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 and Panel Reports in this dispute were adopted by the Dispute Settlement Body (DSB) in May. The Appellate Body upheld Australia’s (and Brazil’s and Thailand’s) challenge to the European Communities’ (EC) sugar export subsidies, ruling that, consistent with its WTO obligations on agricultural export subsidies, the EC must significantly limit its subsidised exports of sugar and reduce its annual expenditure on export subsidies.
Mr AV Ganesan of the Appellate Body has been appointed to arbitrate on the period within which the EC has to implement the WTO findings. Under WTO rules the indicative outer period for WTO implementation is fifteen months from the date of adoption of WTO rulings (in this case 19 May 2005). Mr Ganesan’s report is expected to be issued in November.
European Communities: Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs (WT/DS290/R)
No new developments. Following adoption of the Panel Report in April, Australia and the United States (in respect of the parallel US challenge to the same European Communities (EC) measure) have agreed that the EC may have until 3 April 2006 to implement the Panel’s findings.
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.)
Australia as a Third Party: Selected Disputes
Japan: Measures Affecting the Importation of Apples (WT/DS245)
At the DSB meeting on 31 August, Japan informed the DSB that it had reached an agreement with the United States that its amended Sanitary and Phytosanitary (SPS) measures for US apples constituted a mutually agreed solution to the dispute.
This followed the DSB’s adoption in July of the Panel’s Report on the United States’ recourse to Article 21.5 of the DSU in this dispute.
European Communities: Measures Affecting the Approval and Marketing of Biotech Products (WT/DS291, 292 and 293)
No new developments.
United States/Canada: Continued Suspension of Obligations in the EC Hormones Dispute (WT/DS320 and WT/DS321)
Panels were established at the February DSB meeting at the request of the EC in these two separate but related disputes. The Panels in the disputes have agreed to the parties’ requests to open their proceedings to observation by other WTO Members and the public. Given that some of the third parties objected to this request with regard to the session for third party submissions to the panel, that part of the proceedings will remain closed. 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.
Australia's written submissions to the Panel in these two disputes.
United States: Tax Treatment for “Foreign Sales Corporations” (WT/DS108)
An oral hearing into the dispute, and subsequent Panel questions, took place in early July, following composition of a panel in May. This dispute relates to a 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, as have Brazil and China.
European Communities: Selected Customs Matters (WT/DS315)
A panel was composed in May to examine United States’ claims 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, as have Argentina, Brazil, China, Hong Kong - China, India, Japan, Korea, and Chinese Taipei
European Communities and Certain Member States/United States: Measures Affecting Trade in Large Civil Aircraft (WT/DS316 and WT/DS317)
At the DSB meeting on 31 August, United States again requested that the DSB initiate Subsidies and Countervailing Measures (SCM) Agreement Annex V fact-finding procedures in both the US- and EC – Aircraft disputes. This followed the establishment in July of two panels to examine, respectively, the United States’ complaint on the European Communities’ subsidies to Airbus, and the European Communities’ complaint regarding United States subsidies to Boeing. Australia has joined the disputes as a third party, together with Brazil, Canada, China, Japan and Korea.
Meetings of the Dispute Settlement Body
DSB Meeting: 31 August 2005
At the 31 August DSB meeting, Japan informed the DSB that it had reached an agreement with the US that its amended Sanitary and Phytosanitary (SPS) measures for US apples constituted a mutually agreed solution to the Japan-Apples dispute.
The United States and European Communities made statements on the US request for the initiation of the Subsidies and Countervailing Measures (SCM) Agreement Annex V fact-finding procedures in the US- and EC – Measures Affecting Trade in Large Civil Aircraft disputes.
Special DSB Meeting: 3 August 2005
At its 3 August special meeting, the DSB adopted the panel report in European Communities – Countervailing Duty Investigation on Dynamic Random Access Memory Semiconductors (DRAMS) from Korea.
The United States and European Communities made statements on the US request for the initiation of the Subsidies and Countervailing Measures (SCM) Agreement Annex V fact-finding procedures in the US- and EC – Measures Affecting Trade in Large Civil Aircraft disputes
Next DSB Meeting
The next regular DSB Meeting will be held on 27 September 2005.
WTO Dispute Settlement: Developments of Interest
The following reports are available on the WTO website:
- European Communities: The ACP-EC Partnership Agreement – Recourse to Arbitration Pursuant to Decision of 14 November 2001 (“Banana Tariffs Arbitration”) (WT/L/607) - circulated 1 August 2005
- United States – Final Countervailing Duty Termination with Respect to Certain Softwood Lumber from Canada (WT/DS257/RW) – Article 21.5 Panel Report, circulated 1 August 2005
- United States – Countervailing Measures Concerning Certain Products from the European Communities (WT/DS212) – Article 21.5 Panel Report), circulated 17 August
- United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services (WT/DS/285) – Article 21.3(c) arbitration award, circulated 19 August 2005
- Dominican Republic – Measures Affecting the Importation and Internal Sale of Cigarettes (WT/DS302) – Article 21.3(c) arbitration award, circulated 29 August 2005