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WTO Dispute Settlement Bulletin

Monthly Bulletin: May 2001

Australia and WTO Dispute Settlement

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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

  • Surveillance of implementation
    of recommendations adopted by the DSB

    • European Communities: Regime for the importation, sale and distribution of
      bananas (WT/DS27)
    • Japan: Measures Affecting Agricultural Products
      (Varietal testing) (WT/DS76)

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
    Request
    • Egypt:
      Definitive Anti-dumping Measures on Steel Rebar from Turkey (WT/DS211)

Panel was not established as Egypt
opposed the request.

  • Panel Request
    • Peru:
      Taxes on Cigarettes (WT/DS227)

Panel was not established as Peru
opposed the request.

  • Adoption of Panel and
    Appellate Body reports
    • United States: Safeguard measure on imports of fresh,
      chilled or frozen lamb (WT/DS177,178)

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.

  • Indicative List of Panelists

The proposed
French candidate was agreed.

  • Other Business
    • Statement by Argentina in
      relation to Argentina Measures on the
      Export of Bovine Hides and the Import of Finished Leather
      (WT/DS155).

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
.

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

Last Updated: 9 January 2013
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