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REPERTORY OF APPELLATE BODY REPORTS

Mootness of Panel Findings as a Consequence of Appellate Body Rulings


ON THIS PAGE:

> Brazil — Aircraft (Article 21.5 — Canada), para. 78
> US — Certain EC Products, paras. 89–90
> US — Cotton Yarn, para. 127
> US — Upland Cotton, para. 511
> US — Upland Cotton, para. 748
> US — Upland Cotton, para. 762
> US — Anti-Dumping Measures on Oil Country Tubular Goods, para. 211
> US — Zeroing (EC), para. 135
> US — Zeroing (EC), para. 232
> US — Zeroing (EC), para. 242
> China — Auto Parts, paras. 198, 202–203, 208–209
> EC and certain member States — Large Civil Aircraft, para. 796
> EC and certain member States — Large Civil Aircraft, para. 1406
> EC — Fasteners (China), paras. 395, 397–398
> EC — Fasteners (China), para. 599
> China — Raw Materials, paras. 234–235
> US — Large Civil Aircraft (2nd complaint), para. 590
> US — Large Civil Aircraft (2nd complaint), para. 620
> Canada — Renewable Energy / Canada — Feed-in Tariff Program, paras. 5.82, 5.84

M.3.1 Brazil — Aircraft (Article 21.5 — Canada), para. 78     back to top
(WT/DS46/AB/RW)

… As Brazil has failed to prove one of the elements necessary to prove that payments made under the revised PROEX are justified by item (k), we do not believe it is necessary to examine the issue of whether export subsidies under the revised PROEX are “the payment [by governments] of all or part of the costs incurred by exporters or financial institutions in obtaining credits” within the meaning of the first paragraph of item (k). Therefore, we do not address the Article 21.5 Panel’s findings on this issue. These findings of the Article 21.5 Panel are moot, and, thus, of no legal effect.
 

M.3.2 US — Certain EC Products, paras. 89–90     back to top
(WT/DS165/AB/R)

Having found that the 3 March Measure is the measure at issue in this dispute, and that the 19 April action is outside its terms of reference, the Panel should have limited its reasoning to issues that were relevant and pertinent to the 3 March Measure. By making statements on an issue that is only relevant to the 19 April action, the Panel failed to follow the logic of, and thus acted inconsistently with, its own finding on the measure at issue in this dispute. The Panel, therefore, erroneously made statements that relate to a measure which it had itself previously determined to be outside its terms of reference.
 

For these reasons, we conclude that the Panel erred by making the statements in paragraphs 6.121 to 6.126 of the Panel Report on the mandate of arbitrators appointed under Article 22.6 of the DSU. Therefore, these statements by the Panel have no legal effect.
 

M.3.3 US — Cotton Yarn, para. 127     back to top
(WT/DS192/AB/R)

We finally turn to the United States’ appeal against the Panel’s interpretation that Article 6.4 requires attribution to all Members the imports from whom cause serious damage or actual threat thereof. In this respect, we note that the scope of this dispute is defined by Pakistan’s claims before the Panel. Pakistan claimed that the United States acted inconsistently with Article 6.4 because it “attributed serious damage to imports from Pakistan without making a comparative assessment of the imports from Pakistan and Mexico and their respective effects”. The Panel considered it necessary, in its reasoning, to rule on the broader interpretative question of whether Article 6.4 requires attribution to all Members the imports from whom cause serious damage or actual threat thereof. The United States also appeals the Panel’s interpretation on this broader question. However, our findings resolve the dispute as defined by Pakistan’s claims before the Panel. We, therefore, do not rule on the issue of whether Article 6.4 requires attribution to all Members the imports from whom cause serious damage or actual threat thereof. In these circumstances, the Panel’s interpretation on this question is of no legal effect.
 

M.3.4 US — Upland Cotton, para. 511     back to top
(WT/DS267/AB/R)

… we believe that an interpretation of the phrase “world market share” in Article 6.3(d) of the SCM Agreement is unnecessary for purposes of resolving this dispute. We emphasize that we neither uphold nor reverse the Panel’s findings on the interpretation of the phrase “world market share” in Article 6.3(d) of the SCM Agreement.
 

