Remedies and conformity under the WTO agreement

Journal of International Economic Law

Volumn 5, Issue 2, 2002, Pages 307-329

  Carmody, Chi ^a  

^a UNIVERSITY OF WESTERN ONTARIO   (Canada)

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EID: 0344981499     PISSN: 13693034     EISSN: None     Source Type: Journal    
DOI: 10.1093/jiel/5.2.307     Document Type: Review

References (98)

1. For some recent work, see generally Malcolm D. Evans (ed), Remedies in International Law (1998); Dinah Shelton, Remedies in International Human Rights Law (1999).
2. For some recent work, see generally Malcolm D. Evans (ed), Remedies in International Law (1998); Dinah Shelton, Remedies in International Human Rights Law (1999).
3. Robert E. Hudec, The New WTO Dispute Settlement Procedure: An Overview of the First Three Years, 8 Minn J Global Trade 1, 2 (1999) (commenting that 'The creation of the new WTO dispute settlement procedure was viewed as a signal event in international legal affairs - the birth of an important new legal institution that seemed to have unusually effective powers to regulate an important area of government economic policy'); Jay L. Eizenstat, The Impact of the World Trade Organization on Unilateral United States Trade Sanctions under Section 301 of the Trade Act of 1974: A Case Study of the Japanese Auto Dispute and the Fuji-Kodak Dispute, 11 Emory Int'l L Rev 137 (1997) (referring to the fact that the Uruguay Round 'has created the WTO, a world trade body that will infuse the GATT system with comprehensive, effective, and enforceable world trade rules and procedures').
4. Robert E. Hudec, The New WTO Dispute Settlement Procedure: An Overview of the First Three Years, 8 Minn J Global Trade 1, 2 (1999) (commenting that 'The creation of the new WTO dispute settlement procedure was viewed as a signal event in international legal affairs - the birth of an important new legal institution that seemed to have unusually effective powers to regulate an important area of government economic policy'); Jay L. Eizenstat, The Impact of the World Trade Organization on Unilateral United States Trade Sanctions under Section 301 of the Trade Act of 1974: A Case Study of the Japanese Auto Dispute and the Fuji-Kodak Dispute, 11 Emory Int'l L Rev 137 (1997) (referring to the fact that the Uruguay Round 'has created the WTO, a world trade body that will infuse the GATT system with comprehensive, effective, and enforceable world trade rules and procedures').
5. 55 UNTS 194, TIAS 1700 (30 October 1947).
6. 55 UNTS 194, TIAS 1700 (30 October 1947).
7. For a full discussion of these defects of the original GATT see Michael Patrick Tkacik, Post-Uruguay Round GATT/WTO Dispute Settlement: Substance, Strengths, Weaknesses and Causes for Concern, 9 Int'l Legal Perspectives 169 (Fall 1997).
8. 33 ILM 1125 (1994).
9. As provided for by Art. 3.7 of the WTO Dispute Settlement Understanding, 33 ILM 1125 (1994), the WTO's code of dispute settlement procedures.
10. Ibid. DSU Art. 3.7 provides that 'In the absence of a mutually agreed solution, the first objective of the dispute settlement mechanism is usually to secure the withdrawal of the measure concerned...'.
11. Ibid. Compensation is to be granted on an MFN basis as required by the phrase 'consistent with the covered agreements' appearing in DSU Art. 22.1.
12. 'The last resort which this Understanding provides to the Member invoking the dispute settlement procedures is the possibility of suspending the application of concessions or other obligations under the covered agreements on a discriminatory basis...': ibid.
13. Statistics taken from the WTO website, visited 2 February 2002. Suspensory retaliation continues in fact in EC - Measures Concerning Meat and Meat Products (Hormones), WT/DS26-48. In that case authorization for the United States and Canada to retaliate in the total amount of $124 million was granted in July 1999. Suspensory retaliation has been authorized, but not implemented, in Brazil Export Financing Program for Aircraft, WT/DS46/ARB (28 August 2000) and has been requested in US - Section 110(5) Copyright Act, WT/DS160 and US - Anti-dumping Act of 1916, WT/DS136, 162.
14. Statistics taken from the WTO website, visited 2 February 2002. Suspensory retaliation continues in fact in EC - Measures Concerning Meat and Meat Products (Hormones), WT/DS26-48. In that case authorization for the United States and Canada to retaliate in the total amount of $124 million was granted in July 1999. Suspensory retaliation has been authorized, but not implemented, in Brazil Export Financing Program for Aircraft, WT/DS46/ARB (28 August 2000) and has been requested in US - Section 110(5) Copyright Act, WT/DS160 and US - Anti-dumping Act of 1916, WT/DS136, 162.
