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ON THIS PAGE:
> US — Gasoline, p. 19, DSR 1996:I, p. 3 at 18
> Canada — Periodicals, p. 24, DSR 1997:I, p. 449 at 469
> EC — Hormones, para. 222
> EC — Hormones, para. 251
> Australia — Salmon, paras. 117-118
> Argentina — Footwear (EC), para. 98
> Korea — Dairy, para. 92
> Korea — Dairy, para. 102
> Canada — Autos, para. 133
> Canada — Autos, para. 145
> EC — Asbestos, paras. 78-79
> EC — Asbestos, paras. 82-83
> US — Hot-Rolled Steel, paras. 174, 180
> US — Hot-Rolled Steel,
paras. 235-236
> Canada — Dairy (Article 21.5 — New Zealand and US), para. 98
> Canada — Dairy (Article 21.5 — New Zealand and US), paras. 102-103
> US — Section 211 Appropriations Act, para. 343
> US — Section 211 Appropriations Act, para. 352
> US — Steel Safeguards, para. 431
> US — Softwood Lumber IV, para. 118
> Canada — Wheat Exports and Grain Imports, paras. 162-163
> US — Oil Country Tubular Goods Sunset Reviews, para. 219
> US — Oil Country Tubular Goods Sunset Reviews, para. 220
> US — Upland Cotton, para. 693
> US — Upland Cotton, para. 747
> US — Gambling, para. 344
> EC — Export Subsidies on Sugar, paras. 337-341 and footnote 537
> US — Countervailing Duty Investigation on DRAMS, paras. 194-197
> US — Countervailing Duty Investigation on DRAMS, para. 208
> US — Anti-Dumping Measures on Oil Country Tubular Goods, para. 218
> US — Softwood Lumber VI (Article 21.5 — Canada), paras. 157-161
> US — Zeroing (EC), para. 228
> US — Zeroing (EC), para. 243
> EC — Selected Customs Matters, paras. 278, 286
> Japan — DRAMs (Korea), para. 142
> US — Continued Zeroing, paras. 190-191
> US — Continued Zeroing, paras. 194-196
> US — Continued Zeroing, para. 211
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C.4.1 US — Gasoline, p. 19, DSR 1996:I, p. 3 at 18
back to top
(WT/DS2/AB/R)
The Panel did not find it necessary to deal with the issue of whether
the baseline establishment rules “are made effective in conjunction
with restrictions on domestic production or consumption”, since it had
earlier concluded that those rules had not even satisfied the preceding requirement of “relating to” in the
sense of being “primarily aimed at” the conservation of clean air.
Having been unable to concur with that earlier conclusion of the Panel,
we must now address this second requirement of Article XX(g), the United
States having, in effect, appealed from the failure of the Panel to
proceed further with its inquiry into the availability of Article XX(g)
as a justification for the baseline establishment rules.
C.4.2 Canada — Periodicals, p. 24, DSR 1997:I, p. 449 at 469
(WT/DS31/AB/R)
back to top
We believe the Appellate Body can, and should, complete the analysis
of Article III:2 of the GATT 1994 in this case by examining the measure
with reference to its consistency with the second sentence of Article
III:2, provided that there is a sufficient basis in the Panel Report to
allow us to do so. … An examination of the consistency of
Part V.1 of the Excise Tax Act with Article III:2, second sentence, is
therefore part of a logical continuum.
…
As the legal obligations in the first and second sentences are two
closely linked steps in determining the consistency of an internal tax
measure with the national treatment obligations of Article III:2, the
Appellate Body would be remiss in not completing the analysis of Article
III:2. …
C.4.3 EC — Hormones, para. 222
back to top
(WT/DS26/AB/R, WT/DS48/AB/R)
… Because, however, we have reached a conclusion different from
that of the Panel, we consider it appropriate to complete the Panel’s
analysis in order that we may be in a position to review the Panel’s
conclusion concerning consistency with Article 5.5 as a whole. The
matter of therapeutic and zootechnical uses of hormones was fully argued
before the Panel. Although the failure of the Panel to proceed with this
comparison was not expressly appealed by the United States, the United
States relies markedly upon the fact that the European Communities
treats therapeutic and zootechnical uses of natural hormones differently
from growth promotion use of the same hormones.
C.4.4 EC — Hormones, para. 251
back to top
(WT/DS26/AB/R, WT/DS48/AB/R)
We have … reversed the Panel’s conclusion under Article 5.5 of
the SPS Agreement. … However, it cannot be assumed
that all the findings of fact necessary to proceed to a determination of
consistency or inconsistency of the EC measures with the requirements of
Article 5.6 have been made by the Panel …
C.4.5 Australia — Salmon, paras. 117-118
back to top
(WT/DS18/AB/R)
… In certain appeals, when we reverse a panel’s finding on a
legal issue, we may examine and decide an issue that was not
specifically addressed by the panel, in order to complete the legal
analysis and resolve the dispute between the parties. This occurred, for
example, in the appeals in United States — Gasoline, Canada
— Certain Measures Concerning Periodicals, European Communities
— Measures Affecting the Importation of Certain Poultry Products (“European
Communities — Poultry”), and United States — Import
Prohibition of Certain Shrimp and Shrimp Products.