M.3.5 US — Upland Cotton, para. 748     back to top
(WT/DS267/AB/R)

For these reasons, we decline Brazil’s request that we reverse the Panel’s conclusion that Brazil did not make a prima facie case that the ETI Act of 2000 is inconsistent with the United States’ WTO obligations. In declining to rule on Brazil’s request, we neither endorse nor reject the manner in which the Panel applied the burden of proof in the context of examining Brazil’s claim against the ETI Act of 2000.
 

M.3.6 US — Upland Cotton, para. 762     back to top
(WT/DS267/AB/R)

We … believe that an interpretation of the phrase “any form of subsidy which operates to increase the export” in Article XVI:3 of the GATT 1994 is unnecessary for purposes of resolving this dispute. We emphasize that we neither uphold nor reverse the Panel’s interpretation of this phrase in the second sentence of Article XVI:3.
 

M.3.7 US — Anti-Dumping Measures on Oil Country Tubular Goods, para. 211     back to top
(WT/DS282/AB/R)

… we do not address the Panel’s statement … that Mexico had established a prima facie case that the SPB, as such, is inconsistent with Article 11.3 of the Anti-Dumping Agreement. As a result of our reversal of the Panel’s finding that Section II.A.3 of the SPB, as such, is inconsistent with Article 11.3 of the Anti-Dumping Agreement, that statement is moot and of no legal effect.
 

M.3.8 US — Zeroing (EC), para. 135     back to top
(WT/DS294/AB/R, WT/DS294/AB/R/Corr.1)

… we reverse the Panel’s finding … that the United States did not act inconsistently with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994 in the administrative reviews at issue, and find, instead, that the United States acted inconsistently with those provisions. We note that the Panel made a finding on Article VI:1 of the GATT 1994, and that this finding was consequential to its finding on Article VI:2 of the GATT 1994. Accordingly, we declare moot, and of no legal effect, the Panel’s finding … that the United States did not act inconsistently with Article VI:1 of the GATT 1994.
 

M.3.9 US — Zeroing (EC), para. 232     back to top
(WT/DS294/AB/R, WT/DS294/AB/R/Corr.1)

Because the Standard Zeroing Procedures are not a measure that can be challenged, as such, it follows that they cannot be found to be either consistent or inconsistent with a Member’s obligations under the covered agreements. Accordingly, we declare moot, and of no legal effect the Panel’s findings … that the Standard Zeroing Procedures are not inconsistent, as such, with the provisions of the Anti-Dumping Agreement, the GATT 1994, and the WTO Agreement, referred to by the European Communities.
 

M.3.10 US — Zeroing (EC), para. 242     back to top
(WT/DS294/AB/R, WT/DS294/AB/R/Corr.1)

In essence, the Panel’s finding concerning Section 351.414(c)(2) is consequential to its view that Article 2.4.2 does not apply to administrative reviews, new shipper reviews, changed circumstances reviews, and sunset reviews. The Panel reasoned that, because Article 2.4.2 does not apply to such reviews, comparisons between the export price of an individual transaction and a normal value calculated on the basis of a contemporaneous weighted average of domestic prices are not prohibited and, therefore, Section 351.414(c)(2) is WTO-consistent. We recall that we declined to rule on the European Communities’ conditional appeal under Article 2.4.2 of the Anti-Dumping Agreement. Therefore, we declare moot, and of no legal effect, the Panel’s finding … that Section 351.414(c)(2) is not inconsistent, as such, with Articles 1, 2.4, 2.4.2, 9.3, 9.5, 11.1, 11.2, 11.3, and 18.4 of the Anti-Dumping Agreement, Articles VI:1 and VI:2 of the GATT 1994, and Article XVI:4 of the WTO Agreement.
 