15. Statistics taken from the WTO website, visited 2 February 2002. Suspensory retaliation continues in fact in EC - Measures Concerning Meat and Meat Products (Hormones), WT/DS26-48. In that case authorization for the United States and Canada to retaliate in the total amount of $124 million was granted in July 1999. Suspensory retaliation has been authorized, but not implemented, in Brazil Export Financing Program for Aircraft, WT/DS46/ARB (28 August 2000) and has been requested in US - Section 110(5) Copyright Act, WT/DS160 and US - Anti-dumping Act of 1916, WT/DS136, 162.
16. Statistics taken from the WTO website, visited 2 February 2002. Suspensory retaliation continues in fact in EC - Measures Concerning Meat and Meat Products (Hormones), WT/DS26-48. In that case authorization for the United States and Canada to retaliate in the total amount of $124 million was granted in July 1999. Suspensory retaliation has been authorized, but not implemented, in Brazil Export Financing Program for Aircraft, WT/DS46/ARB (28 August 2000) and has been requested in US - Section 110(5) Copyright Act, WT/DS160 and US - Anti-dumping Act of 1916, WT/DS136, 162.
17. Joost Pauwelyn, Enforcement and Countermeasures in the WTO: Rules are Rules - Toward a More Collective Approach, 94 AJIL 335 (2000).
18. Steve Charnovitz, Rethinking WTO Trade Sanctions, 95 Am J Int'l L 792 (2001); Edwini Kessie, Enhancing Security and Predictability for Private Business Operators under the Dispute Settlement System of the WTO, JWT 1 (December 2000); Patricio Grané, Remedies under WTO Law, 4(4) JIEL 755 (2001).
19. Steve Charnovitz, Rethinking WTO Trade Sanctions, 95 Am J Int'l L 792 (2001); Edwini Kessie, Enhancing Security and Predictability for Private Business Operators under the Dispute Settlement System of the WTO, JWT 1 (December 2000); Patricio Grané, Remedies under WTO Law, 4(4) JIEL 755 (2001).
20. Steve Charnovitz, Rethinking WTO Trade Sanctions, 95 Am J Int'l L 792 (2001); Edwini Kessie, Enhancing Security and Predictability for Private Business Operators under the Dispute Settlement System of the WTO, JWT 1 (December 2000); Patricio Grané, Remedies under WTO Law, 4(4) JIEL 755 (2001).
21. EU, US Take Sharply Different Tacks on Dispute Resolution, Inside US Trade (22 June 2001) (discussing a US proposal to the EC for a mediation track for transatlantic trade disputes outside the framework of the WTO Agreement).
22. K. Kress, Formalism, Corrective Justice and Tort Law, 77 Iowa L Rev i, ii (1992).
23. Abraham Chayes, The Role of the Judge in Public Law Litigation, 89 Harv L Rev 1281, 1302 (1976).
24. Lon Fuller and R. Purdue, The Reliance Interest in Contract Damages, 46 Yale LJ 52 (1936).
25. David Laycock, Modern American Remedies 2 (1985).
26. Ibid, at 3.
27. Edwin Borchard, Declaratory Judgments xv-xvi (2nd ed) (1941).
28. Idem xiv.
29. Cass R. Sunstein, Foreword: Leaving Things Undecided, 110 Harv L Rev 4 (1996).
30. Nor is ambiguity useful only to the parties involved in the dispute. It can also assist judges. Ambiguity obscures where judges are reluctant to intrude because of knowledge that involvement consumes judicial time and may compromise objectivity, In addition, where judges must become involved, their powers are necessarily engaged. Vagueness helps them to finesse the finer points of their jurisdiction and preserve the court's prestige.
31. Christine Gray, Judicial Remedies in International Law 5 (1990).
32. Case concerning the Factory at Chorzów, PCIJ Series A, No 9 (1927).
33. See Draft Articles on the Responsibility of States for Internationally Wrongful Acts, A/56/10 (November 2001) available at www.un.org/law/ilc/texts.
34. Yearbook of the International Law Commission 1993, Vol. II (Part Two), p 55.
35. I b i d.
36. Gray, above, n 23 at 4.
37. DASR p 324.
38. 33 ILM 1226 (1994).
