S

safeguard measures

see also (in addition to the immediately following “safeguard measures” headings) causation analysis (SG 4.2(b)) (determination of serious injury or threat of); confidential information (SG 3.2); determination of serious injury or threat of, definitions (SG 4.1); determination of serious injury or threat of (SG 4), requirements; developing countries (SG 9); dispute settlement (SG 14); “domestic injury” (SCM 16); investigation of conditions for safeguard measures, requirements (SG 3.1/SG 4.2(c)); “like or directly competitive product” (SG 2.1/SG 4.1(c)); notification and consultation (SG 12); provisional safeguard measures (SG 6); publication of findings and reasoned conclusions (SG 3.1); quota modulation (SG 5.2(b)); reasoned and adequate explanation requirement (SG); transitional safeguard measures (SG) (China) (Accession Protocol 16)

Safeguards Agreement (SG) as integral part of WTO Agreement WTO 19

safeguard measures, application (SG 5)

“demonstration” of compliance (SG 3.1), relevance SG 97–9

determination of injury or threat of (SG 2.1) SG 82

imports, limitation to SG 227

Member’s right to choose method SG 97–9

non-discrimination (GATT XIII) and GATT 686, 690–1, SG 232

quota modulation (SG 5.2(b))

determination of injury or threat (SG 2.1), relevance to SG 82

as exception to general rule SG 82, 234

“to the extent necessary” (proportionality) (SG 5.1) SG 13–15, 224–7

Accession Protocol (China) and SG 317–18

adjustment plans, relevance SG 228

“clear justification” /requirement to explain SG 224–7

tariff measures and SG 225 n. 375, 232 n. 289

serious injury to increased imports, limitation to SG 226–7

“serious injury” (SG 4.2(b)) distinguished SG 226

safeguard measures, conditions (SG 2)

burden of proof DSU 549

compliance with accession protocols SG 313

determination of serious injury or threat (SG 4), violation as violation of SG 2 SG 17–23, 21

free trade agreements/customs unions and (SG 2.1 footnote 1) SG 64

parallelism between investigation (SG 2.1/SG 4.1(c)) and application of measure (SG 2.2) SG 66–79

Note: The discussion turns on the parallelism between “product being imported into its territory” (SG 2.1)/ “within its territory” (SG 4.1(c)) and “being imported irrespective of source” (SG 2.2)

burden of proof SG 71

“factors other than increased imports” (SG 4.2(b)), imports from excluded sources as SG 74, 77–8

“irrespective of source”, applicability to RTAs SG 66–73

separate investigation into RTA member, relevance SG 69

reasoned and adequate explanation requirement, 14.45, 14.69–72, 14.74, 14.76–9: see also reasoned and adequate explanation requirement (SG)

right to apply measure and exercise of right distinguished SG 13–15

RTAs/customs unions and (SG 2.1 footnote 1), right to exclude member of customs union from GATT 1055–6, SG 64–5

“such increased quantities” (SG 2.1)

maintenance of level of concessions (SG 8.3) and SG 245

methodology, panel’s right to examine SG 35–7

qualitative test SG 38–9

quantity as determining factor SG 24

“rate and amount of the increase … in absolute and relative terms” (SG 4.2(a)) SG 25–8

absolute increase SG 50

“recent” SG 33–4, 320

as sudden and recent increase SG 30–45

trends SG 26–30, 42–5

“sufficient to cause serious injury or threat” (SG 2.1) SG 31–2, 48

quota modulation (SG 5.2(b)) and SG 82, 234

separate determinations of threat and injury, need for SG 80–3

GATT practice SG 83

“serious injury” and “threat” as alternatives SG 80

“threat” and “injury” as continuum SG 81

threshold for threat and injury distinguished SG 81

“under such conditions” SG 51–9, 178

“factors other than increased imports” (SG 4.2(b)) and SG 58

price analysis, relevance SG 57, 60–3

safeguard measures, duration and review (SG 7)

burden of proof SG 333

extension of measure (SG 7.1), whether distinct measure DSU 149

format (SG 2 notifications) SG 236

modifications reducing restrictiveness (SG 7.4) SG 237, 291

safeguard measures, maintenance of substantially equivalent level of concessions (SG 8)

“absolute” increase SG 245

“absolute” increase in imports (SG 8.3) SG 49–50, 245, 322

“equivalent” SG 239

“adequate opportunity for prior consultations” (SG 12.3) and SG 239–40

extension of time limits (SG 8.2)

GATT practice SG 244

invocations SG 244 (table)

notification of extensions SG 244

safeguard measures, object and purpose (SG preamble) SG 1–3

balance between effective temporary protection and structural adjustment SG 2

multilateral control over safeguards SG 1

safeguard measures, prohibition and elimination of certain measures (SG 11) GATT 597

notification (SG 11.2)

calculation of deadline (“date of this agreement” (WTO XVI:2)) SG 254

eligible original Members and SG 255

format SG 255

notifications SG 253

timetables SG 255

safeguard measures (SG), see also determination of serious injury or threat of (SG, 4), requirements; developing countries (SG 9); dispute settlement (SG 14); emergency action (GATT XIX); notification and consultation (SG 12); standard/powers of review (panel) (DSU 11)

safeguard measures (SG)/emergency action (GATT XIX), relationship between GATT 795, 838–43

continuing applicability of GATT XIX GATT 839–42

rules for application of GATT XIX (SG 1 and 11.1(a)) GATT 839–40, SG 4–10

Safeguards Committee (SG 13)

establishment WTO 93

Members’ reporting obligations (SG 13.1) SG 302

observer status SG 300

reports SG 301

requests for assistance (SG 13.1) SG 303

rules of procedure (1996) WTO 94, SG 299

sampling (AD 6.10)

see also “domestic industry” (AD 4)

“appropriate amount” (AD 9, 2) and AD 664, 666

choice of sample AD 633–5

as deviation from general rule AD 623–4

“dumped imports” finding, applicability AD 200–7

individual margin for each known exporter or producer AD 625–6

exporter or producer not originally selected (AD 6.10.2) AD 625

injury investigations (AD 3.2), use in AD 198–9, 207

“known exporters” AD 632

“largest percentage” AD 636–7

NMEs and AD 624

“objective examination” obligation (AD 3.1) and AD 198–9, 203–4, 204, 207, 210–13

procedural nature AD 626

separate legal entities, treatment of AD 627–31

volume and price effects determination (AD 3.2) AD 210–13

voluntary responses (AD 6.10.2) AD 638

Schedules of Concessions (GATT II)

see also Schedules of Specific Commitments (GATS XX)

anti-dumping duties applied consistently with GATT II:2(b), “safe harbour” GATT 161

“charge equivalent to an internal tax” (GATT II:2(a)) GATT 159–60

burden of proof GATT 160

conformity of laws, regulations and administrative procedures, obligation to ensure (WTO XVI:4) WTO 287

consistency of measure with GATT II:1(a) and (b) GATT 118–20

legislation as such, right to challenge (WTO XVI:4) GATT 120

test GATT 118

“date of this agreement” (GATT XXVI:1)/Marrakesh Protocol GATT 153–7

Understanding on Article II:1(b) GATT 155

WTO accession protocols GATT 147

diminishment of obligations, exclusion GATT 138–9, 164

duties or charges (GATT II:1(b)), whether inherently discriminatory GATT 137

exceptions to GATT II:1(b), price-based measures for balance of payments purposes GATT 172

fees and formalities connected with importation and exportation (GATT VIII) and GATT 506

inconsistency with GATT VI and GATT 489

as integral part of GATT 1994

AG 3.1 AG 26

GATT II:7 GATT 163, AG 26

interpretation and clarification

“circumstances of conclusion” (VCLT 32) GATT 131

context (VCLT 31(2)), other terms in Schedule as GATT 127

customary international law rules of interpretation [as codified in the VCLT] as applicable law AG 26

