DS438, DS444, DS445: Argentina — Measures Affecting the Importation of Goods

The three co-complainants in these disputes (European Union, Japan and the United States) welcomed the finding that Argentina's measures were in clear breach of its WTO obligations. The measures at issue were the unwritten trade-related requirements measure (such as a request to importing companies to export at least as much as they import or to increase the local content of products made in Argentina),  and the Advance Sworn Import Declaration procedure (which does not automatically lead to a right to import and constitutes an import restriction). The co-complainants welcomed the fact that these measures were found to constitute restrictions on the importation of goods and were thus inconsistent with the General Agreement on Tariffs and Trade (GATT) 1994.

Argentina noted that this dispute had raised difficulties and challenges regarding the interpretation of issues of high value and systemic importance that, in its view, had not been appropriately resolved. Argentina was not satisfied that the parties did not meet the legal standard set by the Appellate Body (AB) to evaluate “as such” claims on unwritten measures. Argentina said that it was analysing the reports and would act in line with its WTO obligations.

With regard to procedure, the US noted that the AB had not circulated its report within the 90 days as required under the Dispute Settlement Understanding (DSU). The US said that the AB had continued its recent deviation from its pre-2011 practice and had failed to consult with the parties or seek their agreement when it became clear that it would not be able to meet the DSU deadline. In the US view, this was a step backward with respect to transparency as compared to other reports. The US encouraged members and the AB to work together to find a solution to this matter. Japan also reiterated its regret about the lack of consultation which was contrary to past practice where the AB consulted with the parties and obtained their agreement before circulating reports outside the 90-day time limit. The EU said that it disagreed with the views of the US and Japan regarding this issue.

Speaking as third parties, Australia, Canada and Chinese Taipei welcomed the findings in these disputes. Chinese Taipei noted that the timeframe stipulated in the DSU had not been met. In that regard, Chinese Taipei wondered whether it was not time for members to give some serious thought to how to improve the efficiency of dispute proceedings, without prejudice to the accuracy and quality of dispute settlement reports. Australia said it would encourage as few departures from normal appellate timeframes as possible and said that adherence to the timeframes underpinned the predictability of the system and it was critical in government and commercial decision-making. Australia said it understood that it may not always be possible to adhere to the timeframes given the current heavy workload of the AB. Canada fully understood and accepted that it may take longer to circulate AB reports. However, in its view, such a situation did not, in itself, diminish the obligatory nature of the timeline specified in the DSU.

Norway, also a third party, stressed that it was important to safeguard certainty and predictability in the work of the AB. Brazil cautioned that while transparency is important, past or future practice of consulting with parties to a dispute could have consequences. In its view, if there is a problem with the time period then members should look at the known root causes which were the workload and complexity of disputes.

India disagreed with the US and Japan, and said that there was no legal mandate for the AB to consult and get the concurrence of the parties. Members were aware of the challenges and must find workable ways of addressing the matter.

 

DS430: India — Measures concerning the Importation of Certain Agricultural Products

The WTO Secretariat received, previous to the meeting, a notice by India announcing its decision to appeal certain issues of law and legal interpretation in the panel report in this case. India claims that the panel committed several legal errors in its interpretation and application of several articles of the Sanitary and Phyto-Sanitary (SPS) Agreement. The panel report was circulated to members on 14 October 2014. At its meeting on 18 November 2014, the Dispute Settlement Body agreed to a joint request submitted by the United States and India for a delay in the adoption or possibility of appeal of the report of the panel in the dispute DS430 which expired on 26 January. Both members said they took the decision to ease the workload of the dispute settlement system.

 

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Status reports

The United States, the European Union and Thailand presented status reports on various disputes.

 

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Next meeting

The next regular meeting of the Dispute Settlement Body is scheduled for 23 February 2015.