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DISPUTE SETTLEMENT: DISPUTE DS58

United States — Import Prohibition of Certain Shrimp and Shrimp Products

This summary has been prepared by the Secretariat under its own responsibility. The summary is for general information only and is not intended to affect the rights and obligations of Members.

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The summary below was up-to-date at
See also: One-page summary of key findings of this dispute

Appellate Body and Panel Reports Adopted

Complaint by India, Malaysia, Pakistan and Thailand.

On 8 October 1996, India, Malaysia, Pakistan and Thailand requested consultations with the US concerning a ban on importation of shrimp and shrimp products from these complainants imposed by the US under Section 609 of US Public Law 101-162. Violations of Articles I, XI and XIII of GATT 1994, as well nullification and impairment of benefits, were alleged.

On 9 January 1997, Malaysia and Thailand requested the establishment of a panel. At its meeting on 22 January 1997, the DSB deferred the establishment of a panel. On 30 January 1997, Pakistan also requested the establishment of a panel. Further to Malaysia’s, Pakistan’s and Thailand’s requests, the DSB established a panel at its meeting on 25 February 1997. Australia, Colombia, Costa Rica, Ecuador, the EC, Guatemala, Hong Kong, India, Japan, Mexico, Nigeria, the Philippines, Senegal, Singapore and Sri Lanka reserved their third-party rights.

On 25 February 1997, India also requested the establishment of a panel on the same matter. At its meeting on 20 March 1997, the DSB deferred the establishment of a panel. Further to a second request to establish a panel by India, the DSB agreed to establish a panel at its meeting on 10 April 1997. It was also agreed to incorporate this panel with that already established in respect of the other complainants. El Salvador and Venezuela reserved their third party rights, in addition to those delegations who had reserved their third-party rights to the panel established at the requests of Malaysia, Pakistan and Thailand.

On 15 April 1997, the Panel was composed.

The report of the Panel was circulated to Members on 15 May 1998. The Panel found that the import ban in shrimp and shrimp products as applied by the United States is inconsistent with Article XI:1 of GATT 1994, and cannot be justified under Article XX of GATT 1994.

On 13 July 1998, the US notified its intention to appeal certain issues of law and legal interpretations developed by the Panel. The report of the Appellate Body was circulated to Members on 12 October 1998. The Appellate Body reversed the Panel’s finding that the US measure at issue is not within the scope of measures permitted under the chapeau of Article XX of GATT 1994, but concluded that the US measure, while qualifying for provisional justification under Article XX(g), fails to meet the requirements of the chapeau of Article XX.

The DSB adopted the Appellate Body Report and the Panel Report, as modified by the Appellate Body Report, on 6 November 1998.

Appellate Body and Panel Compliance Reports (Article 21.5) Adopted

On the grounds that the US had not implemented appropriately the recommendations of the DSB, on 12 October 2000, Malaysia requested that the matter be referred to the original panel pursuant to Article 21.5 of the DSU. In particular, Malaysia considered that by not lifting the import prohibition and not taking the necessary measures to allow the importation of certain shrimp and shrimp products in an unrestrictive manner, the United States had failed to comply with the recommendations and rulings of the DSB. At its meeting of 23 October 2000, the DSB referred the matter to the original panel pursuant to Article 21.5 DSU. Australia, Canada, the EC, Ecuador, India, Japan, Mexico, Pakistan, Thailand and Hong Kong, China reserved their third-party rights. On 8 November 2000, the Panel was composed.

The Panel circulated its report on 15 June 2001. The Panel concluded that:

• the measure adopted by the US in order to comply with the recommendations and rulings of the DSB violated Article XI.1 of the GATT 1994;
   
• in light of the recommendations and rulings of the DSB, Section 609 of Public Law 101-162, as implemented by the Revised Guidelines of 8 July 1999 and as applied so far by the US authorities, was justified under Article XX of the GATT 1994 as long as the conditions stated in the findings of this Report, in particular the ongoing serious good faith efforts to reach a multilateral agreement, remain satisfied.
   
• should any one of the conditions referred above cease to be met in the future, the recommendations of the DSB may no longer be complied with. In such a case, any complaining party in the original case may be entitled to have further recourse to Article 21.5 of the DSU.

On 23 July 2001, Malaysia notified the DSB its intention to appeal the above report. In particular, Malaysia sought review by the Appellate Body of the Panel’s finding that the US measure at issue does not constitute unjustifiable or arbitrary discrimination between countries where the same conditions prevail and that it is therefore within the scope of the measures permitted under Article XX of the GATT 1994 as long as the conditions stated in the findings of the Panel Report, in particular the ongoing serious good faith efforts to reach a multilateral agreement, remain satisfied.

On 19 September, the Appellate Body informed the DSB of a delay in the circulation of its Report in this appeal. The Report was circulated to the Members on 22 October 2001. The Appellate Body upheld the contested findings of the Panel: Since it had upheld the Panel’s findings that the US measure was now applied in a manner that met the requirements of Article XX of the GATT 1994, the Appellate Body refrained from making any recommendations. On 21 November 2001, the DSB adopted the Appellate Body Report and the Panel Report, as upheld by the Appellate Body Report.

Implementation Status of Adopted Reports

On 25 November 1998, the US informed the DSB that it was committed to implementing the recommendations of the DSB and was looking forward to discussing with the complainants the question of implementation. The parties to the dispute announced that they had agreed on an implementation period of 13 months from the date of adoption of the Appellate Body and Panel Reports, i.e. it expired on 6 December 1999. On 22 December 1999, Malaysia and the United States informed the DSB that they had reached an understanding regarding possible proceedings under Articles 21 and 22 of the DSU.

At the DSB meeting on 27 January 2000, the US stated that it had implemented the DSB’s rulings and recommendations. The US noted that it had issued revised guidelines implementing its Shrimp/Turtle law which were intended to (i) introduce greater flexibility in considering the comparability of foreign programmes and the US programme and (ii) elaborate a timetable and procedures for certification decisions. The US also noted that it had undertaken and continued to undertake efforts to initiate negotiations with the governments of the Indian Ocean region on the protection of sea turtles in that region. Finally, the US stated that it offered and continued to offer technical training in the design, construction, installation and operation of TEDs to any government that requested it. See also Section VI.B.

On 12 October 2000, Malaysia requested that the matter be referred to the original panel pursuant to Article 21.5 of the DSU, considering that by not lifting the import prohibition and not taking the necessary measures to allow the importation of certain shrimp and shrimp products in an unrestrictive manner, the United States had failed to comply with the recommendations and rulings of the DSB. At its meeting of 23 October 2000, the DSB referred the matter to the original panel pursuant to Article 21.5 DSU.

For details of the Article 21.5 panel, see above.

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