As we have reversed the Panel’s finding that the SPS measure at
issue, erroneously identified as the heat-treatment requirement, is not
based on a risk assessment, we believe that — to the extent possible
on the basis of the factual findings of the Panel and/or of undisputed
facts in the Panel record — we should complete the legal analysis and
determine whether the actual SPS measure at issue, i.e., Australia’s import
prohibition on fresh, chilled or frozen ocean-caught Pacific salmon,
is based on a risk assessment.
C.4.6 Argentina — Footwear (EC), para. 98
back to top
(WT/DS121/AB/R)
… we uphold the conclusions of the Panel that Argentina’s
investigation in this case was inconsistent with the requirements of
Articles 2 and 4 of the Agreement on Safeguards. As a
consequence, there is no legal basis for the safeguard measures
imposed by Argentina. For this reason, we do not believe that it is
necessary to complete the analysis of the Panel relating to the claim
made by the European Communities under Article XIX of the GATT 1994 by
ruling on whether the Argentine authorities have, in their
investigation, demonstrated that the increased imports in this case
occurred “as a result of unforeseen developments and of the effect of
the obligations incurred by a Member under this Agreement, including
tariff concessions … ”.
C.4.7 Korea — Dairy, para. 92
back to top
(WT/DS98/AB/R)
… In the absence of any factual findings by the Panel or
undisputed facts in the Panel record relating to whether the alleged
increase in imports was, indeed, “a result of unforeseen developments
and of the effect of the obligations incurred by a Member under this
Agreement, including tariff concessions … ”, we are not in a
position, within the scope of our mandate set forth in Article 17 of the
DSU, to complete the analysis and make a determination as to whether
Korea acted inconsistently with its obligations under Article XIX:1(a).
Accordingly, we are unable to come to a conclusion on whether or not
Korea violated its obligations under Article XIX:1(a) of the GATT 1994.
C.4.8 Korea — Dairy, para. 102
back to top
(WT/DS98/AB/R)
… The Panel did not make any factual findings on the average
level of imports of skimmed milk powder preparations in the last three
representative years. The average level of imports in that period was
also contested by the parties. Accordingly, we are not in a position,
within the scope of our mandate under Article 17 of the DSU, to complete
the analysis in this case and make a determination as to the consistency
of Korea’s safeguard measure with the second sentence of Article 5.1.
C.4.9 Canada — Autos, para. 133
back to top
(WT/DS139/AB/R, WT/DS142/AB/R)
In Australia — Salmon, we stated that where we have reversed
a finding of a panel, we should attempt to complete a panel’s legal
analysis “to the extent possible on the basis of the factual findings
of the Panel and/or of undisputed facts in the Panel record”. Here, as
we have stated, the Panel did not identify the precise levels of the CVA
requirements applicable to specific manufacturers. In addition, there
are not sufficient undisputed facts in the Panel record that would
enable us to examine this issue ourselves. As a result, it is impossible
for us to assess whether the use of domestic over imported goods is a
condition “in law” for satisfying the CVA requirements, and,
therefore, is a condition for receiving the import duty exemption.
C.4.10 Canada — Autos, para. 145
back to top
(WT/DS139/AB/R, WT/DS142/AB/R)
We stated earlier that the Panel’s incomplete analysis of the
operation of the CVA requirements leaves us with an insufficient basis
on which to examine how the CVA requirements function. Furthermore, as
the Panel concluded that Article 3.1(b) did not extend to contingency
“in fact”, the Panel did not examine the claims of the European
Communities and Japan on this issue. As a result the Panel made no factual
findings relating to the operation of the CVA requirements. In addition,
there are not sufficient undisputed facts in the Panel record that would
enable us to examine this issue ourselves. It is impossible for us to
assess whether the use of domestic over imported goods is “in fact”
a condition for satisfying the CVA requirements, and, therefore, is a
condition for receiving the import duty exemption.
C.4.11 EC — Asbestos, paras. 78-79
back to top
(WT/DS135/AB/R)
… In previous appeals, we have, on occasion, completed the legal
analysis with a view to facilitating the prompt settlement of the
dispute, pursuant to Article 3.3 of the DSU. However, we have insisted
that we can do so only if the factual findings of the panel and the
undisputed facts in the panel record provide us with a sufficient basis
for our own analysis. If that has not been the case, we have not
completed the analysis.
The need for sufficient facts is not the only limit on our ability to
complete the legal analysis in any given case. In Canada — Periodicals, we reversed the panel’s conclusion that the measure
at issue was inconsistent with Article III:2, first sentence, of the
GATT 1994, and we then proceeded to examine the United States’ claims
under Article III:2, second sentence, which the panel had not examined
at all. However, in embarking there on an analysis of a provision that
the panel had not considered, we emphasized that “the first and second
sentences of Article III:2 are closely related” and that those
two sentences are “part of a logical continuum” (emphasis
added).
