Initial briefs of parties and third parties



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154 Ibidem, Section 2.6.6


155 Ibidem, Section 2.6.8

156 Ibidem, Section 2.6.10.

157 It should be noted that after the consultations the United States notified the Committee on Agriculture of the amount of domestic support for the year 1999 (G/AG/N/USA/43; Exhibit Bra – 47).

158 G/AG/N/USA/43 (Exhibit Bra-47).

159 See Exhibits Bra-6, Bra-76, Bra-4, Bra-57, Bra-55, Bra-47, and footnotes 301 and 321.

160 See Exhibit Bra-55.

161 See Exhibit Bra-55.

162 See footnote 338 of Brazil's Submission.

163 According to paragraph 45 of Brazil's Submission, PFC payments replaced the Deficiency Payment Programme that had existed for years and had been renewed in the 1990 FACT Act.

164 As indicated by Brazil in paragraph 49 of its Submission, direct payments began to be paid in marketing year 2002 with the passage of the new Farm Act in May 2002 (2002 FSRI Act) and will be paid until the end of marketing year 2007, in place of the Production Flexibility Contract payments.

165 As indicated by Brazil in paragraph 63 of its Submission, the 2002 Farm Act (2002 FSRI Act) institutionalized the market loss assistance payments that the United States enacted in marketing years

1998- 2001 with a new programme of counter-cyclical payments up to the end of marketing year 2007.



166 CFR 1427.103 to 1427.107.

167 Submission by Brazil, sections 2.6.7, 4.1 and 4.1.1 and 2.6.9.

168 Article 3.3 of the AoA reads as follows: "…a Member shall not provide export subsidies listed in paragraph 1 of Article 9 in respect of the agricultural products or groups of products specified in Section II of Part IV of its Schedule in excess of the budgetary outlay and quantity commitment levels specified therein and shall not provide such subsidies in respect of any agricultural product not specified in that Section of its Schedule". (Emphasis added).

169 Article 8 of the AoA reads as follows:

"Each Member undertakes not to provide export subsidies otherwise than in conformity with this Agreement and with the commitments as specified in that Member's Schedule".

170 See Exhibit Bra-83.

171 See Exhibit Bra-83.

172 WT/DS103/AB/RW2, WT/DS113/AB/RW2, adopted17 January 2003.

173 See Exhibit Bra-29.

174 Submission by Brazil, Sections 4.1, 4.1.1, 4.1.2, 4.2 ff.


175 Oxfam American Briefing Note, March 2003.

176 Submission by Brazil, Section 4.2.1.4.2.

177 Oxfam America Briefing Note, March 2003.

178 "An analysis of officially supported export credits in agriculture", OECD, 2000.

179 "US EXPORT CREDITS: Denials and Double Standards", Oxfam America Briefing Note,

March 2003.



180 See Exhibit Bra-84, pages 9, 12 and 17, and Exhibit Bra-73.

181 Submission by Brazil, paragraphs 265 and 266.

182 Submission by Brazil, paragraph 268.

183 WT/DS108/AB/R adopted on 20 March 2000.

184 United States – Tax Treatment for “Foreign Sales Corporations”, Recourse to Article 21.5 of the DSU by the European Communities, Report of the Appellate Body, WT/DS108/AB/RW, paragraph 127.

185 Black’s Law Dictionary, Seventh Edition, Bryan A Garner, Editor in Chief, West Group, St Paul, Minn., 1999, page 593.

186 Black’s Law Dictionary, page 593, defines “action” as “1. The process of doing something; conduct of behaviour. 2. A thing done; act. 3. A civil or criminal judicial proceeding.”


187 The New Shorter Oxford English Dictionary, Ed. Lesley Brown, Volume 1, Clarendon Press, Oxford, 1993, page 187.

188 United States – Measure Affecting Imports of Woven Wool Shirts and Blouses from India, Report of the Appellate Body, WT/DS33/AB/R, page 14.

189 United States – Woven Wool Shirts and Blouses , WT/DS33/AB/R, page 16.

190 Article 13(b)(ii) of the Agreement on Agriculture provides as follows:

During the implementation period, notwithstanding the provisions of GATT 1994 and [the SCM


Agreement]
:



  1. domestic support measures that conform fully to the provisions of Article 6 of this Agreement including direct payments that conform to the requirements of paragraph 5 thereof, as reflected in each Member’s Schedule, as well as domestic support within de minimis levels and in conformity with paragraph 2 of Article 6, shall be:

(ii) exempt from actions based on paragraph 1 of Article XVI of GATT 1994 or Articles 5 and 6 of the [SCM Agreement], provided that such measures do not grant support to a specific commodity in excess of that decided during the 1992 marketing year; and




191 First Submission of Brazil, paragraph 127.

192 First Submission of Brazil, paragraph 133.

193 Black’s Law Dictionary, page 593.

194 Black’s Law Dictionary, page 28, defines “action” as “1. The process of doing something; conduct of behaviour. 2. A thing done; act. 3. A civil or criminal judicial proceeding.”

