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ON THIS PAGE:
> Brazil — Aircraft (Article 21.5 — Canada), para. 78
> US — Certain EC Products, paras. 89-90
> US — Cotton Yarn, para. 127
> US — Upland Cotton, para. 511
> US — Upland Cotton, para. 748
> US — Upland Cotton, para. 762
> US — Anti-Dumping Measures on Oil Country Tubular Goods, para. 211
> US — Zeroing (EC), para. 135
> US — Zeroing (EC), para. 232
> US — Zeroing (EC), para. 242
> China — Auto Parts, paras. 198, 202-203, 208-209
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M.3.1 Brazil — Aircraft (Article 21.5
— Canada), para. 78
back to top
(WT/DS46/AB/RW)
… As Brazil has failed to prove one of the elements necessary to
prove that payments made under the revised PROEX are justified by item
(k), we do not believe it is necessary to examine the issue of whether
export subsidies under the revised PROEX are “the payment [by
governments] of all or part of the costs incurred by exporters or
financial institutions in obtaining credits” within the meaning of the
first paragraph of item (k). Therefore, we do not address the Article
21.5 Panel’s findings on this issue. These findings of the Article
21.5 Panel are moot, and, thus, of no legal effect.
M.3.2 US
— Certain EC Products, paras. 89-90 back to top
(WT/DS165/AB/R)
Having found that the 3 March Measure is the measure at issue in this
dispute, and that the 19 April action is outside its terms of reference,
the Panel should have limited its reasoning to issues that were relevant
and pertinent to the 3 March Measure. By making statements on an issue
that is only relevant to the 19 April action, the Panel failed to follow
the logic of, and thus acted inconsistently with, its own finding
on the measure at issue in this dispute. The Panel, therefore,
erroneously made statements that relate to a measure which it had itself
previously determined to be outside its terms of reference.
For these reasons, we conclude that the Panel erred by making the
statements in paragraphs 6.121 to 6.126 of the Panel Report on the
mandate of arbitrators appointed under Article 22.6 of the DSU.
Therefore, these statements by the Panel have no legal effect.
M.3.3 US
— Cotton Yarn, para. 127 back to top
(WT/DS192/AB/R)
We finally turn to the United States’ appeal against the Panel’s
interpretation that Article 6.4 requires attribution to all Members the
imports from whom cause serious damage or actual threat thereof. In this
respect, we note that the scope of this dispute is defined by Pakistan’s
claims before the Panel. Pakistan claimed that the United States acted inconsistently with Article 6.4 because it “attributed
serious damage to imports from Pakistan without making a comparative
assessment of the imports from Pakistan and Mexico and their respective
effects”. The Panel considered it necessary, in its reasoning, to rule
on the broader interpretative question of whether Article 6.4 requires
attribution to all Members the imports from whom cause serious damage or
actual threat thereof. The United States also appeals the Panel’s
interpretation on this broader question. However, our findings resolve
the dispute as defined by Pakistan’s claims before the Panel. We,
therefore, do not rule on the issue of whether Article 6.4 requires
attribution to all Members the imports from whom cause serious damage or
actual threat thereof. In these circumstances, the Panel’s
interpretation on this question is of no legal effect.
M.3.4 US
— Upland Cotton, para. 511 back to top
(WT/DS267/AB/R)
… we believe that an interpretation of the phrase “world market
share” in Article 6.3(d) of the SCM Agreement is unnecessary
for purposes of resolving this dispute. We emphasize that we neither
uphold nor reverse the Panel’s findings on the interpretation of the
phrase “world market share” in Article 6.3(d) of the SCM Agreement.
M.3.5 US
— Upland Cotton, para. 748 back to top
(WT/DS267/AB/R)
For these reasons, we decline Brazil’s request that we reverse the
Panel’s conclusion that Brazil did not make a prima facie case
that the ETI Act of 2000 is inconsistent with the United States’ WTO
obligations. In declining to rule on Brazil’s request, we neither
endorse nor reject the manner in which the Panel applied the burden of
proof in the context of examining Brazil’s claim against the ETI Act
of 2000.
M.3.6 US
— Upland Cotton, para. 762 back to top
(WT/DS267/AB/R)
We … believe that an interpretation of the phrase “any form of
subsidy which operates to increase the export” in Article XVI:3 of the
GATT 1994 is unnecessary for purposes of resolving this dispute. We
emphasize that we neither uphold nor reverse the Panel’s
interpretation of this phrase in the second sentence of Article XVI:3.
M.3.7 US
— Anti-Dumping Measures on Oil Country Tubular Goods, para. 211
(WT/DS282/AB/R) back to top
… we do not address the Panel’s statement … that Mexico had
established a prima facie case that the SPB, as such, is
inconsistent with Article 11.3 of the Anti-Dumping Agreement. As a result of our reversal of the Panel’s
finding that Section II.A.3 of the SPB, as such, is inconsistent with
Article 11.3 of the Anti-Dumping Agreement, that statement is
moot and of no legal effect.
