Geneva
June 25, 2012
1. SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED BY THE DSBA.UNITED STATES – SECTION 211 OMNIBUS APPROPRIATIONS ACT OF 1998: STATUS REPORT BY THE UNITED STATES (WT/DS176/11/ADD.115)
The United States provided a status report in this dispute on June 14, 2012, in accordance with Article 21.6 of the DSU.
Legislative proposals have been introduced in the current 112th Congress to implement the recommendations and rulings of the DSB.
The U.S. Administration will continue to work on solutions to implement the DSB’s recommendations and rulings.
[Second intervention]
The United States thanks the EU for its comments and will of course relay these to capital.
With respect to the other comments, the United States believes that they contain a number of inaccuracies that we would like to address.
In response to the comments about “systemic” concerns about the dispute settlement system, the facts simply do not support Members’ assertions or justify such systemic concerns. The United States has come into compliance, fully and promptly, in the vast majority of its disputes.
As for the remaining few instances where our efforts to do so have not yet been entirely successful, the United States has been working actively towards compliance, such as in this dispute.
As noted at several past meetings and again today, several legislative proposals have been introduced in the current Congress: in the Senate, S.603; in the House of Representatives, H.R. 1166, H.R. 255, H.R. 1887, and H.R. 1888. These proposals would either modify or repeal Section 211. These proposals and continuing efforts demonstrate the U.S. commitment to the dispute settlement system.
In this regard, the United States cannot help but note that most speakers under this agenda item were conspicuously silent when the United States announced solutions to the zeroing issue that has occupied so much of the WTO’s time and resources. Having failed to credit U.S. actions in those disputes, their statements today regarding the credibility of the dispute settlement system themselves lack balance and credibility.
Finally, in relation to comments on repealing Section 211, we would like to recall that Section 211 addresses the uncompensated expropriation of assets or businesses. As set forth in paragraphs 362-63 of the Appellate Body Report, the WTO has never challenged the right of the United States – or any other Member – to refuse recognition “in its own territory [to] trademarks, trade names or other rights relating to any intellectual property or other property rights that … have been expropriated or otherwise confiscated in other territories.”
Instead, the DSB has held that when a WTO Member chooses not to recognize intellectual property rights in its own territory relating to an expropriation or confiscation of rights in another territory, its measures must comport with the national treatment and most-favored nation (MFN) obligations of the TRIPS Agreement. We continue to make efforts to address these inconsistencies.
B. UNITED STATES – ANTI‑DUMPING MEASURES ON CERTAIN HOT‑ROLLED STEEL PRODUCTS FROM JAPAN: STATUS REPORT BY THE UNITED STATES (WT/DS184/15/ADD.115)
The United States provided a status report in this dispute on June 14, 2012, in accordance with Article 21.6 of the DSU.
As of November 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.
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.90)The United States provided a status report in this dispute on June 14, 2012, 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.D. EUROPEAN COMMUNITIES – MEASURES AFFECTING THE APPROVAL AND MARKETING OF BIOTECH PRODUCTS: STATUS REPORT BY THE EUROPEAN UNION (WT/DS291/37/ADD.53)The United States thanks the EU for its status report and its statement today.
As the United States has explained at past meetings of the DSB, the United States has substantial concerns regarding EU measures affecting the approval of biotech products.
These concerns include delays in the approval of biotech products.
An important source of delay is the failure of the EU biotech regulatory committee to act in accordance with the findings of the EU’s own scientific authority.
For example, as the EU noted in its statement at the May meeting of the DSB and again today, on May 2nd, the EU regulatory committee considered an application for approval of a biotech soybean variety.[1] The application was supported by a risk assessment issued by the European Food Safety Authority (EFSA).
Nonetheless, the application was not approved. Instead, action on the application is delayed.
After the regulatory committee’s failure to act, the application was sent to an EU appeals committee. The United States understands from the EU’s statement that the appeals committee also failed to act in accordance with the EU risk assessment. This will result in yet further delays.
These types of delays are, unfortunately, routine in the EU approval system.
As a result, the EU measures, including delays in approvals, continue to result in substantial restrictions on the importation of U.S. agricultural products.