C.4.12 EC — Asbestos, paras. 82-83
back to top
(WT/DS135/AB/R)
In light of their novel character, we consider that Canada’s claims
under the TBT Agreement have not been explored before us in
depth. As the Panel did not address these claims, there are no “issues
of law” or “legal interpretations” regarding them to be analysed
by the parties, and reviewed by us under Article 17.6 of the DSU. We
also observe that the sufficiency of the facts on the record depends on
the reach of the provisions of the TBT Agreement claimed to apply
— a reach that has yet to be determined.
With this particular collection of circumstances in mind, we consider
that we do not have an adequate basis properly to examine Canada’s
claims under Articles 2.1, 2.2, 2.4 and 2.8 of the TBT Agreement and,
accordingly, we refrain from so doing.
C.4.13 US — Hot-Rolled Steel, paras. 174, 180
back to top
(WT/DS184/AB/R)
In these circumstances, Japan requests that we rule on its claim,
under Article 2.4 of the Anti-Dumping Agreement, that, in relying
on downstream sales, USDOC failed to make proper “allowances” in
respect of the additional costs and profits of the downstream sellers,
reflected in the price of these sales. …
…
Our examination of this issue must be based on the factual findings
of the Panel or uncontested facts in the Panel record. As the Panel did
not examine this issue, and as the parties do not agree on the relevant
facts, we find that there is not an adequate factual record for us to
complete the analysis by examining Japan’s claim under Article 2.4 of
the Anti-Dumping Agreement.
C.4.14 US — Hot-Rolled Steel, paras. 235-236
back to top
(WT/DS184/AB/R)
Having reversed the Panel’s finding on Japan’s claim, we must now
consider whether it is appropriate for us to complete the analysis and
facilitate the prompt settlement of the dispute, under Article 3.3 of the DSU, by examining Japan’s
claim ourselves. In previous Reports, we have emphasized that, after
reversing a finding of the panel, we can complete the analysis only if
the factual findings of the panel, or the undisputed facts in the panel
record, provide us with a sufficient basis to do so.
… In our view, key aspects of these factual assertions were not
the subject of findings by the Panel or were not agreed by the United
States. We, therefore, find that, in the absence of an adequate factual
record, there is no basis for us to complete the analysis of Japan’s
claim under Article 3.5 of the Anti-Dumping Agreement.
C.4.15 Canada — Dairy (Article 21.5 — New Zealand and US),
para. 98
(WT/DS103/AB/RW, WT/DS113/AB/RW)
back to top
As we have reversed the Panel’s findings regarding the standard for
determining the existence of “payments” and have, instead,
identified the appropriate standard for these proceedings, namely, the
average total cost of production, we now consider whether we can resolve
this aspect of the dispute by completing the analysis. The Panel found
that, in these proceedings, Article 10.3 of the Agreement on
Agriculture reverses the burden of proof so that Canada must
establish “that no export subsidy … has been granted”. Although
the burden of proof is on Canada, we must nonetheless complete the
analysis solely on the basis of factual findings made by the Panel and
uncontested facts in the Panel record.
C.4.16 Canada — Dairy (Article 21.5 — New Zealand and US),
paras. 102-103 back to top
(WT/DS103/AB/RW, WT/DS113/AB/RW)
… the Panel did not find it necessary to make any factual
findings on the costs of production and the facts relating to this issue
were not the subject of agreement between the parties. Moreover, the
Panel proceedings were conducted without the parties arguing their case,
or the Panel making enquiries, from the perspective of the average total
cost of production standard we have adopted.
In these circumstances, we are unable to complete the analysis by
determining whether the supply of CEM involves “payments” under
Article 9.1(c) of the Agreement on Agriculture. Yet, we do not
wish to be understood as holding that the supply of CEM does not involve
“payments” under Article 9.1(c). We are simply not in a position to
make a ruling on this issue.
C.4.17 US — Section 211 Appropriations Act,
para. 343 back to top
(WT/DS176/AB/R)
In the past, we have completed the analysis where there were
sufficient factual findings in the panel report or undisputed facts in
the panel record to enable us to do so, and we have not completed the
analysis where there were not. In one instance, we declined to complete the analysis with respect to a “novel”
issue that had not been argued in sufficient detail before the panel.
C.4.18 US — Section 211 Appropriations Act,
para. 352 back to top
(WT/DS176/AB/R)
On the basis of:
- the fact that Sections 211(a)(2) and (b) do not distinguish
on their face between trade marks and trade names;
- the
participants’ approach in submitting the same arguments and using the
same analyses regarding trade name and trademark protection, suggesting
that the obligations regarding protection of one are no different from
those regarding protection of the other;
- the information in
the Panel record about the participants’ interpretation of Article 8
of the Paris Convention (1967); and
- the information in the
Panel record about trade name protection under United States law;
we
conclude that the Panel record contains sufficient factual findings and
facts undisputed between the participants to permit us to complete the
analysis regarding the consistency of Sections 211(a)(2) and (b) — in
respect of trade names — with Article 2.1 of the TRIPS Agreement in
conjunction with Article 2(1) of the Paris Convention (1967) and Article
3.1 of the TRIPS Agreement, with Article 4 of the TRIPS
Agreement, with Article 42 of the TRIPS Agreement, and with
Article 2.1 of that Agreement in conjunction with Article 8 of the Paris
Convention (1967).
