Statements by the United States at the Meeting of the WTO Dispute Settlement Body
Geneva,
January 21, 2008
1. SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED BY THE DSB
A. UNITED STATES – SECTION 211 OMNIBUS APPROPRIATIONS ACT OF 1998: STATUS REPORT BY THE UNITED STATES (WT/DS176/11/ADD.62)
Mr. Chairman, the United States provided a status report in this dispute on January 10, 2008, in accordance with Article 21.6 of the DSU.
As noted in that status report, a number of legislative proposals that would implement the DSB’s recommendations and rulings in this dispute have been introduced in the current Congress, in both the U.S. Senate and the U.S. House of Representatives.
The Administration continues to work with Congress to implement the DSB’s recommendations and rulings.
[Second intervention]
We regret very much that some Members – including some whose record of protecting intellectual property rights appears less than robust – continue to criticize the U.S. commitment to intellectual property rights.
These criticisms are completely unfounded. It is of course true that the United States remains a strong advocate of substantial protections for intellectual property internationally. However, the United States is also second to no one in providing strong intellectual property protection within its own territory.
B. UNITED STATES – ANTI-DUMPING MEASURES ON CERTAIN HOT-ROLLED STEEL PRODUCTS FROM JAPAN: STATUS REPORT BY THE UNITED STATES (WT/DS184/15/ADD.62)
The United States provided a status report in this dispute on January 10, 2008, in accordance with Article 21.6 of the DSU.
As of November 23, 2002, the U.S. authorities had addressed the DSB’s recommendations and rulings with respect to the calculation of antidumping margins in the hot-rolled steel antidumping duty investigation at issue in this dispute. Details are provided in the document numbered WT/DS184/15/ADD.3.
The U.S. Administration will work with Congress with respect to the recommendations and rulings of the DSB that were not already addressed by the U.S. authorities by November 23, 2002.
C. UNITED STATES – SECTION 110(5) OF THE US COPYRIGHT ACT: STATUS REPORT BY THE UNITED STATES (WT/DS160/24/ADD.37)
The United States provided a status report in this dispute on January 10, 2008, in accordance with Article 21.6 of the DSU.
The U.S. Administration will work closely with the U.S. Congress and continue to confer with the European Communities, in order to reach a mutually satisfactory resolution of this matter.
In this regard, we appreciate theEC’s recent statements that it remains prepared to work with the U.S. to seek a resolution to this dispute. We share the EC’s goal of discussing how such a mutually satisfactory solution could be achieved.
D. UNITED STATES – MEASURES RELATING TO ZEROING AND SUNSET REVIEWS: STATUS REPORT BY THE UNITED STATES (WT/DS322/22/ADD.2)
Mr. Chairman, the United States provided a status report in this dispute on January 10, 2008, in accordance with Article 21.6 of the DSU.
As our status report explained, the United States is no longer performing average-to-average comparisons in antidumping investigations without offsets. The United States has thus eliminated the single measure that Japan challenged and that the Appellate Body found to be inconsistent with the WTO Agreement “as such,” and the United States has complied with the DSB’s recommendations and rulings with respect to that measure.
In addition, in respect of the one investigation that Japan challenged “as applied” and which has not otherwise been revoked, the United States has issued a revised determination in connection with that investigation. In respect of the administrative reviews challenged “as applied,” those reviews have been superseded by subsequent reviews. The United States has therefore also complied with the DSB’s recommendations and rulings concerning those measures.
[Second intervention]
It is clear from Japan’s intervention that the United States and Japan have a disagreement about whether the United States has taken measures to comply with the recommendations and rulings of the DSB, or whether those measures are consistent with a covered agreement.
We are therefore puzzled why Japan has chosen to pursue a request for retaliation and arbitration under DSU Article 22.6 at this time.
It is well known that Japan is one of the most active proponents of “sequencing.” Japan has advocated the position that the DSU text requires a complaining party to have recourse to article 21.5 when there is a disagreement about compliance. For instance, Japan has said that in its view, “when there was disagreement [with regard to compliance], a prevailing party could not resort to Article 22.6 without resolving this disagreement through the process of Article 21.5.”(1) Japan has also advocated that sequencing is important to the proper functioning of the dispute settlement system. When commenting on a U.S. request to suspend concessions under Article 22.2, Japan said that “It was important not to resort to unilateralism, and before the DSB authorized a request for suspension of concessions, there should be a factual determination of a violation of the WTO Agreement or non-compliance with the rulings of the panel or the Appellate Body. This would safeguard the long-term integrity, fairness and impartiality of the system. Japan had proposed to suspend the US request and wait for the determination of the panel under Article 21.5.”(2)
In light of these prior statements, we wonder whether Japan intends to persist in its current course of action, and if so, what conclusion Members should draw from Japan’s apparent change of position on sequencing.
