Statement by the United States at the May 18, 2010, DSB Meeting

SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED BY THE DSB

WTO-DSBA. UNITED STATES – SECTION 211 OMNIBUS APPROPRIATIONS ACT OF

1998: STATUS REPORT BY THE UNITED STATES (WT/DS176/11/ADD.90)


• Mr. Chairman, the United States provided a status report in this dispute on May 6, 2010,

in accordance with Article 21.6 of the DSU.

• As has been noted, a number of legislative proposals that would implement the DSB’s

recommendations and rulings in this dispute were introduced in the First Session of the

current (111 ) Congress. The Second Session of the 111 Congress th th began in January.

• The Committee on the Judiciary of the House of Representatives held a hearing on certain

of these proposals on March 3, 2010. In addition, the U.S. Administration is working

with Congress to implement the DSB’s recommendations and rulings.

[Second intervention:]

 

• In response to the statements by some Members that this dispute raises concerns for the

dispute settlement system, as the United States has noted at several past DSB meetings,

we do not believe that those concerns are well-founded.

• In this dispute, as in the other few instances where our efforts to come into compliance

have not yet been entirely successful, the United States has been working actively towards

compliance in furtherance of the purpose of the dispute settlement system.

• And, as noted in our first intervention, the Committee on the Judiciary of the U.S. House

of Representatives held a hearing in March on certain proposals to implement the DSB’s

recommendations and rulings in this dispute.

B. UNITED STATES – ANTI-DUMPING MEASURES ON CERTAIN

HOT-ROLLED STEEL PRODUCTS FROM JAPAN: STATUS REPORT BY

THE UNITED STATES (WT/DS184/15/ADD.90)

• The United States provided a status report in this dispute on May 6, 2010, 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.

• With respect to the recommendations and rulings of the DSB that were not already

addressed by the U.S. authorities, the U.S. Administration will work with the U.S.

Congress with respect to appropriate statutory measures that would resolve this matter.

C. UNITED STATES – SECTION 110(5) OF THE US COPYRIGHT ACT:

STATUS REPORT BY THE UNITED STATES (WT/DS160/24/ADD.65)

• The United States provided a status report in this dispute on May 6, 2010, in accordance

with Article 21.6 of the DSU.

• The U.S. Administration will continue to confer with the European Union, and to work

closely with the U.S. Congress, in order to reach a mutually satisfactory resolution of this

matter.

Panel Report, European Communities – Measures Affecting 1 the Approval and Marketing of Biotech

Products, WT/DS291/R, adopted 21 November 2006, para 8.18(a)(vii) (BT-11 maize) and (xi) (Bt-1507 maize).

D. EUROPEAN COMMUNITIES – MEASURES AFFECTING THE APPROVAL

AND MARKETING OF BIOTECH PRODUCTS: STATUS REPORT BY THE

EUROPEAN UNION (WT/DS291/37/ADD.28)

• The United States thanks the EU for its status report and its statement today.

• As the United States noted at the March meeting of the DSB, earlier this year the new

Commission made some progress in the operation of the EU biotech approval system by

approving five long-pending applications.

• These recent approvals are encouraging, but the United States must disagree with the

EU’s statement at the April meeting of the DSB that “EU regulatory procedures on

biotech products continue to work as foreseen in the legislation.”

• Unfortunately, this is not the case. For example, one application filed 14 years ago – in

1996 – and another application filed nearly nine years ago – in 2001 – remain stalled in

the EU approval system. The EU’s own scientific authority has found that the products

covered by these applications will not have an adverse effect on human and animal health

or the environment.

• And, the DSB found that applications for both of these products were subject to “undue

delay,” resulting in a breach of the EU’s obligations under the SPS Agreement.1 Yet, the

applications remain pending.

• Furthermore, the EU Commission has announced that it is considering substantial

modifications to its biotech approval procedures in order to address such longstanding

delays.

• In these circumstances, it is more accurate to say that EU regulatory procedures on

biotech products continue not to work as foreseen in the legislation, and, accordingly, that

the EU is considering changes to those procedures.

• We would therefore like to reiterate what we stated at the April meeting of the DSB: the

United States looks forward to further progress in the EU’s operation of its biotech

approval system.