195 The New Shorter Oxford English Dictionary, Volume 1, page 187.

196 The New Shorter Oxford English Dictionary. Volume II, page 3129.

197 The New Shorter Oxford English Dictionary. Volume I, page 1131.

198 First Submission of Brazil, paragraph 136.

199 “Production Flexibility Contract Payments” are described at Section 2.6.1 of the First Submission of Brazil.

200 See, for example, WTO document G/AG/N/USA/43 of 5 February 2003, page 8, Exhibit Bra-47.

201 “Direct Payments” are described at Section 2.6.2 of the First Submission of Brazil.


202 First Submission of Brazil, Sections 3.2.6 and 3.2.7.

203 The New Shorter Oxford English Dictionary. Volume I, page 707.

204 The New Shorter Oxford English Dictionary. Volume I, page 1781.

205 The New Shorter Oxford English Dictionary. Volume II, page 2534.

206 The New Shorter Oxford English Dictionary, Volume 1, page 187.

207 First Submission of Brazil, Section 3.2.6.2.

208 Figures extracted from Agricultural Outlook, USDA, May 2000 and May 2002, Table 19, available at http://www.ers.usda.gov/publications/agoutlook/may2000/ao271k.pdf and http://www.ers.usda.gov/publications/agoutlook/May2002/ao291j.pdf respectively.

209 . Fact Sheet: Upland Cotton: Summary of 2002 Commodity Loan and Payment Program, USDA, January 2003, page 5, Exhibit Bra-4.

210 Fact Sheet: Upland Cotton, page 6, Exhibit Bra-4.

211 Cotton: Background and Issues for Farm Legislation, USDA, July 2001, page 6, Exhibit Bra-46.


212 Fact Sheet: Upland Cotton, page 4, Exhibit Bra-4.

213 Fact Sheet: Upland Cotton, page 5, Exhibit Bra-4.

214 First Submission of Brazil, at Section 3.2.7.3.

215 7 CFR 1412.602(a)(2), Exhibit Bra-35.

216 Fact Sheet: Upland Cotton, Exhibit Bra-4.

217 WTO document G/AG/N/USA/43, page 8, Exhibit Bra-47.

218 7 CFR 1427.103(c), Exhibit Bra-37.

219 7 CFR 1427.105(a), Exhibit Bra-37.

220 Exhibit Bra-65.

221 United States – Tax Treatment of “Foreign Sales Corporations”, Recourse to Article 21.5 of the DSU by the European Communities, WT/DS108/AB/RW, paragraph 115.

222 United States – Tax Treatment for “Foreign Sales Corporations”, Report of the Appellate Body, WT/DS108/AB/R, paragraph 141.

223 First Submission of Brazil, paragraph 251.

224 First Submission of Brazil, paragraph 341.


225 United States – Tax Treatment for “Foreign Sales Corporations”, Recourse to Article 21.5 of the DSU by the European Communities, Report of the Appellate Body, WT/DS108/AB/RW, paragraph 119

226 Human Development Report 2003, United Nations Development Programme, http://www.undp.org/hdr2003.

227  According to the IMF, “The cotton zone in central Benin (the Zou and Borgou) presents one of the highest incidences of poverty, while the deepest poverty (as measured by the poverty gap index) can be found in the north (cotton-producing area in northern Borgou). International Monetary Fund, Country Report No. 03/120. Benin: Fourth Review Under the Poverty Reduction and Growth Facility – Staff Report. April 2003. Page 28.

228 Impact of Global Cotton Markets on Rural Poverty in Benin. Nicholas Minot and Lisa Daniels. International Food Policy Research Institute, Washington, D.C. November 2002. Page 19.

229 See Louis Goreux, "Préjudices causés par les subventions aux filières cotonnières de l'AOC." March 2003. Cited in TN/AG/GEN/4, 16 May 2003.

230  Northern Agricultural Policies and World Poverty: Will the Doha ‘Development Round’ Make a Difference? Kevin Watkins, Head of Research, Oxfam Great Britain. Paper presented to the Annual World Bank Conference of Development Economics. 15-16 May, 2003. Page 65.