We look forward to the EU making progress on this issue.
E. UNITED STATES – ANTI‑DUMPING ADMINISTRATIVE REVIEWS AND OTHER MEASURES RELATED TO IMPORTS OF CERTAIN ORANGE JUICE FROM BRAZIL: STATUS REPORT BY THE UNITED STATES (WT/DS382/11/ADD.6)
The United States provided a status report in this dispute on June 14, 2012.
As previously noted, in February, the U.S. Department of Commerce published a modification to its procedures in order to implement the DSB’s recommendations and rulings regarding the use of “zeroing” in all antidumping reviews, including those concerning the products of Brazil covered in this dispute.
In April, as a result of a determination by the U.S. International Trade Commission, the antidumping duty order on the products covered in this dispute was revoked. The revocation is effective as of March 9, 2011.
In May, the United States rescinded the administrative review of the antidumping duty order for the period March 1, 2011, through March 8, 2011. The notice of rescission was published on May 23, 2012.[2]
In light of the fact that imports of orange juice from Brazil currently enter the United States free from antidumping duties or cash deposits, and pursuant to the agreement between Brazil and the United States,[3] the United States is ready to engage with Brazil on any further questions regarding this matter.
F. UNITED STATES – DEFINITIVE ANTI‑DUMPING AND COUNTERVAILING DUTIES ON CERTAIN PRODUCTS FROM CHINA: STATUS REPORT BY THE UNITED STATES (WT/DS379/12/ADD.5)
The United States provided a status report in this dispute on June 14, 2012, in accordance with Article 21.6 of the DSU.
As noted at the May meeting of the DSB, the U.S. Department of Commerce (“Commerce”) issued preliminary determinations with respect to certain issues in this dispute on April 6, 2012, on April 9, 2012, and on May 18, 2012.
Subsequently, on May 31, 2012, the Department of Commerce issued to interested parties a preliminary determination with respect to the issue of “double remedy” in the antidumping and countervailing duty investigations of circular welded pipe, light‑walled rectangular pipe and tube, certain new pneumatic off‑the‑road tires, and laminated woven sacks.
The Department has provided an opportunity for interested parties to provide comments on those preliminary determinations and to provide rebuttal comments on any comments submitted by other interested parties.
Members will recall that on May 14, 2012, the United States and China notified the DSB that they had reached an agreement on procedures under Articles 21 and 22 of the Dispute Settlement Understanding.[4]
The United States will continue to work on solutions to implement fully the DSB’s recommendations and rulings.
H. UNITED STATES – ANTI‑DUMPING MEASURES ON CERTAIN SHRIMP FROM VIET NAM (WT/DS404/11/ADD.1)
The United States provided a status report in this dispute on June 14, 2012, in accordance with Article 21.6 of the DSU.
In October 2011, the United States and Vietnam jointly notified the DSB of their agreement that the reasonable period of time for the United States to implement the recommendations and rulings of the DSB would end on July 2, 2012.[5]
In February 2012, the U.S. Department of Commerce published a modification to its procedures in order to implement DSB recommendations and rulings regarding the use of “zeroing” in antidumping reviews. This modification addresses certain findings in this dispute.
The United States will continue to consult with interested parties as it works to address the recommendations and rulings of the DSB.
2. UNITED STATES – MEASURES CONCERNING THE IMPORTATION, MARKETING AND SALE OF TUNA AND TUNA PRODUCTS
A. IMPLEMENTATION OF THE RECOMMENDATIONS OF THE DSB
Mr. Chairman, on June 13, 2012, the DSB adopted its recommendations and rulings in this dispute.
As provided in the first sentence of Article 21.3 of the DSU, the United States wishes to inform the DSB that the United States intends to implement the recommendations and rulings of the DSB in a manner that respects U.S. WTO obligations.
The United States will need a reasonable period of time in which to do so.
3. UNITED STATES – CONTINUED DUMPING AND SUBSIDY OFFSET ACT OF 2000: IMPLEMENTATION OF THE RECOMMENDATIONS ADOPTED BY THE DSB
A. 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.
We therefore do not understand the purpose for which the EU and Japan have inscribed this item today.
