Discussion paper on standards of review under WTO agreements
The attached discussion paper entitled “National
Sovereignty, International Review and the World Trade Organisation:
An analysis of standard of review under the World Trade Organisation”,
was prepared by Christine Ratnasingham in June 2002 under the Law Internship
Program of the Centre for International and Public Law at the Australian
National University in Canberra.
The paper examines the standard of review in relation to the panel
and Appellate Body (AB) approaches to World Trade Organization (WTO)
disputes. The views and conclusions expressed in this paper – and any
errors therein – are those of the author and cannot be attributed to
the Department of Foreign Affairs and Trade.
European Communities – Trade Description of Sardines (WT/DS231/R)
On 29 May 2002, a WTO panel found that an EC Regulation, restricting
the use of the term “Sardines” to the fish species “Sardinops Pilchardus”,
was inconsistent with Article 2.4 of the Agreement on Technical Barriers
to Trade (TBT Agreement). The EC has since announced that it will appeal
Peru sought to market its fish species “Sardinops sagax” as “Peruvian
Sardines” in the EC (in accordance with Codex Stan 94). The EC claimed
that only products from the fish species “Sardina Pilchardus” could
use the term “Sardines” as a descriptor (in accordance with the EC Regulation).
Peru argued that the EC Regulation was inconsistent with Articles 2
and 12 of the TBT Agreement, Article XI:1 of the GATT 1994 and the principle
of non-discrimination under Articles I and III of the GATT 1994. The
panel found that the EC Regulation breached Article 2.4 of the TBT Agreement
and recommended to the DSB that the EC bring its measure into conformity
with its obligations under this Agreement.
This is the first panel decision to consider the substantive obligations
under Article 2.4 of the TBT Agreement. Article 2.4 does not mandate
the use of technical regulations or international standards but requires
that Members use technical regulations where they are required and relevant
international standards where they exist, as a basis for their technical
regulations (except when such international standards would be ineffective
or inappropriate in fulfilling the legitimate objectives pursued).
TBT rules in this regard are different from those applicable under the
The panel found that the naming standard set out in paragraph 6.1.1(ii)
Codex Stan 94 was a relevant international standard and that it was
not used as a basis for the EC Regulation. The panel concluded that
the EC failed to establish the “legitimate obejectives” defence – that
is the EC had not demonstrated that Codex Stan 94 would be an ineffective
or inappropriate means for the fulfilment of the legitimate objectives
pursued by the Regulation (namely, consumer protection, market transparency
and fair competition). The panel therefore found that the EC Regulation
was inconsistent with Article 2.4 of the TBT Agreement. In its finding
the panel discussed the meaning of “technical regulation” through a
textual reading of its definition in Annex 1.1 of the TBT Agreement.
The panel considered that labelling and naming requirements are essentially
a “means of identification” of a product and therefore fall within the
scope of the definition of technical regulation.
US/NZ – WTO Ruling on Canadian Dairy Export Subsidies (WTDS103 and
The Final Report (confidential to the parties) was issued to the parties
on 24 June. The Report will be circulated to WTO Members around mid
On 25 June, NZ Trade Negotiations Minister Jim Sutton released a statement
in response to overseas media reports that a WTO panel had upheld the
joint US – NZ complaint against Canadian Dairy export subsidies. Minister
Sutton said it was an extremely positive result which highlighted the
strength of the WTO export subsidy disciplines. The Canadian International
Trade Minister, Pierre Pettigrew, and Agricultural Minister, Lyle Canclief,
have issued a statement advising that Canada will appeal the WTO compliance
Australian to be WTO Panel Member
Paul O'Connor, Regional Director, Australian Customs Service in Western
Australia has been selected to become a member for the Article 21 panel
in relation to EC - Anti-dumping on Linen (WT/DS141).
Australia as a Complainant (1)
United States: Continuing Dumping and Subsidy Offset Act of 2000
(“Byrd Amendment”) (WT/DS217 and WT/DS234)
The issue of the panel report has been delayed. A revised
release date has not yet been announced.
