Initial briefs of parties and third parties



Download 2.38 Mb.
Page46/51
Date conversion14.06.2018
Size2.38 Mb.
1   ...   43   44   45   46   47   48   49   50   51

307 Panel Report, United States – Sections 301-310 of the Trade Act of 1974 (“United States – Section 301”), WT/DS152/R, adopted 27 January 2000, footnote 23, paras. 7.53-7.54. Note that the Appellate Body in United States – 1916 Act mentioned this finding, without suggesting that it was incorrect (see footnote 59 of the Appellate Body Report).


308 Panel report, United States – Measures Treating Export Restraints as Subsidies, WT/DS194/R, adopted 23 August 2001, paras. 8.8 and 8.9.

309 Footnote 334, Appellate Body Report, United States – Countervailing Measures Concerning Certain Products from the European Communities, WT/DS212/AB/R, adopted 8 January 2003.

310 Brazil’s First Written Submission, para. 245.

311 Brazil’s First Written Submission, paras. 110 to 121.

312 Para. 38, Comments of the United States of America on the Comments by Brazil and the Third Parties on the Question Posed by the Panel,.13 June 2003. See also First Written Submission of the United States of America, 11 July 2003 (“US First Written Submission”), paras. 38 to 47.

313 The European Communities is aware of the fact that it used the term “defence” in its Initial Submission to the Panel of 10 June 2003 (Para. 6 , Comments by the European Communities on certain issues raised on an initial basis by the Panel, 10 June 2003). It did so, however, in the context of a discussion of what appeared to be the extreme logical conclusion of the arguments which the United States made, in order to refute the proposition that the issue of conformity with Article 13 could only be dealt with in a separate panel proceeding, divorced from a panel proceeding which dealt with the claims conditional upon Article 13 not being applicable. The term “defence” was used in a general sense to connote an argument which could be invoked in reaction to another argument. Moreover, the European Communities did not use the term “affirmative defence” and did not use the term “defence” in the sense of a “defence […] to a claim of violation of a GATT obligation” or as a “limited exception from certain other provisions of the [WTO Agreements]” (Appellate Body Report, United States – Measure Affecting Imports of Woven Wool Shirts and Blouses from India (“United States – Shirts and Blouses”), WT/DS33/AB/R, adopted 23 May 1997, page 15-16). Finally, the European Communities was addressing only the question posed by the Panel and not the question of the burden of proof applicable to Article 13.


314 Brazil’s First Written Submission, para. 120.

315  Appellate Body Report, EC Measures Concerning Meat and Meat Products (Hormones) (“European Communities – Hormones”), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, para. 104.

316 Appellate Body Report, United States – Measure Affecting Imports of Woven Wool Shirts and Blouses from India (“United States – Shirts and Blouses”), WT/DS33/AB/R, adopted 23 May 1997, page 16. European Communities – Hormones Para. 104, Appellate Body Report, European Communities — Trade Description of Sardines (European Communities – Sardines), WT/DS231/AB/R, adopted 23 October 2002. Paras. 274-275.

318 See, e.g. Brazil’s First Written Submission, paras. 163-172, 183-191 and 199-201.

319 Provided the subsidisation is not contingent upon the use of domestic over imported goods, in the sense of Article 3.1(b) of the SCM Agreement.

320 See the Preamble to the Agreement on Agriculture.

321 Without analysing whether the effects would, in the absence of the Agreement on Agriculture and assuming the SCM Agreement to be applicable to agricultural goods, lead, in a particular case, for a particular product, to a finding of inconsistency with the SCM Agreement.


322 It can be noted that one commentator, who has undertaken one of the most comprehensive reviews of the Agreement on Agriculture, notes that the requirement in the first sentence of paragraph 1 is:

“[t]oo vague to translate into concrete and enforceable obligations. As an appreciation of this fact, the Agreement on Agriculture has gone to great lengths to provide a detailed and comprehensive [..] list of measures along with the general and specific criteria they have to satisfy before they are exempted from the reduction commitments.”