C.4.19 US — Steel Safeguards, para. 431
back to top
(WT/DS248/AB/R, WT/DS249/AB/R, WT/DS251/AB/R,
WT/DS252/AB/R,
WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R, WT/DS259/AB/R)
In previous appeals, we have, when appropriate, completed the legal
analysis with a view to facilitating the prompt settlement of disputes.
However, in the dispute before us, we have already upheld the Panel’s
finding that the United States acted inconsistently with Article
XIX:1(a) of the GATT 1994, as well as with Article 3.1 of the Agreement
on Safeguards, with regard to all ten measures at issue. We also
find in the following section of this Report dealing with the issue of
“parallelism”, that the United States has acted inconsistently with
Articles 2.1 and 4.2 of the Agreement on Safeguards with respect
to all product categories, because the United States failed to establish
that imports covered by the safeguard measures, alone, satisfy
the conditions for the imposition of a safeguard measure. Therefore, the
Panel’s finding that the safeguard measures applied to tin mill
products and stainless steel wire are both “deprived of a legal basis”
remains undisturbed. As a result, it is not necessary for us to complete
the analysis and determine whether the USITC report provided a reasoned
and adequate explanation that imports of tin mill products and stainless
steel wire had increased within the meaning of Article 2.1 of the
Agreement on Safeguards.
C.4.20 US — Softwood Lumber IV, para. 118
back to top
(WT/DS257/AB/R)
… we are unable to complete the legal analysis of Canada’s
claim that the United States acted inconsistently with Article 14(d) of
the SCM Agreement. We observe, in this regard, that panels
sometimes make alternative factual findings that serve to assist the
Appellate Body in completing the legal analysis should it disagree with
legal interpretations developed by the panel, but this is not the case
in the Panel Report before us.
C.4.21 Canada — Wheat Exports and Grain Imports,
paras. 162-163
(WT/DS276/AB/R)
back to top
Canada states that it would welcome “guidance” from the Appellate
Body as to whether a conditional request to complete the analysis of a
particular issue should be raised in an appellee’s submission filed
pursuant to Rule 22 of the Working Procedures, or in another
appellant’s submission filed pursuant to Rule 23. …
As we have not reversed the Panel’s interpretation of subparagraph
(b) of Article XVII:1, the condition on which Canada’s request to
complete the analysis is made has not been satisfied. … In
the circumstances of this appeal, it is neither necessary nor
appropriate for us to provide “guidance” on the issue of how
conditional requests to complete the analysis are properly brought
before the Appellate Body.
C.4.22 US — Oil Country Tubular Goods Sunset Reviews,
para. 219
(WT/DS268/AB/R)
back to top
… The factual premise of Argentina’s claim under Article X:3(a)
is thus not undisputed. We therefore find that the record does
not allow us to complete the analysis of Argentina’s conditional
appeal with respect to Article X:3(a) of the GATT 1994.
C.4.23 US — Oil Country Tubular Goods Sunset Reviews,
para. 220
(WT/DS268/AB/R)
back to top
We move now to Argentina’s conditional appeal concerning the “practice”
of the USDOC. … Here again, we note that the Panel record
reveals no qualitative assessment of individual cases found in Exhibit
ARG-63. As we noted above, this factual premise (particularly “without
considering additional factors”) is challenged by the United States
and is not undisputed. Therefore, even assuming arguendo that a
“practice” may be challenged as a “measure” in WTO dispute
settlement — an issue on which we express no view here — we find that
the record does not allow us to complete the analysis of Argentina’s
conditional appeal with respect to the “practice” of the USDOC
regarding the likelihood determination in sunset reviews.
C.4.24 US — Upland Cotton, para. 693
back to top
(WT/DS267/AB/R)
We must determine next whether there are sufficient uncontested facts
in the record to permit us to complete the analysis with respect to the
other commodities. In our view, there are not. First, the parties disagree about the time
period covered by Brazil’s claim. The United States asserts that
Brazil’s claim was limited to the period July 2001 to June 2002, while
Brazil contends that its claim was not limited to that period. Second,
as we noted previously, different time periods are used for the sets of
data that have to be compared. The data regarding United States exports
under the export credit guarantee programmes are maintained on a fiscal
year basis, which extends from 1 October to 30 September of the
following year. The United States’ export subsidy commitments are
registered based on a year that extends from 1 July to 30 June of the
following year. Both Brazil and the United States have sought to
reconcile the data. In each case, Brazil and the United States assert
that the data support their position. Given the differences between the
participants in respect of the data that we would have to examine to
determine whether the United States applied export credit guarantees in
a manner that results in circumvention of its export subsidy commitments
for pig meat and poultry meat, we do not believe there are sufficient
undisputed facts in the record to enable us to complete the analysis.
