other Members will also seek to participate as third parties in this dispute.  (WTO Members have to notify their third party interest within 10 days of panel establishment.) 

Australia as a Complainant

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

Following Australia, Brazil and Thailand’s second request, a single panel was established at the 29 August DSB to examine EU sugar export subsidies.  The EU could not block this second request.  Australia’s statement to the DSB is attached at Annex A.

The three complainants claim that the EU’s sugar regime provides direct and indirect export subsidies on sugar at levels that are inconsistent with the EU’s obligations under the Agreement on Agriculture and the Agreement on Subsidies and Countervailing Measures.  

At the time of going to press, Barbados, Belize, Canada, China, Colombia, Cuba, Fiji, Guyana, Jamaica, Mauritius, New Zealand, Paraguay, Trinidad and Tobago and the United States have registered as third parties.  (WTO Members have to notify their third party interest within 10 days of panel establishment.)

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

No new developments. 

European Communities: Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs (WT/DS290/1)

At the 29 August DSB meeting, Australia and the U.S. requested a panel be established to examine EC legislation covering the registration and protection of geographical indications (“GIs”) on a range of products including cheese, beer, and processed meat.  The EC rejected the request for establishment of a panel but cannot block a second request.  Australia’s statement to the DSB is attached at Annex A

Australia as a Respondent

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

Following the second request by the Philippines for a panel to be established, a panel was established at the 29 August DSB to examine Australia’s quarantine measures for fresh fruit and vegetables (including bananas).  Australia’s statement to the DSB is attached at Annex A.

At the time of going to press, China, the European Communities, Ecuador, India, Thailand and the United States have registered as third parties.  (WTO Members have to notify their third party interest within 10 days of panel establishment.)

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

No new developments.  On 18 October 2002, the Philippines requested consultations with Australia regarding its quarantine measures for fresh pineapple fruit.  Consultations were held in Geneva on 15 November 2002.  Thailand and the EC participated as third parties.

Australia: Quarantine Regime for Imports (WT/DS287) 

On 29 August 2003, the European Communities (EC) lodged a request for the establishment of a panel to examine quarantine measures applied by Australia on a variety of agricultural products from the EC.  This request will be considered at a future DSB meeting. 

Disputes Involving Australia as a Third Party

EC:  Measures affecting the approval and marketing of biotech products (WT/DS291, 292 and 293)

See item in Recent Developments above. 

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

No new developments.

Australia’s third party submission will be listed under the reference to this dispute and available shortly. 

US:  Subsidies on Upland Cotton (WT/DS267)

No new developments. 

Mexico: Measures Affecting Telecommunications Services (WT/DS204)

Due to translation delays, the Panel now expects to complete its work in December 2003. 

European Communities (EC):  Measures Affecting Meat and Meat Products (Hormones) (WT/DS26)

No new developments.

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

No new developments. 

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

No new developments. 

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

Japan submitted its notice of appeal on 28 August.

Meetings of the Dispute Settlement Body: August 2003

The Dispute Settlement Body (DSB) met on 24 June and 21 July (General Meetings).  The next regular DSB meeting is scheduled for 29 August.

Australia uses DSB meetings to monitor progress and to register its views on disputes of interest. The agendas of the 24 June and 21 July DSB meetings were as follows:

The Dispute Settlement Body (DSB) met on 18 August and on 29 August 2003 (General DSB meeting).  The next regular DSB meeting is scheduled for 2 October.  

Special DSB Meeting –18 August

Three Mexican first panel requests against US Anti-Dumping Measures and Countervailing Duties (US –Anti-Dumping Measures on Cement from Mexico, US –Anti-Dumping Measures on Oil Tubular Goods from Mexico, US –Countervailing Duties on Steel Plate from Mexico) were blocked by the U.S.  The Panel and Appellate Body Reports in EC –Pipe Fittings were adopted. 

General DSB Meeting - 29 August

In addition to the panels discussed above, following second panel requests by Mexico, panels were established in US –Anti-Dumping Measures on Cement from Mexico, US –Anti-Dumping Measures on Oil Tubular Goods from Mexico and US –Countervailing Duties on Steel Plate from Mexico).  For more detail on the 29 August DSB meeting, visit the WTO website.

Annex A

Statements By Australia at The Dispute settlement Body Meeting of 29 August 2003

European Communities: Export Subsidies On Sugar

Australia is today making a second request for the establishment of a Panel in this dispute.  Our position on the issues raised in this dispute was set out in our Panel request (document WT/DS265/21) and in our statement at the time of the first panel request on 21 July.  I therefore will not go into details again, but I would like to reiterate two key points:

First, Australia remains extremely concerned at the high levels of export subsidies on sugar being provided by the European Communities.  The EC, despite being one of the highest cost producers in the world, exports approximately 6 million tonnes of subsidised sugar, an amount which significantly exceeds the EC’s export subsidy obligations.  This causes great damage to other sugar producing countries, including Australia.

