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Statements by Ambassador Linnet
F. Deily
A. UNITED STATES - SECTION 110(5) OF THE US COPYRIGHT ACT: STATUS REPORT BY THE UNITED STATES (WT/DS160/18/ADD.15) · The United States provided an additional status report in this dispute on May 8, 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 has made good progress with
the U.S. Congress on this issue with a view to concluding a mutually
acceptable arrangement consistent with WTO rules. The United States
looks forward to notifying the DSB of additional information in
the near future. Item 1. SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED BY THE DSB B. UNITED STATES - ANTIDUMPING ACT OF 1916: STATUS REPORT BY THE UNITED STATES (WT/DS136/14/ADD.15 - WT/DS162/17/ADD.15) · The United States provided an additional status report in this dispute on May 8, 2003, in accordance with Article 21.6 of the DSU. · As noted in the report, 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.8) · The United States provided a status report in this dispute on May 8, in accordance with Article 21.6 of the DSU. · The U.S. Administration is continuing to consult and work with Congress to resolve this dispute. 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.8) · The United States provided a status report in this dispute on May 8, 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, we continue to work with Congress to resolve this dispute. · For instance, as reported at the last meeting, Ambassador Zoellick and Secretary of Commerce Evans wrote to Congress on April 14 supporting specific amendments to Section 735(c)(5) of the Tariff Act of 1930 to implement the DSB’s recommendations and rulings. The U.S. Administration is working for passage of these amendments.
A. REQUEST FOR THE ESTABLISHMENT OF A PANEL BY ARGENTINA (WT/DS268/2) · Mr. Chairman, we note the statement made by the representative of Argentina. · We will not repeat the points made at the April 15 meeting of the DSB, other than to note that we continue to believe that Argentina’s panel request fails to conform to the requirements of the DSB, for the reasons set forth in our April 15 statement.
A. REPORT OF THE PANEL (WT/DS241/R) · Mr. Chairman, the United States believes that the panel report in this dispute is, on the whole, a good document, reflecting the care and effort which the Panel and Secretariat obviously devoted to their task. There is much in it with which we agree. The United States does, however, wish to comment on one aspect of this report which is of systemic importance to the dispute settlement system, that is, the Panel’s statement in paragraphs 7.35-7.36 that there are circumstances in which a panel could find that a Member has failed to act in good faith, separate and beyond a finding that the Member’s measure is inconsistent with a WTO Agreement provision. The panel cited no provision of a covered agreement in support of this proposition, instead relying only on a statement of dictum by the Appellate Body in the US - CDSOA dispute. Moreover, the Appellate Body did not provide any basis in the text of any covered agreement for that statement. Indeed, that Appellate Body statement has no grounding in any agreed WTO text. · Mr. Chairman, it is difficult to conceive of a scenario which more clearly implicates the prohibition in DSU Articles 3.2 and 19.2 that panels and the Appellate Body not add to or diminish the rights and obligations of Members provided in the covered agreements. · Article 7 of the DSU reinforces Articles 3.2 and 19.2 by confining the scope of a panel and the Appellate Body’s task to reviewing the relevant provisions of the covered agreements. Any review of a Member’s so-called “good faith” outside a relevant provision of the covered agreements is outside the scope of WTO dispute settlement and panels and the Appellate Body lack the authority to make any such findings. · The only support the Appellate Body offered for its dictum was to refer to earlier Appellate Body reports. Not only did the Appellate Body go beyond what was said in those reports, but the phrase “adopted panel and Appellate Body reports” is not even found in the list of covered agreements set forth in DSU Appendix 1. Prior reports do not “create” rights or obligations and may not be relied on by panels and the Appellate Body as if they were covered agreements. Similarly, as the United States noted at the January 27, 2003, DSB meeting where the CDSOA reports were adopted, Appendix 1 does not list an international law principle of good faith. · A statement of the Appellate Body can no more authorize a panel to enforce a public international law principle of good faith than it could authorize a panel not to enforce a Member’s national treatment obligations under GATT 1994 Article III. Members have expressed their agreed-to rights and obligations in the text of the WTO Agreement, and the dispute settlement system may not add to or diminish these rights and obligations. · Mr. Chairman, the Panel correctly noted in paragraph 7.41 of its report that it was “not even bound to follow rulings contained in adopted WTO panel reports.” It would have done well in this case not to follow the dictum of the CDSOA Appellate Body report. On a separate topic, Mr. Chairman, the United States is pleased that the Panel concluded that a principle of estoppel is not applicable in this dispute. We agree with the Panel’s ultimate conclusion, but are troubled by the Panel’s analysis. We note that, given the principle’s inapplicability, there was no need for the Panel to engage in its extensive discussion of this issue. Having offered these comments, Mr. Chairman, we would like to reiterate that we believe this is, on the whole, a good report.
A. PROCEDURES FOR DEVELOPING INFORMATION UNDER ANNEX V OF THE SCM AGREEMENT · Mr. Chairman, Brazil has once again raised the issue of the information-gathering procedures under Annex V of the Subsidies Agreement. Our position on this issue should be well known to Brazil and other delegations as the United States has previously spoken on this issue at the March 31 meeting of the DSB and then yet again at the April 15 DSB meeting. · I will not reiterate those points at length here. Instead, I will simply note that it was Brazil’s decision to invoke the Subsidies Agreement prior to the expiration of the Peace Clause of the Agriculture Agreement. As such, we had hoped that Brazil would have been open to reaching agreement on a way through the procedural issues raised. · Brazil is simply not entitled to have recourse to the Annex V process since the measures at issue are covered by the Peace Clause. Since the measures at issue are exempted from Annex V by virtue of the Peace Clause, there can be no Annex V process and therefore there could not be a 60-day period. Brazil has also stated that the Annex V process has begun. We disagree. Paragraph 1 requires notification “as soon as the provisions of paragraph 4 of Article 7 have been invoked.” We agree that Brazil has invoked these procedures. However paragraph 2 separately provides for the DSB to initiate the information-gathering procedures of Annex V. This requires a consensus decision - it is not automatic. However, the United States has in good faith offered that, in the unlikely event the panel were to determine that the Peace Clause does not preclude Brazil’s claims, the parties could then engage in the Annex V process. · However, Brazil has not accepted this proposal, instead submitting questions as though it need not wait for a multilateral determination that the Peace Clause does not apply. In so doing, Brazil fails to respect the multilateral dispute settlement process. |