C.4.25 US — Upland Cotton, para. 747
back to top
(WT/DS267/AB/R)
In this case, Brazil’s claim on appeal is limited to the Panel’s
application of the burden of proof. Brazil has expressly stated that it
is not requesting us to complete the analysis. In view of Brazil’s
request, our ruling would not result in recommendations or rulings by
the DSB in respect of the ETI Act of 2000. In these circumstances, we
fail to see how our examination of Brazil’s claim would contribute to
the “prompt” or “satisfactory settlement” of this matter or
would contribute to “secure a positive solution” to this dispute.
Even if we were to disagree with the manner in which the Panel applied
the burden of proof, we would not make any findings in respect of the
WTO-consistency of the ETI Act of 2000. We recognize that there may be
cases in which it would be useful for us to make a finding on an issue,
despite the fact that our decision would not result in rulings and
recommendations by the DSB. In this case, however, we find no compelling
reason for doing so on this particular issue.
C.4.26 US — Gambling, para. 344
back to top
(WT/DS285/AB/R, WT/DS285/AB/R/Corr.1)
Provided that it complies with its duty to assess a matter
objectively, a panel enjoys the freedom to decide which legal issues it
must address in order to resolve a dispute. Moreover, in some instances,
a panel’s decision to continue its legal analysis and to make factual
findings beyond those that are strictly necessary to resolve the dispute
may assist the Appellate Body should it later be called upon to complete
the analysis, as, for example, in this case.
C.4.27 EC — Export Subsidies on Sugar, paras. 337-341 and
footnote 537 back to top
(WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R)
In several previous disputes, the Appellate Body examined an issue
“not specifically addressed by the panel, in order to complete the
legal analysis and resolve the dispute between the parties”. However, the Appellate Body has declined to
complete the legal analysis where “the factual findings of the panel
and the undisputed facts in the panel record” did not provide a
sufficient basis for the legal analysis by the Appellate Body. Moreover,
as Article 17.6 of the DSU limits appeals to “issues of law covered in
the panel report and legal interpretations developed by the panel”,
the Appellate Body has also previously declined to complete the legal
analysis of a panel in circumstances where that would involve addressing
claims “which the panel had not examined at all”. In addition, the
Appellate Body has indicated that it may complete the analysis only if
the provision that a panel has not examined is “closely related”
to a provision that the panel has examined, and that the two are “part
of a logical continuum”.
Turning to the specific case before us, we note that the Complaining
Parties argue that their claims under the SCM Agreement are
closely related to their claims under the Agreement on Agriculture.
We are not persuaded, however, that Articles 3, 8, and 9.1 of the Agreement
on Agriculture, on the one hand, and Articles 3.1(a), 3.2, and items
(a) and (d) of the Illustrative List of the SCM Agreement, on the
other hand, are “closely related”, because the issues presented
under the two Agreements are different in several respects.
Furthermore, in the instant case, we note that the Panel made
reference to the limited arguments made by the Complaining Parties under
the SCM Agreement: … Although, on appeal, the Complaining
Parties did argue their claims under the SCM Agreement to some
extent, they did not address, in a sufficient manner, the question
whether Article 3 of the SCM Agreement applies to export
subsidies listed in Article 9.1 of the Agreement on Agriculture that
are provided to scheduled agricultural products in excess of a
responding Member’s commitment levels. We believe that, in the light
of Article 21 of the Agreement on Agriculture and the chapeau of
Article 3 of the SCM Agreement, the question of the applicability
of the SCM Agreement to the export subsidies in this dispute
raises a number of complex issues.537 We also consider that, in the
absence of a full exploration of these issues, completing the analysis
might affect the due process rights of the participants.
Moreover, we do not have the requisite factual findings to complete
the legal analysis. In particular, we do not have sufficient facts
before us, as would be necessary to specify the period of time for
withdrawal, as required by Article 4.7 of the SCM Agreement. We
note in this respect that, when specifying what period would represent
“without delay”, panels have taken into account, inter alia,
“the nature of the measures and the difficulties likely to be faced in
implementing the recommendation”. Based on our reading of the Panel Reports and the
Panel record, we fail to see any evidence therein regarding the nature
of the measures that would be required to “withdraw” the subsidy,
which would permit us to make a recommendation under Article 4.7. Hence,
even if we were able to examine the Complaining Parties’ claims
under the SCM Agreement and, even if we were to conclude
that the SCM Agreement applies in the circumstances of this
dispute and that the European Communities acted inconsistently with its
obligations under the SCM Agreement, we would not necessarily be
in a position to make a recommendation under Article 4.7 as to the time
period for withdrawal of the subsidy.
For all these reasons, we are not in a position, and we therefore
decline, to complete the legal analysis and to examine the Complaining
Parties’ claims under the SCM Agreement left unaddressed by the
Panel.
C.4.28 US — Countervailing Duty Investigation on DRAMS,
paras.
