DS381 United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products

Mexico said that in July 2012 the DSB had determined that US measures in DS381 were WTO-inconsistent. The United States modified these measures in 2013 but, once again, the DSB had found them to be WTO-inconsistent. In March 2016 Mexico submitted a request for authorization to suspend concessions. In response, the United States objected to the level of concessions proposed by Mexico. It also modified the measure for a third time.

On 25 April a WTO arbitrator found that the level of nullification and impairment should refer to the initial measure aimed at compliance (the 2013 measure) and decided to leave determination of compliance of the 2016 measure to the panel established on 9 May 2016 at the request of the United States. The arbitrator also concluded that Mexico could request the DSB to authorize the suspension of concessions to a level which did not exceed US$ 163.23 million annually. Mexico thus requested authorization to suspend concessions to the United States up to the amount determined by the arbitrator. 

The United States said it regretted Mexico’s request for authorization to suspend concessions and that the 2016 measure brought it into compliance with its WTO obligations. The arbitrator had based its findings on a measure that no longer existed, which is inconsistent with the purpose and proper function of the WTO’s Dispute Settlement Understanding (DSU), the US added.

Several WTO members commented on the arbitrator’s findings and the arbitrator’s decision to authorize the telecasting of certain statements of the arbitration hearing. 

Pursuant to the request by Mexico under Article 22.7 of the DSU, the DSB agreed to grant authorization to suspend the application to the United States of tariff concessions or other obligations consistent with the arbitrator’s decision.

DS430 India – Measures Concerning the Importation of Certain Agricultural Products

India said that it had brought itself into compliance with the DSB’s recommendations and rulings in DS430. However, the United States had not agreed to resolve the dispute, would not put on hold proceedings under Article 22.6 of the DSU for authorization to suspend concessions, and would not enter into a "sequencing" agreement with India. The logical order of proceedings in the case of disagreement as to compliance was to first have recourse to Article 21.5 of the DSU. India therefore requested the establishment of an Article 21.5 panel to determine whether it was in compliance with its WTO obligations.

The United States said that India had no basis for asserting compliance as India continued to maintain a complete ban on US poultry and other agricultural products. In response to India’s statement that Article 21.5 proceedings should precede Article 22.6 proceedings, the US said that, although WTO members had often agreed to this approach through sequencing agreements, it was not required by the DSU.

Several WTO members took the floor to comment on the sequencing issue.

Pursuant to Article 21.5 of the DSU, the DSB agreed to refer to the original panel the matter raised by India. Australia, Brazil, China, the European Union, Guatemala, Japan, Kazakhstan, Korea, the Russian Federation, Singapore and Viet Nam reserved third-party rights to participate in the panel’s proceedings.

DS523 United States – Countervailing Measures on Certain Pipe and Tube Products from Turkey

Turkey said that it was concerned with the findings and conduct of several US countervailing duty proceedings involving Turkish steel pipe and tube products which appeared to be inconsistent with provisions of the General Agreement on Tariffs and Trade (GATT) 1994 and the WTO’s Agreement on Subsidies and Countervailing Measures (SCM Agreement). Consultations held on 28 April 2017 failed to resolve the dispute, prompting Turkey to request the establishment of a panel to examine its complaint.

The United States said that it was disappointed with Turkey’s request for a panel and said the determinations identified in the panel request were fully consistent with WTO rules. Turkey sought to challenge certain alleged practices which were not measures within the scope of a dispute settlement proceeding. The United States also said it did not understand why Turkey was challenging a determination that had been vacated during domestic litigation.

Following the objection by the United States, the DSB deferred the establishment of a panel.

DS461 Colombia – Measures Relating to the Importation of Textiles, Apparel and Footwear

Panama said it had held consultations with Colombia regarding DS461 but that these had not led to a solution. Consequently Panama asked the DSB to establish a compliance panel pursuant to Article 21.5 of the DSU.

Colombia welcomed Panama’s intention to resolve this dispute in a systemic fashion by allowing Colombian measures to first be examined under Article 21.5 before requesting the suspension of concessions. Colombia said that it had complied with the recommendations and rulings of the DSB, and thus Panama’s request for suspension of concessions, which was referred to arbitration on 20 February 2017, was groundless. Colombia said that it believed the best way forward was continued dialogue between the parties. As such, it objected to the establishment of an Article 21.5 compliance panel.

Following the objection by Colombia, the DSB deferred the establishment of a compliance panel.

DS492 European Union – Measures Affecting Tariff Concessions on Certain Poultry Meat Products

The European Union informed the DSB that it intended to implement the recommendations and rulings of the DSB in this dispute and would need a reasonable period of time to do so.

China thanked the EU for its statement and said that it stood ready to discuss a reasonable period of time with the EU.

DS485 Russia – Tariff Treatment on Certain Agricultural and Manufacturing Products

Under "other business", the Russian Federation said it had fully implemented the DSB’s recommendations and rulings in DS485 within the reasonable period of time, which had expired on 11 May 2017. In fact, for certain measures, Russia had amended its applied rates prior to the conclusion of the proceedings, Russia said, and by 3 March 2017 all necessary amendments had come into force.

