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WTO Dispute Settlement Bulletin

Monthly Bulletin: November 2000

Australia and WTO dispute settlement

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Managing WTO
Disputes : Institutional Arrangements

The Department has established
the Trade Law Branch in the Trade Negotiations Division. The Branch includes additional resources for
Australia's participation in WTO disputes.
The Trade Law Branch takes the lead role in initiating and defending
Australia in WTO disputes.

Assistance to exporters and
industry groups on WTO issues is provided through the WTO Disputes
Investigation and Enforcement
Mechanism
launched by Mr Vaile in 1999. Under the Mechanism,
any Australian exporter can seek Government support and assistance in
circumstances where other WTO Member governments may not be honouring their
obligations under the WTO Agreements. The Mechanism sets up a partnership
between exporters and the Government to exercise Australia's WTO rights for the
benefit of exporters, and Australia as a whole. Assistance via the Mechanism is
available to all actual or would-be exporters whether as individual entities or
as industry associations, no matter the exporter's size or the product
specialisation. There is no
pre-qualification level for access or any charge for use of the mechanism.

The Trade Law Branch is also
available to advise State and Territory Governments on the WTO aspects of State
and Territory proposals or measures involving the use of trade or trade related
actions.

Resources permitting, the Trade
Law Branch will consider requests to address business, community and
educational groups with an interest in the WTO generally, the rights and
obligations of WTO membership, the WTO's dispute settlement system and the WTO
Disputes Investigation and Enforcement Mechanism.

For
more information or for assistance, contact us at wto.disputes@dfat.gov.au

Update on
Australian Involvement in Specific Disputes

Australia is currently the complaining party in two WTO
disputes and is involved in several other disputes as an interested third
party. There are presently no
complaints against Australia.

Australia as a Complainant

Korea: Measures on Imports of
Beef (WT/DS169)

Korea appealed the panel report
that upheld the complaints of Australia and the United States that Korea's
imported beef regime was inconsistent with a number of WTO provisions. The
Appellate Body is scheduled to release its report on 11 December 2000.

Contact : wto.disputes@dfat.gov.au

United States : Safeguard
Measures on Imports of Lamb Meat (WT/DS178)

A confidential interim report
from the panel favoured the arguments put forward by Australia and New
Zealand. The panel is scheduled to
issue its final report at the end of this year (although there may be
translation or other delays).

All parties have rights of
appeal. There is a maximum 60 days to
lodge an appeal from the date of circulation of a panel report.

Contact : wto.disputes@dfat.gov.au

Disputes involving Australia as a
Third Party

EC: Beef Hormones (WT/DS26)

The EC is currently facing WTO-authorized
retaliation by USA and Canada because of its failure to implement. Australia has formally registered its
expectation that, consistent with its WTO rights, any settlement or
compensation arrangements with Canada and the USA will not discriminate against
Australia's beef exports.

Contact : wto.disputes@dfat.gov.au

United States: Restrictions on
shrimps (the "shrimp/turtle" case) (WT/DS58)

The United States has introduced
measures that allow for the lifting of the import embargo against certain WTO
members. Australia has regained access
for prawns for its northern and southern prawn fishing regions. The US has also
been supportive in regional initiatives, including on the Indian Ocean and SE
Asian Regional Agreement on Turtle Conservation, which is due to be signed
early in 2001. However, the US has continued to maintain its import
restrictions based upon a unilaterally determined environmental standard (TEDs
use). Australia considers that cooperative approaches offer a more appropriate
avenue for addressing turtle conservation issues and encourages all concerned
countries to participate constructively in such efforts.

Malaysia has requested a panel to
examine the WTO-consistency of the revised US measures. The Minister for Trade has agreed to Australia's
participation as a third party.

Contact : wto.disputes@dfat.gov.au

Canada: Dairy Assistance Measures (WT/DS103)

Canada has until the end of this
year to bring its dairy export arrangements (including measures at provincial
level) into conformity with its WTO obligations. The WTO consistency of some of Canada's proposed arrangements has
been questioned.