M.3.11 China — Auto Parts, paras. 198, 202–203, 208–209     back to top
(WT/DS339/AB/R, WT/DS340/AB/R, WT/DS342/AB/R)

Having found that the charge under the measures at issue falls within the scope of, and is inconsistent with, Article III:2, first sentence, and that China had not demonstrated that the measures are justified under Article XX(d) of the GATT 1994, the Panel reached the “alternative” claim raised by the complainants under Article II of the GATT 1994. … The Panel decided to analyze this alternative claim, and set out several reasons for doing so, including to assist the Appellate Body in completing the analysis in the event that the Appellate Body were to disagree with the Panel’s resolution of the threshold issue and its characterization of the charge as an internal charge falling within the scope of Article III:2.
 

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… China requests us to examine this part of the “alternative” analysis of the Panel, including its interpretation of GIR 2(a) and China’s Schedule of Concessions, in order to determine that the charge imposed under the measures at issue is properly characterized as an ordinary customs duty. …
 

If, however, we uphold the Panel’s finding that the charge under the measures is an internal charge within the meaning of Article III:2 of the GATT 1994, then China requests us to “find that the Panel’s alternative reasoning and findings … as well as the alternative conclusions and recommendations set forth in Section VIII of its Reports, are moot and of no legal effect”. … This is, explains China, because both of these findings, as well as the conclusion, were based on the Panel’s “alternative assumption that the charge imposed under the challenged measures is an ordinary customs duty”.
 

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After finding that the charge imposed under the measures at issue is, indeed, an internal charge within the meaning of Article III:2, the Panel went on to make alternative findings on the assumption that the charge imposed under the measures at issue is an ordinary customs duty within the meaning of Article II:1(b). We note that none of the participants have appealed the Panel’s decision to make these alternative findings, or suggested that the Panel acted inappropriately in doing so. It is not unprecedented for panels to make alternative findings, and indeed this may be useful in resolving a dispute, particularly when, on appeal, the Appellate Body reverses other findings made by a panel.
 

The only issue before us is whether we should examine the Panel’s alternative findings. The Panel made these findings on the assumption that it had erred in finding the charge to be an internal charge. Yet we have found that it made no such error. To the contrary, the Panel properly characterized the charge imposed under the measures at issue as an internal charge, and properly found the measures at issue to be inconsistent with China’s obligations under the first sentence of Article III:2 of the GATT 1994. In these circumstances, we see no reason to examine the Panel’s alternative findings under Article II:1(a) and (b). Nor do we see any reason to accede to China’s request to declare them to be “moot and of no legal effect”.
 

M.3.12 EC and certain member States — Large Civil Aircraft, para. 796     back to top
(WT/DS316/AB/R)

Having found that the alleged unwritten LA/MSF Programme was not within the Panel’s terms of reference, we have no basis further to consider the arguments raised by the participants regarding the alleged LA/MSF Programme. Nor do we have a basis further to examine the Panel’s finding that no such scheme or programme exists. Accordingly, we declare moot and of no legal effect the Panel’s finding … that the United States failed to establish the existence of an unwritten LA/MSF Programme measure constituting a specific subsidy within the meaning of Articles 1 and 2 of the SCM Agreement.
 

M.3.13 EC and certain member States — Large Civil Aircraft, para. 1406     back to top
(WT/DS316/AB/R)

As we have reversed the Panel’s finding that loans under the Spanish PROFIT programme were within the Panel’s terms of reference under Article 6.2 of the DSU, we declare moot and of no legal effect the Panel’s causation finding, in paragraph 8.2 of the Panel Report, to the extent that it relates to loans under the Spanish PROFIT programme.
 

M.3.14 EC — Fasteners (China), paras. 395, 397–398     back to top
(WT/DS397/AB/R)

… the Panel’s finding under Article I:1 of the GATT 1994 lacks an essential step in the sequence of its legal analysis, that is, the determination of whether and under what circumstances an anti-dumping measure that is inconsistent with the Anti-Dumping Agreement may be reviewed under Article I:1 of the GATT 1994 in the absence of a review under Article VI of the GATT 1994.
 

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In addition, we have already upheld the Panel’s findings that [the measure at issue] is inconsistent “as such” with Articles 6.10 and 9.2 of the Anti-Dumping Agreement and we consider that a ruling under Article I:1 of the GATT 1994 is unnecessary for purposes of resolving this dispute.
 

