 |
|
|
|
|
|
 |
 |
 |
|
||
 |
|
||||
 |
 |
 |
 |
 |
|
|
Statements by the United States at
the March 18, 2003
Meeting of the WTO Dispute Settlement Body
A. UNITED STATES - SECTION 110(5) OF THE US COPYRIGHT ACT: STATUS REPORT BY THE UNITED STATES (WT/DS160/18/ADD.13) · The United States provided an additional status report in this dispute on March 6, 2003, in accordance with Article 21.6 of the DSU. As noted in the report, the United States and the European Communities have been seeking a positive and mutually acceptable resolution of the dispute. · The U.S. Administration will continue to engage the U.S. Congress on this issue with a view to concluding a mutually acceptable resolution consistent with WTO rules.
B. UNITED STATES - ANTIDUMPING ACT OF 1916: STATUS REPORT BY THE UNITED STATES (WT/DS136/14/ADD.13 - WT/DS162/17/ADD.13) · The United States provided an additional status report in this dispute on March 6, 2003, in accordance with Article 21.6 of the DSU. · Legislation repealing the 1916 Act was introduced in the U.S. House of Representatives on March 4, 2003 (H.R. 1073). · The U.S. Administration will continue to work with the U.S. Congress to achieve further progress in resolving this dispute with the European Communities and Japan.
C. UNITED STATES - SECTION 211 OMNIBUS APPROPRIATIONS ACT OF 1998: STATUS REPORT BY THE UNITED STATES (WT/DS176/11/ADD.6) · The United States provided a status report in this dispute on March 6, 2003, in accordance with Article 21.6 of the DSU. · The U.S. Administration will work with Congress with a view to resolving this dispute.
· The United States is not aware of any court decisions concerning section 211 other than those that the European Communities itself described in its written submissions to the Panel. If the EC knows of subsequent decisions, the United States would be interested to know what they are. · In any case, however, the United States repeats that the DSB recommendations and rulings did not relate to the issue of abandonment. Item 1. SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED BY THE DSB D. UNITED STATES - ANTI-DUMPING MEASURES ON CERTAIN HOT-ROLLED STEEL PRODUCTS FROM JAPAN: STATUS REPORT BY THE UNITED STATES (WT/DS184/15/ADD.6) · The United States provided a status report in this dispute on March 6, 2003, in accordance with Article 21.6 of the DSU. · With respect to the recommendations and rulings of the DSB that were not addressed in the November 22, 2002, antidumping duty determination of the U.S. Department of Commerce, the United States Administration will continue to consult and to work with the Congress with a view to resolving this matter with Japan in a mutually satisfactory manner. Item 2. UNITED STATES - SUBSIDIES ON UPLAND COTTON A. REQUEST FOR THE ESTABLISHMENT OF A PANEL BY BRAZIL (WT/DS267/2) · We are disappointed that Brazil has decided to request for a second time that a panel be established in this matter. We recognize that a panel will be established at this meeting, but, for the reasons stated at the February 19 meeting of the DSB, we continue to believe that this panel request will serve neither Brazil's nor the United States' interests. · Those interests lie in the successful conclusion of the Doha Development Round agriculture talks. We suggest that our energies would be better spent ensuring that the WTO agriculture talks are successful. · However, it appears that Brazil is attempting to litigate for a reduction in U.S. cotton support that is not embodied in U.S. WTO commitments. We believe that U.S. cotton support programs are within our allowable WTO limits and consistent with our WTO obligations. Therefore, the United States is prepared to vigorously defend our cotton support programs. Litigating this dispute will not provide Brazil with the result it desires. · Mr. Chairman, while we have listened to Brazil's statement this morning, in our view, in its panel request, Brazil has referred to a measure which was not the subject of consultations. Brazil is now attempting to expand the challenged measures to include measures that allegedly provide export assistance for "other eligible agricultural commodities" in addition to those measures that allegedly provide export assistance to "upland cotton." There is no basis for Brazil's panel request on these newly identified measures relating to "other eligible agricultural commodities" on which Brazil has not requested consultations. · Mr. Chairman, we note that Brazil has not identified the third-country markets relevant to the Annex V process. This prevents any "third-country Member concerned" from fulfilling its obligation under Annex V, paragraph 1, to notify to the DSB, "as soon as the provisions of paragraph 4 of Article 7 have been invoked," the authorities and procedures relevant to any requests for information under the Annex V process. · We are of course prepared to continue the informal consultations that we have been having with Brazil on this matter, with a view to having the DSB consider it and take a decision at a future meeting.