Contact : wto.disputes@dfat.gov.au

United States:
"Homestyle" Copyright Legislation (WT/DS160)

US measures which exempt
restaurants and bars from music royalty requirements were found to be
WTO-inconsistent. The EC has sought arbitration on the reasonable period of
time the US should be accorded to bring its measures into conformity. The outcome of the dispute protects the
royalty rights of Australian musicians in the US.

Contact : wto.disputes@dfat.gov.au

United States: Safeguard measures on wheat gluten
(WT/DS166)

A panel upheld an EC complaint
that US safeguard action on EC wheat gluten was WTO inconsistent. The US
appealed the panel's findings. The Appellate Body is expected to report in late
December or early in the New Year.

Contact : wto.disputes@dfat.gov.au

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

A panel was established on 11
September. Systemic issues relating to the definition of a subsidy and to the
nature of WTO obligations in relation to mandatory legislation.

Contact : wto.disputes@dfat.gov.au

United States: Safeguard measures
on certain line pipe (WT/DS202)

A panel has been composed to
examine Korea's complaint. Australia's
involvement is based on a systemic interest in the operation of the Safeguards
Agreement.

Contact : wto.disputes@dfat.gov.au

Other Disputes in which Australia
has a Policy or Economic Interest

Japan: Varietal testing of horticultural products (WT/DS76)

The United States and Japan
continue to negotiate on replacement arrangements. Australia has formally registered its WTO rights to replacement
arrangements that do not discriminate against Australia's horticultural exports
to Japan.

Contact : wto.disputes@dfat.gov.au

EC: Bananas (WT/DS27)

The United States is currently
applying WTO-authorized retaliatory measures against EC exports following
findings that the EC revised access arrangements applying to imports of bananas
from the Caribbean and Latin America remained WTO-inconsistent. The EC has announced that it is considering
a transitional tariff quota regime on a "first-come, first-served
basis" and would be seeking to negotiate a tariff-only system. These proposals may have longer-term
implications for a number of tariff quota arrangements, including
country-allocated quotas (such as those applied to Australian beef and sugar).

Contact : wto.disputes@dfat.gov.au

United States: Foreign Sales Corporations (FSC) taxation
measures (WT/DS108)

The US FSC arrangements, which
are available for exports to any destination, were found to be prohibited
export subsidies. The EC has recently
requested a panel to examine the consistency of US implementing measures.

Contact : wto.disputes@dfat.gov.au

Chile: Trade-related environment measures on swordfish (WT/DS193)

The EC has requested the
establishment of a panel to consider Chilean laws which prevent Spanish
swordfish vessels from unloading or transshipping product in Chilean ports.
Chile claims that the matter is a conservation rather than a trade issue and
has sought dispute settlement proceedings under UNCLOS. Australia has an interest in the use of
port state measures from both a fish conservation and trade perspective. A
panel is likely to be established at the 12 December meeting of the Dispute
Settlement Body.

Contact : wto.disputes@dfat.gov.au

EC: Measures on asbestos (WT/DS135)

The panel found that French bans
on chrysotile asbestos were justified by GATT exceptions provisions which
permit measures necessary for the protection of human life and health (Article
XX (b) of GATT 1994.). The panel
engaged three Australian scientific experts to advise panel members on
scientific issues. In its defence, the
EC incorporated certain evidence from amicus submissions (submissions from NGOs) to the panel. Canada has appealed the
findings.

The Appellate Body has developed
special working procedures for the handling of amicus submissions in the appeal.
Those procedures were debated at a special session of the WTO General
Council on 22 November.

The outcome of this dispute may
have implications for domestic measures applied or under consideration in
regard to chrysotile asbestos.

Contact : wto.disputes@dfat.gov.au

Meeting
of the Dispute Settlement Body : 17 November 2000

The Dispute Settlement Body (DSB)
consists of all the members of the WTO and meets each month in Geneva.
Australia uses the DSB meetings to monitor progress and to register its views
on disputes of interest.