39. Under GATT, for instance, there were several cases where the panel made recommendations to both parties that had the effect of modifying the obligation to conform. In the 1962 panel report French Import Restrictions, BISD 11th Supp 94 (14 November 1962), for instance, the panel indicated that a recommendation could be made to the French government to withdraw its restrictions and a recommendation could be made to the complainant, the United States, to refrain from exercising its right to propose retaliatory suspension. The recommendations were duly made and the case was later settled. Another case, Jamaica - Margins of Preference, BISD 18th Supp 183 (2 February 1971), involved Jamaica's accession to GATT. Jamaica had acceded in 1963 under GATT Art XXVI:5(c) as a former colony of Britain. This imposed upon Jamaica the obligation to observe Britain's base date for margins of tariff preference, 10 April 1947. In 1967 Jamaica raised its margins of preference and was immediately challenged by its trading partners. The panel found that the increase was inconsistent with GATT, but observed that it was important to find a solution 'which would take into account the uniqueness of the Jamaican case and would therefore permit Jamaica to apply in a legally correct manner margins of preference as they were in effect on 1 August 1962, the date the General Agreement was first applied to the territory of Jamaica' (p 187) The panel suggested that the Contracting Parties grant a waiver to change Jamaica's base date to the date of its independence and took the unusual step of drawing up a draft. The waiver was subsequently agreed to: BISD 18th Supp 33 (2 March 1971).
40. Under GATT, for instance, there were several cases where the panel made recommendations to both parties that had the effect of modifying the obligation to conform. In the 1962 panel report French Import Restrictions, BISD 11th Supp 94 (14 November 1962), for instance, the panel indicated that a recommendation could be made to the French government to withdraw its restrictions and a recommendation could be made to the complainant, the United States, to refrain from exercising its right to propose retaliatory suspension. The recommendations were duly made and the case was later settled. Another case, Jamaica - Margins of Preference, BISD 18th Supp 183 (2 February 1971), involved Jamaica's accession to GATT. Jamaica had acceded in 1963 under GATT Art XXVI:5(c) as a former colony of Britain. This imposed upon Jamaica the obligation to observe Britain's base date for margins of tariff preference, 10 April 1947. In 1967 Jamaica raised its margins of preference and was immediately challenged by its trading partners. The panel found that the increase was inconsistent with GATT, but observed that it was important to find a solution 'which would take into account the uniqueness of the Jamaican case and would therefore permit Jamaica to apply in a legally correct manner margins of preference as they were in effect on 1 August 1962, the date the General Agreement was first applied to the territory of Jamaica' (p 187) The panel suggested that the Contracting Parties grant a waiver to change Jamaica's base date to the date of its independence and took the unusual step of drawing up a draft. The waiver was subsequently agreed to: BISD 18th Supp 33 (2 March 1971).
41. Under GATT, for instance, there were several cases where the panel made recommendations to both parties that had the effect of modifying the obligation to conform. In the 1962 panel report French Import Restrictions, BISD 11th Supp 94 (14 November 1962), for instance, the panel indicated that a recommendation could be made to the French government to withdraw its restrictions and a recommendation could be made to the complainant, the United States, to refrain from exercising its right to propose retaliatory suspension. The recommendations were duly made and the case was later settled. Another case, Jamaica - Margins of Preference, BISD 18th Supp 183 (2 February 1971), involved Jamaica's accession to GATT. Jamaica had acceded in 1963 under GATT Art XXVI:5(c) as a former colony of Britain. This imposed upon Jamaica the obligation to observe Britain's base date for margins of tariff preference, 10 April 1947. In 1967 Jamaica raised its margins of preference and was immediately challenged by its trading partners. The panel found that the increase was inconsistent with GATT, but observed that it was important to find a solution 'which would take into account the uniqueness of the Jamaican case and would therefore permit Jamaica to apply in a legally correct manner margins of preference as they were in effect on 1 August 1962, the date the General Agreement was first applied to the territory of Jamaica' (p 187) The panel suggested that the Contracting Parties grant a waiver to change Jamaica's base date to the date of its independence and took the unusual step of drawing up a draft. The waiver was subsequently agreed to: BISD 18th Supp 33 (2 March 1971).