The eleven co-complainants (including Australia) are arguing
that the United States Continued Dumping and Subsidy Offset Act of
2000 (the “Byrd Amendment”) is inconsistent with U.S obligations
under GATT 1994, the Anti-Dumping Agreement and the Agreement on Subsidies
and Countervailing Measures. This Act requires U.S customs authorities
to distribute anti-dumping and countervailing duties assessed on imports
to U.S domestic parties that supported the original petition for anti-dumping
or countervailing duties to be imposed. Copies of Australia's submissions
to the “Byrd Amendment” panel can be found at: http://18.104.22.168/trade/negotiations/disputes/wto_disputes-US_AD.html
Disputes involving Australia as a Third Party (8)
Mexico – Measures Affecting Telecommunications Services
No new developments. The U.S is arguing that Mexico has failed to
implement its GATS commitments for the cross-border supply of basic
telecommunications services. It alleges that certain measures largely
embodied in Mexico's International Long Distance Rules breach Sections
1 and 2 of the basic telecommunications Reference Paper incorporated
into Mexico's Schedule of Commitments, Section 5 of the GATS Annex on
Telecommunications and GATS Article XVII. A panel was established at
the 17 April DSB Meeting. Australia, Canada, Cuba, the EC, Guatemala,
Japan and Nicaragua have reserved their third party rights in this dispute.
Chile: Price band system and safeguard measures relating
to certain agricultural products (WT/DS207)
On 3 May 2002 a WTO panel found that Chile's price band system (PBS)
applying to certain agricultural products was inconsistent with Article
4.2 of the Agreement on Agriculture and Article II:1(b) of the GATT
1994. Its imposition of safeguards with respect to wheat, wheat flour
and edible vegetable oils was inconsistent with Article XIX:1(a) and
the Agreement on Safeguards. At the 24 June DSB meeting, Chile announced
that it had filed a notice of appeal against the panel report. It is
expected that Argentina will not file a counter-appeal. The oral hearing
is expected to be held in the last week of July or the first week of
European Communities (EC): Measures affecting meat and
meat products (Hormones) (WT/DS26)
No new developments. The EC is still facing WTO-authorised retaliation
by the U.S and Canada because of its failure to implement within a reasonable
period of time. It was earlier reported that the U.S and the EC were
engaged in discussions on a compensation arrangement. Australia has
registered its expectation that any compensation will be applied on
a non-discriminatory basis.
Canada: Measures affecting the importation of milk and the
exportation of dairy products (WT/DS103 and WT/DS113)
See “Recent Developments” above.
United States: Section 110(5) Copyright Act (“Homestyle”
Arbitration over the level of suspension of obligations proposed by
the EC following the U.S failure to bring its measures into conformity
within the reasonable period of time remains suspended (but can be reactivated
at the request of either party). At the 24 June DSB meeting, the U.S
made a statement noting that it had been engaged in discussions with
the EC to find a positive and mutually acceptable resolution of the
dispute. The EC noted the efforts of the U.S administration in working
with the U.S Congress and expressed hope that there would be rapid progress.
Australia registered its concern at the delay in U.S implementation
and the apparent discriminatory nature of compensation arrangements
that might be negotiated. Australia noted that no information had been
provided on the nature of the intended solution and asked if the U.S
could provide this information to the DSB. In response the U.S claimed
that any implementation arrangement reached with the EC in the copyright
dispute would be consistent with the WTO covered agreements. The EC
also responded by stating that there were no agreements to notify in
the context of this dispute (see report from 24 June DSB meeting below).
United States: Definitive safeguard measures on imports
of circular welded carbon quality line pipe from Korea (WT/DS202)
The Appellate Body and panel Reports were adopted at the 8 March DSB
meeting. The Appellate Body largely found in favour of Korea's challenge
to the February 2000 U.S line pipe safeguard. Since the adoption of
the Report, pursuant to Article 21.3(b) of the DSU, Korea and the U.S
have conducted discussions to reach agreement on a “reasonable period
of time” for the U.S implementation of the DSB report. As no mutually
satisfactory time has been agreed Korea requested binding arbitration
on this point pursuant to Article 21.3(c) of the DSU. Mr Yasuhei Taniguchi,
Appellate Body Member, has been appointed as Arbitrator.
United States: Tax Treatment for “Foreign Sales Corporations”
Arbitration is continuing on the EC's U.SD 4 billion retaliation claim.
The U.S has objected to the level claimed by the EC and has argued that
the annual retaliation by the EC should not exceed U.SD 956 million.
The arbitrators' report was due on 29 April, but is now expected to
be issued on 15 July. Following the circulation of the arbitration
report, the EC can seek DSB authorisation to proceed with the retaliatory
action against the U.S specified in the arbitrator's award. President
Bush assured European leaders at a May 2 Summit that he would ensure
U.S compliance with the WTO ruling. However there are still significant
differences of opinion within the U.S on how this will be achieved and
Canada: Export credits and loans guarantees for regional
Brazil has indicated its intention to seek WTO authorisation for countermeasures
arising from disagreement about what was needed to complete implementation.