Second, regarding Japan’s comments concerning the “as such” measure, Japan only challenged one measure “as such,” which it referred to as the “zeroing procedures.” The paneland the Appellate Body also concluded that the “zeroing procedures” “do not correspond to separate rules or norms, but simply reflect different manifestations of a single rule or norm.” (AB report, para. 88.)
E. EUROPEAN COMMUNITIES – MEASURES AFFECTING THE APPROVAL AND MARKETING OF BIOTECH PRODUCTS: STATUS REPORT BY THE EUROPEAN COMMUNITIES (WT/DS291/37 – WT/DS292/31 – WT/DS293/31)
We thank the EC for its written status report and for its statement today.
The reasonable period of time for EC compliance in this dispute expired on January 11, 2008.
Although now over four and one half years have elapsed since the United States filed its consultation request in May 2003, the issues covered in the dispute remain unresolved and the United States remains very concerned with EC treatment of agricultural biotech products.
The EC has cited progress in making approvals, and indeed some approvals have occurred.
We would note however, that the DSB found that the EC adopted a general moratorium starting in 1999 – nearly 8 years ago - and lasting at least through mid-2003. A handful of approvals over an 8 year period is, unfortunately, of little commercial significance. Rather, the essential facts are that over 40 biotech applications are currently pending in the EC approval system – including many applications currently approved and marketed in major world markets. At least one pending application was filed over 10 years ago.
The United States is likewise concerned that some of the member State product bans found by the DSB to be in breach of the EC’s SPS obligations remain unchanged. Moreover, additional EC member States have adopted new bans on the very same biotech products covered by the member State measures found to be in breach of SPS obligations.
The United States is especially disappointed that the Government of France, on January 11 – the very last day of the what should have been a period for compliance – announced that it would be adopting a new ban on the only biotech variety currently grown commercially in the EC. Quite obviously, such actions are not conducive to a resolution of this dispute.
The United States believes that it has been very patient throughout this dispute. Before initiating this dispute in May 2003, the United States waited for four years for the EC to follow WTO rules, as well as its own published procedures and the recommendations of its own scientists.
Even though the dispute settlement proceedings took three and one half years from the filing of the consultation request to the adoption of the panel report, the United States agreed to a one year reasonable period of time for compliance. The United States further agreed to extend that period from November 21, 2007 until January 11, 2008.
On January 17, the United States preserved its rights by filing with the DSB a request for authorization to suspend concessions. As the EC and the United States have informed the DSB, we have entered into a sequencing agreement under which the U.S. request will be referred to arbitration and such arbitration proceedings will be suspended for a limited period.
This process is intended to encourage further discussion and cooperation between the United States and the EC, and is a further illustration of U.S. patience.
There is, however, a limit to how long the United States can wait before further exercising its rights under the DSU. U.S. seed companies, farmers, and exporters continue to experience significant commercial losses as a result of the EC’s treatment of biotech products.
Furthermore, the EC’s policies not only impede U.S. trade, but also discourage the adoption of technology that has the potential to address many global problems. Biotech crops have the improved yields necessary to feed the world's growing population, offer tremendous opportunities for better health and nutrition, and can protect the environment by reducing soil erosion and pesticide use.
For these reasons, the United States looks forward to continuing its dialog with the EC, and urges the EC to take prompt action to address the outstanding issues regarding EC treatment of biotech products.
2. UNITED STATES – CONTINUED DUMPING AND SUBSIDY OFFSET ACT OF 2000: IMPLEMENTATION OF THE RECOMMENDATIONS ADOPTED BY THE DSB
A. STATEMENTS BY THE EUROPEAN COMMUNITIES AND JAPAN
As the United States has already explained at previous DSB meetings, the President signed the Deficit Reduction Act into law on February 8, 2006. That Act includes a provision repealing the Continued Dumping and Subsidy Offset Act of 2000. Thus, the United States has taken all actions necessary to implement the DSB’s recommendations and rulings in these disputes.
We welcome the EC and Japan’s recognition that the 2006 Deficit Reduction Act does not permit the distribution of duties collected on goods entered after October 1, 2007.
We are therefore all the more surprised to hear statements that the United States has not implemented the DSB’s recommendations and rulings.
Do we understand the Members making such statements to be saying that they consider that the United States has not implemented the DSB’s rulings and recommendations, notwithstanding the fact that antidumping duties and countervailing duties that are being collected on goods now entering the United States will not be distributed to domestic firms?
With respect to comments regarding further status reports and DSB surveillance in this matter, as we have already explained at previous DSB meetings, the United States has taken all steps necessary to implement the DSB’s recommendations and rulings in these disputes.
In this light, the United States fails to see what purpose would be served by further submission of status reports repeating the progress the United States made in the implementation of the DSB’s recommendations and rulings.
