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REPERTORY OF APPELLATE BODY REPORTS

Retroactive Application of Trade Measures


ON THIS PAGE:

US — Underwear, p. 14, DSR 1997:I, p. 11 at 22
US — Underwear, pp. 19-20, DSR 1997:I, p. 11 at 28


R.3.1 US — Underwear, p. 14, DSR 1997:I, p. 11 at 22     back to top
(WT/DS24/AB/R)

It is essential to note that, under the express terms of Article 6.10, ATC, the restraint measure may be “applied” only “after the expiry of the period of 60 days” for consultations, without success, and only within the “window” of 30 days immediately following the 60-day period. Accordingly, we believe that, in the absence of an express authorization in Article 6.10, ATC, to backdate the effectivity of a safeguard restraint measure, a presumption arises from the very text of Article 6.10 that such a measure may be applied only prospectively. …

 
R.3.2 US — Underwear,
pp. 19-20, DSR 1997:I, p. 11 at 28     back to top
(WT/DS24/AB/R)

The conclusion we have arrived at, in respect of the issue of permissibility of backdating, is that the giving of retroactive effect to a safeguard restraint measure is no longer permissible under the regime of Article 6 of the ATC and is in fact prohibited under Article 6.10 of that Agreement. The presumption of prospective effect only, has not been overturned; it is a proposition not simply presumptively correct but one requiring our assent. … The importing Member is, however, not defenceless against a speculative “flood of imports” where it is confronted with the circumstances contemplated in Article 6.11. Its appropriate recourse is, in other words, to action under Article 6.11 of the ATC, complying in the process with the requirements of Article 6.10 and Article 6.11.

 


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