RÈGLEMENT DES DIFFÉRENDS

Note

Le présent résumé a été établi par la Division de l’information et et des relations extérieures du Secrétariat de l’OMC pour aider le public à mieux comprendre l’évolution des différends à l’OMC. Il ne constitue ni une interprétation juridique ni un compte rendu complet des différends. Pour cela, il existe les rapports eux-mêmes et les comptes rendus des réunions de l’Organe de règlement des différends.

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DS529: Australia — Anti-Dumping Measures on A4 Copy Paper

Indonesia submitted its second request for a panel to examine Australia's anti-dumping (AD) measures on A4 copy paper from Indonesia after its first request was blocked at a DSB meeting on 27 March.  Indonesia repeated that a number of substantive deficiencies existed in Australia's anti-dumping determination which appears inconsistent with WTO rules.  Australia said it was unfortunate Indonesia proceeded with its second request and said it stands ready to defend this matter before a panel.

The DSB agreed to the establishment of the panel. Canada, Japan, the European Union, the United States, Singapore, Viet Nam, Thailand, Ukraine, the Russian Federation, India, Israel and China reserved their third-party rights to participate in the panel proceedings.

DS436: United States — Countervailing Measures on Certain Hot-Rolled Carbon Steel Flat Products from India

India noted that the panel in DS436 had found that the United States had breached its obligations under the WTO’s Agreement on Subsidies and Countervailing Measures (ASCM) in imposing countervailing (CV) duties on imported hot-rolled carbon steel flat products from India and that the reasonable period of time for the US to comply with the ruling had expired on 18 April 2016.

India considered the United States had failed to comply with the ruling and requested consultations with the US on the matter in June 2017. Consultations held in July and October of that year had failed to resolve the differences between the US and India on the matter, prompting India to submit its request for a panel. India noted that under an earlier procedural agreement reached between the two, the US agreed not to block India’s request for a compliance panel. 

The United States said there was no basis for suggesting that US compliance was inadequate and that it maintained the measures identified in India's request for establishment of a panel were fully WTO-consistent. The United States noted its procedural agreement with India to agree to the establishment of a compliance panel upon first request and said it was prepared to engage in the proceedings to show why India has no legal basis for its claim.

The DSB agreed to the establishment of the compliance panel. China, the European Union, Japan and the Russian Federation reserved their third-party rights to participate in the panel proceedings.

DS539:  United States — Anti-Dumping and Countervailing Duties on Certain Products and the Use of Facts Available

Korea said it had serious concerns about the US authorities’ use of “facts available” in its AD and CV proceedings against certain products from Korea and more specifically that the US use of “adverse facts available” as applied in the challenged proceedings was inconsistent with US obligations under the WTO’s Anti-Dumping Agreement (ADA) and the ASCM.

Korea said it appears certain provisions of US law related to the use of adverse facts available as well as the US practice of resorting to the use of adverse facts available as a form of "ongoing conduct" were inconsistent as such with US obligations under these agreements. Consultations with the United States held on 22 March failed to resolve the differences between the US and Korea on the matter, prompting Korea to request the establishment of a panel.

The United States said it regretted Korea’s decision to request a panel and that the determinations identified by Korea were fully consistent with WTO rules. The US also said that certain challenged items were not “measures” and therefore would not fall within the scope of dispute settlement proceedings. Therefore, the US was 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.

DS479: Russia – Anti-dumping Duties on Light Commercial Vehicles from Germany and Italy

The Russian Federation stated its intention to implement the recommendations and rulings of the DSB in this dispute in a manner that respects its WTO obligations; Russia added that it needs a reasonable period of time in which to comply. The European Union thanked Russia for stating its intention to comply and said it looked forward to discussing with Russia the reasonable period of time.

DS234: United States – Continued Dumping and Subsidy Offset Act Of 2000

The European Union reiterated its request that the United States cease transferring anti-dumping and countervailing duties to the US domestic industry, arguing that every such disbursement was a clear act of non-compliance with the DSB's recommendations and rulings. Brazil and Canada thanked the EU for keeping the item on the agenda and called on the US to fully comply. The United States referred to its previous statement and said it had taken all action necessary to comply with the DSB's recommendations and rulings.

Statement by Colombia regarding measures adopted by Panama vis à vis certain WTO members

Colombia expressed its concerns with respect to a series of measures adopted by Panama which identify a list of countries that allegedly discriminate against Panama, including Colombia, and foreshadow the application of retaliatory measures against the listed members. In addition, Colombia stated that Panama raised its tariffs under 32 tariff subheadings where Colombia used to be the first or second exporter to Panama, one of which is above Panama's bound levels.