42. BISD 34th Supp 136 (17 June 1987).
43. Subsequent to adoption of the panel report the GATT Council was asked by the Community in March 1988 to authorize the withdrawal of equivalent concessions, and later in May 1988 the Community submitted a list of specific US products that it was interested in retaliating against. The GATT Secretariat was then requested to give technical advice to the parties concerning the request, in particular, whether the Community's assessment of damage was correct and, if not, what the appropriate amount of retaliation would be. The European proposal foresaw retaliation against $7.73 million worth of petroleum and 'certain other liquid hydrocarbon products'. The Secretariat generally concurred in this assessment, but noted that any calculation of injury depended upon price elasticities of the goods affected by the US measure, that is, 'the change in prices... received by Community's exporters which is induced by the Superfund tax differential'. It went on to observe that: The difficulty is that empirical estimates of price elasticities of supply or demand, if available at all, usually vary substantially depending on the model used (level of product disaggregation, factors included in the analysis, underlying time period, technique of estimation, and so forth). The choice of the various elements of the estimation procedure necessarily involves a measure of subjectivity. This is why objective and precise empirical estimates of short-run or long-run price elasticities of export supply and demand for petroleum and petroleum products of the Community are non-existent. Due to the fact that there was no way of objectively determining the relevant elasticities, the Secret-ariat suggested that the parties consider options based on i) perfect inelasticity, ii) available price elasticities or iii) a percentage-of-maximum injury rule. It also stated that the impact of any retaliation on US exports to the Community would 'change as trade conditions change'. Therefore, 'if the target was to maintain a certain correspondence between the injury and the retaliatory measure over time, it would be necessary to recalculate the loss... year to year and adjust the retaliatory action accordingly'. See Note by the GATT Secretariat, Spec (88) 48 (5 October 1988).
44. See, for example, EC - Bed Linen, WT/DS141, where the Appellate Body ruled against the EC and found the EC's anti-dumping measure, which increased duties on imports from Egypt, India, and Pakistan, inconsistent with its WTO obligations. The panel and the Appellate Body made no recommendation as to how the EC should comply with the decision. In August 2001 the EC amended its old regulation imposing definitive anti-dumping duties on imports from Egypt, India, and Pakistan, but then suspended its application with regard to imports originating in India. Although India did not fully agree that the EC's action constituted full compliance with the Appellate Body report, it agreed to settle the dispute. The amended measure keeps anti-dumping duties in place against India, but suspends their effect. See also proceedings in United States - Countervailing Measures Concerning Certain Products from the European Communities, WT/DS212 (ongoing panel) where the EC contends that 'flow through' methodology which the US Department of Commerce continues to employ violates an earlier WTO decision, United States - Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, WT/DS138 (10 May 2000).
45. See, for example, EC - Bed Linen, WT/DS141, where the Appellate Body ruled against the EC and found the EC's anti-dumping measure, which increased duties on imports from Egypt, India, and Pakistan, inconsistent with its WTO obligations. The panel and the Appellate Body made no recommendation as to how the EC should comply with the decision. In August 2001 the EC amended its old regulation imposing definitive anti-dumping duties on imports from Egypt, India, and Pakistan, but then suspended its application with regard to imports originating in India. Although India did not fully agree that the EC's action constituted full compliance with the Appellate Body report, it agreed to settle the dispute. The amended measure keeps anti-dumping duties in place against India, but suspends their effect. See also proceedings in United States - Countervailing Measures Concerning Certain Products from the European Communities, WT/DS212 (ongoing panel) where the EC contends that 'flow through' methodology which the US Department of Commerce continues to employ violates an earlier WTO decision, United States - Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, WT/DS138 (10 May 2000).
46. See, for example, EC - Bed Linen, WT/DS141, where the Appellate Body ruled against the EC and found the EC's anti-dumping measure, which increased duties on imports from Egypt, India, and Pakistan, inconsistent with its WTO obligations. The panel and the Appellate Body made no recommendation as to how the EC should comply with the decision. In August 2001 the EC amended its old regulation imposing definitive anti-dumping duties on imports from Egypt, India, and Pakistan, but then suspended its application with regard to imports originating in India. Although India did not fully agree that the EC's action constituted full compliance with the Appellate Body report, it agreed to settle the dispute. The amended measure keeps anti-dumping duties in place against India, but suspends their effect. See also proceedings in United States - Countervailing Measures Concerning Certain Products from the European Communities, WT/DS212 (ongoing panel) where the EC contends that 'flow through' methodology which the US Department of Commerce continues to employ violates an earlier WTO decision, United States - Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, WT/DS138 (10 May 2000).
47. Recommendations for a ruling have been made in situations where the matter was found not to be properly before the panel: Brazil - Measures Affecting Dessicated Coconut, WT/DS22/R (17 October 1996); Guatemala - Anti-Dumping Investigation Regarding Portland Cement from Mexico, WT/DS60/R (19 June 1998). They have also been made where the measure had expired prior to issue of the final report: United States - Measure Affecting Imports of Woven Wool Shirts and Blouses from India, WT/DS33/R (6 January 1997).
48. Recommendations for a ruling have been made in situations where the matter was found not to be properly before the panel: Brazil - Measures Affecting Dessicated Coconut, WT/DS22/R (17 October 1996); Guatemala - Anti-Dumping Investigation Regarding Portland Cement from Mexico, WT/DS60/R (19 June 1998). They have also been made where the measure had expired prior to issue of the final report: United States - Measure Affecting Imports of Woven Wool Shirts and Blouses from India, WT/DS33/R (6 January 1997).