GATT II:1(a) and (b), interrelationship GATT 133

Harmonized System of Customs Classification (HS), applicability: see Harmonized System of Customs Classification (HS)

legitimate expectations (including GATT II:5 provisions) GATT 121, 132, 162, DSU 1542

“treatment contemplated” (GATT II:5) and GATT 162

Marrakesh Protocol and GATT 138–9, 154

parties’ common intentions (VCLT 31(1)) GATT 119, 121

subsequent practice (VCLT 31(3)(b)) GATT 130

VCLT as applicable law GATT 119, 121, 169

modification of schedules: see modification of schedules (GATT XXVIII)

non-discrimination under GATT I and GATT 139

non-discriminatory administration of QRs (GATT XIII) and GATT 139, 169

ordinary customs duties (AG 4.2) and GATT 143, AG 42–5, 67

ordinary customs duties in excess of those provided for in Schedule (GATT II:1(b))

customs duties based on exogenous factors AG 43

duty different in type GATT 146–7

“in excess of” GATT 146–7

internal duty distinguished GATT 167

“on their importation” GATT 144

“other duties or charges” (ODCs) (GATT II:1(b)) GATT 148–52

definition GATT 148–9

foreign exchange fees GATT 150, 151

import surcharges GATT 150

recording pursuant to Understanding on Article II:1(b) GATT 152

“subject to the terms, conditions or qualifications in the schedule” (GATT II:1(b)) GATT 138–42

additional concession GATT 140 n. 204

description distinguished GATT 140

inclusion in schedule, need for GATT 142

price ceiling not included in Schedule GATT 141

“subject to” GATT 140

terms, conditions or qualifications added to import concessions, obligation to include in Schedule GATT 142

tariff classification for purposes of GATT 122

tariff database: see consolidated tariff databases

treatment no less favourable than that provided in appropriate schedule (GATT II:1(a))

bonding requirements

elimination of quantitative restrictions (GATT XI) and GATT 626

imposition of import duties distinguished GATT 626

failure to include additional terms, conditions and qualifications to Schedule and GATT 142

non-tariff concessions

commitments not to impose export duties GATT 135–6

members making such concessions GATT 134

Secretariat Technical Note on the Accession Process GATT 134

STEs (GATT VII) and, GATT practice GATT 746

STEs (GATT XVII) and GATT 745

Understanding on Article II:1(b), recording of “other duties and charges” GATT 152

withdrawal of concessions: see withholding or withdrawal of concessions (GATT XXVII)

Schedules of Concessions (GPA)

as integral part of GPA (GPA XXIV:12) GPA 54

interpretation and clarification, VCLT as applicable law GPA 54

Schedules of Specific Commitments (GATS XX)

Committee on Specific Commitments GATS 173–5, 215

Guidelines (2001), corrections to French text GATS 174

inscription of measures inconsistent with GATS XVI and GATS XVII (GATS XX:2) GATS 196

as integral part of GATS (GATS XX:3) GATS 177, 197–8

interpretation and clarification

context (VCLT 31(2)), other Members’ schedules GATS 189

customary international law rules of interpretation [as codified in the VCLT] as applicable law GATS 177, 199

Document W/120, as “agreement made between all the parties in connection with the conclusion of the treaty” (VCLT 31(2) (a)) GATS 186–7

parties’ common intentions (VCLT 31(1)) GATS 177

Scheduling Guidelines (1993)

as “agreement made between all the parties in connection with the conclusion of the treaty” (VCLT 31(2)(a)) GATS 181

as subsequent practice establishing agreement of parties (VCLT 31(3)(b)) GATS 182

as supplementary means including preparatory work (VCLT 32) GATS 180

Scheduling Guidelines (2001), as subsequent practice establishing agreement of parties (VCLT 31(3)(b)) GATS 183

supplementary means of interpretation (VCLT 32) GATS 179–90

Document W/120 GATS 179, 185–7

Scheduling Guidelines (1993) GATS 180–2

Scheduling Guidelines (2001) GATS 184

summary of AB guidance on potentially relevant instruments GATS 179

UN CPC GATS 188

modification or rectification, procedures (GATS XXI:5) GATS 201–2

required information (GATS XX:1)

allocation to specific sector/subsector (“sector” (GATS XXVIII (3))) GATS 191, 229

time-frame for implementation (GATS XX:1(d)) GATS 104, 192–5

treaty status GATS 140

scientific evidence, need for sufficient (SPS 2.2)

see also expert evidence; harmonization of SPS measures (SPS 3); information or technical advice, panel’s right to seek (DSU 13.1/SPS 11.2); provisional adoption of SPS measures in case of insufficiency of scientific evidence (SPS 5.7); risk assessment, need for (SPS 5.1)

burden of proof SPS 32–6

GATT XX requirements distinguished GATT 854

SPS 5.6 and SPS 260

SPS 5.7 and SPS 36, 323, 324–7, DSU 1278 n. 2005

cumulative test SPS 31

equivalence (SPS 4), relevance SPS 43

as part of trade/protection of human life and health balance SPS 24

precautionary principle and SPS 8, 23, 328–30

rational and objective relationship between SPS measure and scientific evidence, need for SPS 22

case-by-case approach SPS 30–1, 137

provisional measures (SPS 5.7) and SPS 309

“scientific evidence” SPS 29

standard of review SPS 37–40

expert evidence (DSU 13.2) SPS 40

information or technical advice, panel’s right to seek (DSU 13.1/ SPS 11.2) SPS 39

“objective assessment of matter before it” SPS 41

prudence/precautionary principle SPS 37

risk assessment, exclusion SPS 38, 122–9

“sufficient” SPS 25–6

context (SPS 3.3, 5.1 and 5.7) SPS 27

context (SPS 4) SPS 43, 121

ordinary meaning SPS 25

patent insufficiency SPS 28

as relational concept SPS 25–6, 30–1

SCM Agreement: see also adverse effects (SCM: 5); arbitration (SCM 8.5); confidential information (SCM 12.4); conformity of laws, regulations and administrative procedures with SCM obligations, obligation to ensure (SCM 32.5); consultations (SCM 4.1–4); consultations (SCM 13); consumption of inputs in the production process (SCM, Annex II footnote 61); countermeasures in case of failure to comply with panel or AB report within specified time-period (SCM 4.10); countermeasures in case of failure to take measures to remove adverse effects of or withdraw subsidy (SCM 7.9); data collection period (SCM 15.1/15.2); determination of injury (SCM 15); dispute settlement (SCM 30); “domestic injury” (SCM 16); due process (countervailing duty investigation) (SCM 12.7); evidence (countervailing duty investigation) (SCM 12); expedited review, right to (SCM 19.3); export subsidy, prohibited (SCM, Part II); investigation of dumping (AD 5)/subsidy (SCM 11); investigations and reviews of existing [SCM] measures initiated … on or after date of entry into force of WTO Agreement (SCM 32.3); judicial review (SCM 23); “like product” (SCM 15 footnote 46); notification obligations (SCM 25); price undertakings (AD 8)/undertakings (SCM 18); provisional measures (SCM 17); “public body” (SCM 1.1(a)(1)); public notice and explanation of determinations (SCM 22); request for establishment of panel, requirements (SCM 4.4); retroactivity (SCM 20); “serious prejudice”, procedures for developing information concerning (SCM Annex 5); “serious prejudice” (SCM 5(c)); “serious prejudice” (SCM 6); “serious prejudice” (SCM 27.8); special and differential treatment (SCM 27/SCM 29); specific action against dumping (AD 18.1) or subsidy (SCM 32.1) in accordance with GATT VI as interpreted by AD/SCM Agreement; standing as claimant (SCM); subsidy, calculation in terms of benefit to recipient (SCM 14); subsidy, definition (SCM 1.1(a)(1)) (financial contribution); subsidy, definition (SCM 1.1(b)) (conferral of benefit); subsidy, specificity (SCM 2); sunset review (SCM 21.3); transitional arrangements (existing programmes) (SCM 28.1); “inconsistent with the provisions of this Agreement” (SCM 28.1); “withdrawal of subsidy without delay” (SCM 4.7)