The agenda of the meeting of 17
November was as follows (any Australian interventions are indicated):

1.
Surveillance of
implementation of recommendations adopted by the DSB:

European
Communities
regime for the importation, sale and distribution of
bananas: status report by the European
Communities
Japan measures affecting agricultural products (varietal testing): status report by
Japan

While not intervening at this meeting, Australia has
regularly raised in the DSB our strong interest in horticultural exports to
Japan and the need for assurances from Japan that new measures for testing
fruit products will not discriminate against Australian exports.

Canada

measures affecting the importation of milk and the exportation of dairy products:
status report by Canada

Australia did not intervene in this meeting but is
monitoring Canadian implementation carefully.

India

quantitative restrictions on imports of agricultural, textile and industrial
products: status report by India

This dispute is between the US and India. Australia
resolved its dispute with India on the same issues in March 1998.

Turkey restrictions on imports of textile and clothing products: status report by
Turkey

2.
India measures affecting the automotive sector: Request
for the establishment of a panel by the European Communities

3.
Philippines measures affecting trade and investment in
the motor vehicle sector:
Request for the establishment of a panel by the United
States

4. Argentina definitive
anti-dumping measures on imports of ceramic floor tiles from Italy: Request for
the establishment of a panel by the European Communities

5. Chile measures affecting
the transit and importation of swordfish: Request for the establishment of a panel by the European
communities

6. Guatemala definitive
anti-dumping measures on grey portland cement from Mexico: Report
of the Panel

7. Adoption of the 2000 draft annual
report of the DSB

Australia supported adoption of the annual report.

8. Other business - Amicus curiae briefs

Australia participated in a discussion regarding the
Appellate Body's decision to develop procedures for accepting submissions from
non-WTO Members in the Asbestos
dispute. A special session of the WTO General Council was held on 22 November
to discuss the same matter. Australia's statement to the General Council is
repeated below:

  • Mr Chairman, we share
    the reservations of those who have spoken this afternoon.
  • This is an important
    issue which needs careful consideration, and it is one on which Members clearly
    should give guidance.
  • We recognise,
    however, that there are differences of view about this issue and how Members
    should respond. We also recognise that the issue requires early attention.
  • Members'
    interventions suggest that there are three questions that need to be addressed:
  1. first, whether Members should provide guidance to the
    Appellate Body and Panels concerning the treatment of amicus briefs
  2. second, if Members agree that guidance should be provided,
    what should be the content of that guidance
  3. finally, how should Members provide this guidance to the
    Appellate Body and Panels. We consider that a pragmatic approach is required on
    this issue. Clearly, the General Council has the authority to adopt guidelines
    providing guidance to the Appellate Body and Panels on how amicus briefs should
    be handled. We note that the General Council, in July 1996, adopted Guidelines
    for Arrangements on Relations with NGOs under Article V:2 of the Marrakesh
    Agreement (WT/L/62), and suggest that the approach taken could also be an
    appropriate avenue or model for guidelines on amicus briefs.
  • We suggest that the
    Chair of the General Council, in cooperation with the Chair of the DSB, consult
    with Members on these key questions with the aim of finding the most
    appropriate way forward.
  • In light of the
    interventions made at this meeting, we hope that Members would be willing to
    participate fully in this process in a cooperative spirit based on the
    following principles:
  1. the need to fully respect and preserve the rights of WTO Members
  2. the need to preserve the special character of the WTO as
    an intergovernmental body with binding treaty rights and obligations
  3. the need to be responsive to public interest in the WTO's
    work
  • We see no necessary
    conflict between these principles and believe that we should be able to find a
    reasonable compromise based on them.

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a monthly bulletin on Australian involvement in WTO Dispute Settlement, from
the Trade Law Branch of the Department of Foreign Affairs and Trade. If you
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information on Australia's involvement in WTO dispute settlement can be found
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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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