49. Recommendations for a ruling have been made in situations where the matter was found not to be properly before the panel: Brazil - Measures Affecting Dessicated Coconut, WT/DS22/R (17 October 1996); Guatemala - Anti-Dumping Investigation Regarding Portland Cement from Mexico, WT/DS60/R (19 June 1998). They have also been made where the measure had expired prior to issue of the final report: United States - Measure Affecting Imports of Woven Wool Shirts and Blouses from India, WT/DS33/R (6 January 1997).
50. See for instance Guatemala - Anti-Dumping Investigation Regarding Imports of Portland Cement from Mexico, WT/DS60 (19 June 1998) where the panel suggested in para 8.6 that 'we suggest that Guatemala revoke the existing anti-dumping measure on imports of Mexican cement, because, in our view, this is the only appropriate means of implementing our recommendation'. In that case, the Appellate Body overturned the panel report on other grounds, but made its own observation to the complainant, Mexico. In a follow-up case, Guatemala - Definitive Anti-Dumping Measures on Grey Portland Cement From Mexico, WT/DS156/4, (24 October 2000), the panel refused to make a specific recommendation of reimbursement of anti-dumping duties. In United States - Antidumping Act of 1916, WT/DS136 (31 March 2000) the panel suggested in para 6.292 that 'As a result, we suggest that one way for the United States to bring the 1916 Act into conformity with its WTO obligations would be to repeal the 1916 Act'. On appeal, the Appellate Body upheld all of the findings and conclusions of the panel that were appealed, but it did not refer to the panel's specific suggestion. In United States - Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, WT/DS138 (23 December 1999) the panel concluded in para 8.2 'we note that the United States has continued to apply its change-in-ownership methodology during the course of the present dispute. We would suggest that the United States takes all appropriate steps, including a revision of its administrative practices, to prevent the afore-mentioned violation of Article 10 of the SCM Agreement from arising in the future'. However, the Appellate Body simply recommended that the United States bring its measures into conformity.
51. See for instance Guatemala - Anti-Dumping Investigation Regarding Imports of Portland Cement from Mexico, WT/DS60 (19 June 1998) where the panel suggested in para 8.6 that 'we suggest that Guatemala revoke the existing anti-dumping measure on imports of Mexican cement, because, in our view, this is the only appropriate means of implementing our recommendation'. In that case, the Appellate Body overturned the panel report on other grounds, but made its own observation to the complainant, Mexico. In a follow-up case, Guatemala - Definitive Anti-Dumping Measures on Grey Portland Cement From Mexico, WT/DS156/4, (24 October 2000), the panel refused to make a specific recommendation of reimbursement of anti-dumping duties. In United States - Antidumping Act of 1916, WT/DS136 (31 March 2000) the panel suggested in para 6.292 that 'As a result, we suggest that one way for the United States to bring the 1916 Act into conformity with its WTO obligations would be to repeal the 1916 Act'. On appeal, the Appellate Body upheld all of the findings and conclusions of the panel that were appealed, but it did not refer to the panel's specific suggestion. In United States - Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, WT/DS138 (23 December 1999) the panel concluded in para 8.2 'we note that the United States has continued to apply its change-in-ownership methodology during the course of the present dispute. We would suggest that the United States takes all appropriate steps, including a revision of its administrative practices, to prevent the afore-mentioned violation of Article 10 of the SCM Agreement from arising in the future'. However, the Appellate Body simply recommended that the United States bring its measures into conformity.
52. See for instance Guatemala - Anti-Dumping Investigation Regarding Imports of Portland Cement from Mexico, WT/DS60 (19 June 1998) where the panel suggested in para 8.6 that 'we suggest that Guatemala revoke the existing anti-dumping measure on imports of Mexican cement, because, in our view, this is the only appropriate means of implementing our recommendation'. In that case, the Appellate Body overturned the panel report on other grounds, but made its own observation to the complainant, Mexico. In a follow-up case, Guatemala - Definitive Anti-Dumping Measures on Grey Portland Cement From Mexico, WT/DS156/4, (24 October 2000), the panel refused to make a specific recommendation of reimbursement of anti-dumping duties. In United States - Antidumping Act of 1916, WT/DS136 (31 March 2000) the panel suggested in para 6.292 that 'As a result, we suggest that one way for the United States to bring the 1916 Act into conformity with its WTO obligations would be to repeal the 1916 Act'. On appeal, the Appellate Body upheld all of the findings and conclusions of the panel that were appealed, but it did not refer to the panel's specific suggestion. In United States - Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, WT/DS138 (23 December 1999) the panel concluded in para 8.2 'we note that the United States has continued to apply its change-in-ownership methodology during the course of the present dispute. We would suggest that the United States takes all appropriate steps, including a revision of its administrative practices, to prevent the afore-mentioned violation of Article 10 of the SCM Agreement from arising in the future'. However, the Appellate Body simply recommended that the United States bring its measures into conformity.