Therefore, … we decline to rule on the Panel’s finding that [the measure at issue] is inconsistent with Article I:1 of the GATT 1994 and declare this finding moot and of no legal effect. …
 

M.3.15 EC — Fasteners (China), para. 599     back to top
(WT/DS397/AB/R)

We … reverse the Panel’s finding … that China’s claims under Articles 6.2 and 6.4 of the Anti-Dumping Agreement regarding the non-disclosure of the identity of the complainants and the supporters of the complaint were within the Panel’s terms of reference. As a consequence, we declare moot the Panel’s subsequent finding … that the European Union did not act inconsistently with Articles 6.2 and 6.4 of the Anti-Dumping Agreement by not disclosing the identity of the complainants and the supporters of the complaint.
 

M.3.16 China — Raw Materials, paras. 234–235     back to top
(WT/DS394/AB/R, WT/DS395/AB/R, WT/DS398/AB/R)

… we do not consider that Section III of the complainants’ panel requests satisfies the requirement in Article 6.2 of the DSU to provide “a brief summary of the legal basis of the complaint sufficient to present the problem clearly”.
 

… we find that the Panel erred under Article 6.2 of the DSU in making findings regarding claims allegedly identified in Section III of the complainants’ panel requests. We therefore declare moot and of no legal effect the Panel’s findings … .
 

M.3.17 US — Large Civil Aircraft (2nd complaint), para. 590     back to top
(WT/DS353/AB/R)

We note that the conclusion as to the proper characterization of the measures may have consequences for the scope of our inquiry. For instance, if we were to find that the measures are of a type that fall within the scope of Article 1.1, there would be no reason for us to examine whether purchases of services fall within the scope of Article 1.1(a)(1) of the SCM Agreement. Whether or not purchases of services are covered by Article 1.1(a)(1) would be irrelevant to the question of whether the measures before us — the NASA procurement contracts and USDOD assistance instruments — constitute financial contributions. This would render moot the European Union’s appeal of the Panel’s interpretation that purchases of services are excluded from the scope of Article 1.1(a)(1)(i). It would also render moot the United States’ appeal of the Panel’s application of the test it developed for determining whether the measures could be properly characterized as purchases of services.
 

M.3.18 US — Large Civil Aircraft (2nd complaint), para. 620     back to top
(WT/DS353/AB/R)

The Panel in this dispute interpreted the omission of the term “services” from the second sub-clause of subparagraph (iii) as an indication that the drafters of the SCM Agreement did not intend measures constituting government purchases of services to be covered as financial contributions under Article 1.1(a)(1)(i). This interpretative issue does not need to be resolved by us because it is not relevant for purposes of resolving the dispute before us, that is, whether the NASA procurement contracts and USDOD assistance instruments, which we have found to resemble joint ventures, constitute financial contributions within the meaning of Article 1.1(a)(1) of the SCM Agreement. We therefore declare the Panel’s interpretation that “transactions properly characterized as purchases of services are excluded from the scope of Article 1.1(a)(1)(i) of the SCM Agreement” to be moot and of no legal effect.
 

M.3.19 Canada — Renewable Energy / Canada — Feed-in Tariff Program, paras. 5.82, 5.84     back to top
(WT/DS412/AB/R, WT/DS426/AB/R)

We have addressed the various elements of Article III:8(a) to which the claims of Japan and the European Union relate in a holistic interpretation of this provision set out above. Having found that the Minimum Required Domestic Content Levels do not fall within the ambit of the derogation in Article III:8(a), we need not address these further allegations of error raised by the European Union and Japan seeking reversal of intermediate findings by the Panel. These findings are moot.
 

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… we have mooted the Panel’s intermediate findings, including the finding that the Government of Ontario’s procurement of electricity under the FIT Programme and Contracts is undertaken “with a view to commercial resale”. Thus, we do not consider it necessary to address further Canada’s claim [of error relating to this finding].
 


The texts reproduced here do not have the legal standing of the original documents which are entrusted and kept at the WTO Secretariat in Geneva.