DS547: United States — Certain Measures on Steel and Aluminium Products

DS556: United States — Certain Measures on Steel and Aluminium Products

India and Switzerland submitted their second requests for panels to rule on the US steel and aluminium tariffs. Their first requests were blocked by the US at the last DSB meeting on 21 November.

India said the fact that seven members have already secured panels to rule on the tariffs reflects the serious concerns the WTO membership has with the US actions as well as their confidence in the WTO as a forum for resolving disputes. 

Switzerland said it firmly challenges the US argument that, by merely invoking Article XXI of the General Agreement on Tariffs and Trade (GATT) 1994, a panel is precluded from reviewing the claims against the US tariffs; without the possibility of reviewing such a claim, any WTO member could, by simply invoking Article XXI, exempt measures of a commercial nature from the scope of WTO dispute settlement. 

India and Switzerland requested the establishment of a single panel, in combination with the other seven panels already established, to review the claims against the US.

The United States said that because it has invoked Article XXI, there is no basis for a panel to review the Indian and Swiss claims, and there is no finding a panel could make other than to note that the US has invoked Article XXI. If the WTO were to review an invocation of Article XXI, this would undermine the legitimacy of the WTO's dispute settlement system and even the viability of the WTO itself. The text of Article XXI is clear; each WTO member has the right to determine for itself what it considers to be in its own essential security interests. This has been the understanding of the US for over 70 years since the negotiation of the GATT, and this understanding has been shared by every WTO member whose national security action was the subject of complaint. 

The US said it does not agree to the establishment of a single panel, which requires consensus from the DSB; because the measures were taken for reasons of national security, the US sees no basis for this dispute and does not agree to the creation of a single panel.

The European Union said it looked forward to these disputes being adjudicated positively in the WTO's dispute settlement system, including the claims with regards to Article XXI.  Since the US has refused to agree to the establishment of a single panel, the EU said Article 9.3 of the WTO's Dispute Settlement Understanding (DSU) concerning procedures for multiple complaints automatically applies.

The DSB agreed to the establishment of the two panels requested by India and Switzerland. More than two dozen WTO members reserved their third-party rights to participate in each of the respective proceedings.

DS566: Russian Federation — Additional Duties on Certain Products from the United States

The United States requested a panel regarding Russia's imposition of additional duties on certain US products. Several WTO members, including Russia, are unilaterally retaliating against the US for actions fully justified under Article XXI of the GATT 1994, the United States said. These members are pretending that the US actions are safeguards and that their unilateral, retaliatory duties constitute suspension of substantially equivalent concessions under the WTO's Safeguards Agreement. Just as these members appear ready to undermine the dispute settlement system by throwing out the plain meaning of Article XXI and 70 years of practice, so too are they ready to undermine the WTO by pretending to follow WTO rules while taking measures blatantly against those rules. 

The United States said it has not utilized its domestic law on safeguards to take the actions, and WTO rules on safeguards are not relevant to the US actions. Russia's duties are nothing more than duties in excess of its WTO commitments and are applied only to the US, contrary to Russia's most favoured nation (MFN) obligation, the US said.

The Russian Federation said it was disappointed with the US decision to request a panel with respect to the measures taken by Russia last July in response to the US steel and aluminium tariffs. The US duties are in essence safeguard measures, irrespective of the way the US characterizes them. Russia believes its measures are fully justified and applied in accordance with WTO law. Therefore, Russia is not able to agree to the establishment of a panel.

The European Union noted the US request is similar to those the US made with regards to four other WTO members and which were approved at the last DSB meeting; it welcomed the fact that Russia, like quite a number of other WTO members, resorted to its right to suspend equivalent obligations vis-à-vis the United States and looks forward to defending its right, and the rights of other WTO members, to take such action.

The DSB took note of the statements and agreed to revert to the matter.

DS567: Saudi Arabia — Measures concerning the Protection of Intellectual Property Rights

Qatar submitted a request for a WTO panel to rule on its claims that Saudi Arabia has failed to provide adequate protection of intellectual property (IP) rights in line with the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), in particular with respect to IP rights held, or applied for, by Qatari-based entities. 

Qatar said it has sought to resolve the matter through dialogue and negotiation but regrettably Saudi Arabia has refused to engage in consultations, which violates the conduct prescribed under the Dispute Settlement Understanding.