231 IMF Country Report, Op. Cit., page 23

232 First Submission of Brazil, paragraph 3.

233 Minot and Daniels, op. cit, page 1.

234 Minot and Daniels, op cit., page 50.

235 This table is from Cultivating Poverty: The Impact of US Cotton Subsidies on Africa. Oxfam Briefing Paper 30. 27 September 2002. Brazil has filed the full Oxfam report as exhibit Bra–15.

236 Ibid., page 17.

237 Appellate Body Report, India – Quantitative Restrictions on Imports of Agricultural, Textile an Industrial Products, WT/DS90/AB/R, paragraph 134 and 136.

238 First Written Submission of Brazil, 24 June 2003 , at paras. 153 and 173 [hereinafter Brazil First Written Submission].

239 First Written Submission of the United States, 11 July 2003, at paras. 190 and 207-211 [hereinafter “US First Written Submission”].

240 US First Written Submission, paras. 64-68.


241 See United States – Tax Treatment for “Foreign Sales Corporations”, Report of the Appellate Body, WT/DS108/AB/R, adopted March 20, 2000 at para. 93 [hereinafter US FSC AB Report]:
Article 1.1 sets forth the general definition of the term “subsidy” which applies “for the purpose of this Agreement”. This definition, therefore, applies wherever the word “subsidy” occurs throughout the SCM Agreement and conditions the application of the provisions of that Agreement regarding prohibited subsidies in Part II, actionable subsidies in Part III, non-actionable subsidies in Part IV and countervailing measures in Part V [emphasis in original].

242 Article 5 ends with: “This Article does not apply to subsidies maintained on agricultural products as provided in Article 13 of the Agreement on Agriculture”. Article 6.9 contains identical language. Article 7.1 begins: “Except as provided in Article 13 of the Agreement on Agriculture, …”.
Regarding action under Article XVI of GATT 1994, in addition to the provisions in Article 13 of the Agriculture Agreement, Article 21.1 states: “The provisions of GATT 1994… shall apply subject to the provisions of this Agreement.”

243 The New Shorter Oxford English Dictionary, p. 2367 [Exhibit CDA-1.].

244 Brazil First Written Submission, para. 160.

245 Ibid., para. 161.


246 Brazil First Written Submission, para 174.

247 US First Written Submission, para. 57.

248 Ibid., paras. 64-68.

249 Ibid., para. 67.

250 Ibid., para. 211.

251 Brazil First Written Submission, para. 153.

252 Ibid., paras. 175 and 198.

253 Ibid., para. 304.

254 Ibid., paras. 272-286.

255 Ibid., paras. 287-294.

256 Ibid., para. 306.

257 Ibid., para. 306.

258 US First Written Submission, para. 160.

259 Ibid., para. 167.

260 Ibid., paras. 171 to 183.


261 US First Written Submission, paras. 171 and 218.

262 See Article 3.1 of the SCM Agreement and Articles 13(c)(ii) and 21.1 of the Agriculture Agreement.

263 Canada - Measures Affecting the Importation of Milk and the Exportation of Dairy Products: Recourse to Article 21.5 of the DSU by New Zealand and the United States, Report of the Appellate Body, WT/DS103/AB/RW, WT/DS113/AB/RW, adopted 18 December 2001, paras. 123-124.

264 See Canada - Measures Affecting the Importation of Milk and the Exportation of Dairy Products, Report of the Appellate Body, WT/DS103/AB/R, WT/DS113/R, adopted 27 October 1999, para. 87; US – FSC AB Report, paras. 136-137; United States – Tax Treatment for “Foreign Sales Corporations: Recourse to Article 21.5 of the DSU by the European Communities, Report of the Appellate Body, WT/DS108/AB/RW, adopted 29 January 2002, para. 194 [hereinafter US – FSC Article 21.5 AB Report].

265 US – FSC AB Report, paras. 141-142; US – FSC Article 21.5 AB Report, para. 192.

266 Brazil First Written Submission, paras. 265-266.


267 See Canada – Measures Affecting the Importation of Milk and the Exportation of Dairy Products: Second Recourse to Article 21.5 of the DSU by New Zealand and the United States, Report of the Appellate Body, WT/DS103/AB/RW2, WT/DS113/AB/RW2, adopted 17 January 2003, para. 73.

268 Canada – Measures Affecting the Export of Civilian Aircraft, Report of the Panel, WT/DS70/R, adopted 20 August 1999, para. 9.112.

269 Canada – Measures Affecting the Export of Civilian Aircraft, Report of the Appellate Body, WT/DS70/AB/R, adopted August 20, 1999 at para. 157.

