Overview of WTO Jurisprudence in 2013

Bohanes, Jan; Salcedo, Karolyn

doi:10.1007/978-3-662-46748-0_14

Jan Bohanes⁷ &
Karolyn Salcedo⁸

Part of the book series: European Yearbook of International Economic Law ((EUROYEAR,volume 6))

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2 Citations

Abstract

This article presents an overview of the reports (judgments) of Panels and the Appellate Body of the World Trade Organization (WTO) circulated in 2013. For each report, we present the key findings on the most salient issues of systemic importance.

The views expressed in this article are entirely the authors’ own and should not be attributed to either the ACWL or to the Government of the Dominican Republic.

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Notes

1.
Agreement on Subsidies and Countervailing Measures, 1869 U.N.T.S. 14.
2.
General Agreement on Tariffs and Trade (1994), 1867 U.N.T.S. 187.
3.
Agreement on Trade-Related Investment Measures, 1868 U.N.T.S. 186.
4.
Agreement on Technical Barriers to Trade, 1868 U.N.T.S. 120.
5.
See http://en.wikipedia.org/wiki/Nuctech; and http://www.worldsecurity-index.com/details.php?id=1034.
6.
Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement), 1868 U.N.T.S. 201.
7.
See also WTO, report of the Panel, China – Countervailing and Anti-Dumping Duties on Grain Oriented Flat-rolled Electrical Steel from the United States, WT/DS414/R, para. 7.530.
8.
WTO, report of the Panel, European Communities – Anti-Dumping Measure on Farmed Salmon from Norway, WT/DS337/R, paras. 7.46–7.68. WTO, report of the Panel, Korea – Anti-Dumping Duties on Imports of Certain Paper from Indonesia, WT/DS312/R, para. 7.219; WTO, report of the Panel, United States – Final Dumping Determination on Softwood Lumber from Canada, WT/DS264/R, para. 7.157.
9.
WTO, report of the Appellate Body, European Communities – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, para. 1133.
10.
WTO, report of the Appellate Body, United States – Safeguard Measure on Imports of Fresh, Chilled or Frozen Lamb from New Zealand, WT/DS117/AB/R, para. 113. WTO, report of the Appellate Body, United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan, WT/DS244/AB/R, para. 131.
11.
WTO, report of the Panel, China – Definitive Anti-Dumping Duties on X-Ray Security Inspection Equipment from the European Union, WT/DS425/R, para. 7.40.
12.
WTO, report of the Appellate Body, Thailand – Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H Beams from Poland, WT/DS122/AB/R, para. 125.
13.
WTO, report of the Panel, European Communities – Anti-Dumping Duties on Imports of Cotton-type Bed Linen from India (21.5), WT/DS141/RW, para. 6.162.
14.
WTO, report of the Appellate Body, European Communities – Anti-Dumping Duties on Malleable Cast Iron Tube or Pipe Fittings from Brazil, WT/DS219/AB/R, para. 161. The possibility of such an “implicit” evaluation seems to have been alluded also in the Panel report in European Communities – Anti-Dumping Duties on Imports of Cotton-type Bed Linen from India (21.5), WT/DS141/RW, para. 6.162.
15.
WTO, report of the Panel, China – Definitive Anti-Dumping Duties on X-Ray Security Inspection Equipment from the European Union, WT/DS425/R, para. 7.184.
16.
WTO, report of the Panel, China – Definitive Anti-Dumping Duties on X-Ray Security Inspection Equipment from the European Union, WT/DS425/R, para. 7.296.
17.
WTO, report of the Appellate Body, China – Countervailing and Anti-Dumping Duties on Grain Oriented Flat-rolled Electrical Steel from the United States, WT/DS414/AB/R, paras. 149–150.
18.
WTO, report of the Appellate Body, China – Countervailing and Anti-Dumping Duties on Grain Oriented Flat-rolled Electrical Steel from the United States, WT/DS414/AB/R, para. 150.
19.
WTO, report of the Panel, China – Definitive Anti-Dumping Duties on X-Ray Security Inspection Equipment from the European Union, WT/DS425/R, para. 7.263.
20.
WTO, report of the Panel, China – Definitive Anti-Dumping Duties on X-Ray Security Inspection Equipment from the European Union, WT/DS425/R, para. 7.334, quoting report of the Panel, Mexico – Definitive Countervailing Measures on Olive Oil from the European Communities, WT/DS341/R, para. 7.90.
21.
WTO, report of the Panel, China – Definitive Anti-Dumping Duties on X-Ray Security Inspection Equipment from the European Union, WT/DS425/R, para. 7.363.
22.
WTO, report of the Panel, China – Definitive Anti-Dumping Duties on X-Ray Security Inspection Equipment from the European Union, WT/DS425/R, para. 7.370.
23.
WTO, report of the Panel, China – Definitive Anti-Dumping Duties on X-Ray Security Inspection Equipment from the European Union, WT/DS425/R, para. 7.404.
24.
WTO, report of the Panel, China – Definitive Anti-Dumping Duties on X-Ray Security Inspection Equipment from the European Union, WT/DS425/R, para. 7.420.
25.
This rate is sometimes referred to as the “all others” rate; however, sometimes that term is used for the rate applied to unknown exporters.
26.