E. UNITED STATES – MEASURES RELATING TO ZEROING AND SUNSET

REVIEWS: STATUS REPORT BY THE UNITED STATES

(WT/DS322/36/ADD.8)

• Mr. Chairman, the United States provided a status report in this dispute on May 6, 2010,

in accordance with Article 21.6 of the DSU.

• As noted in the status report, the United States has taken steps to implement the DSB’s

recommendations and rulings in this dispute. With respect to the outstanding issues, the

United States will continue to consult with interested parties in order to address those

issues.

[Second intervention:]

 

• In response to Japan’s statement that it has requested the Article 22.6 arbitrator to resume

work, we regret that Japan has taken this step. As we explained in our first intervention,

we are conducting consultations with all interested parties in order to address the findings

in this dispute.

F. UNITED STATES – CONTINUED EXISTENCE AND APPLICATION OF

ZEROING METHODOLOGY: STATUS REPORT BY THE UNITED STATES

(WT/DS350/18/ADD.5)

• Mr. Chairman, the United States provided a status report in this dispute on May 6, 2010,

in accordance with Article 21.6 of the DSU.

• As noted in that status report, the United States has taken steps to implement the DSB’s

recommendations and rulings in this dispute. With regard to the remaining issues, the

United States will continue to consult with interested parties.

[Second intervention:]

 

• In response to the EU’s statement, the EU has made reference to Section 129 proceedings.

The United States has at the March DSB meeting explained the scope of these

proceedings and will not repeat those points today.

• With respect to the mention of status reports in DS294, the United States notes that that

dispute is now pending before an arbitrator under Article 22.6 of the DSU. For the

benefit of delegates, the United States would note that the hearing in that proceeding later

this week will be open to observation by all WTO Members and the public.

2. UNITED STATES – CONTINUED DUMPING AND SUBSIDY OFFSET ACT OF

2000: IMPLEMENTATION OF THE RECOMMENDATIONS ADOPTED BY THE

DSB

  1. STATEMENTS BY THE EUROPEAN UNION 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 recall, furthermore, that Members, including the EU and Japan, have acknowledged

during previous DSB meetings that the 2006 Deficit Reduction Act does not permit the

distribution of duties collected on goods entered after October 1, 2007, some two-and-ahalf

years ago.

• With respect to comments regarding further DSB surveillance in this matter, as we have

already explained at previous DSB meetings, 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.

3. EUROPEAN COMMUNITIES – EXPORT SUBSIDIES ON SUGAR

  1. STATEMENTS BY AUSTRALIA, BRAZIL AND THAILAND

• The United States was a third party in this dispute and followed it with interest. We have

also taken note of the statements made at today’s meeting and three previous DSB

meetings on this agenda item.

• We therefore are puzzled at the situation, that the EU offered to provide the technical

information supporting its decision to export out-of-quota sugar in excess of its scheduled

quantity commitment and has not followed through on that offer.

• We have heard a lot from the EU, including today, about the importance of providing

information to Members relating to implementation of DSB recommendations and

rulings. This situation would appear to us to be a particularly good opportunity for the

EU to live up to those standards and provide Members with information to address their

concerns about the EU’s implementation of its WTO commitments.

5. UNITED STATES – USE OF ZEROING IN ANTI-DUMPING MEASURES

INVOLVING PRODUCTS FROM KOREA

A. REQUEST FOR THE ESTABLISHMENT OF A PANEL BY KOREA

(WT/DS402/3)

• We are disappointed that Korea has chosen to pursue its request for a panel in this matter.

• Of course, we understand that a panel will be established today.

• We nonetheless hope that the United States and Korea will be able to continue our

dialogue about this matter.

6. UNITED STATES – ANTI-DUMPING MEASURES ON CERTAIN SHRIMP FROM

VIET NAM

A. REQUEST FOR THE ESTABLISHMENT OF A PANEL BY VIET NAM

(WT/DS404/5)

  • The United States is disappointed that Vietnam has chosen to pursue its request for a

panel in this matter.