P. 420-421, M. G. Desta, The Law of International Trade in Agricultural Products (Kluwer Law International 2002).


323 The New Shorter Oxford English Dictionary, 1993.

324 US First Written Submission, para 5, para. 118.

325 Brazil’s First Written Submission, paras. 252-314.

326 The European Communities notes that the US has made this argument in paras. 154-166 of its First Written Submission.

327 Appellate Body Report, United States – Tax Treatment for “Foreign Sales Corporations” (“United States – FSC”), WT/DS108/AB/R, adopted 20 March 2000, para. 150.

328 OECD Arrangement on Guidelines for Officially Supported Export Credits of 15 October 2002 available at www.oecd.org/dataoecd/52/3/2763846.pdf.

329 See Item K of the Illustrative List of Export Subsidies, Annex 1 to the SCM Agreement.


330 Note that Desta arrives at a similar conclusion:
“To the extent that no such agreement [on the provision of export credits etc] has been reached, this provision simply remains to be an agreement to maintain good faith for a planned future negotiation devoid of any substantive additional obligation for some time to come. Until then, there seems to exist no legal distinction in the treatment of these three practices and the other forms of export subsidies not listed under Article 9.1.”

See Desta, p. 234 op cit. footnote Error: Reference source not found.



331 TN/AG/GEN/4

332 Agreement on Agriculture Annex 2, paragraph 1.

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

334 Panel communication to the Parties, 20 June 2003.

335 First Written Submission of the United States of America, July 11 2003 (“First Written Submission of the United States”).

336 Para 5.01-5.02.

337 First Written Submission of the United States, Pt V.

338 First Written Submission of Brazil, para 123.


339 Ibid, para 124.

340 First Written Submission of the United States, paras 94 and 105.

341 Ibid, para 125.

342 Preambular paragraph 3 of the Agreement on Agriculture.

343 G/AG/N/USA/43, Exhibit BRA-47.

344 Exhibit BRA-29.

345G/AG/N/USA/43 page 37. Exhibit BRA-47.

346 First Written Submission of Brazil, para 62.

347 Ibid, para 197.

348 First Written Submission of the United States, para 118.

349 Ibid, para 78.

350 Ibid, para 122.

351 G/AG/N/USA/43, Exhibit BRA-47.

352 See for example, G/AG/R/34 ‘Summary report of the meeting held on 27 March 2003’ at page 32.

353 First Written Submission of the United States, para 115.


354 First Written Submission of Brazil, para 207.

355 Ibid, para 211.

356 First Written Submission of the United States, para 175.

357 First Written Submission of Brazil, para 52; Exhibit BRA-35.

358 Ibid, para 182.

359 Ibid, para 181.

360 Ibid, para 179.

361 Ibid, paras 185 – 190.

362 Ibid, para 165.

363 Ibid, paras 238-243.

364 Report of the Appellate Body, United States – Tax Treatment for “Foreign Sales Corporations”, WT/DS108/AB/R (“US-FSC”), para 150-152; First Written Submission of Brazil, para 237.

365 First Written Submission of the United States, para 132.

366 Report of the Appellate Body, United States – Tax Treatment for “Foreign Sales Corporations” Recourse to Article 21.5 of the Dispute Settlement Understanding by the European Communities, WT/DS108/AB/RW (“US-FSC Recourse to Article 21.5”).


367 Ibid, para 119.

368 Report of the Appellate Body, US-FSC, para 150-152.

369 First Written Submission of Brazil, paras 272-286.

370 Ibid, paras 287-293.

371 First Written Submission of the United States, para 164.

372 Ibid.

373 Ibid, para 151.

374 First Written Submission of Brazil, paras 315-330.

375 First Written Submission of Brazil, para 332.

376 First Written Submission of the United States, paras 207-211.

377 Ibid, paras 191-206.

378 Brazil first Written Submission, paragraph 23.

379 In EC-Hormones, the Appellate Body is of the view that the particular description of “exception” did not discharge the burden of the complaining party in establishing a prima facie case. At para 104, the Appellate Body stated: the general rule in a dispute settlement proceeding requiring a complaining party to establish a prima facie case of inconsistency of a provision…before the burden of showing consistency with that provision is taken by the defending party is not avoided by simply describing the same provision as an exception.”