Colombia recalled that Panama had taken similar measures against Colombian imports in the past. According to Colombia, Panama's determination of countries discriminating against it is a unilateral approach specifically prohibited under Article 23 of the Dispute Settlement Understanding (DSU) and clearly inconsistent with the most favoured nation principle under the General Agreement on Tariffs and Trade (GATT) 1994.

Panama said the list to which Colombia referred was only adopted in reaction to discriminatory measures taken by certain countries against Panama. According to Panama, these measures usually take the form of additional costs and procedural burdens that Panama faces on its transactions. The list of countries discriminating against Panama was the result of a transparent process and long dialogue with the affected members that did not lead to satisfactory resolution of the matter.

Panama stressed that the existence of the list did not imply that any sanctions or measures had been or would be taken. Rather, this initiated new bilateral consultations with the affected members over a determined period. Panama expressed its willingness to engage in further dialogue with Colombia and other affected members in order to bring about their exclusion from the list. In the case any measures are taken, this would respect Panama's international obligations, in particular its WTO obligations, Panama said.

Panama said Colombia was included in the list as a consequence of repeated illegal measures taken against Panama, which had caused important adverse effects to Panama's economic interests.

Ecuador, Brazil, the Russian Federation and the European Union all said they shared the concerns raised by Colombia.

US actions under Section 301 of the Trade Act of 1974

China delivered a statement outlining its concerns regarding the United States' Section 301 investigation on China's intellectual property regime and a list of measures the US intends to implement, including imposing additional tariffs of $50 billion on Chinese imports.

China noted that since Section 301 went into effect in 1974, the United States has initiated 125 investigations and retaliated in 17 instances. Even after the establishment of the WTO, Section 301 continues to serve as a tool of the US to take unilateral actions against other members. China referred to the panel findings in "United States – Sections 301-310 of the Trade Act 1974" (DS152) that Section 301 was not inconsistent with Article 23 of the DSU only when the US honours its commitments, which were that the US would base a Section 301 decision or action only on adopted DSB rulings and recommendations. China claimed that none of the decisions or actions taken by the US in its recent Section 301 investigation was based on such rulings.

China recalled the US argument that the Section 301 investigation at hand made no findings that China had breached WTO obligations and that the United States was entitled to take retaliatory trade measures against China, regardless of whether those retaliatory measures conform to WTO rules; this was a misinterpretation of members' WTO obligations, China said. Section 301 was challenging the foundation of the rules-based multilateral trading system, and China called for members to join together to take action against the United States' conduct.

The United States thanked China for placing this item, as it gave WTO members the opportunity to discuss trade distorting policies adopted by China that are the subject of the ongoing Section 301 investigation. The US said it was China's policies, and not the responses by the US or other members, that were a threat to the international trading system.

The United States referred to its report regarding the results of the US investigation under Section 301 and the four types of practices engaged in by China outlined in that report as regards technology transfer. From the outset, the US was clear that where an act, policy or practice appeared to involve WTO rules, the US would pursue the matter through WTO dispute settlement. One of the areas of investigation – involving technology licensing – appeared amenable to WTO dispute settlement, and as a result, the US initiated a WTO dispute on 23 March 2018 on this issue. The US clarified that it made no findings in the Section 301 investigation that the licensing measures at issue are inconsistent with China's WTO obligations.

Regarding the three other categories covered in the US investigation, the United States said that these did not appear to implicate specific WTO obligations; it invited China to clarify to the DSB if those categories were covered by WTO rules. The US said that if the WTO is seen as protecting members that choose to adopt policies that can be shown to undermine the fairness and balance of the international trading system, the WTO and the international trading system would lose credibility and support among their citizens.

Pakistan, the Russian Federation, Hong Kong China, Japan, Chinese Taipei, the European Union, India, Brazil and Norway all took the floor to comment. Pakistan and Russia expressed serious concern about the impact the US actions could have on the global trading system while Hong Kong China appealed to all concerned parties to resolve this issue in a timely manner. Japan referred to its previous statement on the matter made at the 27 March DSB meeting.

Both Chinese Taipei and the European Union said they shared the concerns of the United States regarding protection of intellectual property rights in China; the EU said the best way to address the matter was through the multilateral trading system. Brazil also encouraged members to abide by multilateral trading rules. India said the multilateral system embodied in the WTO has served members well and that adoption of unilateral measures will erode the system and risk provoking a full-blown trade war. 

Norway said that while protection of intellectual property is important, it shared the concerns about the re-emergence of unilateral trade measures and that it was for the WTO through its dispute settlement system to determine whether measures are inconsistent with agreed trade rules.