  • As we observed at the last DSB meeting, we have serious concerns about this panel

request. For example, the panel request includes:

  • first, items that were not identified in Vietnam’s request for consultations, and

thus were not the subject of consultations;

  • second, proceedings that were initiated pursuant to applications received prior to

Vietnam’s Accession to the WTO, which are not subject to the Antidumping

Agreement and are not properly a subject of review by a WTO dispute settlement

panel;

  • third, proceedings that have not yet been completed, and thus are not measures

that a panel can review; and

  • fourth, a measure described by Vietnam as the “initiation” of the sunset review,

though without a summary of the legal basis of Vietnam’s complaint sufficient to

present clearly the alleged problem with the initiation of the sunset review.

  • Vietnam has not addressed these concerns, which we also identified at the last DSB

meeting on April 20. Hence, the United States continues to strongly urge Vietnam to

reconsider its decision to pursue a panel in this dispute.

  • Nevertheless, we understand that a panel will be established today, and we look forward

to the opportunity to present our views to that panel.

8. PROPOSED AMENDMENTS TO THE WORKING PROCEDURES FOR

APPELLATE REVIEW (WT/AB/WP/W/10)

• Mr. Chairman, we thank you for this opportunity to provide views, in accordance with the

December 2002 decision of the DSB, on the proposed amendments to the Appellate Body

Working Procedures.

• The process set out by the Chair has afforded delegations time to study the proposed

amendments and exchange views on them, which has led to a deeper understanding of the

proposals.

• On the basis of those exchanges, the explanations given by the Appellate Body, and, most

importantly, the text of those proposed amendments, we would like to offer the following

views today.

Time line for Written Submissions

 

Filing appellant submission on day 1

• First, we would like to address the proposal regarding filing of the appellant’s submission

on the same day as the notice of appeal and consequential changes to the deadlines.

• We would join other delegations in desiring to optimize the use of the time allotted to

appeals. In particular, it has become increasingly apparent that the 90 days allotted for

Appellate Body reports places significant time pressure on the Appellate Body. Of

course, the time period is effectively less than 90 days once account is made for

translation.

• Accordingly, it is important that this time be used productively.

• An appellant typically has had a significant amount of time before filing an appeal to

develop its appeal, including its appellant submission. As a result, the time currently

provided between the commencing an appeal and filing the appellant submission does not

appear to be time that is being used as productively as it could be. These seven days

could better serve the system if they were used for the Appellate Body’s work. An

appellant should be able to prepare its appellant submission in advance such that it can be

filed at the beginning of an appeal.

• Therefore we are sympathetic to making the appellant submission due on the first day of

an appeal.

• However, this does raise questions about the continued role of a notice of appeal. We

note that the proposed amendments would retain the notice of appeal as a separate

document. That notice would continue to retain some role in expressing the scope of the

appeal. This raises questions about whether there would be jurisdictional arguments in an

appeal based on the notice of appeal.

• With the full appellant submission in hand, it is hard to understand why the notice of

appeal should serve to limit or constrain the scope of appeal. Presumably the appellant

intends its submission to be a full expression of its appeal.

• It would seem that there should be ways to provide the transparency currently afforded by

a notice of appeal while avoiding the procedural issues that accompany giving the notice

of appeal some sort of jurisdictional status. Furthermore, it would seem contrary to the

desire to use the time for an appeal as productively as possible to invite jurisdictional

arguments based solely on the notice of appeal.

• The United States notes that Article 16.4 of the DSU requires a notice of appeal, but that

notice is to the DSB only – it does not call for one to be filed with the Appellate Body.

Therefore it would appear that one option could be for the Appellate Body’s working

procedures to omit specifying any requirement for a notice of appeal to the Appellate

Body and rely simply on the DSU.

Consequential changes to the deadlines

• The proposed amendments alter the subsequent deadlines after the filing of the appellant

submission.

• While we understand the symmetry in also requiring the other appellant submission to be

filed on the same day as the other notice of appeal, we would have the same concerns

regarding a “notice of other appeal” as just expressed with respect to a notice of appeal.

• In other words, it would seem that there should be ways to provide the transparency

currently afforded by an other notice of appeal while avoiding the procedural issues that

accompany giving the notice some sort of jurisdictional status.

• We also would not see value in shortening the time for appellee submissions from 18

days to 15 days. As the Appellate Body noted in the proposed amendments, “Appellants’

submissions are typically the longest written submissions in an appeal.”

• Accordingly, reducing the time for appellee submissions could prove particularly

disadvantageous for an appellee.