Brazil commented that Canada had failed to implement DSB rulings to
withdraw the subsidy within 90 days (which expired on 20 May 2002).
Brazil placed its request on the agenda for the 3 June special meeting
of the DSB (Brazil's request raises systemic issues related to sequencing
and retrospectivity). This item was deferred at the 3 June DSB until
the meeting on 24 June where Brazil made a retaliation request to take
appropriate countermeasure in the amount of US$3.36 billion. Canada
requested, and the DSB agreed, that Brazil's retaliation request be
referred to arbitration under Article 22.6.
Japan: Measures Affecting the Importation of Apples (WT/DS245)
A panel was established at the 3 June DSB meeting on request by US.
Australia reserved its third party rights. Brazil and the EC also reserved
third party rights.
The Japanese measures complained of by the U.S include the prohibition
of imported apples from orchards where fire blight is detected (or if
it is detected within a 500 metre buffer zone), a requirement for three
orchard inspections a year and post-harvest treatment of exported apples
with chlorine. The U.S argues that these measures are inconsistent
with Japan's obligations under Article XI of GATT 1994, the SPS Agreement
and Article 14 of the Agreement on Agriculture. The U.S has also made
a non-violation claim.
Disputes in which Australia has a policy or economic interest (8)
Japan: Measures affecting agricultural products (“Varietal testing”)
No new developments. Japan reached an agreement with the U.S on a
mutually satisfactory solution last September. Australia has registered
its expectation that the outcome will be applied in a non-discriminatory
manner to the products of all WTO members.
United States: Section 129(c)(1) of the Uruguay Round Agreements
No new developments. Canada is challenging the legality of a specific
aspect of the U.S statute controlling the U.S implementation of DSB
rulings. A panel was established at the 23 August 2001 DSB meeting,
and was constituted on 30 October. Third party rights were reserved
by the EC, India, Japan and Chile.
United States: Section 211 Omnibus Appropriations Act (WT/DS176)
No new developments. The U.S and the EC have reached a mutual agreement
on the reasonable period of time for the U.S to implement the recommendations
and rulings of the DSB in this dispute. The panel and Appellate Body
Reports adopted at the 1 February DSB meeting found that portions of
the U.S legislation were inconsistent with U.S obligations under the
WTO Agreement. In the light of these findings, which call for legislative
action by the U.S Congress, the U.S and the EC have agreed that the
reasonable period of time will expire on 31 December 2002, or on the
date on which the current session of the U.S Congress adjourns, whichever
is later, and in no event later than 3 January 2003.
The Section 211 law is aimed at preventing foreign companies from registering
trademarks that were used in connection with property confiscated by
Cuba without compensation.
EC: Generalized System of Preferences (WT/DS242)
No new developments. Thailand has requested consultations with the
EC under Article XXIII of GATT 1994 in respect of measures under the
EC's Generalized System of Preferences (“GSP”) scheme. Consultations
took place on 14 February. Thailand is claiming that, through its GSP
scheme as implemented, the EC fails to carry out its obligations under
Article I of GATT 1994 (Most-Favoured-Nation Treatment) and the Enabling
Clause, as incorporated into GATT 1994. Thailand has also made a non-violation
claim. This dispute raises a number of systemic issues of interest/concern
to Australia, including jurisprudence on GSP graduation, the application
of non-economic conditionality to the grant of GSP preferences and the
potential for this issue to be divisive for developing countries.
EC: Conditions for the Granting of Tariff Preferences to Developing
No new developments. India has requested consultations with the EC
on similar issues to Thailand's request above. India has cited Article
I.1 of GATT 1994 (Most-Favoured-Nation Treatment) and the Enabling Clause
as the legal basis for its concerns with regard to tariff preferences
to selected countries under special arrangements for combating drug
production and trafficking, and tariff preferences accorded under special
incentive arrangements related to EC-determined standards on the protection
of labour rights and the environment. This dispute raises similar systemic
issues for Australia as EC: Generalized System of Preferences (above).
United States: Equalizing Excise Tax Imposed by Florida on Processed
Orange and Grapefruit Products (WT/DS250)
No new developments. Brazil has held consultations with the U.S on
the “Equalizing Excise Tax” imposed by the State of Florida on processed
orange and grapefruit products produced from citrus fruit grown outside
the U.S. Brazil is claiming that the exemption from this tax of products
produced in whole or in part from citrus fruit grown within the U.S
treats imported products less favourably than domestic products and
is in violation of national treatment obligations under Article III.2
of GATT 1994. Brazil also makes other national treatment violation
claims, including that the use of the proceeds of the tax to advertise
and promote Florida grown citrus and citrus products with no promotion
of imported citrus products violates Article III.4 and III.1 of GATT
A U.S judicial decision recently overturned the way in which the excise
was applied, ruling that it should be payable by all juices in Florida.