380 This Panel may recall that the Appellant Body in EC-Banana indicated its opinion that “…this kind of issue could be decided early in panel proceedings, without causing prejudice and unfairness to any party or third party,..” WT/DS27/AB/R, at para. 144.

381 "Third party Submission by Argentina", paragraph 2.

382 First Written Submission of the United States of America, 11 July 2003, Section III.D.

383 Ibid., paragraph 115.

384 According to the Appellate Body in the India-Patents Case (WT/DS50/AB/R, adopted 16 January 1998, paragraph 45):

"The duty of a treaty interpreter is to examine the words of the treaty to determine the intentions of the parties. This should be done in accordance with the principles of treaty interpretation set out in Article 31 of the Vienna Convention. But these principles of interpretation neither require nor condone the imputation into a treaty of words that are not there or the importation into a treaty of concepts that were not intended". (Emphasis added)



385 "… had Members intended to exclude non-product specific support they would surely have said so", "Third Party Submission of New Zealand", 14 July 2003, paragraph 2.21.

386 In this respect, Argentina agrees with New Zealand: "… New Zealand sees no basis on which to suggest that support to a specific commodity should be excluded simply because other commodities may receive similar support". Third-party submission of New Zealand, 15 July 2003, paragraph 2.23.


387 "... the above-mentioned long-term objective is to provide substantial progressive reductions in agricultural support and protection sustained over an agreed period of time, resulting in correcting and preventing restrictions and distortions in world agricultural markets" (Agreement on Agriculture, third preambular paragraph).

388 Australia's Third Party Submission to the Panel, 15 July 2003, paragraph 23: "... the ordinary meaning of this phrase ("To a specific commodity"), read in its context and in light of the object and purpose of the Agreement on Agriculture, is support granted to an individual agricultural commodity covered by AA Annex 1, such as upland cotton, whether through product specific, or non-product specific, support".

389 First Written Submission of the United States of America, paragraph 94: "… no amount of outlays was 'decided' … during the 1992 marketing year …".

390 First Written Submission by Brazil, paragraphs 144-149.

391 Third Party Submission by Argentina, paragraphs 64-65.

392 First Written Submission by the United States of America, paragraph 53.

393 Ibid., paragraph 50.

394 Ibid., paragraphs 64-68.


395 Australia's Third Party Submission to the Panel, 15 July 2003, paragraph 31: "… AA Annex 2.1 imposes a stringent standard. Annex 2.1 requires that such measures must, as a primary or essential condition, not "bias" or "unnaturally alter trade or production …"; Third Party Submission of New Zealand, 15 July 2003, paragraph 1.08: " … In New Zealand's view it is critical that the integrity of the disciplines on "Green Box" measures are not weakened or their legitimate purpose undermined through the inclusion of measures that fail to meet the strict requirements of Annex 2, including the fundamental criterion that such measures are non-trade or production distorting …".

396 Third Party Submission by Argentina, 15 July 2003, paragraphs 54-57.

397 First Written Submission of the United States of America, paragraph 160.

398 Ibid., paragraph 164.

399 Third Party Submission of Canada, 15 July 2003, paragraph 53: "This provision (Article 10.2) sets out an intention on the part of Members to undertake further work regarding these measures – the simple fact of agreeing to do so, however, does not amount to a permission to use those measures to confer export subsidies without consequence and without limit. The US interpretation of Article 10.2 ignores the important context provided by Article 10.1. It also directly contradicts the stated object and purpose of Article 10 as a whole …". Similarly, in its Third Party Submission, New Zealand states: "Nor does Article 10.2 in any way suggest that it provides an exception from the disciplines of Article 10.1…", paragraph 3.15.


400 Article 10.3 reverses the burden of proof in cases of export subsidies under the Agreement on Agriculture where exports are in excess of the reduction commitment level. Article 10.4 establishes disciplines on international food aid.

401 First Written Submission of the United States of America, paragraphs 161-162.

402 Third Party Submission of Canada, 15 July 2003, paragraph 32; "Article 9 of the Agriculture Agreement lists and describes certain export subsidies that are subject to reduction commitments. All other export subsidies fall within the scope of Article 10-1…".