53. See for instance Guatemala - Anti-Dumping Investigation Regarding Imports of Portland Cement from Mexico, WT/DS60 (19 June 1998) where the panel suggested in para 8.6 that 'we suggest that Guatemala revoke the existing anti-dumping measure on imports of Mexican cement, because, in our view, this is the only appropriate means of implementing our recommendation'. In that case, the Appellate Body overturned the panel report on other grounds, but made its own observation to the complainant, Mexico. In a follow-up case, Guatemala - Definitive Anti-Dumping Measures on Grey Portland Cement From Mexico, WT/DS156/4, (24 October 2000), the panel refused to make a specific recommendation of reimbursement of anti-dumping duties. In United States - Antidumping Act of 1916, WT/DS136 (31 March 2000) the panel suggested in para 6.292 that 'As a result, we suggest that one way for the United States to bring the 1916 Act into conformity with its WTO obligations would be to repeal the 1916 Act'. On appeal, the Appellate Body upheld all of the findings and conclusions of the panel that were appealed, but it did not refer to the panel's specific suggestion. In United States - Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, WT/DS138 (23 December 1999) the panel concluded in para 8.2 'we note that the United States has continued to apply its change-in-ownership methodology during the course of the present dispute. We would suggest that the United States takes all appropriate steps, including a revision of its administrative practices, to prevent the afore-mentioned violation of Article 10 of the SCM Agreement from arising in the future'. However, the Appellate Body simply recommended that the United States bring its measures into conformity.
54. WT/DS2-4 (22 April 1996).
55. US Environmental Protection Agency, Regulation of Fuels and Fuel Additives: Baseline Requirements for Gasoline Produced by Foreign Refiners, 62 Fed Reg 45533 (28 August 1997) (codified at 40 CFR § 80).
56. US Environmental Protection Agency, Regulation of Fuels and Fuel Additives: Baseline Requirements for Gasoline Produced by Foreign Refiners, 62 Fed Reg 45533 (28 August 1997) (codified at 40 CFR § 80).
57. WT/DS58/AB/R (12 October 1998).
58. The US revised administrative guidelines concerning imports of foreign shrimp and engaged in efforts to negotiate a multilateral shrimping agreement with its trading partners. Later, however, Malaysia requested that the matter be referred to the original panel pursuant to DSU Art. 21.5, contending that by not lifting the import prohibition and not taking the necessary measures to allow the importation of certain shrimp and shrimp products in an unrestrictive manner, the United States had failed to comply with the original recommendations and rulings. In October 2001 the Appellate Body held that that the reconfigured US measure applied in a manner that met the requirements of GATT Art XX. See WT/DS58/RW.
59. See John H. Jackson, The WTO Dispute Settlement Understanding - Misunderstandings on the Nature of Legal Obligations, 91 AJIL 60 (1997).
60. WT/DS160/R (15 June 2000). The statute at issue in the case allows the broadcasting of music in certain US restaurants and bars without paying EC rights holders. This has been estimated to cost the EC roughly $1 million per year in lost royalties. The settlement reached envisages an anticipated US payment of more than $3 million over three years into a fund for European musicians while the legislation remains in effect. See 'Zoellick, Lamy Agree to Settle Copyright Dispute, 1916 Act Remains' Inside US Trade (21 December 2001).
61. WT/DS160/R (15 June 2000). The statute at issue in the case allows the broadcasting of music in certain US restaurants and bars without paying EC rights holders. This has been estimated to cost the EC roughly $1 million per year in lost royalties. The settlement reached envisages an anticipated US payment of more than $3 million over three years into a fund for European musicians while the legislation remains in effect. See 'Zoellick, Lamy Agree to Settle Copyright Dispute, 1916 Act Remains' Inside US Trade (21 December 2001).
62. WT/DS27/ARB (9 April 1999); WT/DS27/ARB/ECU (24 March 2000); see also 'WTO Says Ecuador can Seek Retaliation Against EU for Bananas' Inside US Trade (24 March 2000).
63. WT/DS27/ARB (9 April 1999); WT/DS27/ARB/ECU (24 March 2000); see also 'WTO Says Ecuador can Seek Retaliation Against EU for Bananas' Inside US Trade (24 March 2000).
