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> General
> Australia — Salmon, para. 30
> Argentina — Hides and Leather, para. 40
> US — Offset Act (Byrd Amendment), para. 50
> US — Offset Act (Byrd Amendment), para. 53
> Panel
Recommendations
> US — Offset Act (Byrd Amendment), para. 52
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ARB.3.1 General
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ARB.3.1.1 Australia
— Salmon, para. 30
(WT/DS18/9)
Taken together, these provisions clearly
define the rights and obligations of the Member concerned with respect
to the implementation of the recommendations and rulings of the DSB. In
the absence of a mutually agreed solution, the first objective is
usually the immediate withdrawal of the measure judged to be
inconsistent with any of the covered agreements. Only if it is
impracticable to do so, is the Member concerned entitled to a reasonable
period of time for implementation. …
ARB.3.1.2 Argentina
— Hides and Leather, para. 40
(WT/DS155/10)
… Implementation, in essence, consists of
bringing the measure held to be inconsistent with the obligations of the
WTO Member concerned under particular provisions of a particular covered
agreement, into conformity with those same provisions. Article 3.7 of
the DSU stresses that “the first objective of the dispute
settlement mechanism is usually to secure withdrawal of the WTO-inconsistent
measure”. (emphasis added) The DSU goes on to state that
compensation may be resorted to only if “the immediate withdrawal
of the measure is impracticable and then only as “a temporary
measure pending the withdrawal of the WTO-inconsistent measure.”
(emphasis added) Suspension of concessions or other obligations under
the covered agreements is explicitly designated as a “last resort”
mode of compliance “subject to authorization by the DSB”, but it too
remains a “temporary” remedy allowed under Article 22.8 of
the DSU only until the non-conforming measure is “removed” or
a “mutually satisfactory solution” is achieved. Moreover, and
at any rate, Article 22.1 of the DSU cautions that neither compensation
nor suspension of concessions or other obligations is to be “preferred
to full implementation of a recommendation to bring a measure into
conformity with the covered agreements.” …
ARB.3.1.3 US — Offset Act (Byrd Amendment), para. 50
(WT/DS217/14, WT/DS234/22)
Thus, in my view, the United States may choose
either to withdraw or modify the CDSOA so as to bring it
into conformity with its obligations under the covered agreements. I
therefore do not see any basis for the claim of the Complaining Parties
that deliberations as to different, WTO-consistent methods for
distributing collected anti-dumping or countervailing duties should not
be considered as part of the implementation process.
ARB.3.1.4 US — Offset Act (Byrd Amendment), para. 53
(WT/DS217/14, WT/DS234/22)
With respect to the proposal by the United
States Executive branch to the United States Congress, I do not believe
that it would be appropriate for an arbitrator acting under Article 21.3(c) to attach any particular weight to any individual proposal. As I
and other arbitrators have said, it is not for the arbitrator acting
under Article 21.3(c) to impose any particular means for implementing
the recommendations and rulings of the DSB. The means of implementation
is left to the discretion of the implementing Member, which is bound to
implement the recommendations and rulings of the DSB within “the
shortest period possible within the legal system of the Member.” Thus,
my task is not to look at how implementation will be carried out,
but to determine when it is to be done. For this reason,
individual proposals under consideration by the implementing Member
cannot be determinative in my inquiry.
ARB.3.2 Panel Recommendations
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ARB.3.2.1 US — Offset Act (Byrd Amendment), para. 52
(WT/DS217/14, WT/DS234/22)
With respect to the suggestion of the Panel
that the United States repeal the CDSOA, I note, first, that the Panel,
in making its suggestion, also recognized that “there could
potentially be a number of ways in which the United States could bring
the CDSOA into conformity”. Moreover, although the suggestion by the
Panel, as part of a panel report adopted by the DSB, could serve as a
useful contribution to the decisionmaking process in the implementing
Member, I do not believe that the existence of such a suggestion
ultimately affects the well-established principle that “choosing the
means of implementation is, and should be, the prerogative of the
implementing Member”.
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