Dispute Settlement Body 18 August 2003

US, Canada and Argentina request panel to examine EU moratorium on biotech products

At its meeting on 18 August 2003, the DSB considered six first-time requests for panels. All were blocked by the respondents, and the DSB agreed to revert to them (see “Next meeting” below). The DSB also adopted the rulings in the case concerning Brazil's complaint against EU anti-dumping duties on malleable cast iron tube or pipe fittings (DS219).

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This summary has been prepared by the WTO Secretariat’s Information and Media Relations Division to help public understanding about developments in WTO disputes. It is not a legal interpretation of the issues, and it is not intended as a complete account of the issues. These can be found in the reports themselves and in the minutes of the Dispute Settlement Body’s meetings.

DS281: United States — Anti-dumping measures on cement from Mexico

Mexico introduced its first-time panel request (WT/DS281/2) by recalling that the US imposed anti-dumping measures on imports of gray Portland cement from Mexico 13 years ago. Mexico had challenged these measures, and won the case, under the former GATT dispute settlement system. Mexico said that the US blocked adoption of the ruling and that the US had still not implemented. Mexico was, therefore, requesting a panel under the WTO dispute settlement system. Mexico stated that it would not be satisfied with only a repeal of the measure; it would seek reimbursement of the duties paid during a period lasting more than a decade.

The US stated that its law was consistent with WTO obligations. The US also drew attention to what it considered to be “deficiencies” in Mexico's panel request. It said that some of the measures complained against were not measures at all, while others were identified so generally that it was impossible to know precisely what was being challenged. The US suggested that an appropriate course of action would be for Mexico to withdraw its current panel request and submit a new one. Hence, the US could not agree to the establishment of a panel.

DS282: United States — Anti-dumping measures on oil country tubular goods (OCTG) from Mexico

Mexico's complaint covers several US anti-dumping measures on imports of OCTG from Mexico, including the US final determinations in some administrative and sunset reviews, and the US authorities' determination regarding the continuation of the anti-dumping orders. Mexico introduced its first-time panel request (WT/DS282/2) by stating that the Anti-Dumping Agreement clearly established that such measures should be limited in time, that they must be lifted after 5 years. Mexico said that such measures could not be maintained indefinitely simply because the authorities “assumed” that their elimination would result in the continuation or the repetition of dumping and/or damage.

In response, the US stated that it could not agree to the establishment of a panel. The US also stated that the specifics of each of Mexico's numerous claims were difficult to discern because of the lack of details provided in the panel request. As in the case above, the US suggested that Mexico should withdraw its current request and submit a new one.

DS280: United States — Countervailing duties on steel plate from Mexico

Mexico introduced its panel request (WT/DS280/2) by recalling that on 7 June 2000 the DSB ruled that the US methodology for imposing countervailing duties was not consistent with the Subsidies and Countervailing Agreement (DS138). According to Mexico, the US withdrew this methodology only when the US courts declared it illegal, but replaced it with another methodology which was also ruled to be illegal by the Appellate Body. Mexico claimed that the US continued to invent methodologies which presuppose a benefit for privatized companies. In June this year, according to Mexico, the US established another methodology. Mexico stated that without making a compatibility assessment the US had said that they would apply this illegal methodology to investigations or reviews started before 30 June 2003. Mexico therefore asked for a panel to confirm the illegality of this methodology.

The US expressed disappointment that Mexico had chosen to pursue a panel concerning a measure which, in most respects, was no longer in effect. The US said that liquidation instructions had been issued last year for countervailing duties in connection with the 1998 administrative review which Mexico was challenging, and that liquidation should now be complete. The US further stated that a new administrative review was underway which was due for completion no later than 26 February 2004. The US suggested that it would be better if Mexico were to assess the results of the soon-to-be completed administrative review and determine at that time whether it wished to pursue dispute settlement proceedings. The US therefore could not agree to the establishment of a panel.

DS291, DS292& DS293: European Communities — Measures affecting the approval and marketing of biotech products

The US, Canada and Argentina introduced their first-time panel requests (respectively, WT/DS291/23, WT/DS292/17, & WT/DS293/17). They all stated that, regarding EC-level measures, the moratorium maintained since October 1998 on the approval of biotech products had restricted the imports of agricultural and food products. Regarding the EC member State-level measures, the complainants said that a number of EC member States maintain national marketing and import bans on biotech products even though those products have already been approved by the EC.

The US further clarified that the Sanitary and Phytosanitary Agreement recognizes that WTO members may adopt approval procedures for crops and food products, including biotech products, in order to protect health and the environment. The US emphasized that the EC procedures, as written, are not the focus of the US complaint. It is the EC's application of its measures governing the approval of biotech products. The US also expressed its concern that the EC measures were hindering the worldwide development and application of agricultural biotechnology – a technology which, according to the US, has great promise for raising farmer productivity, reducing hunger and improving health in the developing world, and improving the environment.

Argentina added that agricultural products account for over half of Argentina's total exports, and that it is the second largest producer and exporter of biotech products in the world. Argentina said that the EC's “behaviour” discourages the introduction of the biotech process, and that it is particularly detrimental because EC has the ability to influence other WTO members.

In response, the EC expressed surprise and disappointment at the panel requests. The EC said that it had repeatedly made clear that the approval of genetically-modified organisms and genetically-modified food was possible in the EU, that a number of applications were being examined and decisions would be taken shortly. The EC further pointed out that 18 GMOs and 15 food products derived from GMOs have been approved and that these GM products are imported each year by the EC.

The EC said that it had serious doubts that the complaining members were interested in seeking a satisfactory outcome to the consultations. It said that it was puzzled by the US attitude during the consultations period which cast doubt about the US willingness to engage in a meaningful dialogue in good faith. The EC said that it was extremely disappointed that the members requesting a panel had not chosen the path of international cooperation to build an appropriate framework for the development of biotechnology, while seriously addressing any potential risks and social concerns. The EC emphasized that every country should be free to make its own decisions and to determine the appropriate level of protection for its citizens. The EC concluded by saying that it could not agree to the establishment of a panel.

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Adoption of reports

DS219: European Community — Anti-dumping duties on malleable cast iron tube or pipe fittings from Brazil

The DSB adopted the Appellate Body report and the panel report.


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Appointment of Appellate Body Members

The Chairman informed the DSB that as a result of his consultations regarding the positions currently held by Messrs Abi-Saab, Ganesan, and Taniguchi, no delegations indicated that they wished to nominate candidates to replace these Appellate Body Members. He therefore proposed, and the DSB agreed, that a decision to reappoint these Members would be taken by the DSB on 7 November 2003. The Chairman also reminded the DSB that the process for selecting a new member of the Appellate Body to replace Mr Bacchus was underway, that the deadline for nominations of candidates was 5 September 2003, and that a decision on a replacement for Mr Bacchus would be taken by the DSB on 7 November 2003.

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Next meeting

The next meeting of the DSB will be held on 29 August 2003. Included on the agenda are the panel requests by the US, Canada and Argentina concerning the EC measures affecting biotech products, and the three panel requests by Mexico.  

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