Agriculture Agreement (AG), relationship with, 13.181–7: see also relationships within and between agreements

Decision on implementation-related concerns (2000) and: see Decision on implementation-related concerns (2000)

GATT VI, separability of provisions SCM 591

GATT Subsidies Code and SCM 702

object and purpose (SCM 1) SCM 1–8

balanced framework of rights and obligations relating to countervailing duties SCM 4, 8

interpretation and clarification of GATT VI SCM 7

multilateral disciplines on subsidies distorting international trade SCM 1–5, 548

strengthening and improvement of GATT disciplines on subsidies and countervailing measures SCM 8, 44, 493

provisional application of Articles 6.1, 8 and 9 (SCM 31)

lapse of provisions SCM 582

review SCM 582

reservations (SCM 32.2) WTO 297

SCM Code (Tokyo Round)

subsequent agreement for purpose of interpretation of GATT VI, whether

subsequent practice for purpose of interpretation of GATT VI, whether WTO 277

SCM Committee

consumption of inputs in the production process (SCM Annex II footnote 61), difficulty of resolving issues related to SCM 666–8

Decision on implementation-related concerns (2000) and SCM 351–2

establishment WTO 93

notification formats, role in relation to (SCM 25) SCM 345, 514, 571, 573

reports SCM 351–2, 600

rules of procedure (1996) WTO 94, SCM 509

SCM institutions (SCM 24)

see also SCM Committee; subsidy, definition (SCM 1)

Working Party on Subsidy Notifications SCM 513

Seattle Ministerial Conference (1999), Declaration, failure to agree on WTO 55

Secretariat (DSU 27) DSU 1356–8

Institute for Training and Technical Cooperation DSU 1357

legal advice for developing countries (DSU 27.3) DSU 1357

Rules of Conduct (RoC), applicability to DSU 1486

training courses (DSU 27.3) DSU 1358

Secretariat (WTO VI)

see also Director-General (WTO)

duties and conditions of service (WTO VI:3) WTO 173–8

Staff Regulations and Rules WTO 173–4

Working Group on Conditions of Service applicable to the WTO Secretariat Staff WTO 173–4

WTO Pension Plan (WTOPP) WTO 175–8

annual reports WTO 178

headquarters WTO 168

role

interpretation of covered agreements WTO 201

support for domestic efforts in relation to economic development and strategies for poverty reduction WTO 111

security exceptions (GATT XXI), GATT practice GATT 956

security and predictability of WTO obligations (DSU 3.2) DSU 41–51

arguendo assumptions and DSU 49–50, 661–2

balance between certainty of the law and procedural flexibility GATT 314, DSU 42

certainty of the law DSU 24

“clarify the existing provisions” and DSU 49, 51, 52–3, 57, 299, 386, 529, 630, 639, 661, 703

determination of date of “initiation” by reference to domestic law SCM 356

evolutionary approach/intertemporal law and GATT 314, GATS 5, DSU 42, 1621

finality of adopted panel reports DSU 826

interpretation contradictory to object and purpose of agreement and SCM 5, 6, 44

judicial economy and DSU 52

precedent/AB jurisprudence, need to follow DSU 53, 823, 835, 903, 1701

prompt and satisfactory settlement (DSU 3.3) and DSU 68, 826

reasons/rationale in panel report (DSU 12.7) and GATT 314, DSU 41, 51, 703

right to challenge legislation as such (WTO XVI:4) and DSU 45, 281

specificity in request for establishment of a panel DSU 224

suspension of concessions (DSU 22.4) and DSU 47–8

transparency and (GATS preamble) GATS 1–2

as WTO objective WTO 8–11, GATT 119, DSU 43–4, 281

separability of treaty provisions (VCLT 44) DSU 1669

separate customs territory, explanatory notes (“country”, “countries” and “national”) and WTO 305–6

separate opinions

AB (DSU 17.11), table showing DSU 889

Article 22.6 arbitration, table showing DSU 1215

panel (DSU 14.3) GATT 626

table showing DSU 771

“sequencing” (interrelationship between Article 21.5 and Article 22.6 arbitration, ad hoc procedural agreements)

17.1150, 17.1176: see also customs value determination (VAL), sequencing

agreement not to appeal Article 21.5 panel report DSU 1162

agreement not to object to Article 22.6 arbitration DSU 1165

arbitrators’ role in relation to DSU 1157

arbitrators’ scope of review DSU 1176

direct recourse to Article 22 DSU 1164

non-application of 30-day Article 22.6 deadline DSU 1166–7

recourse to Article 21.5 before Article 22 DSU 1158–60

recourse to Article 22.6 before completion of Article 21.5 proceedings as breach DSU 1176

simultaneous recourse to Article 21.5 and Article 22 DSU 1161

withdrawal of Article 22 arbitration request DSU 1163

serious damage or actual threat (ATC): see transitional safeguards (ATC 6)

“serious prejudice” (GATT XVI:1), “serious prejudice” (SMC 5(c)/ 6.3(c)), identity of meaning GATT 714, SCM 267

“serious prejudice”, procedures for developing information concerning (SCM Annex 5)

adverse inferences from non-cooperation SCM 676–8

initiation, requirements SCM 675

requests for SCM 673

use of information in prohibited subsidy claims SCM 674

“serious prejudice” (SCM 5(c))

aggregated analysis SCM 304–6

“but for” test SCM 281

genuine causal link requirement SCM 279

least-developed countries (LDCs) and DSU 1321–3

“of another Member” SCM 266

remedies (SCM 7.8): see adverse effects (SCM 5), obligation to remove adverse threats or withdraw subsidy (SCM 7.8)

“significant price undercutting/suppression” (SCM 6.3(c)) as SCM 265, 267, 268

“serious prejudice” (SCM 6)

adverse effects on trade interests

as “serious prejudice” SCM 277

as test SCM 274

developing countries, exclusion (SCM 27.9) SCM 569

displacement or impediment to imports (SCM 6.3(a)) SCM 307–9

“displace” and “impede” distinguished SCM 309

genuine causal link requirement and SCM 309

market share data, relevance SCM 308

ordinary meaning SCM 307

“price depression” and “price suppression” (SCM 6.3(c)) compared SCM 309

SCM 4, relevance SCM 308

elements listed in SCM 6, sufficiency to establish SCM 273

“where one or several … apply” SCM 278

genuine causal link requirement SCM 289, 306

applicability to all SCM 6.3 elements SCM 279, 282

burden of proof SCM 283–4

displacement or impediment to imports (SCM 6.3(a)) and SCM 309

“injury” distinguished SCM 274

“may arise” (SCM 6.3 chapeau) SCM 275

rebuttal of presumption (SCM 6.2) SCM 276

“significant price undercutting/suppression” (SCM 6.3(c))

aggregated analysis SCM 304–6

“but for” test SCM 280–2, 288, 295

counterfactual analysis SCM 293–5

“effect of the subsidy”