U.S. States previously exempt from paying the tax are now objecting
to paying a tax which is used exclusively to promote Florida juice.
US: Definitive Safeguard Measures on Imports of Certain Steel Products
(WT/DS248, WT/DS249, WT/DS 251, WT/DS 252, WT/DS 253, WT/DS 254)
At the 3 June DSB meeting, three separate panel requests were put forward
by the EC, Japan and Korea in relation to this matter. Given this was
the second DSB consideration of the EC's request, a panel was established.
The U.S exercised its right to prevent the establishment of the panels
requested by Japan and Korea. At the 7 June DSB meeting, the U.S exercised
its right to block China's first DSU panel request on steel. At the
14 June DSB meeting, the DSB accepted the second-time requests for
panels by Japan and Korea and decided to refer these cases to the panel
which had been established on 3 June to examine the EC complaint. The
14 June DSB meeting also considered the first panel requests by Switzerland
and Norway. At the 24 June DSB meeting, the three additional complaints
by China, Norway and Switzerland against U.S steel safeguard measures
were referred to the panel already established to examine the complaints
raised by the EC, Japan and Korea (see report from DSB meetings below).
The complainants argue that the definitive safeguard measures imposed
by the U.S in the form of an increase in duties on imports of certain
flat steel, hot-rolled bar, cold-finished bar, rebar, certain welded
tubular products, carbon and alloy fittings, stainless steel bar, stainless
steel rod, tin mill products and stainless steel wire and in the form
of a tariff rate quota on imports of slabs (all effective as of 20 March
2002) are inconsistent with U.S obligations under the GATT 1994 and
the Agreement on Safeguards.
Turkey – Import Ban on Pet Food from Hungary (WT/DS256)
Hungary has requested consultations with Turkey over its ban on the
importation of pet food from any European country. The ban is designed
to protect Turkey from BSE. Hungary argues that as it is BSE free,
the pet food is not made from ruminants and is for cats and dogs, the
ban is unscientific and inconsistent with the WTO. Specifically, Article
XI of GATT 1994, Articles 2.2, 2.3, 5.1, 5.2, 5.6, 6.1, 6.2 and 7 and
Annex B of the SPS Agreement and Article 14 of the Agreement on Agriculture.
Peru – Certain Taxes on Agricultural Products (WT/DS255)
Chile has sought consultations with Peru on Peruvian law 27.614 which
Chile considers may be in breach of WTO National Treatment provisions.
Chile has identified fresh fruit, vegetables, fish, milk, tea and other
“natural” products as being affected by the tax treatment. The U.S
requested intervention as a third party.
At the 24 June DSB meeting, Peru exercised its right to block establishment
of a panel requested by Chile (However, a panel would be automatically
established at the second request). If congress does not remove the
measure, it is expected that Chile will request panel establishment
at the DSB meeting on 29 July.
Meeting of the Dispute Settlement Body: June 2002
Special meetings of the DSB were held on 3, 7 and 14 June and a Regular
DSB meeting was held on 24 June. The next DSB meeting is scheduled
for 29 July.
Australia uses DSB meetings to monitor progress and to register its
views on disputes of interest. The agendas of the June DSB meetings
were as follows (any Australian interventions are indicated):
Special DSB Meeting – 3 June 2002
1. Panel request
United States – Definitive
Safeguard Measures on Imports of Certain Steel Products
Three separate panel requests were put forward by the EC, Japan
and Korea in relation to the United States' definitive safeguard
measures on imports of certain steel products.
Given this was the second DSB consideration of the EC's request,
a panel was established. The EC expressed disappointment at the
delay in the establishment of a penal and registered its expectation
that the panel would proceed as expeditiously as possible. Six
of the other potential complainants registered third party rights
(Brazil, China, Korea, Japan, Norway and Switzerland) as well
as Canada, Taiwan and Thailand.
The U.S exercised its right to prevent the establishment of the
panels requested by Japan and Korea. Both Japan and Korea expressed
regret at the U.S decision to block the establishment of the panels.
2. Panel request
Japan – Measures affecting
the importation of apples (WT/DS245/2)
As this was the second DSB consideration of the U.S request,
a panel was established. Australia reserved its third party rights.
Brazil, NZ and the EC also reserved third party rights.