· Mr. Chairman, we would like to recall that the appointment by the DSB of such a representative requires a decision by the DSB. We note, however, that neither the airgram nor the agenda for this meeting refers to taking such a decision. · We of course recognize that you sent a fax to all delegations advising them of your consultations with Brazil and the United States on this matter. However, as this item does require a decision of the DSB, in our view it needs to be inscribed on the DSB agenda in the customary manner, for inclusion in the airgram that is circulated ten days before the meeting. · Further, this issue is not yet ripe for a decision by the DSB. In particular, we note that Brazil has not identified the third-country markets relevant to the Annex V process. · This prevents the United States from forming judgments on which Member's representative would be appropriate to serve as the DSB representative. · In addition, at this time, we are not prepared to endorse participation by third parties in the Annex V process. Annex V does not contemplate participation by third parties in that process or access to such information. We also note that in Indonesia - Autos, it does not appear that the information gathered was provided to the third parties. We believe that is the appropriate approach. · As we stated previously, we remain prepared to continue the informal consultations that we have been having with Brazil on this matter, with a view to having the DSB consider it and take a decision at a future meeting. · Item 3. CANADA - MEASURES RELATING TO EXPORTS OF WHEAT AND TREATMENT OF IMPORTED GRAIN A. REQUEST FOR THE ESTABLISHMENT OF A PANEL BY THE UNITED STATES (WT/DS276/6) · As described in the consultation request of December 17, 2002, the United States is concerned that Canada's measures relating to wheat exports and to the treatment of imported grain appear inconsistent with Canada's obligations under the GATT 1994 and the TRIMs Agreement. · Our concerns with respect to wheat exports involve the wheat sales practices of the Government of Canada and its State-Trading Enterprise, the Canadian Wheat Board. · Under Article XVII of the GATT 1994, Canada is obligated to ensure that its State-Trading enterprise makes sales in a non-discriminatory manner and in accordance with commercial considerations, and that it affords the enterprises of other WTO Members an adequate opportunity to compete. · The United States is concerned that Canada has entirely abdicated this responsibility. Canada provides the Wheat Board with extensive privileges that detach the Wheat Board from the market forces that determine the conduct of private enterprises. Yet Canada has adopted no measures to ensure that the Wheat Board makes sales in accordance with the standards set out in Article XVII · Our concerns with respect to imported grain involve discrimination in the rules governing the Canadian grain handling system and the Canadian rail transportation system. In particular, Canadian law severely restricts access of imported grain to Canadian elevators and other grain handling facilities. Canadian law also favors domestic grain over imported grain in the rules establishing the rates charged by Canadian railroads, and in the rules governing the allocation of railcars. These measures appear inconsistent with Canada's national treatment obligations. · On January 31, 2003, the United States and Canada held consultations on these matters. Canada indicated no willingness to consider any modifications to its measures governing trade in grain. Indeed, the delegation of Canada would not even discuss the meaning, or describe the application, of the pertinent Canadian statutes and regulations. · Accordingly, the United States requests that the DSB establish a panel pursuant to Article 6 of the DSU with standard terms of reference to examine these matters. Item 4. CANADA - EXPORT CREDITS AND LOAN GUARANTEES FOR REGIONAL AIRCRAFT A. RECOURSE BY BRAZIL TO ARTICLE 22.7 OF THE DSU AND ARTICLE 4.10 OF THE SCM AGREEMENT (WT/DS222/10) · Mr. Chairman, the United States has several concerns with the arbitrator's analysis in this dispute. · Most fundamentally, the arbitrator erred in relying on the approach of the FSC arbitrator with respect to the meaning of "appropriate countermeasures." That approach disregarded clear negotiating history indicating that this level must be proportionate to the to the trade effects of the measure. Indeed, the FSC arbitrator refused to even acknowledge the existence of this negotiating history, or address arguments relating to it. Instead, the arbitrators in both disputes decoupled the level of countermeasures from trade effects, resulting in an essentially arbitrary approach to the calculation of these countermeasures. Recourse to the negotiating history would have been appropriate to see whether it would confirm the meaning derived by the arbitrators from the text. · In addition, the United States shares a number of the concerns expressed by Canada concerning the arbitrator's decision to increase the amount of the appropriate level of countermeasures in a manner which is, essentially, arbitrary and punitive. After noting that it would be improper to adjust the level of countermeasures based on the simple fact of Canada's non-compliance, the arbitrator appears to have done essentially just that. · In justifying this approach, the arbitrator referred to the general principle of international law, pacta sunt servanda, and the Vienna Convention. However, the arbitrator's comments miss the point. The arbitrator appears to suggest that this principle is applicable in WTO disputes by virtue of the absence in the DSU or SCM Agreements of special provisions which would otherwise prevail. · This ignores the more fundamental point that, as set forth in DSU Article 3.2, the dispute settlement system is intended to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements. "General principles of international law" are not listed in the covered agreements set forth in Appendix 1 of the DSU, and a WTO adjudicatory body has no authority to enforce those principles. · With regard to the EC's criticism that Brazil should have submitted a revised retaliation list after the issuance of the arbitration award, the United States notes that the DSU does not require submission of such a list. · OTHER BUSINESS A. U.S. STATEMENT ON UNITED STATES - DEFINITIVE SAFEGUARD MEASURES ON IMPORTS OF CIRCULAR WELDED CARBON-QUALITY LINE PIPE FROM KOREA (DS202) · Mr. Chairman, the United States is pleased to inform the DSB that, as provided in the 31 July 2002, notification of the United States and Korea, WT/DS202/18, the U.S. safeguard measure on line pipe from Korea was terminated on March 1, 2003. |