• Nor does there appear to be value in changing the existing practice of the past 15 years so

as to provide for third participant submissions to be filed after the appellee submissions.

In the first place, it appears odd that third participants should be provided an opportunity

to respond in writing to the appellee submission(s) while the appellant does not have that

opportunity.

• Second, the explanation for the proposal is to allow third participants time to respond to

the appellee submission(s). However, in reality the additional three days proposed would

not be sufficient time to prepare a written response to that appellee submission. That has

been reflected in comments today in the proposals to give third participants even more

time to prepare their submissions.

• Moreover, this proposed change could undermine the objective of using the time for an

appeal more productively. The United States assumes that the oral hearing is set for the

earliest date possible after the appellee and third participant submissions, taking into

account the need to review those submissions and prepare for the hearing. Providing for

a later date for third participant submissions would imply delaying the hearing, thus

reducing the time for the Appellate Body’s deliberations and work during the 90-day

period.

(2) Authorization, subject to certain conditions, to file and to serve documents electronically

 

• Mr. Chairman, turning now to the second element of the proposed amendments –

electronic filing of documents – as an initial matter we would note that we appreciate the

fact that filing electronic versions of documents has become much more prevalent since

the Working Procedures were first developed.

• However, since it has become typical for Members to file an electronic version in

addition to the paper copy, it is not clear why this amendment is needed or what is its

value added. And the proposed amendments do raise some concerns.

• The proposed amendment would appear to mean that a Member must either file only

paper copies, or be subject to the new rules, including that the electronic version prevails.

We are concerned that this may discourage rather than encourage electronic filing.

• We have had previous instances in which differences in software or hardware, or merely

transmitting via email, has meant that the electronic version appears differently on one

system than on another system. There is a concern about what it means to say that the

electronic version prevails over the paper copy since in those circumstances there could

be more than one electronic version.

• We also share the concerns expressed by a number of delegations about the proposed

requirement for a signed certification. It is not clear what the purpose of such a

certification is other than to highlight the fact that allowing paper copies to be filed the

following day could increase the chance that the paper copy would diverge from the

electronic copy.

(3) Consolidation of Appellate Proceedings

 

• Finally, I would now like to turn to the third element of the proposed amendments –

consolidation of appellate proceedings. The proposed amendments raise a number of

questions and concerns that have already been well-expressed by a number of other

delegations today.

• For example, consolidation of appeals to this point has been handled on a case-by-case

basis and with the consent of the parties. We would echo one Member’s comment that

dealing with consolidation on a flexible basis is not a flaw in the system but a strength.

We are not aware of any appeal in which parties did not consent to consolidation. But

neither are we aware of any instance of consolidation over the objection of a party.

• We are concerned by the possibility raised by the proposal that the Appellate Body could

consolidate two appeals when at least one party says that it should not.

• Also troubling is the idea that the Appellate Body would decide to consolidate two

appeals based on the Appellate Body’s view that a substantial overlap in two appeals is

“likely.” This raises the question of on what basis the Appellate Body would determine a

substantial overlap is “likely,” perhaps even at a time when no appeal has yet been filed.

• Concerning issuing single or separate reports, the proposal also raises a number of

questions. We are troubled by the possibility raised by the proposal that the Appellate

Body could issue a single report covering appeals of separate panel reports when at least

one party to the dispute says that it should not, and perhaps even where a party believes

that its rights could or would be impaired by a single report.

(4) Circulation of Written Comments

 

• With respect to the written comments that Members will provide, the United States

intends to submit written comments and will welcome circulation of those comments.

Circulation of written comments is appropriate for a number of reasons. First, the oral

statements made at the present meeting will be circulated in the DSB minutes, and we

believe the written comments should be treated similarly. Second, the 2002 DSB

Decision states that the Chairperson of the DSB will request the Appellate Body to take

the views of Members, including their written comments, into account. Circulation

would make clear to Members and the Appellate Body what are those views to be taken

into account. Third, circulation would assist Members in retrieving and viewing these

written comments in the future.

Conclusion

 

• Mr. Chairman, I want to thank you again for the opportunity to make this statement and

for the opportunity to provide written comments. Delegations have made a number of

very interesting comments today, which we will reflect on further.