64. WT/DS27/ARB (9 April 1999); WT/DS27/ARB/ECU (24 March 2000); see also 'WTO Says Ecuador can Seek Retaliation Against EU for Bananas' Inside US Trade (24 March 2000).
65. WT/DS46/ARB (28 August 2000).
66. Recent recourse to requests for arbitration over levels proposed for suspension of concessions in US-Section 110(5) of the US Copyright Act, WT/DS160, and US - Anti-Dumping Act of 1916, WT/DS136, may be signals that, despite agreements to settle, complainants will retain the power to sanction in reserve. This same motivation can be said to underlie periodic discussions regarding suspensory retaliation in US - Tax Treatment of Foreign Sales Corporations, WT/DS108. See 'As US, EU Vow to Manage FSC Dispute, EU Highlights Compliance', Inside US Trade (18 January 2002).
67. Recent recourse to requests for arbitration over levels proposed for suspension of concessions in US-Section 110(5) of the US Copyright Act, WT/DS160, and US - Anti-Dumping Act of 1916, WT/DS136, may be signals that, despite agreements to settle, complainants will retain the power to sanction in reserve. This same motivation can be said to underlie periodic discussions regarding suspensory retaliation in US - Tax Treatment of Foreign Sales Corporations, WT/DS108. See 'As US, EU Vow to Manage FSC Dispute, EU Highlights Compliance', Inside US Trade (18 January 2002).
68. Recent recourse to requests for arbitration over levels proposed for suspension of concessions in US-Section 110(5) of the US Copyright Act, WT/DS160, and US - Anti-Dumping Act of 1916, WT/DS136, may be signals that, despite agreements to settle, complainants will retain the power to sanction in reserve. This same motivation can be said to underlie periodic discussions regarding suspensory retaliation in US - Tax Treatment of Foreign Sales Corporations, WT/DS108. See 'As US, EU Vow to Manage FSC Dispute, EU Highlights Compliance', Inside US Trade (18 January 2002).
69. Recent recourse to requests for arbitration over levels proposed for suspension of concessions in US-Section 110(5) of the US Copyright Act, WT/DS160, and US - Anti-Dumping Act of 1916, WT/DS136, may be signals that, despite agreements to settle, complainants will retain the power to sanction in reserve. This same motivation can be said to underlie periodic discussions regarding suspensory retaliation in US - Tax Treatment of Foreign Sales Corporations, WT/DS108. See 'As US, EU Vow to Manage FSC Dispute, EU Highlights Compliance', Inside US Trade (18 January 2002).
70. WT/DS46/RW and WT/DS46/RW/2.
71. 'Pettigrew sees silver lining in WTO loss' The Globe & Mail (28 January 2002).
72. WT/DS212 (ongoing panel).
73. WT/DS138 (10 May 2000).
74. 'Members of the US domestic industry argue that the appellate decision was limited in its effect to the one specific CVD case on lead bismuth bar from British Steel and thus narrower than the original panel decision.' See 'EU Takes First Step Toward WTO Challenge on 14 US CVD Cases', Inside US Trade (17 November 2000).
75. A. Porges, 'Comments' 32 Int'l Law 695, 698-99 (1998).
76. WT/DS62, WT/DS67 and WT/DS68 (5 June 1998). The case involved a US contention that the EC failed to accord imports of large area network (LAN) equipment from the US treatment no less favourable than that provided for in the EC Schedule of commitments, thereby acting inconsistently with Article II:1 of GATT 1994. The case was dismissed by the Appellate Body.
77. 'The pre-eminent literary property affecting legitimacy is the rule text's determinacy: that which makes its message clear.' Thomas M. Franck: The Power of Legitimacy Among Nations 52 (1990).
78. WT/DS160/R (15 June 2000).
79. WT/DS58.
80. The panel cautioned, however, that 'the possibility to impose a unilateral measure to protect sea turtles under Section 609 is more to be seen, for the purposes of Article XX, as the possibility to adopt a provisional measure allowed for emergency reasons than as a definitive "right" to take a permanent measure. The extent to which serious good faith efforts continue to be made may be reassessed at any time. For instance, steps which constituted good faith efforts at the beginning of a negotiation may fail to meet that test at a later stage'. WT/DS58/RW, para 5.88 (15 June 2001).
81. WT/DS58/AB/RW, para 133-34, 144-50 (22 October 2001).
82. Compliance proceedings involved not only the four complainants (India, Pakistan, Thailand, Malaysia) but also several other countries shrimping in the Pacific Ocean (Australia, Canada, the EC, Ecuador, Japan, Mexico, and Hong Kong).
83. 'Article XX of the GATT 1994 does not require a Member to anticipate and provide explicitly for the specific conditions prevailing and evolving in every individual Member.' WT/DS58/AB/RW, para 149 (22 October 2001).
