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REPERTORY OF APPELLATE BODY REPORTS

Completion of the Legal Analysis by the Appellate Body


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


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.      back to top


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