M.3.8 US
— Zeroing (EC), para. 135 back to top
(WT/DS294/AB/R,
WT/DS294/AB/R/Corr.1)
… we reverse 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 in the administrative
reviews at issue, and find, instead, that the United States acted
inconsistently with those provisions. We note that the Panel made a
finding on Article VI:1 of the GATT 1994, and that this finding was
consequential to its finding on Article VI:2 of the GATT 1994.
Accordingly, we declare moot, and of no legal effect, the Panel’s
finding … that the United States did not act inconsistently with
Article VI:1 of the GATT 1994.
M.3.9 US
— Zeroing (EC), para. 232 back to top
(WT/DS294/AB/R,
WT/DS294/AB/R/Corr.1)
Because the Standard Zeroing Procedures are not a measure that can be
challenged, as such, it follows that they cannot be found to be either
consistent or inconsistent with a Member’s obligations under the
covered agreements. Accordingly, we declare moot, and of no legal effect
the Panel’s findings … that the Standard Zeroing Procedures are
not inconsistent, as such, with the provisions of the Anti-Dumping
Agreement, the GATT 1994, and the WTO Agreement, referred to
by the European Communities.
M.3.10 US
— Zeroing (EC), para. 242 back to top
(WT/DS294/AB/R,
WT/DS294/AB/R/Corr.1)
In essence, the Panel’s finding concerning Section 351.414(c)(2) is
consequential to its view that Article 2.4.2 does not apply to
administrative reviews, new shipper reviews, changed circumstances
reviews, and sunset reviews. The Panel reasoned that, because Article
2.4.2 does not apply to such reviews, comparisons between the export
price of an individual transaction and a normal value calculated on the
basis of a contemporaneous weighted average of domestic prices are not
prohibited and, therefore, Section 351.414(c)(2) is WTO-consistent. We
recall that we declined to rule on the European Communities’
conditional appeal under Article 2.4.2 of the Anti-Dumping Agreement.
Therefore, we declare moot, and of no legal effect, the Panel’s
finding … that Section 351.414(c)(2) is not 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.
M.3.11 China
— Auto Parts, paras. 198, 202-203, 208-209 back to top
(WT/DS339/AB/R, WT/DS340/AB/R, WT/DS342/AB/R)
Having found that the charge under the measures at issue falls within
the scope of, and is inconsistent with, Article III:2, first sentence,
and that China had not demonstrated that the measures are justified
under Article XX(d) of the GATT 1994, the Panel reached the “alternative”
claim raised by the complainants under Article II of the GATT 1994. …
The Panel decided to analyse this alternative claim, and set out
several reasons for doing so, including to assist the Appellate Body in
completing the analysis in the event that the Appellate Body were to
disagree with the Panel’s resolution of the threshold issue and its
characterization of the charge as an internal charge falling within the
scope of Article III:2.
…
… China requests us to examine this part of the “alternative”
analysis of the Panel, including its interpretation of GIR 2(a) and
China’s Schedule of Concessions, in order to determine that the charge
imposed under the measures at issue is properly characterized as an
ordinary customs duty. …
If, however, we uphold the Panel’s finding that the charge under
the measures is an internal charge within the meaning of Article III:2
of the GATT 1994, then China requests us to “find that the Panel’s
alternative reasoning and findings … as well as the alternative
conclusions and recommendations set forth in Section VIII of its
Reports, are moot and of no legal effect”. … This is,
explains China, because both of these findings, as well as the
conclusion, were based on the Panel’s “alternative assumption that
the charge imposed under the challenged measures is an ordinary customs
duty”.
…
After finding that the charge imposed under the measures at issue is,
indeed, an internal charge within the meaning of Article III:2, the
Panel went on to make alternative findings on the assumption that the
charge imposed under the measures at issue is an ordinary customs duty
within the meaning of Article II:1(b). We note that none of the
participants have appealed the Panel’s decision to make these
alternative findings, or suggested that the Panel acted inappropriately
in doing so. It is not unprecedented for panels to make alternative
findings, and indeed this may be useful in resolving a dispute,
particularly when, on appeal, the Appellate Body reverses other findings
made by a panel.
The only issue before us is whether we should examine the Panel’s
alternative findings. The Panel made these findings on the assumption
that it had erred in finding the charge to be an internal charge. Yet we
have found that it made no such error. To the contrary, the Panel
properly characterized the charge imposed under the measures at issue as
an internal charge, and properly found the measures at issue to be
inconsistent with China’s obligations under the first sentence of
Article III:2 of the GATT 1994. In these circumstances, we see no reason
to examine the Panel’s alternative findings under Article II:1(a) and
(b). Nor do we see any reason to accede to China’s request to declare
them to be “moot and of no legal effect”.
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