Australia and WTO Dispute Settlement Bulletin

May 2004

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 provides information on recent developments. Also included is information on meetings of the WTO Dispute Settlement Body (DSB). For more information on specific WTO disputes in which Australia is involved, please visit http://www.dfat.gov.au/trade/negotiations/wto_disputes.html or send an email to wto.disputes@dfat.gov.au

For more information on all other WTO cases, please visit the WTO website.

For previous issues of this bulletin.

More general information relating to the Doha Round of Trade negotiations.

RESOLVING EXPORT ACCESS PROBLEMS THROUGH THE WTO SYSTEM

If you have answered "yes" to those questions, the WTO Trade Law Branch of the Department of Foreign Affairs and Trade stands ready to assist in developing options for resolution of your access problems. Exporters can contact WTO legal specialists in the Department on the following numbers:

Email: wto.disputes@dfat.gov.au
Fax: 02 6273 1527
Telephone: 02 6261 2777

Recent Developments

United States – Final dumping determination on softwood lumber from Canada (WT/DS264)

The United States has appealed the Panel's decision in this dispute. The Panel issued its report in this dispute on 13 April. The Panel (with one member dissenting) found in favour of Canada's claim on the issue of "zeroing" in anti-dumping calculations, holding that using a zeroing methodology in determining the existence of dumping margins is inconsistent with the Anti-Dumping Agreement. However, the Panel held in favour of the United States with regard to other elements of the dispute. "Zeroing", as considered by the Panel in this case, refers to the US practice of aggregating dumping margins to zero where the weighted average export price was greater than the weighted average normal value (i.e. in situations of negative dumping). The EC, India and Japan are third parties to this dispute. The Panel report is available on the WTO website.

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

The US has appealed the Panel's decision in this dispute. The Panel found that the United States was successful with regard to its claims concerning the treatment of imported grain, but unsuccessful in its complaint concerning the activities of the Canadian Wheat Board. Australia's third party submission in this dispute is available at: http://www.dfat.gov.au/trade/negotiations/disputes/aust_3psub.html.

The Panel's report is available on the WTO website.

Mexico: Measures Affecting Telecommunications Services (WT/DS204 )

The Panel report in this dispute was adopted without appeal on 1 June. The Parties (Mexico and the US) had reached an agreement on the steps necessary to comply with the recommendations and rulings of the Panel and on the reasonable time for compliance. Notwithstanding the agreement, Mexico expressed some concerns about the Panel's findings and recommendations, noting Mexico had put settlement of the dispute ahead of its systemic interests. The US was successful in a number of its claims that Mexico was in breach of its GATS commitments with regard to the activities of dominant Mexican telecommunications carrier Telmex. Australia was a third party to this dispute. The Panel's report is available on the WTO website.

Negotiations on the Dispute Settlement Understanding (DSU Review)

On 28 May, in a meeting of the Special Session of the Dispute Settlement Body, delegations agreed to extend negotiations on the DSU Review beyond the 31 May 2004 deadline for completion. No definite deadline for the negotiations has been set.

Proposed amendments to the working procedures for Appellate Review

On 8 April, the Chairman of the Appellate Body sent a letter to the Dispute Settlement Body (DSB) Chairman suggesting a series of amendments to the working procedures for Appellate Review. The proposed amendments were initially considered at the DSB meeting on 28 May, and will be considered again on 7 June. The deadline for comments from Members has been extended to 11 June. The letter and text of proposed amendments are available on the WTO website (document reference number: WT/AB/WP/8). Also available on the WTO website is the Appellate Body's first annual report.

Australia as a Complainant

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

The arbitration proceeding which will determine the level of retaliation permitted against the United States was held in April. The arbitrator's award is expected in June 2004. Eight of the eleven complainants in this dispute (not including Australia) requested authorisation to retaliate against the United States in January. Australia, Thailand and Indonesia have agreed to allow the United States until 27 December 2004 to comply with the Panel and Appellate Body rulings.

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

The first hearing of the Panel will be held in Geneva on 23 and 24 June. 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. The Panel is expected to report on this dispute late in 2004. Relevant Australian submissions to the Panel, including Australia's first written submission, are available at:

http://www.dfat.gov.au/trade/negotiations/disputes/290_protection_of_trademarks.html.

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

The second oral hearing before the Panel in Geneva concluded on 11 and 12 May . Australia's responses to questions from the Panel and the EC, along with Australia's rebuttal submission and oral statement, are available at :

http://www.dfat.gov.au/trade/negotiations/disputes/265_export_subsidies_sugar.html.The Panel is scheduled to report towards the end of 2004.

Australia as a Respondent

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

No new developments. A panel has been established but not yet 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 but not yet composed.

Selected disputes that have involved Australia as a Third Party

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

The first oral hearings in this dispute were held in Geneva on 2 and 3 June. The Panel will consider the EC's moratorium on the approval of genetically modified organisms and the marketing and import bans maintained by some EC states on genetically modified products. Australia's oral statement as a third party to the dispute is available at http://www.dfat.gov.au/trade/negotiations/disputes.

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

Media reporting suggests that the Panel has ruled in Brazil's favour in this dispute. The Panel's report will be made public on 18 June 2004. This dispute concerns a challenge by Brazil with regard to US cotton subsidies. Australia is one of thirteen third parties. Australia's submissions to the Panel are available at: http://www.dfat.gov.au/trade/negotiations/disputes/wto_subsidies_upland_cotton.html

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

No new developments. The US has indicated its intention to maintain the suspension of concessions on the basis that the EC has still not made its import prohibition regime WTO-consistent. Canada has offered to consult with the EC on the matter, while also maintaining its suspension.

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

The EC's programme of countermeasures entered into force on 1 March. These apply as additional customs duties on selected US products at an initial rate of 5%, to be followed by monthly increases of 1% up to a ceiling of 17% to be attained on 1 March 2005 if the US has not complied with its WTO obligations before then.

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

Japan and the United States have agreed that the "reasonable period of time" for implementation of the recommendations and rulings of the Dispute Settlement Body will expire on 30 June 2004. The Panel and Appellate Body reports in this dispute were adopted on 10 December 2003.

Meetings of the Dispute Settlement Body

DSB Meetings – 22 June 2004

The next meeting of the DSB will be held on 22 June 2004. The Agenda for the meeting will close on 10 June 2004.

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