Australia and WTO dispute settlement
In this issue
European Communities: Export Subsidies on Sugar (WT/DS/265)
The Panel report in this dispute was circulated on 15 October. The Panel found in favour of the complainants, Australia, Brazil and Thailand, holding that the export subsidy schemes on sugar granted by the EC are in breach of the EC’s obligations for the reduction of such subsidies under the Agriculture Agreement. Specifically, the Panel found that the EC sugar regime provides export subsidies that are WTO-inconsistent because they are in excess of both the EC’s quantity commitment levels and budgetary outlay commitment levels. The Panel exercised judicial economy on the claims pursuant to the Subsidies and Countervailing Measures Agreement. The EC has indicated that it will appeal the decision.
See Australia’s responses to questions from the Panel and the EC, along with its rebuttal submission and oral statements.
Amendments to Appellate Body Working Procedures
The Chairman of the Appellate Body notified the DSB Chair of amendments to the Appellate Body Working Procedures that will take effect next year. In April this year, the Appellate Body Chairman sent a letter to the Dispute Settlement Body (DSB) Chairman containing a series of proposed amendments to the working procedures for Appellate Review. These were considered by the DSB and Members were given the opportunity to submit written comments on them. The amendments deal with, among other things, notices of appeal and timetables for appeal. The amended Working Procedures are available on the WTO web site (document WT/AB/WP/W/9).
Overview of WTO dispute settlement cases
The WTO Secretariat has released an update of its Dispute Settlement Overview, taking into account recent developments in dispute settlement up to 1 October 2004. The document contains information about disputes at all stages of the dispute settlement process, as well as statistical data concerning aspects of disputes since the establishment of the WTO in 1995, e.g. the number of complaints notified to the WTO, the number of Panel and Appellate Body reports adopted. It also compares the participation in disputes of developed and developing country Members. The document is available on the WTO web site (document number WT/DS/OV/22).
Australia as a Complainant
European Communities: Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs (WT/DS290)
No new developments. (This dispute involves complaints by Australia and the United States with regard to the WTO consistency of the EC regime for the protection of geographical indications for foodstuffs and agricultural products in the EC. The Panel has indicated that it will endeavour to issue its report before the end of the year.)
See Australian submissions to the Panel, including written submissions and oral statements made to the Panel and answers to Panel questions.
United States: Continued Dumping and Subsidy Offset Act of 2000 (the “Byrd Amendment”) (WT/DS217 and WT/DS234)
No new developments. (The arbitration award on the level of retaliation to be permitted against the United States by eight of the complainants (not including Australia) in the “Byrd Amendment” dispute was issued on 31 August. Australia, Thailand and Indonesia have agreed to allow the US until 27 December 2004 to comply with the Panel and Appellate Body rulings.)
Australia as a Respondent
Australia: Certain Measures Affecting the Importation of Fresh Fruit and Vegetables (WT/DS270)
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 that have involved Australia
as a Third Party
Canada: Measures Relating to Exports of Wheat (WT/DS276)
Canada informed the October DSB meeting of its intention to implement the rulings and recommendations of the Panel against its grain handling practices (which were not appealed) noting that it would require a reasonable period of time to do so. The WTO Appellate Body report in this dispute was issued on 30 August, upholding the Panel’s findings that the US had failed in its claim that activities of the Canadian Wheat Board contravened Canada’s state trading enterprise obligations under the GATT 1994.
See Australia’s third party submission in the appeal.
Japan: Measures Affecting the Importation of Apples (WT/DS245)
The meeting of the Article 21.5 compliance panel took place at the end of October. The US is challenging Japan’s compliance with the DSB rulings against Japanese quarantine measures on US apple imports. The compliance panel will examine the WTO consistency of Japan’s revised measures. Australia, Brazil, the EC, New Zealand, Chinese Taipei and China are third parties. A third party session took place at the first Panel hearing on 28 October.
See Australia’s third party oral statement.
European Communities: Measures Affecting the Approval and Marketing of Biotech Products (WT/DS291, 292 and 293)
No new developments. (The first oral hearings in this dispute were held in Geneva on 2 and 3 June. The Panel will consider the EC’s moratorium on the approval of genetically modified organisms and the marketing and import bans maintained by some EC states on genetically modified products.)
See Australia’s third party oral statement.
European Communities: Measures Affecting Meat and Meat Products (Hormones) (WT/DS26)
No new developments. (The US has indicated its intention to maintain the suspension of concessions on the basis that the EC has still not made its import prohibition regime WTO-consistent. Canada has offered to consult with the EC on the matter, while also maintaining its suspension.)
United States: Tax Treatment for “Foreign Sales Corporations” (WT/DS108)
In early October the US Congress adopted a bill repealing the FSC/ETI legislation that will stop the availability of FSC/ETI benefits to US exporters from 2007 onwards. The new law will come into force upon signature by the US President. Australia anticipates the US will make a statement on this matter at the next DSB meeting. The EC’s authorised programme of retaliatory measures entered into force on 1 March. This consisted of additional customs duties on selected US products, beginning at an initial rate of 5% and followed by monthly increases of 1%. The duties are currently at 12%.
United States: Subsidies on Upland Cotton (WT/DS267)
The Panel issued its final report to the parties on 8 September. The US notified its intention to appeal the panel ruling to the Appellate Body on 28 October. This dispute concerns a challenge by Brazil with regard to US cotton subsidies under the Agriculture Agreement, the Subsidies Agreement and GATT 1994. Australia is one of thirteen third parties.
See Australia’s submissions to the Panel.
Meetings of the Dispute Settlement Body
DSB Meeting – 18 October 2004
See a summary of the implementation reports presented to the October DSB meeting. The next meeting of the DSB will be held on 24 November 2004.
This publication is intended to provide a general update and the information within it should not be relied on as complete or definitive.