continuing effect SCM 299–300, 302

expired subsidy programme SCM 298–302

period of review SCM 301–2

relevant period of review, “serious prejudice” (SCM 6) SCM 301–2

“in the same market” SCM 319, 321–5

“lost sales” SCM 319–20

displacement or impediment (SMC 6.3(a) and (b)) compared SCM 319

two-step analysis SCM 320

non-attribution of adverse effects caused by other factors SCM 282, 285–9

“price suppression” SCM 278, 315–16

“price depression” distinguished SCM 309, 317–18

“price undercutting” SCM 267, 314

quantification, relevance SCM 297

“significant” SCM 310–13, 319

“subsidized product” vs “effect of the subsidy” SCM 303

unitary vs two-step approach SCM 290–2

standing to bring claim, nationality of producers, relevance SCM 267

“serious prejudice” (SCM 27.8) SCM 568

burden of proof SCM 568

services, trade in: see business practices (GATS IX); developing countries (GATS IV); domestic regulation (GATS VI); GATS Agreement; GATS Agreement, Institutional Arrangements, Marrakesh Ministerial Decision; General Exceptions (GATS XIV); market access (GATS XVI); MFN treatment (GATS II); monopolies and exclusive service providers (GATS VIII); national treatment, services and service suppliers (GATS XVII); progressive liberalization (GATS XIX); progressive liberalization (GATS XIX); decisions and agreements relating to; progressive liberalization negotiations (GATS XIX:3 and Doha 15); recognition of qualifications (GATS VII); Schedules of Specific Commitments (GATS XX); telecommunications, GATS XVIII Reference Paper on Basic Telecommunications

“shall in no way modify the rights and obligations” (RoC II), confidentiality (RoC VII) and DSU 1483–4

Singapore Ministerial Conference/Declaration (1996)

adoption of main Declaration WTO 53, 67

agriculture reform process (AG 20) AG 183

“built-in agenda” WTO 31

Comprehensive and Integrated WTO Plan of Action for the least-developed countries (1996) WTO 108, 114

Declaration on Trade in Information Technology Products WTO 53, 67, GATT 193–9

“forum for negotiations” (WTO III:2), recommendations relating to WTO 31

information exchange (GATS XIX) GATS 161

Information Technology Agreement (Singapore) GATT 193–9

NFIDC (AG 16) AG 154

“Singapore issues” WTO 53

TMB, role and procedures ATC 88

working groups established by (“Singapore issues”) WTO 53

sources of international law: see international law/ “relevant rules of international law” (VCLT 31(3)(c)) with particular reference to the interpretation of covered agreements (DSU 3(2))

sovereignty

burden of proof and DSU 1741

conclusion of treaty as exercise of inherent sovereign right DSU 1742–3

impairment of other Members’ rights as breach DSU 1739

in dubio mitius principle and DSU 1713 n. 2689, 1734–5

interpretation of covered agreement by reference to rules not accepted by Member as breach DSU 1595, 1740

Members as sovereign entities DSU 583

over non-WTO regulated matters DSU 1738

as a rule/fundamental principle of international law DSU 1605, 1733–43

sovereignty/treaty benefits balance DSU 1733

“tax sovereignty” DSU 1736

unilateral environmental protection measures as breach DSU 1737

unilateral statements and DSU 1685

special or additional procedures (AB) (ABWP 16(1)) DSU 1379–85

amicus curiae briefs DSU 1382

BCI DSU 919–21, 1379–81

multiple appeals DSU 1383

replacement of member of Division DSU 1385

special or additional procedures (panel) (DSU 12.1)

17.683–8, 17.687–8, 17.919, 17.1381: see also third party enhanced rights/rights beyond those indicated in DSU 10.2, DSU 10.3 and Appendix 3, para. 6

expert evidence (DSU 13.2/SPS 11.2) DSU 765

margin of discretion, 17.683–6: see also margin of discretion [in accordance with due process] (panel) (DSU 12.1 and Appendix 3)

public hearing DSU 888

special or additional rules and procedures (DSU 1.2 and Appendix 2) DSU 9–16

arrangements considered for classification as

AD 11 DSU 12

AD 13 DSU 16

AD 17 AD 870–2, 888, 954, DSU 12, 13–14, 15

AG 13 DSU 11

BOP DSU 10

SCM 4.2 (consultations) SCM 197, 211, DSU 17

SCM 4.2–4.12 DSU 18

SCM 4.4 DSU 17

SCM 4.10 DSU 22, 23

SCM 4.11 SCM 246–7, DSU 17, 22, 22–4, 23, 1241–2, 1279–80, 1282–3

SCM 7.2 DSU 17

SCM 7.4 DSU 17

SCM 7.8 DSU 21

SCM 7.9 and 7.10 SCM 338, DSU 24

SCM 30 SCM 578

precedence SCM 247

“shall prevail” in case of a difference with DSU SCM 197, 328, DSU 9, 21–4, 25, 356

text (Appendix 2) DSU 1359 (Section XXIX)

special or additional rules and procedures (GPA XXII:2) GPA 28

special and differential treatment (AG 15), Decision on implementation-related concerns (2000) AG 150

special and differential treatment for developing countries (Doha)

see also least-developed countries; special and differential treatment (SPS 10)

non-mandatory provisions conversion (AD 15) AD 852

review, need for AD 852

terms of reference of panels (DSU 7) and DSU 717

special and differential treatment for developing countries (GPA V), technical assistance activities GPA 20

special and differential treatment (SCM 27/SCM 29), 13.575–6: see also developing countries (SCM 27)

special and differential treatment (SPS 10)

obligation to “take account of” special needs of developing countries (SPS 10.1)

burden of proof SPS 388

“take account of” SPS 387, TBT 140–1

TBT 12.3 compared SPS 389, TBT 137

phased introduction of new measure (SPS 10(2) (Doha))

impossibility of SPS 391

longer time-frame for compliance SPS 390

technical and financial assistance and training (Doha) SPS 377–8

transparency enhancement Procedure (2003) SPS 379–80

transparency enhancement Procedure (2009) SPS 382–6

special and differential treatment (TBT 12)

“not more trade-restrictive than necessary to fulfil a legitimate objective” obligation (TBT 2.2) distinguished TBT 136

special account requirement

implementation of TBT (TBT 12.2) TBT 135

preparation of technical regulations, standards and conformity assessment procedures (TBT 12.3) TBT 135

SPS 10.1 compared SPS 389, TBT 137

SPS 10.1 compared SPS 389, TBT 137

“special development, financial and trade needs” (TBT 12.2 and 12.3), Enabling Clause (EC 3(c)) and SCM 27.46 compared TBT 139

TBT Committee recommendations and decisions related to, implementation of TBT 12 TBT 132

TBT Committee recommendations and decisions related to information exchange TBT 133–4

special and differential treatment (VAL 20/VAL Annex III)

continued application of 1979 VAL Agreement VAL 66

delayed application of VAL 1 and 6 (VAL 20.2) VAL 70

delayed application of VAL Agreement (VAL 20.1)

Decision on implementation-related concerns (2000) and VAL 69

requests for VAL 68

reservations relating to

application of VAL 5.2 (Annex III, para. 4) VAL 83

officially established minimum values (Annex III, para. 2) VAL 80–1

reversal of sequential order of VAL 5 and 6 (VAL 4) VAL 24, 82

technical assistance programmes (VAL 20.3) VAL 71

transparency on technical assistance activities VAL 67

special procedures involving LDCs (DSU 24)

actions brought against LDCs DSU 1325

actions brought by LDCs DSU 1325

actions involving LDCs as third parties DSU 1325

due restraint obligation DSU 1324–5

“particular consideration shall be given” (DSU 24.1) DSU 1321–3

special safeguards (AG 5)

calculation method (AG 5.5), right to choose AG 69–70, 73

c.i.f. import price (AG 5(1)(b)) AG 68–72

customary international trade usage AG 69

effectiveness principle AG 71

possibility of alternative method (AG 5.5) AG 73

market access (AG 4) and AG 39

as exemption from AG 4.2 requirements AG 75

specific action against dumping (AD 18.1) or subsidy (SCM 32.1) in accordance with GATT VI as interpreted by AD/SCM Agreement