Qatar said that for more than a year, Saudi Arabia has failed to protect IP rights and has allowed commercial-scale broadcasting piracy; in fact, the Saudi government has actively promoted and encouraged such piracy. Qatari-based beIN Media Group holds the rights to broadcast various sports and entertainment content; however, since Saudi Arabia severed diplomatic relations with Qatar, a Saudi-based piracy outlet called "beoutQ" has begun operating, broadcasting beIN's signal without authorization in Saudi Arabia and beyond, and allowing access to hundreds of beIN proprietary channels and programmes via the Internet and satellite broadcasting. The scale of the operation and the financial and technical support received indicate that it enjoys the support of Saudi Arabia. Relief has been sought through the Saudi legal system and appeals have been made to the Saudi government for help, all to no avail.  The actions of Saudi Arabia are a concern not only to Qatar but for other WTO members whose rights holders license content to beIN and constitute a gross violation of the TRIPS Agreement, Qatar said. 

Saudi Arabia said it regretted the request for a panel and said it fully respects all obligations that apply under the WTO agreements, including the TRIPS Agreement, and diligently protects the legitimate rights of all IP owners properly registered in Saudi Arabia.  It noted that establishing and maintaining diplomatic relations between nation states is a fundamental exercise of state sovereignty and that it severed diplomatic relations with the complaining party in June 2017 in order to protect its essential security interests. 

Saudi Arabia said that the severance of diplomatic relations renders impossible the conduct of any dispute settlement in this matter and that, consistent with Article 73 of the TRIPS Agreement, nothing can require any government to engage in dispute settlement procedures in such circumstances of national security.  A panel has no power to make a finding in this matter, and the WTO is not, and cannot be turned into, a venue to resolve national security disputes, Saudi Arabia said.

Several members intervened on the matter. Bahrain said it regretted this matter has been raised to the DSB and that it does not believe that issues related to national security can be resolved within the WTO; since Saudi Arabia has invoked Article 73 of TRIPS, there is no basis for the panel to review the complainant's claims. 

The United States said that each member judges itself what is necessary to protect its national security interests and that it would undermine the legitimacy of the WTO if a panel were to undertake a review under Article 73 of TRIPS of a member's assessment of its own national security interests; the parties should try to resolve the dispute outside the context of the WTO's dispute settlement system. 

Egypt cited the indisputable right of all WTO members to take measures deemed necessary for national security in line with Article XXI of GATT 1994 and Article 73 of TRIPS and said nothing in the WTO agreements obliges a member to provide information on measures taken for national security reasons; the issue cannot be subject to dispute settlement.

Turkey said WTO members' actions should always be consistent with WTO law and that the national security provisions are exceptions from WTO rules that should not be applied in a way which puts added pressure on the WTO system; these provisions are reserved for exceptional circumstances such as war or armed conflict, and a WTO panel has jurisdiction to consider the invocation of such exceptions.

The European Union said that issues of the panel's jurisdiction or authority over certain issues that may or may not be raised can be brought before the panel for it to decide.

The DSB took note of the statements made and agreed to revert to the matter.

DS524: Costa Rica — Measures concerning the Importation of Fresh Avocados from Mexico

Mexico noted that it held consultations with Costa Rica on 26-27 April 2017 in order to seek a solution to their differences regarding measures imposed by Costa Rica that prohibit or restrict the importation of fresh avocados from Mexico. These include certain procedures related to the control, inspection and approval of the imports as well as Costa Rica's failure to implement or recognize various obligations under the WTO's Agreement on the Application of Sanitary and Phytosanitary Measures in its domestic legal instruments, such as the recognition of areas free from pests or disease, and the establishment of procedures and practices granting the opportunity to receive affirmation of such zones and make operational the concept of regionalization. Unfortunately, these consultations did not lead to a resolution of the differences, prompting Mexico to request the establishment of a panel.

Costa Rica said it was disappointed with Mexico's request for a panel and said that the consultations in April 2017 were productive and allowed the two sides to exchange views on the measures in question. Costa Rica remains open to dialogue on the matter in order to reach a mutually acceptable solution; for this reason, it is not in a position to agree to the establishment of a panel.

The DSB took note of the statements and agreed to revert to the matter.

Next meeting

The next meeting of the DSB will take place on 18 December.

More information on WTO dispute settlement is available here.