A company may be “hiding” because it suspects it would receive a high individual dumping margin if investigated individually. It may therefore “hide” to benefit from a rate calculated based on the data excluding its own low export price.
27.
Article 6.10 of the Anti-Dumping Agreement.
28.
Article 9.4 of the Anti-Dumping Agreement.
29.
This view relies on the fact that Article 6.10 refers to known exporters, and Article 9.4 refers to Article 6.10. Moreover, this postulated existence of a lacuna Anti-Dumping Agreement.
30.
WTO, report of the Panel, European Communities – Anti-Dumping Measure on Farmed Salmon from Norway, WT/DS337/R, para. 7.431.
31.
This view finds support in the fact that Article 9.4 refers only to the second sentence of Article 6.10, which (unlike the first sentence) does not refer to unknown exporters.
32.
Appellate Body Report, Mexico – Definitive Anti-Dumping Measures on Beef and Rice, WT/DS295/AB/R, paras. 258–259.
33.
WTO, report of the Appellate Body, United States – Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan, WT/DS184/AB/R, footnote 60.
34.
These “facts available” can include information provided by the domestic industry, which is highly unlikely to be favourable to the exporter.
35.
WTO, report of the Panel, China – Countervailing and Anti-Dumping Duties on Grain Oriented Flat-rolled Electrical Steel from the United States, WT/DS414/R, paras. 7.383–7.393.
36.
WTO, report of the Panel, China – Anti-Dumping and Countervailing Duty Measures on Broiler Products from the United States, WT/DS427/R, para. 7.303.
37.
WTO, report of the Panel, China – Anti-Dumping and Countervailing Duty Measures on Broiler Products from the United States, WT/DS427/R, para. 7.304.
38.
The Panel reached a similar finding concerning the “all others” countervailing duty. It found that there was no rational connection between the highest individual rate and the “all others” rate applied by MOFCOM, because the former was 12.5 %, while the latter was 30.3 %. WTO, report of the Panel, China – Anti-Dumping and Countervailing Duty Measures on Broiler Products from the United States, WT/DS427/R, para. 7.359.
39.
Article 4.1 of the Anti-Dumping Agreement and Article 16.1 of the SCM Agreement.
40.
WTO, report of the Panel, European Communities – Anti-Dumping Measure on Farmed Salmon from Norway, WT/DS337/R, para. 7.116.
41.
WTO, report of the Appellate Body, European Communities – Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China, WT/DS397/AB/R, para. 427.
42.
WTO, report of the Panel, China – Anti-Dumping and Countervailing Duty Measures on Broiler Products from the United States, WT/DS427/R, para. 7.423.
43.
WTO, report of the Panel, China – Anti-Dumping and Countervailing Duty Measures on Broiler Products from the United States, WT/DS427/R, para. 7.435.
44.
WTO, report of the Panel, China – Definitive Anti-Dumping Duties on X-Ray Security Inspection Equipment from the European Union, WT/DS425/R, para. 7.420.
45.
WTO, report of the Panel, China – Anti-Dumping and Countervailing Duty Measures on Broiler Products from the United States, WT/DS427/R, para. 7.92.
46.
WTO, report of the Panel, China – Anti-Dumping and Countervailing Duty Measures on Broiler Products from the United States, WT/DS427/R, fn. 175.
47.
For instance, WTO, report of the Panel, China – Definitive Anti-Dumping Duties on X-Ray Security Inspection Equipment from the European Union, WT/DS425/R, paras. 7.4–7.7 and WTO, report of the Appellate Body, United States – Countervailing Duty Investigation on Dynamic Random Access Memory Semiconductors (DRAMS) from Korea, WT/DS296/AB/R, paras. 186–187.
48.
WTO, report of the Panel, China – Anti-Dumping and Countervailing Duty Measures on Broiler Products from the United States, WT/DS427/R, para. 7.171.
49.
Amicus curiae briefs were reportedly submitted by, inter alia, “Pamela Anderson on behalf of People for the Ethical Treatment of Animals (PETA)” and by Jude Law. WTO, report of the Panel, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS401/R, fn. 16.
50.
WTO, report of the Panel, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS401/R, para. 7.99.
51.
WTO, report of the Panel, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS401/R, para. 7.510.
52.
WTO, report of the Appellate Body, European Communities – Measures Affecting Asbestos and Products Containing Asbestos, WT/DS135/AB/R, para. 70, fn. 40.
53.
In particular, the prohibition to apply unnecessarily trade-restrictive measures even in the absence of discrimination. The GATT, in essence, requires only non-discrimination.
54.
WTO, report of the Panel, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS401/R, para. 7.638.
55.
WTO, report of the Panel, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS401/R, para. 7.402.
56.
WTO, report of the Panel, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS401/R, para. 7.402.
57.
However, see the finding of the Panel in China – Measures Related to the Exportation of Rare Earths, Tungsten and Molybdenum, WT/DS431/R, para. 7.349.