194-197 back to top
(WT/DS296/AB/R)
We note that neither participant requested, in its written
submissions, that we complete the analysis by undertaking our own review
of the USDOC’s finding of entrustment or direction if we were to
reverse the Panel’s finding of inconsistency with Article
1.1(a)(1)(iv). …
We might have been able to resolve this dispute solely by addressing
the USDOC’s finding of a “single program”, as Korea suggests, only
if this were one of the indispensable bases for the USDOC’s
ultimate finding of entrustment or direction. We are not persuaded,
however, that this is the case. …
Moreover, in our view, the nature of the errors we have found in the
Panel’s decision, especially with respect to the approach taken by the
Panel to the admissibility and probative value of several individual
pieces of evidence, is such that completing the analysis would require
us to examine anew the entire USDOC finding of entrustment or direction.
…
Furthermore, we do not consider that the participants have addressed
sufficiently, in their submissions, those issues that we might need to
examine if we were to complete the analysis in this case. … In
these circumstances, we believe it is more appropriate to limit our
examination to a review of the issues of law covered in the Panel Report
and the legal interpretations developed by the Panel. Therefore, we do
not complete the analysis to arrive at our own conclusion on the
consistency of the USDOC’s subsidy determination with Article
1.1(a)(1)(iv) of the SCM Agreement.
C.4.29 US — Countervailing Duty Investigation on DRAMS,
para.
208
(WT/DS296/AB/R)
back to top
… there are neither sufficient findings by the Panel nor
undisputed facts contained in the record to allow us to conduct our own
analysis of Korea’s claims regarding benefit and specificity. We
recall that it is not sufficient to determine that there is a “financial
contribution by a government or any public body” in order to find that
there is a “subsidy” under Article 1.1 of the SCM Agreement.
This provision also requires that “a benefit is thereby conferred”.
Article 1.2 requires, in addition, that the subsidy be “specific”. Because the Panel’s findings on
benefit and specificity were premised exclusively on its conclusion
relating to entrustment or direction, there is insufficient basis for us
to examine the consistency of the USDOC’s benefit and specificity
determinations with the SCM Agreement. Even though we reverse the
Panel’s findings, we offer no view as to the consistency of the USDOC’s
underlying determinations of benefit and specificity.
C.4.30 US — Anti-Dumping Measures on Oil Country Tubular Goods,
para. 218 back to top
(WT/DS282/AB/R)
In our view, an assessment of the USDOC’s determinations for the
purpose of determining whether the USDOC administers United States laws
and regulations on sunset reviews in a uniform, impartial, and
reasonable manner in accordance with Article X:3(a) of the GATT 1994
entails an inquiry much different from that involved in determining
whether the SPB instructs the USDOC to treat certain scenarios as
conclusive or determinative contrary to Article 11.3 of the Anti-Dumping
Agreement. Therefore, in the absence of any consideration by the
Panel of this claim, we are not in a position to rule on it.
C.4.31 US — Softwood Lumber VI (Article 21.5 — Canada),
paras.
157-161 back to top
(WT/DS277/AB/RW, WT/DS277/AB/R/Corr.1)
… Canada, as the complaining party, must persuade us that there
are sufficient uncontested facts on the record to enable us to complete
the analysis by stepping into the shoes of the Panel. … There
is … an element of contradiction between Canada’s assertion that
we have before us a sufficient record of uncontested facts or
factual determinations by the Panel on which to complete the analysis,
and its appeal with respect to the standard of review applied by the
Panel.
We also note that, according to Article 3.7 of the Anti-Dumping
Agreement and Article 15.7 of the SCM Agreement, a finding of
threat of material injury must be based on the “totality of the
factors considered”. In this case, several closely interrelated
factors are at play in the USITC’s determination of threat of material
injury. Contested facts underlie the analysis of both the specific
threat factors and of those factors acting collectively. … The
task of assessing the USITC’s examination of price effects is further
complicated by the need to review extremely detailed factual issues,
such as the comparability between species and the use of composite price
indexes.
Contested facts also underlie the USITC’s causation and
non-attribution analyses. … Finally, the integrated nature of
the USITC’s threat of injury and causation analyses further
complicates any effort aimed at completing the analysis.
Thus, completing the analysis in this case would require us to review
extensive aspects of the USITC’s threat of injury and causation
analyses, and would require us to engage in a comprehensive examination
of highly complex and contested facts. The fact that Canada, the
participant making the request, focused its arguments on the errors made by the Panel and provided little information to
enable us to complete the analysis does not facilitate this task.
For all these reasons, we are unable to complete the analysis and
determine whether the Section 129 Determination meets the requirements
of Articles 3.5 and 3.7 of the Anti-Dumping Agreement and
Articles 15.5 and 15.7 of the SCM Agreement. …
C.4.32 US — Zeroing (EC), para. 228
back to top
(WT/DS294/AB/R, WT/DS294/AB/R/Corr.1)
… We emphasized above that, to bring an “as such” challenge
against a “rule or norm” that is not expressed in the form of
a written document, a complaining party must clearly establish, through
arguments and supporting evidence, at least that the alleged “rule or
norm” is attributable to the responding Member, its precise content,
and that it does have general and prospective application. … However,
as we see it, the Panel’s analysis and findings in paragraphs 7.91 to
7.106 of the Panel Report relate only to the existence and the
consistency of the zeroing methodology, as it relates to original
investigations in which the weighted-average-to-weighted-average
comparison method is used to calculate margins of dumping. In these
circumstances, and in the absence of factual findings by the Panel or
undisputed facts in the Panel record regarding whether the zeroing
methodology, as it relates to administrative reviews, is a measure that
can be challenged, as such, we are unable to complete the analysis to
determine whether the zeroing methodology, as it relates to
administrative reviews, is inconsistent, as such, with Articles 1, 2.4,
2.4.2, 9.3, 11.1, 11.2, and 18.4 of the Anti-Dumping Agreement,
Articles VI:1 and VI:2 of the GATT 1994, and Article XVI:4 of the WTO
Agreement.