13.583: see also anti-dumping and countervailing duties (GATT VI) including interrelationship with AD Agreement

action under other relevant provisions of GATT 1994 distinguished (AD 18.1 footnote 24) GATT 449, 451, AD 956–8, 960–2

clarificatory nature of footnotes AD 961

“against” GATT 473, AD 957–8, SCM 587

calculation of amount of subsidy (SCM 14(d)) and SCM 589

“except in accordance with the provisions” AD 959, SCM 583–4

“legislation as such” AD 876

reasonable security/bonding (Note 1 Ad Article VI:2–3) GATT 473–7, AD 963–4

“final determination” GATT 474–5, AD 697

provisional measures (AD 7) and AD 653

“reasonable” GATT 477

“security” GATT 476

“specific” SCM 587

US Customs Bond Directive “as such” AD 964

SPS Agreement

see also ALOPs (SPS 5.4–5.6 and Annex A(5)); arbitrary or unjustifiable discrimination, exclusion (SPS 2.3); developing countries (SPS 4); developing countries (SPS 7); Equivalence, Decision on Implementation of SPS 4; harmonization of SPS measures (SPS 3); information or technical advice, panel’s right to seek (DSU 13.1/SPS 11.2); precautionary principle (SPS Agreement); provisional adoption of SPS measures in case of insufficiency of scientific evidence (SPS 5.7); regional conditions, adaptation of SPS measures to (SPS 6); risk assessment, need for (SPS 5.1–5.3); risk assessment (SPS Annex A(4)(4)); scientific evidence, need for sufficient (SPS 2.2); special and differential treatment (SPS 10); SPS Committee (SPS 12); SPS control, inspection and approval procedures (SPS 8 and Annex C); technical assistance (SPS 9); transparency of SPS regulations (SPS 7 and Annex B)

administration (SPS 12): see SPS Committee

applicability (SPS 1.1)

GATT XX(b), relevance SPS 594

measures “developed and applied in accordance with [SPS] provisions”, purpose of measure and SPS 15

measures in existence before entry into force of SPS agreement (SPS 14) SPS 14, 448–9

measures taken by body other than central government (SPS 13) SPS 446

“measures which may directly or indirectly affect trade” SPS 11–13, 256

phytosanitary measure affecting international trade SPS 9, 594

private standards, SPS Committee Actions relating to (2011) SPS 16–18

as balance between promotion of international trade and protection of human, animal or plant life or health (SPS 2.2)

4.24, 4.141: see also General Exceptions (GATT XX(b)) measures necessary to protect human animal or plant life or health

“only to the extent necessary”, trade-restrictive measures, exclusion (SPS 5.4–5.6) and SPS 50

basic rights and obligations (SPS 2)

applicability to SPS as a whole SPS 20

SPS 2.2 requirements SPS 21

burden of proof, scientific evidence, sufficiency (SPS 5.7) SPS 36, 323

GATT XX(b) and, 2.950, 4.5: see also order of analysis

implementation (SPS 13)

measures taken by body other than central government SPS 446

review and monitoring (SPS 12.7), procedures SPS 441–5

interpretation, applicability to pre-existing situations and measures DSU 1523

object and purpose (preamble)

consistency of measures with SPS obligations SPS 1

harmonization of international standards SPS 3–5

international standards, guidelines and recommendations [as adopted by relevant international organizations] SPS 2

precautionary principle and, 4.6–8: see also precautionary principle (SPS Agreement)

prompt compliance with obligations SPS 558

TBT Agreement, applicability to (TBT 1.5) TBT 12–14

SPS Committee (SPS 12)

see also SPS Agreement

ad hoc consultations (SPS 12.2) SPS 434–6

cooperation with relevant international organizations (SPS 12.3) SPS 437–8

Decision on Implementation of SPS 4, see also Equivalence Decision on Implementation of SPS 4 (26 October 2001)

establishment WTO 93

monitoring of international standards (SPS 12.4) SPS 439–40

observer status SPS 437

review of implementation and monitoring of SPS Agreement (SPS 12.7) SPS 441–5

rules of procedure (1997) (SPS 12.1) WTO 94, SPS 431

SPS control, inspection and approval procedures (SPS 8 and Annex C)

“any procedure to check and ensure”, applicability (Annex C(1)(a)) SPS 552–6

comprehensive nature of provision SPS 553

development of SPS measures SPS 552

measures other than “procedures” SPS 555

measures prior to “procedures” SPS 556

title or characterization of measure, relevance SPS 554

“any procedure to check and ensure”, applicability (Annex C(1)(b)) SPS 577

“any procedure to check and ensure”, applicability (Annex C(1)(c)), substantive and control procedures distinguished SPS 584

failure to observe Annex C requirements as breach of SPS 8 SPS 373, 375, 587

individual specimens, requirements relating to (Annex C(1)(e)) SPS 585

information requirements (Annex C(1)(c)), procedures to check compliance with SPS measures, limitation to SPS 584

“no less favourable manner” (Annex C(1)(a)) SPS 575–6

obligations (Annex C(1)(c))

completeness of documentation SPS 580

explanation of delay SPS 583

processing of deficient applications SPS 582

publication or communication of processing period SPS 579

summary SPS 578

transmission of results SPS 581

risk assessment (SPS 5.2) and SPS 195, 376

“undertake and complete” (Annex C(1)(a)) SPS 559–60

“without undue delay” (Annex C(1)(a))

definition SPS 561–4

delay as means of avoiding risk assessment SPS 574

delay and refusal to take SPS action distinguished SPS 571–2

determination SPS 565–7

as good faith obligation SPS 557

legislative delays SPS 573

precautionary principle and SPS 570

prompt compliance with SPS obligations (SPS preamble) and SPS 558

prudence and precaution SPS 568–9

SPS measure, definition/classification as (Annex A(1))

“directly related to food safety” SPS 500

“diseases, disease carrying organisms or disease-causing organisms” SPS 475

environmental protection measures and SPS 462–4

travaux préparatoires SPS 463–4

“labelling requirements”

applicability to matters other than food safety SPS 497

consistency of requirement with SPS as separate issue SPS 498

purpose SPS 499

“laws, decrees, regulations, requirements and procedures”

applicability to non-SPS measures SPS 465–7

English, Spanish and French versions compared SPS 454

“include all relevant” SPS 493

ordinary meaning SPS 453

“requirements and procedures” SPS 495–6

legal form, flexibility SPS 494

legal form and nature, relevance/distinguishability SPS 452–6

“measure so as to afford protection” (GATT III) compared SPS 469

measure to protect animal or plant life or health (Annex A(1)(a))

“entry, establishment or spread” SPS 472

genetically modified organisms and SPS 468

“risks arising from” SPS 471

“to protect animal or plant life or health”, repetition SPS 470

measure to protect from “other damage” (Annex A(1)(d)) SPS 490

measure to protect human or animal life (Annex A(1)(b)) SPS 10, 486

“additive”