58.
WTO, report of the Panel, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS401/R, para. 7.460.
59.
WTO, report of the Panel, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS401/R, para. 7.447.
60.
WTO, report of the Panel, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS401/R, para. 7.496.
61.
WTO, report of the Panel, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS401/R, para. 7.502.
62.
WTO, report of the Panel, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS401/R, para. 7.503.
63.
WTO, report of the Panel, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS401/R, para. 7.503.
64.
WTO dispute, United States – Certain Country of Origin Labelling (COOL) Requirements, WT/DS384.
65.
WTO dispute, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS 381.
66.
WTO dispute, United States – Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS 406.
67.
For instance, as already noted above, creating trade-related benefits and exemptions measures for the benefit of unilaterally selected defined indigenous communities has the risk of differentiating between different WTO members and circumventing the MFN principle.
68.
WTO, report of the Panel, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS401/R, para. 7.441.
69.
WTO, report of the Panel, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS401/R, para. 7.503.
70.
In reality, there is no single “zeroing” methodology. Rather, there are several permutations of zeroing, of which the WTO case law appears to have addressed all but one, namely, zeroing in the context of the so-called targeted dumping methodology, pursuant to Article 2.4.2, second sentence, of the Anti-Dumping Agreement.
71.
WTO, report of the Appellate Body, United States – Final Anti-Dumping Measures on Stainless Steel from Mexico, WT/DS344/AB/R, para. 160.
72.
Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), 1869 U.N.T.S. 401.
73.
See WTO, United States – Final Anti-Dumping Measures on Stainless Steel from Mexico, Notification of a mutually agreed solution, WT/DS344/26, G/L/778/Add.1, G/ADP/D67/2.
74.
WTO dispute, European Communities – Trade Description of Scallops, WT/DS7, WT/DS12, WT/DS14) and WTO dispute, United States – Anti-Dumping Measures on Cement from Mexico, WT/DS281.
75.
WTO, report of the Panel, Canada – Measures Relating to the Feed-in Tariff Program, WT/DS412/R, WT/DS426/R, para. 7.125.
76.
See WTO, report of the Appellate Body, Canada – Measures Relating to the Feed-in Tariff Program, WT/DS412/AB/R, WT/DS426/AB/R, para. 5.63.
77.
See WTO, report of the Panel, Canada – Measures Relating to the Feed-in Tariff Program, WT/DS412/R, WT/DS426/R, para. 7.245.
78.
WTO, report of the Appellate Body, Canada – Measures Relating to the Feed-in Tariff Program, WT/DS412/AB/R, WT/DS426/AB/R, paras. 5.119–5.121, referring to report of the Panel, Canada – Measures Relating to the Feed-in Tariff Program, WT/DS412/R, WT/DS426/R, para. 7.246.
79.
WTO, report of the Appellate Body, Canada – Measures Relating to the Feed-in Tariff Program, WT/DS412/AB/R, WT/DS426/AB/R, paras. 5.130–5.131.
80.
WTO, report of the Panel, Canada – Measures Relating to the Feed-in Tariff Program, WT/DS412/R, WT/DS426/R, para. 7.320.
81.
WTO, report of the Panel, Canada – Measures Relating to the Feed-in Tariff Program, WT/DS412/R, WT/DS426/R, para. 9.6.
82.
WTO, report of the Panel, Canada – Measures Relating to the Feed-in Tariff Program, WT/DS412/R, WT/DS426/R, para. 9.23.
83.
WTO, report of the Appellate Body, United States – Final Countervailing Duty Determination with respect to certain Softwood Lumber from Canada, WT/DS257/AB/R, para. 103.
84.
WTO, report of the Panel, United States – Subsidies on Upland Cotton, WT/DS267/R, para. 7.1274 and WTO, report of the Appellate Body, United States – Subsidies on Upland Cotton, WT/DS267/AB/R, paras. 404–414.
85.
WTO dispute, European Union and certain Member States – Certain Measures Affecting the Renewable Energy Generation Sector, WT/DS452.

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Advisory Centre on WTO Law (ACWL), Avenue Giuseppe Motta 31-33, C.P.132, Geneve 20, 1211, Geneva, Switzerland
Jan Bohanes
World Customs Organization, Rue du Marché, 30, 1210, Brussels, Belgium
Karolyn Salcedo

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Faculty of Law, University of Passau, Passau, Germany
Christoph Herrmann
Faculty of Law, University of Erlangen-Nürnberg, Erlangen, Germany
Markus Krajewski
Competition and Regulation Institute, Leuphana University of Lüneburg, Lüneburg, Germany
Jörg Philipp Terhechte

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Bohanes, J., Salcedo, K. (2015). Overview of WTO Jurisprudence in 2013. In: Herrmann, C., Krajewski, M., Terhechte, J. (eds) European Yearbook of International Economic Law 2015. European Yearbook of International Economic Law, vol 6. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-46748-0_14

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