The European Union said it was surprised that Russia had not included its statement relating to DS485 on the agenda of the present meeting and encouraged Russia to provide a status report without delay and place this issue on the agenda of the next DSB meeting.

Adoption of Appellate Body and panel reports

DS483 China – Anti-Dumping Measures on Imports of Cellulose Pulp from Canada

Canada said that it welcomed the panel’s findings in DS483 that China’s injury analysis was inconsistent with various provisions of the WTO’s Anti-Dumping Agreement (ADA) but was disappointed with other aspects of the panel’s findings.

China said that the panel had dismissed the majority of Canada’s claims because China’s injury and causation analyses had complied with the requirements of the ADA. While China disagreed with certain aspects of the panel report it had decided not to appeal it.

The DSB adopted the panel report.

DS471 United States – Certain Methodologies and Their Application to Anti-Dumping Proceedings Involving China

China said that DS471 was a very significant dispute, as it concluded that the United States’ use of weighted average-to-transaction ("W-to-T") comparison in anti-dumping investigations was WTO-inconsistent and that Article 2.4.2 of the ADA only allowed the W-to-T methodology on an exceptional basis. China also said it was pleased that the US "single rate presumption" had been shown to be WTO-inconsistent. The Appellate Body correctly found that the "adverse facts available" norm applied by the US had a prospective and general application; however, to China’s disappointment, the Appellate Body was unable to complete the analysis of China’s claim against the norm.

The United States said China’s appeal against the panel ruling lacked any legal merit. It added that the AB had essentially rewritten Article 2.4.2 of the ADA by prescribing a wholly new methodology for addressing targeted dumping. On the "single rate presumption", the US said the panel’s finding was not grounded in the ADA and it failed to consider the difficulties faced by investigating authorities encountering large numbers of government-controlled exporters.

The DSB adopted the Appellate Body report and panel report, as modified by the Appellate Body.

2017 Appellate Body selection process – new proposals

The European Union said that its proposal, contained in document WT/DSB/W/597, strictly followed the model for similar decisions in the past and was identical to the other proposal put forward by seven Latin American members, except that it provides for the launching of a selection process for the replacement of Appellate Body member Mr Peter Van den Bossche, whose second and final term expires on 11 December 2017.  The selection processes for both Mr Van den Bossche as well as Mr Ricardo Ramírez-Hernández, whose second four-year term expires on 30 June 2017, would be completed in time for the DSB to appoint their successors no later than 24 October 2017.

The United States said that, given the ongoing transition in its political leadership, the US was not in a position to support a decision to launch a process to fill a position that would only become vacant in December. However, the US was willing to join a consensus in favour of the proposal by Argentina, Brazil, Colombia, Chile, Guatemala, Mexico and Peru.

The European Union said that it did not see any reason why both selection processes should not be launched at the present meeting and why one selection process should be singled out. The EU said that it regretted that the membership did not endorse its proposal and that there was a need to launch the processes without delay.

Mexico, speaking on behalf of Argentina, Brazil, Colombia, Chile, Guatemala, Mexico and Peru, said that they had put forward a proposal, contained in document WT/DSB/W/596, which was based on prior DSB decisions. The proposal calls for the launch of the selection process for Mr Ramírez-Hernández and for the process to be completed in time for the DSB to appoint his successor no later than 24 October 2017. Mexico called on members to launch the selection process at the present meeting.

The European Union said that it fully supported launching the selection process as soon as possible which was why the EU’s proposal fully incorporated the proposal by the seven Latin American members. In light of the refusal to accept the EU’s proposal and of past practice, the EU reiterated that it did not see any reason to single out one selection process. The EU asked the DSB chair to continue consultations on this issue.

China, Japan, Australia, New Zealand, Norway, Hong Kong China, Korea, Switzerland, Singapore and the Russian Federation expressed concern about the effects of a now-likely vacancy on the Appellate Body, while India, Colombia and Chinese Taipei said that they did not understand the underlying reasons behind the impasse in launching the selection process.

The DSB chair, Ambassador Juichi Ihara (Japan), said that, regrettably, the DSB was not in a position to agree on this matter at the present meeting. Given the Appellate Body’s heavy workload, it was urgent that the DSB agree to start the selection process or processes as soon as possible. The chair said he would continue his consultations in this matter.

Statements on implementation

The EU, Brazil and Canada made statements regarding US implementation of DS217 and DS234, “US — Continued Dumping and Subsidy Offset Act of 2000”.

Surveillance of implementation

The United States presented its status reports with regard to DS184, “US — Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan”, and DS160, “US — Section 110(5) of the US Copyright Act”. The EU presented its status report with regard to DS291, “EC — Measures Affecting the Approval and Marketing of Biotech Products”.

Report on the dispute settlement workload

The DSB chairman provided an update on the Appellate Body’s workload, on the number of disputes in the panel queue and at the panel composition stage, and matters referred to arbitration.

Next DSB meeting

The next regular meeting of the DSB is scheduled for 19 June 2017.