ON THIS PAGE:

> US — Upland Cotton, paras. 272-273
> EC — Export Subsidies on Sugar, para. 332

I.0.1 US — Upland Cotton, paras. 272-273     back to top
(WT/DS267/AB/R)

The question whether an expired measure is susceptible to a recommendation under Article 19.1 of the DSU is a different matter. The Appellate Body in US — Certain EC Products confirmed that the 3 March Measure had ceased to exist. It noted that there was an obvious inconsistency between the finding of the panel that “the 3 March Measure is no longer in existence” and the panel’s subsequent recommendation that the Dispute Settlement Body (the “DSB”) request the United States to bring the 3 March Measure into conformity with its WTO obligations. Thus, the fact that a measure has expired may affect what recommendation a panel may make. It is not, however, dispositive of the preliminary question of whether a panel can address claims in respect of that measure.

… Article 7.8 of the SCM Agreement provides that, where it has been determined that “any subsidy has resulted in adverse effects to the interests of another Member”, the subsidizing Member must “take appropriate steps to remove the adverse effects or … withdraw the subsidy”. (emphasis added) The use of the word “resulted” suggests that there could be a time-lag between the payment of a subsidy and any consequential adverse effects. If expired measures underlying past payments could not be challenged in WTO dispute settlement proceedings, it would be difficult to seek a remedy for such adverse effects. Further — in contrast to Articles 3.7 and 19.1 of the DSU — the remedies under Article 7.8 of the SCM Agreement for adverse effects of a subsidy are (i) the withdrawal of the subsidy or (ii) the removal of adverse effects. Removal of adverse effects through actions other than the withdrawal of a subsidy could not occur if the expiration of a measure would automatically exclude it from a panel’s terms of reference.

 
I.0.2 EC — Export Subsidies on Sugar, para. 332     back to top
(WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R)

Under Article 19.1 of the DSU, where a panel “concludes that a measure is inconsistent with a covered agreement, it shall recommend that the Member concerned bring the measure into conformity with that agreement”. (footnote omitted) The panel is not required to make a recommendation as to how the Member should implement its obligations or as to the timeframe for implementation. However, Article 19.1 also provides that “[a] panel or [the] Appellate Body may suggest ways in which the Member concerned could implement the recommendations.” (emphasis added)

The texts reproduced here do not have the legal standing of the original documents which are entrusted and kept at the WTO Secretariat in Geneva.