With respect to comments regarding further status reports in this matter, we may have a disagreement regarding this matter, but the United States fails to see what purpose would be served by further submission of status reports repeating, again, that the United States has taken all actions necessary to implement the DSB’s recommendations and rulings in these disputes.
5. INDIA – MEASURES CONCERNING THE IMPORTATION OF AGRICULTURAL PRODUCTS
A. REQUEST FOR THE ESTABLISHMENT OF A PANEL BY THE UNITED STATES (WT/DS430/3)
As the United States explained at the May meeting of the DSB, the United States – and other WTO Members – have raised concerns with India’s avian influenza measures for several years. These measures prohibit the importation of various agricultural products into India from Members reporting outbreaks of Low Pathogenic Notifiable Avian Influenza (“LPAI”).
These restrictions appear to lack scientific justification and are not consistent with the guidelines of the World Organization for Animal Health. The measures appear to be inconsistent with a number of India’s WTO obligations.
At the May DSB meeting, India asserted that its measures do not currently prohibit imports from the United States because the United States has not had an outbreak of LPAI in the last few months. As we explained then, neither the measures nor any other document states this, and we are not aware of any current U.S. shipments. But in any event, India does not dispute that its measures impose nationwide import prohibitions on a Member as soon as it reports an outbreak of LPAI. These measures create a substantial impediment to trade.
While we appreciate India’s engagement during consultations, India has made clear that it intends to maintain its measures in force.
Therefore, the United States makes this second request for the DSB to establish a panel to examine the matter set out in the U.S. panel request, with standard terms of reference.
6. REPORT ON THE PROGRESS OF THE DIGITAL DS REGISTRY INITIATIVE
We thank the Chair for requesting this report and thank the Secretariat for providing this information. The United States joined 16 other delegations in supporting a request that this information be brought to the DSB.
The United States and various others have been actively participating in the working group in which delegates and the Secretariat have been exchanging information and views on the process of developing an e‑filing system and the possible elements of such a system. We want to thank the Secretariat for organizing these informal meetings, which we have found to be very valuable in deepening our understanding and clarifying our thinking on elements of such a system.
We view the informal working group process as a useful addition to but not a substitute for consideration of this issue by the DSB. WTO Members have expressed their desire recently to reinvigorate the bodies and committees of this organization. And, as the DSB is charged with oversight of the dispute settlement system, this is the appropriate meeting of WTO Members for consideration of a Digital DS Registry, including an e‑filing system.
We also consider that bringing this issue to the DSB promotes even greater transparency, inclusiveness, and participation by Members, including those that may not be able to participate in the informal working group meetings, for example, due to other time commitments.
We consider that it is important, for the development and success of the system, for all Members to have received the same information about the system. As an e‑filing system would affect participation in disputes by all Members, all Members should have an opportunity to provide input on the same basis and with the same information. All Members have an equal stake in the dispute settlement system. We recall the very extensive and useful materials provided to participants in the working group, for example, in relation to other e-filing systems.
One important lesson we have learned already from the information shared in the informal working group is the importance of developing an e‑filing system in phases. That is, the experience of developing other e‑filing systems, including that of organizations within the United States, is that it requires time and significant input from stakeholders to understand the relevant issues for a system and then to develop appropriate responses. Once a basic model has been developed, further phases of development will serve to identify inevitable problems with the original design or further enhancements.
Development in phases permits stakeholders to gain confidence in that system and an understanding that their interests are well reflected in the system.
The potential benefits of an e‑filing system can be realized, we believe, through a sufficiently robust process of development, with adequate input from Members.
We also note that, based on the experiences of other e‑filing systems, it would be important that adequate resources be allocated to support such an undertaking from within existing WTO resources.
With respect to particular elements of the Secretariat presentation today, including elements of an e-filing system and timeline, we take note of the information will reflect further on it.
In sum, we want to reiterate our thanks to the Secretariat for the report provided today. We consider that this report and agenda item benefits the entire Membership. We look forward to future opportunities to discuss the issue both in the informal working group setting and in the DSB as work continues on this important initiative. We believe that an e‑filing system could bring benefits to Members, and we look forward to continuing with a process for its development that permits Members to realize those benefits.