In taking this dispute Australia is asking the EC to adhere to the commitments made at the time of the Uruguay Round, which were hard won by countries such as ours. 

Secondly, I would also reiterate that the dispute is not about preferential access by ACP countries to the EC.  It is not within Australia’s gift to deliver on the EC’s treaty obligations to ACP countries.

Australia therefore requests the DSB to establish a panel pursuant to Article 6 of the DSU to examine the matters set out in document WT/DS265/21.  Australia also submits that under Article 9.1 of the DSU a single panel be established to consider the matters raised by Australia, Brazil and Thailand.

European Communities: Protection Of Trademarks And Geographical Indications For Agricultural Products And foodstuffs

Australia is seeking the establishment of a panel to consider our concerns regarding the EC's regime for the registration and protection of geographical indications for agricultural products and foodstuffs.  The details of Australia's request are set out in WT/DS290/18.

As confirmed in a public statement released in Brussels yesterday, the EC is seeking through a three-pronged approach in the Doha negotiations to fundamentally re-write the TRIPS Agreement. This, despite the fact that for many WTO members the current provisions of the Uruguay Round Agreement are yet to enter into force and the EU itself has failed to implement its existing obligations. 

In Australia's view, the EC regime is inconsistent with WTO rules prohibiting discriminatory treatment, does not give due protection to trademarks, and is overly complex and prescriptive.

The EC regime diminishes the legal protection for trademarks under the TRIPs Agreement.  Among other difficulties for trademark owners under the EC regime, they have no right to prevent the registration and confusing use of a similar sign, thereby potentially significantly diminishing the value of the trademark.

However, the problems that exist with the EC's GI regime do not relate only to trademarks.

If a third country wants to protect even one GI under the EC's regime, it has to agree to register, and to protect, at the same level as in the EC, over 600 EC products.

Even then, the third country GI cannot be registered under the EC's regime unless the third country offers guarantees that its GI registration system is identical or equivalent to the EC's system.

In other words, the EC is saying that their system is the way the rest of the world has to do it. And it is precisely this objective –i.e. to force all Members of the WTO to adopt its burdensome, convoluted and bureaucratic system - that the EC has embarked upon in the Doha negotiations.

The EC is in fact asserting the exclusivity of the EC's system of law.

Quite simply such a requirement is not in keeping with any of the covered agreements.

In accordance with Australia's rights under the Dispute Settlement Understanding and the other covered agreements, Australia requests the establishment of a panel to examine its claims.

Australia: Certain Measures Affecting The Importation Of fresh Fruit And Vegetables

Australia is disappointed with the Philippines’decision to proceed with its request for a panel, an action which is both unnecessary and unproductive for all concerned. We consider our measures to be fully WTO consistent, and are confident that a panel will agree.

Although we understand the Philippines intends to persist with its request for panel establishment at this meeting, we consider the Philippines’concerns could be addressed more constructively through bilateral mechanisms and remain open to further consultations.

As mentioned at the 21 July DSB meeting, Australia has serious concerns, which we expect would also be shared by other Members, about the approach taken by the Philippines in framing its panel request.  The Philippines appears to be interested in making a broad systemic challenge to Australia’s quarantine regime, rather than contesting the WTO-consistency of import conditions contained in specific SPS measures.

If permitted, this sort of broad open-ended challenge would strike at the fundamental right of WTO Members to have quarantine regimes which provide for the application of WTO-consistent measures necessary for the protection of human, animal or plant life or health within their territory.   The Philippines’complaint is a direct challenge to the carefully negotiated balance reflected in the SPS Agreement between WTO Members’shared but sometimes competing interests in the promotion of trade and the protection of human, animal or plant life or health.   Contrary to the claim made by the Philippines, many WTO Members maintain approaches to quarantine which are either similar to Australia’s system or have elements that are similar to our import permit system.  We expect they will share our serious concerns about the potential implications of the Philippines challenge on the fundamental right of WTO Members to address their legitimate quarantine concerns.

As mentioned previously, Australia has strong doubts about the consistency of the Philippines request with the requirements of Article 6.2 of the Dispute Settlement Understanding, and we reserve our WTO rights fully in this regard.

Thank you

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This publication is intended to provide a general update and the information within it should not be relied on as complete or definitive.