84. WT/DS135/AB/R (12 March 2001).
85. This echoes the Appellate Body's position in EC - Measures Concerning Meat and Meat Products (Hormones), WT/DS26-48/AB/R, paras 172-73 (16 January 1998) where the Appellate Body stated that '[t]he Member's appropriate level of protection may be higher than that implied in the international standard... The right of a Member to define its appropriate level of protection is not, however, an absolute or unqualified right'.
86. It is worthwhile noting that in EC - Asbestos the Appellate Body indicated that Canada might have grounds for a non-violation complaint. Canada has apparently decided not to pursue this option.
87. Perhaps the best example are the Brazil - Canada Aircraft, cases (WT/ DS46 and WT/DS71), where strategic trade theory proposes that each country is subsidizing its passenger jet aircraft industry for important economic spin-off purposes that are worth much more than any possible value of suspensory retaliation. See Michael J. Trebilcock and Robert Howse, The Regulation of International Trade 1-24 (1999).
88. Franck, above n 54 at 173-75. Franck would probably explain the rule incoherence on the basis of a diminished sense of community around these disciplines. Individual self-interest overwhelms concern for the well-being of others.
89. WT/DS177-78.
90. The Appellate Body held that the US International Trade Commission (ITC) did not ensure that injury caused by other factors was not attributed to imports. The Appellate Body also said the ITC's analysis on a host of other issues, from its overly broad definition of domestic industry to its failure to demonstrate that the safeguard was necessitated by 'unforeseen developments', did not comply with WTO rules. See WT/DS177-78 (2 May 2001).
91. 'The right of states to assume that obligations really are owed, that rules and principles do connect, that the system indeed is endowed with legitimacy and, in turn, can validate texts by reference to defined standards for rule-making: all this turns on the fundamental assumption of community. The quest of states for coherence in the rules governing their conduct, however, not only assumes community but is also evidence that states share the sense of membership in such a rule community.' Franck, above n 54 at 181.
92. WT/DS2-4 (22 April 1996).
93. For a discussion of interest groups in the workings of the WTO see John O. McGinnis and Mark L. Movsesian, 'The World Trade Constitution', 114 Harv L Rev 511 (2000).
94. See FSC Repeal and Extraterritorial Income Exclusion Act of 2000, PL 106-519, 106th Cong., 2d Session (15 November 2000). The legislation replaced the FSC provisions with incentives similar in scope and effect. The statute provided equal treatment for all foreign sales whether the goods are manufactured in the US or abroad, as long as 50 per cent of the fair market value of the goods is produced within the US. This was a significant change from the FSC provisions, which only applied to goods made in the US exported by American companies and not to goods made and sold overseas by US firms.
95. The reconvened panel under DSU Art. 21.5 found, in summary, that the FSC Replacement Act is a prohibited export subsidy because although companies established outside the US do not need to export to obtain the tax reduction, those within the US can only obtain it by exporting. The FSC Replacement Act also violates the WTO Agriculture Agreement since it can be used to circumvent the commitments given by the US not to grant, or to reduce, agricultural export subsidies. In addition, the 50 per cent US content rule was found to violate GATT Art. III:4 because it discriminates against non-US imported products by requiring the use of US products to benefit from the tax break. Furthermore, the US was found to have failed to comply with the WTO ruling and recommendations on the original FSC case since transitional rules under the FSC Replacement Act maintain the original scheme for at least two years past the WTO withdrawal deadline. An appeal of the decision, decided in January 2002, confirmed the reconvened panel's reasoning.
96. 'Lamy Backs Zoellick FSC Compliance Plan, but Hints at Retaliation' Inside US Trade (1 February 2002); 'As US, EU Vow to Manage FSC Dispute, EU Highlights Compliance' Inside US Trade (18 January 2002); 'EU Approaches US About Low-Key Handling of FSC Dispute' Inside US Trade (15 September 2000).
97. Lamy Backs Zoellick FSC Compliance Plan, but Hints at Retaliation' Inside US Trade (1 February 2002); 'As US, EU Vow to Manage FSC Dispute, EU Highlights Compliance' Inside US Trade (18 January 2002); 'EU Approaches US About Low-Key Handling of FSC Dispute' Inside US Trade (15 September 2000).
98. 'Lamy Backs Zoellick FSC Compliance Plan, but Hints at Retaliation' Inside US Trade (1 February 2002); 'As US, EU Vow to Manage FSC Dispute, EU Highlights Compliance' Inside US Trade (18 January 2002); 'EU Approaches US About Low-Key Handling of FSC Dispute' Inside US Trade (15 September 2000).