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REPERTORY OF APPELLATE BODY REPORTS

Conditional Appeals


ON THIS PAGE:

US — 1916 Act, paras. 153-154
Chile — Price Band System, para. 286
Canada — Wheat Exports and Grain Imports, paras. 162-163
Mexico — Taxes on Soft Drinks, para. 81
US — Zeroing (EC), paras. 161-162, 164


C.5.1 US — 1916 Act, paras. 153-154     back to top
(WT/DS136/AB/R, WT/DS162/AB/R)

In their joint other appellant’s submission, the European Communities and Japan ask us to rule that the 1916 Act is inconsistent with United States’ obligations under Articles III:4 and XI of the GATT 1994 and Article XVI:4 of the WTO Agreement. With respect to Articles III:4 and XI of the GATT 1994, their requests are conditioned on our reversal of the Panel’s findings that the 1916 Act falls within the scope of Article VI of the GATT 1994 and the Anti-Dumping Agreement. With respect to Article XVI:4 of the WTO Agreement, their requests are conditioned on our reversal of the Panel’s findings with respect to jurisdiction and the distinction between mandatory and discretionary legislation. Since, however, the conditions on which these requests are predicated have not been fulfilled, there is no need for us to examine the conditional appeals of the European Communities and Japan.

 

For these reasons, we decline to rule on the conditional appeals of the European Communities and Japan relating to Articles III:4 and XI of the GATT 1994 and Article XVI:4 of the WTO Agreement.

 
C.5.2 Chile — Price Band System,
para. 286     back to top
(WT/DS207/AB/R, WT/DS207/AB/R/Corr.1)

Argentina asks us to rule that Chile’s price band system is inconsistent with the first sentence of Article II:1(b). Argentina’s request is, however, conditioned on our reversal of the Panel’s finding that Chile’s price band system is inconsistent with Article 4.2 of the Agreement on Agriculture. As this condition has not been fulfilled, and as Chile has not requested a finding with respect to the first sentence of Article II:1(b), we do not see it as necessary for us to rule on whether Chile’s price band system is inconsistent with the first sentence of Article II:1(b) of the GATT 1994.

 
C.5.3 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.5.4 Mexico — Taxes on Soft Drinks,
para. 81     back to top
(WT/DS308/AB/R)

… We have upheld the Panel’s conclusion that Mexico’s measures do not constitute measures “to secure compliance with laws or regulations” within the meaning of Article XX(d) of the GATT 1994. Therefore, the premise on which Mexico’s request [that the Appellate Body … complete the analysis by examining whether Mexico’s measures are “necessary”, within the meaning of Article XX(d) of the GATT 1994, and meet the requirements of the chapeau of that Article] is predicated is not fulfilled and, consequently, it is not necessary for us to complete the analysis as requested by Mexico.

 
C.5.5 US — Zeroing (EC),
paras. 161-162, 164     back to top
(WT/DS294/AB/R, WT/DS294/AB/R/Corr.1)

… In the event that we reverse the Panel’s conclusions either on Article 9.3 of the Anti-Dumping Agreement (as well as Article VI:2 of the GATT 1994), or on Article 2.4 of the Anti-Dumping Agreement, the European Communities does not appeal the Panel’s findings on Article 2.4.2 of the Anti-Dumping Agreement.

 

We recall that we reversed the Panel’s finding that the United States did not act inconsistently with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994. Thus, the condition on which the European Communities’ conditional appeal is predicated is not fulfilled. Accordingly, the issue raised by the European Communities’ conditional appeal under Article 2.4.2 of the Anti-Dumping Agreement is not before us.

 

We recognize that the issue of the applicability of Article 2.4.2 to administrative reviews is an important issue, but we consider that the central focus of this appeal is the issue of zeroing, both as it relates to original investigations and administrative reviews. As our reasoning shows, we did not find it necessary to resolve the issue of zeroing in the administrative reviews at issue in this case through an examination of Article 2.4.2. We wish to emphasize that we are not expressing any view in this appeal as to whether Article 2.4.2 is applicable or not to administrative reviews under Article 9.3. Thus, the Panel’s findings … should not be considered to have been endorsed by the Appellate Body.

 


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