Codex definition, relevance SPS 479

genes as SPS 478

allergens as toxins SPS 484–5

“contaminants” SPS 480

“foods, beverages or feedstuffs” SPS 477

ordinary meaning SPS 476

“toxins”

poisonous effect, relevance SPS 483

“unintentional addition to food” SPS 481

“measure to protect human life or health … from diseases carried by animals, plants or products of …” (Annex A(1)(c))

presence of allergens in the environment SPS 488

increased herbicide use associated with GMOs SPS 489

measure to protect a listed issue or prevent/limit specified damage SPS 450

“pests” SPS 473–4

“living organism”, relevance SPS 474

principal and ancillary measures, distinguishability SPS 458

purpose as test SPS 452, 457

objectivity SPS 460

relationship between Annex A(1)(a) and A(1)(b) SPS 486

substantive measures and procedural requirements distinguished SPS 459

trade effects, relevance SPS 451

Staff Regulations and Staff Rules (WTO VI:3) WTO 173–4

standard/powers of review (AB) (issues of law and legal interpretations) (DSU 17.6)

completion of the legal analysis, inadequacy of the record/arguendo assumptions DSU 658–9

completion of the legal analysis in case of DSU 858–83

agreement with panel DSU 863, 1323

consideration of hypothetical case, exclusion GATS 123

contentiousness/omission/insufficiency of facts DSU 863–83

disagreement with the panel DSU 866–7

insufficient argument of novel issue DSU 867

panel’s analysis going beyond the strictly necessary and DSU 873

panel’s failure to address correct issue SPS 276, 282, DSU 862

excess of jurisdiction

in absence of claim by party DSU 1419–20

consideration of treaty provisions other than those cited DSU 424

issues not identified during Panel proceedings DSU 851

issues not litigated before Panel SCM 160

jurisdictional issues: see competence of panels and AB (DSU 3.2/ DSU 11/DSU 17) see also under compétence de la compétence/obligation to address jurisdictional issues [on own motion]

law vs fact DSU 841, 859

compliance/consistency with treaty obligations DSU 843

assessment of domestic law for purpose of determining DSU 847

“like products” (GATT II:2), determination as DSU 841, 859

mixed fact and law DSU 849

panel as trier of facts, 9.5, 17.562, 17.594, 17.601–12, 17.613, 17.845–6: see also standard/powers of review (panel) (DSU 11), “objective assessment of the facts” /alleged disregard or distortion of the evidence

panel’s classification of measure, relevance DSU 850

legal findings or developed interpretations, limitation to (DSU 17.13) SPS 345, DSU 841, 859, 896–8

new arguments DSU 855–7

new evidence DSU 852–4

non-applicability to covered agreements other than Anti-Dumping Agreement including the SCM and SPS Agreements SCM 703

non-discriminatory administration of QRs (GATT XIII), determination DSU 842

obiter findings of panel DSU 270

reversal of panel findings, effect GATT 876

standard/powers of review (panel) (AD 17.6)

assessment of the facts (AD 17.6(i))

AD 3.1 (determination of injury) distinguished AD 187

AD 5.3 (sufficiency of evidence), applicability to AD 367–70, 940

applicability to investigating authority AD 259, 302, 921

de novo review, exclusion AD 605, 912, 914–15, VAL 19 n. 34

DSU 11 compared AD 925–6, DSU 605

“unbiased and objective” AD 919–20

“facts made available” (AD 17.5(ii))

disclosure/discernibility to interested parties by time of final determination, relevance AD 188, 917–18, 920

documents created for purposes of dispute AD 908

examination to be based on AD 905–8, 917

limitation to AD 914

undisclosed facts AD 906

interpretation of relevant provisions of AD (AD 17.6(ii))

in accordance with customary rules of interpretation of public international law AD 927

“admits of more than one permissible interpretation” AD 329 n. 442, 928–34, 935–7, 963

assessment of the facts (AD 17.6(i)) and, cumulative effect AD 938

DSU 11 compared AD 935–7

investigating authorities’ establishment of the facts (AD 17.6(i))

“establishment” AD 917

evaluation as at time of determination AD 923–4

“was proper” AD 302, 367–70, 917

scientific evidence, need for sufficient (SPS 2.2): see scientific evidence need for sufficient (SPS 2.2) see also under standard of review

standard/powers of review (panel) (DSU 11)

see also information or technical advice, panel’s right to seek (DSU 13.1/SPS 11.2); judicial economy; legislation as such, right to challenge (WTO XVI:4); notice of appeal, requirements (ABWP 20(2)); panel reports, rationale/reasons, need for (DSU 12.7); terms of reference of panels (DSU 7)

applicability to Customs Valuation Agreement claims VAL 4

applicability to SG/GATT XIX GATT 800, SG 109, 147–53, 305–10, 313

balance of payments measures (BOP Understanding footnote 1) GATT 755–9

DSU 11 (function of panel) claims and claims relating to substantive provisions distinguished DSU 1429–30

error of law

application of burden of proof rules DSU 617

equation of “based on” and “conform to” SPS 92, 134–5

error not rising to a breach of DSU 11 DSU 596–7

failure to apply proper standard of review SPS 124–6, DSU 613, 846, 848

failure to make objective assessment of facts distinguished DSU 595

incorrect interpretation of covered agreement SCM 326

rejection of amicus curiae brief DSU 739

“make such other findings” DSU 601

“objective assessment of the facts” /alleged disregard or distortion of the evidence DSU 605, 846

circumstantial evidence DSU 633–5

de novo review, exclusion GATT 800, ATC 25, 99, 101, AD 206, 302, 330, 805, VAL 6, SG 109, 147, DSU 609

discretion in assessment of evidence GATT 900, SCM 296, DSU 601–12

discretion in selection of evidence to refer to explicitly DSU 598, 601, 606, 610

egregious error, need for DSU 608, 610, 613–17

evidence available to Member at time of ATC 6 determination, limitation to ATC 25, DSU 629

evidence other than that submitted by parties, right to consider DSU 549, 599

facts available at time of establishment of panel, limitation to DSU 1333

methodology for evaluating increase in imports (SG 2.1/GATT XIX:1(a)) SG 35–7

obligation to examine and evaluate all the evidence available to it SG 147, 306, DSU 598–600, 604

public statements by company executives/government officials DSU 636

“objective assessment of matter before it”

in absence of relevant jurisprudence (GATS XI) GATS 70

AD 17.6(ii) compared AD 935–7

adverse effects (SCM 5), doubt about relevant period and SCM 259

all arguments DSU 520–2, 557, 643

all legal claims (DSU 3.2)

17.598 n. 955, 17.639: see also judicial economy

“positive solution” requirement (DSU 3.7) and GATS 79, DSU 78

arguendo assumptions and, 17.49–50, 17.657–64: see also arguendo assumptions

Article 21.5-type proceedings and DSU 1277–8

due process and DSU 613, 618, 618–21, 680

events during proceedings, exclusion from panel’s considerations DSU 941–2

failure to make as abuse of discretion DSU 622

good faith obligation SCM 421

independent assessment DSU 519–34

in absence of contested claims DSU 522, 524

in absence of party’s counter-arguments DSU 521

determination of “subsidized product” DSU 525

evaluation of evidence DSU 602

international agreements other than the covered agreements DSU 534

panel’s right to choose position other than that articulated by parties DSU 520, 523

reference to treaty provisions not cited by parties DSU 519

independent assessment of domestic law DSU 526–32

independent assessment of expert evidence SPS 41, DSU 538, 609

non-disclosure of confidential information (GATS III bis) GATS 48

reasoned and adequate explanation (SG 4.2(a)) and GATT 800–2, 811, 814, SG 99, 148–51

reasoned and adequate explanation (VAL 1) and VAL 5

ex post facto explanation, sufficiency VAL 7

SCM 4.2 (statement of available evidence) and SCM 193

ultra petita finding on provision not before it DSU 537, 618, 680

relevant factors

evaluation of all relevant factors, need for AD 914 n. 1246

position of Member at time of determination ATC 25, AD 914 n. 1246

risk assessment (SPS Agreement), exclusion SPS 38, 122–9, 217

serious damage or actual threat of (ATC 6.2)/SG 4, Member’s determination of, statement to TMB, admissibility ATC 23–4

summary of requirements DSU 594

standing as claimant (SCM)

