Australia and WTO dispute settlement
In this issue
Australia as a Complainant
European Communities: Export Subsidies on Sugar (WT/DS265/AB/R)
The Appellate Body Report (Word), issued on 28 April 2005, upheld Australia’s (and Brazil’s and Thailand’s) challenge to the European Communities’ (EC) sugar export subsidies . The Appellate Body has ruled that, consistent with its WTO obligations on agricultural export subisidies, the EC must significantly limit its subsidised exports of sugar and reduce its annual expenditure on export subsidies. In a Media Release, Minister for Trade, Mr Vaile, has welcomed the Appellate Body’s ruling, saying it will result in better conditions for Australia’s sugar industry, which depends on the world market for around 80 percent of its income.
Australia had sought appellate review of the Panels’s decision to exercise judicial economy in declining to examine Australia’s claims under the Agreement on Subsidies and Countervailing Measures (“SCM Agreement”). The Appellate Body found that Australia’s claims under the SCM Agreement should have been so examined by the Panel, but that the Appellate Body was not in the position to complete the analysis. Copies of the EC’s appeal notice and Australia’s cross appeal notice are available on the WTO website.
See also Australia’s cross-appeal submission.
Earlier, the Panel (in its Report [ PDF ] 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 were in breach of the EC’s obligations for the reduction of such subsidies under the Agriculture Agreement.
See also Australia’s own submissions to the Panel and Appellate Body.
European Communities: Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs (WT/DS290/R)
The Panel Report [ PDF ] was adopted at a DSB meeting on 20 April 2005. This dispute concerned the European Communities’ (EC) regime for the protection of geographical indications (“GIs”) for foodstuffs and agricultural products. The United States made a separate, parallel complaint against the EC’s regime. The Panel agreed with Australia (and the US) that the EC’s legislation is inconsistent with the EC’s WTO obligations. The EC is now required to implement the rulings in this dispute.
Australia as a Respondent
Australia: Certain Measures Affecting the Importation of Fresh Fruit and Vegetables
No new developments. (A panel was established in August 2003 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 but has not yet been composed.)
Selected disputes involving Australia as a Third Party
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.
European Communities: Continued Suspension of Obligations in the EC Hormones Dispute (WT/DS320 and WT/DS321)
No new developments. Panels were established at the 17 February 2005 DSB meeting at the request of the EC in these two separate but related disputes. The disputes relate to the legitimacy of the continued retaliation by the United States and Canada, despite European Communities claims of compliance with the findings in the EC – Hormones disputes. Australia has joined both disputes as a third party.
United States: Tax Treatment for “Foreign Sales Corporations” (WT/DS108)
No new developments. A panel was established at the 17 February 2005 DSB meeting at the request of the European Communities (in a second recourse to DSU Article 21.5) to examine the consistency of US measures replacing FSC export subsidy measures relating to agriculture and manufactured products previously found to be WTO inconsistent. Australia has joined the dispute as a third party.
European Communities: Selected Customs Matters (WT/DS315)
At the DSB meeting on 21 March 2005, a panel was established to examine United States’ concerns that the European Communities customs law is applied in a non-uniform manner and that the EC does not maintain a forum for the prompt review and correction of administrative action relating to customs matters. Australia has joined the dispute as a third party.
Meetings of the Dispute Settlement Body
DSB Meeting: 20 April 2005
At the 20 April DSB meeting, the panel reports in Australia’s and the United States’ challenges to the European Communities’ geographical indications regime were adopted. The Appellate Body and Panel Reports in US – Measures Affecting the Cross-Border Supply of Gambling and Betting Services were also adopted.
Special DSB Meeting: 1April 2005
The Panel Report in Korea – Measures Affecting Trade in Commercial Vessels (WT/DS273/R) was adopted by the DSB at a Special meeting on 11 April.
The next regular DSB Meeting will be held on 19 May 2005.
WTO Dispute Settlement: Developments of Interest
Dominican Republic: Measures Affecting the Importation and International Sale of Cigarettes (WT/DS302/AB/R)
The Appellate Body’s report concerning this dispute between the Dominican Republic and Honduras was issued on 25 April 2005. The Dominican Republic had contended that the Panel erred by concluding that the Dominican Republic’s tax stamp requirement was not justified under Article XX(d) of the GATT. The Appellate Body upheld the Panel’s finding that the tax stamp requirement was not so justified.
European Communities: Measures Affecting Trade in Commercial Vessels (WT/DS301/R)
The Panel Report, circulated on 22 April 2005, concerned the consistency with Dispute Settlement Understanding (DSU) provisions of an EC regulation authorising counter subsidies for ship-building. The Panel held that the EC regulation was inconsistent with a DSU Article 23 requirement that Members seek redress of a violation of obligations - or other nullification and impairment of benefits - through recourse to dispute settlement in accordance with DSU rules and procedures. To the extent that the EC acted inconsistently with DSU provisions, the Panel found that the EC had nullified or impaired benefits accruing to Korea under the DSU.
United States: Measures Affecting the Cross-Border Supply of Gambling and Betting Services (WT/DS285/AB/R)
The Appellate Body Report, issued on April 7 2005, concerned a complaint by Antigua and Barbuda that US laws addressing gambling and related activities were inconsistent with commitments taken by the United States pursuant to the GATS. The United States had claimed the laws were, pursuant to GATS Article XIV, necessary to protect public morals or to maintain public order. The Appellate Body found that, while the US laws were measures necessary to protect public morals or maintain public order, they were not applied consistently with the requirements of the GATS Article XIV chapeau.