270 Canada – Export Credits and Loan Guarantees for Regional Aircraft, Report of the Panel, WT/DS222/R, adopted 19 February 2002, para. 7.397 [hereinafter Canada – Export Credits, Panel Report].

271 Canada – Export Credits, Panel Report, para. 7.344.

272 Canada – Export Credits, Panel Report, para. 7.345.

273 Canada – Export Credits, Panel Report, paras. 7.397 and 7.398.

274 US First Written Submission, para. 183.

275 Canada – Export Credits, Panel Report, para. 7.395.


276 See also “Export Credits and Related Facilities”, Background Paper by the Secretariat, G/AG/NG/S/13, 26 June 2000 [Exhibit CDA-2.] at para. 44:
[A]s matters currently stand the only rules and disciplines on agricultural export credits are those of the Agreement on Agriculture but only to the extent that such measures constitute export subsidies for the purposes of the Agreement on Agriculture. Where exports of an agricultural product are considered to be subsidised through export credits or related facilities, ascertaining the exported quantities benefitting [sic] from such measures for the purposes of determining conformity with export quantity reduction commitments would be reasonably straight forward. Quantifying related budgetary outlays and revenue foregone for the annual commitment level in question, using market-related premium or interest rate benchmarks for example (it is not clear what, if any, role there might be for export credit “subsidy equivalents” in this context), may be less straight forward but not necessarily problematic.

277 Para. 107, Page 50, First Submission of Brazil, 24 June 2003.

278 Section IV, Appellate Body Report, US - Shirts and Blouses, WT/DS33/AB/R.

279 Page13-14, Section IV Burden of Proof, Appellate Body Report, US - Shirts and Blouses, WT/DS33/AB/R.

280 Page 15-16, Section IV and Text at Note 23, Appellate Body Report, US - Shirts and Blouses, WT/DS33/AB/R .


281 Paras. 43 and 45, US First Written Submission, 11 July 2003.

282 Articles 13(b)(ii), 13(b)(iii) and 13(c)(ii), the Agreement on Agriculture.

283 Note that Article 13(c)(ii) of the Peace Clause has no such proviso.

284 Para. 36, US First Written Submission, 11 July 2003.

285 Paras. 54 through to 68, US First Written Submission, 11 July 2003.

286 Para. 174, First Submission of Brazil, 24 June 2003.

287 Paras. 176 through to 182, First Submission of Brazil, 24 June 2003.

288 Paras. 183 through to 191, First Submission of Brazil, 24 June 2003.

289 Paras. 56 and 67, US. First Written Submission, July 11, 2003.,

290 Para. 58, Ibid.

291 Para. 59, Ibid.

292 Para. 60, Ibid.

293 Subpara. 67(1), Ibid.


294 Paras. 315 through to 330, First Submission of Brazil.

295 Panel Report, US - FSC (21.5), WT/DS108/RW, adopted on 29 January, 2002.

296 Appellate Body Report in US - FSC (21.5), AB-2002-1, WT/DS108/AB/RW,adopted on 29 January, 2002.

297 Recourse by the European Communities to Article 4.10 of the Subsidies Agreement and Article 22.7 of the DSU, WT/DS/108/26, circulated on April 25, 2003.

298 Paras. 315 through to 327, First Submission of Brazil.

299  Para. E, Report of the Appellate Body, Japan - Taxes on Alcoholic Beverages, AB-1996-2, adopted on 1 November 1996).

300 Paras.8.30, 8.46, 8.48, 8.50, 8.74, 8.75, and 9.1(a.), Panel Report, US - FSC (21.5), WT/DS108/RW, adopted on 29 January 2002.

301 Paras.111, 116 through to 120, 122, 194, 196, and 256(d), Appellate Body Report, US - FSC (21.5), AB-2002-1, WT/DS108/AB/RW, adopted on 29 January 2002.

302 Para. 185, First Written Submission of the US, 11 July 2003, quoting in quotation marks Para. 7.30, Panel Report, India – Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS79/R, adopted 22 September 1998.


303 Para. 7.30, Panel Report, India – Patent Protection for Pharmaceutical and Agricultural Chemical Product, WT/DS79/R, adopted 22 September 1998.

304 Brazil’s First Submission to the Panel regarding the “Peace Clause” and Non-Peace Clause Related Claims, 24 June 2003 (“Brazil’s First Written Submission”).

305 Brazil’s First Written Submission, para. 244. See, in the same sense, paras. 250 and 341.

306  Appellate Body Report, United States – Anti-Dumping Act of 1916 (“United States – 1916 Act”), WT/DS136/AB/R, WT/DS162/AB/R, adopted 26 September 2000, para. 99




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