China replied that the findings of the Section 301 investigation were a wilful distortion of facts and that the alleged forced transfers of technology were baseless. China said contracts between US and Chinese companies are mutually beneficial arrangements and that no US companies would enter into such arrangements if the terms of that contract were against its interests. China continues to eliminate requirements for joint ventures and foreign equity limitations in some industries through reforming measures and bilateral investment agreement negotiations; this is an endeavour that takes time but China will continue to open up its market. In the meantime, China said members need to stand up to the protectionist acts by the United States which have put the WTO in unprecedented danger.

Appellate Body matters

Mexico, speaking on behalf of 66 WTO members (including the EU 28), once again introduced a proposal calling for the establishment of a Selection Committee for the appointment of new Appellate Body members, the submission of candidates within 30 days, and the issuance by the committee of recommendations within 60 days. The considerable number of members submitting this joint proposal reflects a common concern with the current situation in the Appellate Body that is seriously affecting its workings and the overall dispute settlement system against the best interest of its members, Mexico declared.

The United States again said it was not in a position to agree to the proposal. For the past eight months the US has been raising and explaining the systemic concerns that arise from Appellate Body decisions that purport to "deem" as an Appellate Body member someone whose term of office has expired and is thus no longer an Appellate Body member. However, the DSB has not addressed this problem; it is the DSB that has the authority to appoint an Appellate Body member and to decide when their term of office expires, and so it is up to the DSB to decide whether a person who is no longer an Appellate Body member can continue to serve on an appeal. The US said it remained resolute in its view that WTO members needed to resolve this issue as a matter of priority.

Colombia (for the Group of Latin America and Caribbean Countries ), Canada, Pakistan,  Hong Kong China, Russia, Venezuela, Switzerland, Thailand, Chinese Taipei, Singapore, Norway, Australia,  Brazil, Ecuador, Turkey, India, Panama, Honduras, Korea, New Zealand, Japan, China, Uruguay, the Philippines, Guatemala and the European Union all intervened. In general, these delegations reiterated their concerns with the continued impasse regarding the appointment of new Appellate Body members and urged all members to show flexibility in order to resolve the deadlock as soon as possible. 

Several delegations mentioned the dangers the continued impasse pose not only to the dispute settlement system but the WTO as a whole, and that members had an obligation under the DSU to initiate the selection process; others reiterated that the US concerns and the appointment issue should be treated separately. Several members also called on the US to share its views and develop ideas on how to resolve the problem.

Surveillance of implementation

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

China said its Ministry of Commerce (MOFCOM) had carried out a reinvestigation on the dumped imports, the results of which were published on 20 April. As a result, China has fully implemented the ruling in DS483.

Canada said it was very disappointed with China's decision to continue imposing AD duties on Canadian pulp. A reinvestigation by China found that imports of Canadian pulp continued to cause injury to Chinese producers; Canada said there was incontrovertible evidence on MOFCOM's record showing that any injury to China's industry was more likely caused by non-dumping factors. Canada said the only way China can properly implement the ruling was to rescind the duties, adding that it would continue to monitor the situation. 

DS464: United States — Anti-Dumping and Countervailing Measures on Large Residential Washers from Korea 

The United States said it continues to consult with interested parties on options for complying with the WTO ruling in DS464. Korea urged the United States to fully comply with the WTO ruling and said it was hard to understand why it takes more than 18 months just to consult on options to address the recommendations of the DSB. 

DS160: United States — Section 110(5) of US Copyright Act

The United States said it continues to confer with the European Union and to work with Congress in order to reach a mutually satisfactory solution in DS160. The European Union said it would like to resolve the case as soon as possible. 

China said that, once again, the United States has failed to provide any progress towards implementing the WTO's ruling in its 158th status report. The United States is the only WTO member that has failed to comply with a ruling under the TRIPS Agreement long after the deadline for compliance and that the United States fails to provide minimum standards of protection required by the Agreement.

The United States countered that, by intervening, China gives the appearance of caring about protection of intellectual property rights whereas the discussion under the Section 301 items, shows serious shortcomings in China's IP legislation. As China and companies know, US intellectual property protection matches or surpasses that of any other WTO member, and none of the damaging technology transfer practices in China are ones that companies would face in the US.

The United States presented a status report with regard to DS184, “US — Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan”, while the European Union presented a status reports with regard to DS291, “EC — Measures Affecting the Approval and Marketing of Biotech Products”.

Next meeting

The next regular meeting of the DSB is scheduled for 28 May.

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