3. Surveillance of Implementation of Recommendations adopted by
Canada – Export Credits and
Loan Guarantees for Regional Aircraft : Recourse by Brazil to
Article 4.10 of the SCM Agreement and Article 22 of the DSU (WT/DS222/7)
Pursuant to the bilateral agreement signed by Brazil and Canada
on 1 June 2002, Brazil requested the DSB to defer consideration
of this item until the 24 June DSB meeting. Brazil and Canada
both indicated that the purpose of the requested DSB decision
was to grant them additional time to decide on how to proceed
with this dispute. Both countries further indicated that the
deferral will not affect Brazil's right to request authorisation
to take appropriate countermeasures pursuant to Article 4.10 of
the SCM Agreement and Article 22.2 of the DSU. The DSB took a
decision along these lines.
Special DSB Meeting – 7 June 2002
1. Panel request
United States – Definitive
Safeguard Measures on Imports of Certain Steel Products
The U.S exercised its right to block China's first DSU panel
request on steel. The EC and Korea criticised the U.S's continued
use of delaying tactics to prevent the commencement of WTO panel
proceedings to review the WTO consistency of its safeguard measures.
Special DSB Meeting – 14 June 2002
1.A Panel requests
United States – Definitive
Safeguard Measures on Imports of Certain Steel Products (WT/DS249/6)
Japan and Korea requested the establishment of a panel. The
DSB agreed that the panel established on 3 June to examine the
EC's complaint against U.S steel safeguards would also examine
the complaints by Japan and Korea. The U.S blocked the first
panel request by Switzerland and Norway.
Regular DSB Meeting – 24 June 2002
1. A Surveillance of implementation of recommendations adopted by
United States – Section 110(5)
of the U.S Copyright Act: Status Report by the United States (WT/DS160/18/ADD.5)
The U.S noted that it was working hard to reach a mutually acceptable
arrangement consistent with WTO rules. The EC noted the efforts
of the U.S administration in working with the U.S congress, and
expressed hope that there would be rapid progress.
Australia registered its concern about U.S delay in implementation
and the apparent discriminatory nature of the proposed compensation
arrangement with the EC. We noted that there was no information
on the nature of the intended solution and asked the U.S to provide
this information to the DSB. The U.S claimed that any implementation
arrangement would be WTO consistent. The EC stated that there
was no agreement to notify in the context of this dispute.
1. B Surveillance of implementation of recommendations adopted by
United States – Anti-Dumping
Act of 1916: Status report by the United States (WT/DS136 – WT/DS162)
The U.S mentioned its additional status report (provided on June
13) and repeated information set out in that report. The U.S
stated it would continue to work towards reaching a mutually satisfactory
resolution to this dispute with the EC and Japan. The EC and
Japan registered their concern with the delay and Japan noted
that it would be able to re-activate the suspended Article 22.6
arbitration from 30 June.
2. Panel request
United States – Rules of origin
for textiles and apparel products (WT/DS243/5/REV1)
At India's request, a panel was established at the meeting.
The EC, Pakistan and the Philippines registered third party rights.
The U.S raised its concern about the Secretariat's action to modify
the circulated version of India's original panel request. The
U.S emphasised that panel requests should be circulated exactly
as submitted by the complaining party and, if required can be
amended through Members acting in good faith to resolve the problem.
3. Panel request
United States – Definitive
safeguard measures for imports of certain steel products (WT/DS252/5)
The three additional complaints by China, Norway and Switzerland
in this matter were referred to the panel already established
to examine complaints raised by the EC, Japan and Korea.
4. Panel request
Turkey – Certain import procedures
for fresh fruit (WT/DS237/3)
Turkey exercised its right to prevent establishment of a panel
at the first DSB consideration of the request from Ecuador.
5. Panel request
Peru – Tax treatment on certain
imported products (WT/DS255/3)
Peru exercised its right to prevent the establishment of a panel
at the first DSB consideration of the request by Chile. It is
expected that if Peruvian Congress does not remove the measure,
Chile will request panel establishment at the DSB meeting on 29
6. Surveillance of implementation of recommendations adopted by
Canada – Export credits and
loan guarantees for regional aircraft ): Recourse by Brazil to
Article 4.10 of the SCM Agreement and Article 22.2 of the DSU
(WT/DS222/7 and CORR.1).
It was agreed that this matter would be referred to arbitration.
Brazil requested that the DSB, pursuant to Article 4.10 of the
SCM Agreement and Article 22.2 of the DSU, grant Brazil authorisation
to take appropriate countermeasures in the amount of US$3.36 billion.
Canada requested, and the DSB agreed, that Brazil's retaliation
request be referred to arbitration under Article 22.6.