DS367: Australia — Measures Affecting the Importation of Apples from New Zealand: Report of the Appellate Body and Report of the Panel

New Zealand welcomed the adoption of the panel and Appellate Body reports and said that they confirmed its longstanding view that Australia's quarantine measures applied to New Zealand apples were neither based on an appropriate risk assessment nor supported by sufficient scientific evidence since all 16 of Australia's measures at issue were found to be inconsistent with its obligations under Articles 5.1, 5.2, and 2.2 of the SPS Agreement. New Zealand hoped that consultations would quickly lead to an agreement on the reasonable period of time for Australia to implement the rulings.

Australia said that, on 30 November 2010, it had announced its intentions to implement the rulings.   While acknowledging that the Appellate Body had reversed the panel's findings on Article 5.6 of the SPS Agreement, Australia was of the view that some aspects of the Appellate Body's reasoning on Article 5.6 appeared problematic, and in particular, in relation to the standard of review to be applied by panels in dealing with an Article 5.6 claim. Australia expressed concern that the Appellate Body had introduced a “significant element of uncertainty” on standard of review which would make the task of panels more difficult in reviewing members' compliance with key provisions of the SPS Agreement.

The US noted that the Appellate Body did not uphold the panel's findings under Article 5.6 of the SPS Agreement and emphasised that the Appellate Body did not reach the merits of the issue.  The US said that the Appellate Body had found that the Panel had adopted an improper approach to its Article 5.6 analysis, and that the panel's findings were not sufficiently detailed to permit the Appellate Body to complete the Article 5.6 analysis.

The DSB adopted the Appellate Body Report contained in WT/DS367/AB/R and the Panel Report contained in WT/DS367/R, as modified by the Appellate Body Report.

DS371: Thailand — Customs and Fiscal Measures on Cigarettes from the Philippines: Joint request by Thailand and the Philippines for a decision by the DSB (WT/DS371/7)

The Report of the Panel pertaining to this dispute was circulated on 15 November 2010.  Under Article 16.4 of the DSU, the 60- day period within which the DSB is obliged to adopt a panel report that is not appealed, will expire on 15 January 2010. Taking into account the workload of the Appellate Body, Thailand and the Philippines jointly requested that the DSB adopt a draft decision to extend the 60-day time period in this dispute to 24 February 2011. The DSB agreed that, upon a request by Thailand or the Philippines, the DSB shall, no later than 24 February 2011, adopt the Report of the Panel (WT/DS371/R), unless the DSB decides by consensus not to do so or Thailand or the Philippines notifies the DSB of its decision to appeal pursuant to Article 16.4 of the DSU.

DS217 & DS234: US — Continued Dumping and Subsidy Offset Act of 2000

This item was on the agenda at the request of the EU and Japan. The EU and Japan called on the US to stop the transfer of anti-dumping and countervailing duties to the US industry and put an end to the condemned measure. They also urged the US to provide the DSB with a status report on this dispute.  Brazil, Canada, China, India and Thailand supported the statements made by Japan and the EU. The US said that it had taken all measures necessary to implement the DSB's ruling.

 

The following status reports were presented concerning implementation of adopted rulings:

i) US — Section 211 Omnibus Appropriations Act of 1998 (DS176).
The US reported that a number of legislative proposals that would implement the DSB's recommendations and rulings in this dispute had been introduced in Congress and that the Committee on the Judiciary of the House of Representatives had held a hearing on some of those proposals.  Furthermore, the US Administration was working with Congress to implement the DSB's recommendations and rulings. The EU hoped that the US would soon take steps to fully implement the DSB ruling and resolve this matter. Cuba, Bolivia, China, Angola, Ecuador, Nicaragua, Dominican Republic, Venezuela, Brazil, Mexico and Paraguay all expressed their systemic concerns on the lack of implementation and called on the US to comply with the DSB's rulings.

ii) US — Anti-dumping Measures on Certain Hot-Rolled Steel Products from Japan (DS184).
The US said that, as of November 2002, its authorities had addressed the DSB's recommendations and rulings with respect to the calculation of anti-dumping measures in the hot-rolled steel anti-dumping duty investigation. With regard to the DSB's recommendations and rulings not yet addressed, its Administration would work with Congress with respect to appropriate statutory measures that would resolve this matter. Japan called on the US to fully implement the DSB's recommendations.

iii) US — Section 110 (5) of the US Copyright Act (DS160).
The US reported that its Administration would continue to confer with the EU and to work closely with Congress, in order to reach a mutually satisfactory resolution of the dispute. The EU noted that the US had, once again, reported non – compliance. The EU said that it remained ready to work with the US towards the complete resolution of the case.

iv) EC — Measures Affecting the Approval and Marketing of Biotech Products (DS291). 
The EU noted that its regulatory procedures on biotech products continued to work as foreseen in the legislation. The number of GMOs authorised since the date of establishment of the panel was thirty-four and progress had also been made on other applications for authorisation or renewal. The EU hoped that it would continue its constructive technical dialogue with the US thus allowing the parties to leave litigation aside. The US reiterated the fact that, since August 2010, the EU had not approved a single biotech product application. The US emphasised that the delays resulted in substantial barriers to international trade in biotech products and urged the EU to address the ongoing problems in the approval system for biotech products. 

v) US — Measures Relating to Zeroing and Sunset Reviews (DS322).
The US reported that it had taken steps to implement the DSB's recommendations and rulings in this dispute and that, with respect to the outstanding issues, the US would continue to consult with interested parties. The US recalled that Japan had requested authorisation from the DSB to suspend concessions or other obligations in this dispute and that the US had objected to Japan's request. Pursuant to Article 22.6 of the DSU, the matter was referred to arbitration and, following a request from the US and Japan, the Arbitrator had, on 13 December 2010, issued a communication (WT/DS322/38) that it had decided to suspend its work. Japan said that it was closely monitoring the implementation efforts by the US and was hopeful that full implementation would be imminent. With regard to the suspension of arbitral proceedings, Japan recalled that the suspension may be terminated at any time at the request of Japan without any precondition. The EU reiterated its disappointment over the US lack of compliance with adverse rulings on zeroing in this dispute.

vi) US — Continued Existence and Application of Zeroing Methodology (DS350).
The US said that it had taken steps to implement the DSB's recommendations and rulings in this dispute and that, with regard to the remaining issues, it would consult with interested parties. The EU expressed disappointment that, almost a year after the expiry of the reasonable period of time agreed between the parties (19 December 2009), the US was once again reporting non-compliance. The EU was concerned that there had been no progress towards compliance and that the US continued to use zeroing in reviews which involved products and measures covered by this dispute, as if nothing had happened. The EU urged the US to implement without further delay. 

vii) US — Laws, Regulations and Methodology for Calculating Dumping Margins (“Zeroing”) (DS294).
The US reported that it had already taken a number of steps to implement the DSB's recommendations and rulings and that it would continue to consult with interested parties with regard to the remaining issues. The EU expressed its disappointment over the lack of progress by the US and stressed that the EU expected nothing more or less than full compliance. The EU hoped that the imposition of sanctions would not be necessary.

 

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Next meeting 

The next meeting of the DSB is scheduled to take place on 25 January 2011.