SCM 6.3(a) SCM 267

serious prejudice requirement (SCM 7.2) SCM 267

standing/right to bring claim (DSU 3.7)

see also mutually agreed/acceptable solution to matters raised formally (DSU 3.6), “would be fruitful” (DSU 3.7); request for establishment of panel requirements (DSU 6.2); fruitfulness of action (DSU 3.7)

economic interest, relevance DSU 85, 177

legal interest, relevance DSU 75, 83–9, 468–9, 1744–5

nullification or impairment requirment (DSU 3.8) distinguished DSU 87

State emblems, official hallmarks and emblems of intergovernmental organizations (PC 6ter) TRIPS 27–8

WIPO Copyright Agreement (1996) TRIPS 28

State entity: see Government Procurement Agreement (GPA); definitions; State responsibility as rule/general principle of international law (ILC Articles); responsibility for act or omission of

State responsibility as rule/general principle of international law (ILC Articles)

14.227, 17.1588, 17.1599–600: see also “measures at issue” (DSU 6.2), any act or omission attributable to a Member, unilateral statements legal effect

countermeasures SCM 221, 223, 227, 331, DSU 1286, 1674 n. 2617, 1694, 1696–7

legislation as such and DSU 339

proportionality ATC 63, SG 227, DSU 1674 n. 2617, 1696–7

responsibility for act or omission of

agency with specific official responsibilities and powers/ “public body” DSU 1682–3

“agent” / “organ” of State DSU 1676

constituent part of federal State DSU 1679

customs officials DSU 1681

EU DSU 245

executive DSU 241–3

government official DSU 1680

ILC Articles and SCM 1.1(a)(1) distinguished DSU 1683

judicial authorities DSU 1684

Member of customs union DSU 245, 1677–8

private parties DSU 247–52

State trading enterprises (STEs) (GATT XVII)

see also notification requirements (STEs) (GATT XVII:4/ Understanding on the Interpretation of GATT XVII)

balance of payments restrictions (GATT XII) and GATT 621–2, 723

circumvention of obligations, prevention GATT 721–2

GATT XVII:1(a) and 1(b), interrelationship GATT 729, 731, 734–5

GATT practice GATT 728, 733, 737

“illustrative list … for the purposes of Art. XVII” GATT 743

market access, measures required to be converted into ordinary customs duties (AG 4.2 and footnote 1) GATT 753

measures affecting imported products (internal measures) and measure affecting importation (border taxes), difficulty of distinguishing/relevance GATT 211, 720

national treatment, regulatory discrimination (GATT III:4) and GATT 406

non-discriminatory treatment (GATT I general principle) (GATT XVII:1(a)) and GATT 223–4, 724–8

GATT practice GATT 224, 728

“quantitative restrictions made effective through state-trading organizations” (Ad Articles XI, XI, XIII, XIV and XVIII) GATT 621–5, 648, 723, 792

GATT practice GATT 752

“shall be understood to require” (GATT XVII:1(b)) GATT 729–32

“adequate opportunity” GATT 732

“commercial considerations” GATT 731

“participate in”, GPA VIII(c) compared GPA 22

treatment no less favourable than that provided in appropriate schedule (GATT II:1(a)) and GATT 745

GATT practice GATT 746

Understanding on the Interpretation of Article XVII GATT 739–43

State Trading Enterprises (STEs) Working Party

annual reports to Council for Trade in Goods WTO 92 n. 136, GATT 742

establishment WTO 92, GATT 741

mandate GATT 741–3

STE notifications GATT 742

statements of TMB: see Textiles Monitoring Body (TMB); statements relating to

subsidies (GATS XV) GATS 94–5

Working Party on GATS Rules and GATS 95, 214

subsidies (GATT XVI)

AG 3.3, 8, 9 and 10 and GATT 715

GATT practice GATT 719

export subsidies as defined in AG and SCM, limitation to (GATT XVI:3) GATT 715

SCM 5(c)/6.3(c) and GATT 714

“serious prejudice” (GATT XVI:2) GATT 714

subsidy, calculation in terms of benefit to recipient (SCM 14)

“any” method (chapeau) SCM 403–5

“adequately explained” SCM 403, 407

national legislation/implementing regulations SCM 404, 406

transparency requirement SCM 404, 407

“benefit” (SCM 1.1(b)) and SCM 59, 87, 92

loan guarantees (SCM 14(c)) SCM 93, 414–15

loans (SCM 14(b))

actual performance vs conditions at time loan made SCM 413

benchmarks SCM 411–12

unsecured loan SCM 413

provision of goods or services (SCM 14(d))

benchmarks SCM 412

“prevailing market conditions” /benchmarks SCM 416–19

prior subsidization in the relevant market SCM 420

“usual investment practice” (SCM 14(a)) SCM 408–10

inside/outsider investor distinction SCM 410

subsidy, definition (SCM 1)

see also payments on export of agricultural product financed by virtue of governmental action (AG 9.1(c)); subsidy definition (SCM 1) see also under export subsidy, prohibited (AG 3.3) see also under “financed”

footnote 1 and footnote 59, relevance SCM 97–8

level of subsidy, relevance SCM 372

subsidy, definition (SCM 1.1(a)(1)) (financial contribution)

conferral of benefit (SCM 1.1(b)) as parallel requirement SCM 9–11

cumulative nature of SCM 1.1(a)(1) requirements SCM 21, 87

“direct transfer of funds” (SCM 1.1(a)(1))

debt forgiveness/debt-for-equity swaps SCM 21–4, 26–7

medium of exchange, relevance SCM 21

share transfers SCM 25

foregoing of revenues otherwise due (SCM 1.1(a)(1)(ii))

13.5, 13.32–8: see also export subsidy commitments, prevention of circumvention (AG 10) see also under “export subsidies … applied in a manner which results in, or which threatens to lead to, circumvention …” (AG 10.1)

national tax rules as normative benchmark SCM 32–3

“otherwise due” /basis of comparison (“but for” test) SCM 32–8

“government practice” (SCM 1.1(a)(1)(i)) SCM 19–20

ordinary meaning SCM 27

participation in, responsibility resulting from SCM 18

potential direct transfer of funds (SCM 1.1(a)(1)) SCM 28–31

loan guarantees as SCM 30–1

may transfer funds, sufficiency SCM 31

timing of transfer, relevance SCM 29

preparatory work (VCLT 32) SCM 12, 14

“private body” (SCM 1.1(a)(1)(iv)), government entrustment or direction, effect SCM 8, 49–58

provision of goods or services (SCM 1.1(a)(1)(iii))

“general infrastructure” SCM 45–7

case-by-case approach SCM 46

limitations on access or use, relevance SCM 45–7

“goods” SCM 43–4

“provides” SCM 40–2

“provision” and “purchase” distinguished SCM 6, 39

“public body”, classification as

criteria, government authority SCM 17, DSU 1683

government control SCM 16

“private body” (SCM 1.1(a)(iv)), difficulty of distinguishing SCM 17 n. 28

relevance SCM 8, 58

“purchases of services” (GATS XIII), exclusion SCM 27, 48, GATS 72, 94

“purchases of services” (GPA preamble), exclusion GPA 2

transactions not qualifying as SCM 14

transactions qualifying as SCM 12–15

exhaustive nature of SCM 1.1(a)(1) SCM 15

transfer of economic resources from grantor to recipient for less than full consideration AG 84, SCM 12

subsidy, definition (SCM 1.1(b)) (conferral of benefit)