C.4.33 US — Zeroing (EC), para. 243
back to top
(WT/DS294/AB/R, WT/DS294/AB/R/Corr.1)
This brings us to the question whether it is appropriate for us to
complete the analysis, and assess whether Section 351.414(c)(2) is
inconsistent with the provisions of the Anti-Dumping Agreement,
the GATT 1994, and the WTO Agreement referred to by the European
Communities. As we understand it, the European Communities’ argument
is based on the assumption that Article 2.4.2 applies to all types of
proceedings under the Anti-Dumping Agreement. We recall that we
did not examine the issue of whether the scope of application of Article
2.4.2 is limited to original investigations. Furthermore, the European
Communities’ appeal in relation to this issue is conditional, and the
condition on which the appeal is predicated was not fulfilled.
Therefore, we considered that the issue was not before us. The Appellate
Body has previously emphasized that “as such” challenges against a
Member’s measures in WTO dispute settlement proceedings are
particularly “serious challenges” that seek to prevent a Member ex
ante from engaging in a certain conduct. The European Communities
has submitted only limited arguments and evidence relating to the
meaning of Section 351.414(c)(2), its scope of application, and its
alleged inconsistency with the covered agreements. We also note that the
Panel Report does not contain factual findings regarding the meaning of
Section 351.414(c)(2).
In these circumstances, we decline to complete the analysis to
determine whether Section 351.414(c)(2) is inconsistent, as such, with
Articles 1, 2.4, 2.4.2, 9.3, 9.5, 11.1, 11.2, 11.3, and 18.4 of the Anti-Dumping
Agreement, Articles VI:1 and VI:2 of the GATT 1994, and Article
XVI:4 of the WTO Agreement.
C.4.34 EC — Selected Customs Matters, paras. 278, 286
back to top
(WT/DS315/AB/R)
It is well settled that the Appellate Body will be in a position to
complete the legal analysis if it has before it sufficient factual
findings of the panel or undisputed facts on the panel record. In this
case, the Panel did not examine the United States’ claim that the
measures at issue, collectively, are administered in a non-uniform
manner. Therefore, we have to consider whether the factual findings or
general observations made by the Panel with respect to the claims it did
examine, can be utilized in the context of completing the analysis. In
considering this question, we also have to take into account the nature
and breadth of the United States’ challenge, that is, whether the
Community Customs Code, the Implementing Regulation, the Common Customs
Tariff, and the TARIC, collectively, are administered in a nonuniform
manner, in violation of Article X:3(a) of the GATT 1994.
…
… these general observations by the Panel with respect to the
institutions and mechanisms involved in the administration of European
Communities customs law were made in the context of an analysis based on
the Panel’s narrow interpretation of the measure at issue and the
claim set out in the panel request. We have reversed this interpretation
of the Panel. Therefore, the general observations made by the Panel … do not provide a sufficient foundation for us to complete the
analysis. Moreover, the Panel examined the operation of these
institutions and mechanisms in isolation and did not discuss how these
institutions and mechanisms interact in the administration of European
Communities customs law. Finally, given the breadth and the nature of
the claim set out by the United States in the panel request, we are of
the view that paragraphs 7.157 to 7.191 of the Panel Report do not
constitute a sufficient basis to enable us to complete the analysis.
C.4.35 Japan — DRAMs (Korea), para. 142
back to top
(WT/DS336/AB/R, WT/DS336/AB/R/Corr.1)
We note that neither participant has requested, in its written
submission, that we complete the legal analysis by undertaking our own
review of the JIA’s finding of entrustment or direction if we were to
reverse the Panel’s finding of inconsistency with Article
1.1(a)(1)(iv) of the SCM Agreement. At the oral hearing, Korea
tentatively suggested that we complete the analysis but recognized the
difficulty of such a task. We do not consider that the participants have
addressed sufficiently, in their submissions, those issues we might need
to examine in order to complete the analysis in this case, including the
probative value of certain evidence not considered by the Panel. In
these circumstances, we are not in a position to, and therefore do not,
complete the analysis to reach our own conclusion on the consistency of the JIA’s determination of entrustment or
direction with Article 1.1(a)(1)(iv) of the SCM Agreement.
C.4.36 US — Continued Zeroing, paras. 190-191
back to top
(WT/DS350/AB/R)
… Factual findings made in prior disputes do not determine facts
in another dispute. Evidence adduced in one proceeding, and admissions
made in respect of the same factual question about the operation of an
aspect of municipal law, may be submitted as evidence in another
proceeding. The finders of fact are of course obliged to make their own
determination afresh and on the basis of all the evidence before them.