403 First Third Party Submission by the European Communities, 15 July 2003, Section V.

404 Third Party Submission of Australia, paragraph 26.

405 European Economic Community – Payments and Subsidies Paid to Processors and Producers of Oilseeds and Related Animal-Feed Proteins (“EEC – Oilseeds”), Report of the Panel, adopted 25 January 1990, BISD 37S/86, and Follow-Up on the Panel Report “European Community – Payments and Subsidies Paid to Processors and Producers of Oilseeds and Related Animal-Feed Proteins, DS28/R, BISD 39S/91.

406 EEC – Oilseeds, paragraph 144.

407 EEC – Oilseeds, paragraph 148.


408 First Written Submission of the United States, paragraph 33.

409 First Written Submission of the United States, paragraph 39.

410 First Written Submission of the United States, Paragraph 43.

411 First Written Submission of the United States, paragraph 44.

412 First Written Submission of the United States, paragraph 78.

413 Section 1104, 2002 FSRI Act, Exhibit Bra-29.

414 First Written Submission of the United States, paragraph 67.

415 First Written Submission of the United States, paragraph 144.

416 European Communities – Regime for the Importation, Sale and Distribution of Bananas, Report of the Appellate Body, WT/DS27/AB/R, paragraph 155.

417 _EC – Bananas, paragraph 157.

418 First Third Party Submission by the European Communities, paragraph 15.

419 Australia’s Third Party Submission to the Panel, paragraph 31.

420 Australia’s Third Party Submission to the Panel, paragraphs 31-32.


421 First Third Party Submission by the European Communities, paragraph 20.

422 The New Shorter Oxford English Dictionary, Volume I, Ed. Lesley Brown, Clarendon Press, Oxford, 1993, page 15.

423 US First Written Submission, para. 67.

424 See Brazil First Written Submission, para. 182; Third Party Submission of New Zealand, para. 2.26; Third Party Submission of Australia, paras. 47-48.

425 US First Written Submission, paras. 58-63.

426 US First Written Submission, para. 59.

427 US First Written Submission, fn. 47.

428 US First Written Submission, para. 67.

429 See also Exhibit Br-27 (“Title I - Commodity Programmes”; “Counter-cyclical payments for wheat, feed grains, upland cotton, rice, and oilseeds” (emphasis added)).

430 See US First Written Submission, para. 117.

431 USDA, “Export Credit Guarantee Programmes”, FAS Online at http://www.fas.usda.gov/excredits/exp-cred-guar.html, (second sentence) [Exhibit CDA-3].

432 Brazil – Export Financing Programme for Aircraft: Recourse by Canada to Article 21.5 of the DSU, Report of the Panel, WT/DS46/RW, adopted 4 August 2000, paras. 6.24-6.67 [Brazil – Aircraft, First Recourse].


433 Ibid., para. 6.30.

434 Ibid., para. 6.31.

435 Ibid., paras. 6.37.

436 Brazil – Export Financing Programme for Aircraft: Second Recourse by Canada to Article 21.5 of the DSU, Report of the Panel, WT/DS46/RW2, adopted 23 August 2001 at paras. 5.274 and 5.275.

437 See also Brazil – Aircraft, First Recourse, para. 6.36.

438 See First Third Party Submission by the European Communities, para. 30 and Third Party Submission of New Zealand, paras. 3.15-3.16.

439 This text was not in the written statement circulated at the third party session, but reflects unscripted comments made during that session.

440 Article 4.2 DSU.

441 Brazil’s First Written Submission, paras.142 and 146-150.

442 US First Written Submission, para. 79 and 90.

443 Brazil’s First Written Submission, paras. 139 and 140.

444 Brazil’s First Written Submission, paras. 141-145.


445 US First Written Submission, paras.83-84.

446 The New Shorter Oxford English Dictionary, 1993.

447 The New Shorter Oxford English Dictionary, 1993.

448 US First Written Submission, paras. 77-78.

449 Brazil’s First Written Submission, para. 143.

450 Brazil’s First Written Submission, para. 136; New Zealand Third Party Submission Para. 2.22.

451 See, in particular, Article 6.3.

452 This section was not in the written statement circulated at the third party session, but reflects unscripted comments made during that session.




1   ...   43   44   45   46   47   48   49   50   51


The database is protected by copyright ©hestories.info 2017
send message

    Main page