“benefit” SCM 59–69

cost to government, relevance SCM 59

market test SCM 60–9

provision of services not available in the market, whether SCM 80

recipient, need for SCM 59, 87, 92

burden/standard of proof SCM 65, 67–9

rebuttal of prima facie case SCM 90–1

fiscal advantages, relevance SCM 78

“is conferred” SCM 70

OECD Arrangement, relevance of compliance with SCM 79

passing the benefit through

adverse effects (SCM 5) and SCM 258

benefit to recipient test SCM 87

changes in ownership/privatizations SCM 82–4

“countervailing duty” (SCM 10 footnote 36) and SCM 355, 358–9

sales to unrelated buyers SCM 88–9

subsidized inputs SCM 85–7

“recipient of a benefit” SCM 63–5

SCM 14 and SCM 92

SCM Annex IV and SCM 96

SCM Illustrative List, Item (k) and SCM 94–5

subsidy programmes as such, right to challenge (mandatory/ discretionary distinction) SCM 71–7, 662–4

“as applied” SCM 71, 81, 172–3

burden of proof SCM 74–7

order of analysis SCM 72

SCM 3.1(a) as “substantive context” SCM 73

subsidy, specificity (SCM 2)

“certain enterprises” (SCM 2 chapeau) SCM 102–4

de facto specificity (SCM 2.1(c)) SCM 109–14

“account be taken of” SCM 112

de facto/de jure distinction, relevance SCM 108

deliberate limitation SCM 109

“disproportionately large” SCM 113

“predominant use” SCM 114

relevant factors SCM 101, 110

“explicitly limits” (SCM 2.1(a)) SCM 107–8

individual payments under a generalized programme SCM 105–6

principles determining (SCM 2.1)

relevant factors other than those listed under SCM 2.1(a) and (b) (SCM 2.1(c)) SCM 111

structure of SCM 2.1/interrelationship between subparagraphs SCM 2.1(a)-(c) SCM 101

regional specificity (SCM 2.2), definition problems SCM 115–17

subsidy “contingent upon the use of domestic over imported goods” (SCM 2.3/SCM 3.1) SCM 118–21

successive treaties relating to the same subject matter (VCLT 30) DSU 1530–4

“minor exceptions” doctrine and TRIPS 101

Schedules DSU 1530–2

WIPO Copyright Agreement (1996) DSU 1533

sunset review (AD 11.3) (including “likelihood” test)

company-specific determination, need for AD 783–5

cumulative assessment (AD 3.3), applicability AD 796, 811–15

de minimis test (AD 5.8), applicability AD 793–5

determination of likelihood AD 776–82

causation, relevance AD 805–10

injury requirement AD 806–10

likely past dumping AD 777

volume analysis

adequacy of analysis AD 780–1

analysis from previous review as part “measure taken to comply” AD 778–9

determination of likelihood qualitative assessment AD 816–18

duration and review of anti-dumping duties (AD 11.2) and AD 749

investigatory role of authorities AD 758–9

mandatory rule/exception AD 755–6

methodology

absence of specific provision AD 762–71, 783, 786

dumping margins, relevance AD 763–4

“likelihood of injury” obligations (AD 3), applicability AD 765–8

objective assessment (DSU 11) AD 804, 816

investigating authorities’ obligation to seek out information AD 818

“other factors”, importance AD 817

original investigation distinguished AD 757

new factual basis AD 791–2, 819

overall/separate factor determination AD 801

“positive evidence”, need for AD 759, 760–1

presumptions, exclusion AD 772–6

self-initiation, applicability of AD 5.6 evidentiary standards AD 789–90

time-frame AD 786–7

a “clearly foreseen and imminent” change of circumstances (AD 3.7), relevance AD 787

new factual basis and AD 792

specification, relevance AD 788

waiver of right to participate AD 784–5

zeroing and AD 770–1

sunset review (SCM 21.3)

AD 11.2 standard, applicability SCM 494

burden/standard of proof

original investigation requirements (SCM 11 and 12) distinguished SCM 490–1

SCM 11.6, relevance SCM 365

SCM 11.6, relevance in absence of cross-reference to SCM 369–70, 489–90, 498, 499

de minimis standard

termination of investigation provisions (SCM 11.9) distinguished SCM 366–73, 500–1

as threshold test SCM 367, 372

original investigation requirements distinguished SCM 490–1, 497–8

likelihood test SCM 494–5

preparatory work (VCLT 32) SCM 373

self-initiation, right of SCM 488

suspension of concessions for non-implementation of DSB recommendations and rulings (DSU 22)

see also arbitration (DSU 22.6); arbitration (DSU 25); countermeasures in case of failure to comply with panel or AB report within specified time-period (SCM 4.10)

authorization, need for (DSU 3.7, 22.6 and 23.2(c))

security and predictability of WTO obligations (DSU 2) and DSU 47–8

suspension without authorization as breach of DSU 3.7 DSU 89, 1318

burden of proof in post-suspension position (DSU 22.8/SPS 5.7) DSU 1274–6

conformity of measure with WTO obligation, obligation to ensure (WTO XVI:4) WTO 289

examples of agreement to DSU 1262–73

inducement of compliance as objective DSU 47, 1181–2

as last resort “solution” (DSU 3.7) DSU 89, 1306

level equivalent to nullification or impairment (DSU 22.4) DSU 1184, 1205–6

aggregate effects on suppliers as a whole DSU 1232

“appropriate” (GATT 1947: XXIII:2) distinguished DSU 1255, 1260

“appropriate” (SCM 4.10) distinguished SCM 233, 234–9, 253–4, DSU 1260, 1283

Article 22.6 Arbitrator’s right to review DSU 1217

Article 25.3 Arbitrator’s right to review DSU 1327, 1329–30

benefits foregone by right holders and Member distinguished DSU 1332

“carousel” type suspension DSU 1189

changes in level after authorization DSU 1239–40

comparability of bases, need for DSU 1243

court judgments and DSU 1233, 1269

critical date DSU 1333

deterrent/ “chilling” effect DSU 1235

disbursements operating as subsidies DSU 1238

double-counting DSU 1237

economic benefits as measure DSU 1331

“equivalent”

qualitative test DSU 1250–2, 1269

quantitative test DSU 1246–9, 1256

indirect benefits and DSU 975

litigation costs and DSU 1236

lost opportunities, relevance DSU 1223

national treatment provisions (GATT III) distinguished DSU 1223

nullification or impairment (DSU 3.8) distinguished DSU 1223

proportionality and ATC 63

reasoned estimates, need for DSU 1227–30

responsibility of Member to ensure DSU 1189

SCM 3 and 4 (prohibited subsidies) distinguished SCM 234, 253, DSU 1281

settlement agreements and DSU 1234, 1269

trade effect and DSU 1226

zero level, exclusion DSU 1224

nature and purpose of countermeasures DSU 1177–82

“or other obligations”, authorization to suspend (DSU 22.2) DSU 1190–5

“specific” DSU 1184–5, 1196–7

as retaliatory measure DSU 1251 n. 1949, 1306–7

review of surveillance of implementation of DSB rulings (DSU 21.5) and DSU 1150

as “seeking redress” (DSU 23.1) DSU 1308–9

suspension in other sectors (DSU 22.3(b))/under other agreements (DSU 22.3(c)), relationship between DSU 1204

suspension in same sector as violation as preferred option (DSU 22.3(a)) DSU 1200–1

“if that party considers that it is not practical or effective” (DSU 22.3(b) and (c)) DSU 1202–3

“sectors” DSU 1201

as temporary measure (DSU 22.8) WTO 289, DSU 1177, 1179–80, 1306, 1319

obligation to engage actively in dispute settlement proceedings DSU 1319

termination as final solution DSU 28

WTO authorization, need for (DSU 3.7, 22.6 and 23.2(c)) DSU 1315–17

cumulative nature of DSU 23.2(c) obligations DSU 1316

sustainable development (Doha 6), see also General Exceptions (GATT XX(g)) measures relating to the conservation of exhaustible natural resources

Switzerland

Enabling Clause notifications

GSP schemes GATT 63

special treatment of least-developed countries GATT 79

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