DS436: US — Countervailing measures on certain hot-rolled steel flat products from India

India welcomed the Appellate Body (AB) Report and said that this dispute was a significant milestone for India, as a number of countervailing duty measures imposed by the United States over the years have been found to be inconsistent with the Subsidies and Countervailing Measures (SCM) Agreement. India said that it had pursued this dispute to see a balanced and fair interpretation of the SCM Agreement and it believed that the AB had made a significant contribution to the interpretation of the subsidy disciplines. In its statement, India focused in particular on the AB findings on: the issue of what constitutes a "public body", cross-cumulation, the US benefit methodology, examination of new subsidies allegations in an administrative review, and a number of other systemic issues concerning the implementation of the SCM Agreement.

The US said that the dispute raised procedural and systemic issues. In particular, it considered that India's appeal of the entirety of the Panel's findings had led to an exacerbation of the AB workload and made it difficult for the AB to comply with the 90-day deadline. In this latter regard, the US expressed disappointment that the AB had failed to follow the practice of consulting with the parties before exceeding the mandatory time-limit. On substance, the US commented on the AB's findings on the US benchmark regulation, the issue of specificity requirements, the use of facts available, the interpretation of "public body" and cross-cumulation.

Views expressed on the issues of "public body" and cross-cumulation

On the interpretation of what constitutes a "public body", India welcomed the AB's findings that recognized that merely being an entity owned by the government was no sufficient to render it a public body. On the other hand, the US welcomed the AB's rejection of India's interpretation of public body, which, in its view, could have shielded transfers of a government's financial resources from WTO subsidies disciplines. However, it would have wanted the AB to clarify that authority over government's resources was the decisive factor in determining whether an entity was a public body.

On cross-cumulation, India welcomed the AB's clarification that the cumulative assessment of the effects of imports under Art. 15.3 required that the imports were subject to CVD investigations. In India's view, this finding would have a significant trade impact for India, as it applied to many products on which the US had imposed CVD. The US considered that the AB's findings restricted the ability of Members to address the effects of cumulative imports; therefore, the US supported a reading of the SCM Agreement as permitting the use of cross-cumulation.

The DSB adopted the Appellate Body Report contained in document WT/DS436/AB/R and the Panel Report contained in document WT/DS436/R and Add.1, as modified by the Appellate Body Report.