But if the critical evidence is the same and the factual question about
the operation of domestic law is the same, it is likely that the finder
of facts would reach similar findings in the two proceedings.
Nonetheless, the factual findings adopted by the DSB in prior cases
regarding the existence of the zeroing methodology, as a rule or norm,
are not binding in another dispute. In themselves, they do not establish
that zeroing was used in all the successive proceedings in each of the
18 cases listed in the European Communities’ panel request.
… The Panel’s factual findings regarding the use of zeroing in
these periodic reviews are not subject to appeal, and its factual
findings regarding the sunset reviews are upheld on appeal. The Panel
record further indicates that the sunset reviews in all four cases
resulted in continuation of the original anti-dumping duty orders. Thus,
in each of the above four cases, the Panel’s findings indicate that
the zeroing methodology was repeatedly used in a string of
determinations, made sequentially in periodic reviews and sunset reviews
over an extended period of time. The density of factual findings in
these cases, regarding the continued use of the zeroing methodology in a
string of successive proceedings pertaining to the same anti-dumping
duty order, provides a sufficient basis for us to conclude that the
zeroing methodology would likely continue to be applied in successive
proceedings whereby the duties in these four cases are maintained.
C.4.37 US — Continued Zeroing, paras. 194-196
back to top
(WT/DS350/AB/R)
With respect to the remaining eight cases, the Panel’s factual
findings are only partial with respect to the use of the zeroing
methodology in successive proceedings by which the duties are
maintained. More specifically, in three cases, the Panel found that, in
each case, simple zeroing was used in two periodic reviews and that
margins calculated with zeroing were relied upon by the USDOC in the
sunset review; however, no evidence regarding any other proceedings was
submitted to the Panel. In two of the remaining five cases, the Panel’s
findings confirm the use of zeroing in two periodic reviews of one case
and in three periodic reviews of the other case. However, for both
cases, the Panel found a lack of evidence showing that zeroing was used
in one periodic review listed in the panel request. Moreover, for both
cases, the sunset review determination was excluded from the Panel’s
terms of reference, hence no substantive findings were made. As for two
of the remaining cases, the only evidence in the record concerns two
periodic reviews in each case. In this respect, the Panel found that none of the evidence in these two cases
established that simple zeroing was used in the periodic reviews. …
Given the absence of the Panel’s factual findings and the
fragmented nature of the evidence, we are unable to complete the
analysis on whether the use of the zeroing methodology exists as an
ongoing conduct in successive proceedings by which the duties are
maintained in these cases.
We recognize the important limitation on our ability to complete the
analysis. We have accordingly adopted, for the purpose of this dispute,
a cautious approach. Thus, only where the Panel has made clear findings
of fact concerning the use of the zeroing methodology, without
interruption, in different types of proceedings over an extended period
of time, have we considered these findings sufficient for us to complete
the analysis and to make findings regarding the continued application of
zeroing in these cases. By contrast, we have not completed the analysis
where the factual findings are absent in respect of the use of the
zeroing methodology in each of the successive proceedings whereby the
duties are maintained, or where there are insufficient factual findings
to indicate that zeroing has been repeatedly applied. In such
circumstances, an examination of the facts, as well as a determination
as to what conclusions may be drawn from the remaining evidence in the
record, would be more appropriately conducted by a panel, with the
assistance of the parties.
Finally, for the one remaining case, the Panel found that simple
zeroing was used in two of the periodic reviews. Nonetheless, the Panel
made no findings on one periodic review and the sunset review in that
case, having excluded them from its terms of reference. As the Panel
also noted, this anti-dumping duty was revoked during the course of the
Panel proceedings. Given that the duty in this case has already been
terminated, we do not consider it appropriate to make any finding in
this respect.
C.4.38 US — Continued Zeroing, para. 211
back to top
(WT/DS350/AB/R)
… we note that both sunset review proceedings were still pending
before the USITC at the time the Panel was established. Thus, the USITC
had not yet determined, for either case, whether expiry of the
anti-dumping duty order would be likely to lead to the continuation or
recurrence of injury. Under these circumstances, we do not consider that
completion of the analysis as to whether these measures are inconsistent
with the covered agreements would be appropriate.
537. These issues include, for instance, whether the Agreement on
Agriculture contains “specific provisions dealing specifically
with the same matter” (Appellate Body Report, US — Upland Cotton,
paras. 532-533 (quoting Appellate Body Report, EC — Bananas III,
para. 155; and referring to Appellate Body Report, Chile — Price
Band System, para. 186)); whether the SCM Agreement applies to the subsidy as a whole, or whether it
applies to the subsidy only to the extent that the subsidy exceeds the
responding Members’ commitment levels as specified in its Schedule;
and whether, in the event the SCM Agreement applies, a panel
could make a recommendation to withdraw the subsidy in whole, or whether
that recommendation would apply to the subsidy only to the extent that
it exceeds the responding Member’s commitment levels.
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