India
Appeals WTO Panel Findings against India IT Tariffs
·
Case will not be heard soon as there is
no Appellate Body in Position
·
India Contends that Bound Rates were
under the IT Agreement as stated in Let 181 on Tariff Bindings
·
Japan Judgement Singled out, EU and Taiwan
Rulings Ignored, Compromise Settlement on the Anvil, Sugar Support Dispute is also
at WTO Appellate after India lost the Case at Panel level.
·
Given the Panel Ruling, the 18 Complainants
and Third Parties are Free to put sanctions on India and seek Compensation for
the duties levied on goods in HS Heading 8517
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The EU on April 2, 2019 had challenged
the introduction of import duties by India on a wide range of ICT products, specially
mobile phones and components and base stations (HS 8517).
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India seeks review by the Appellate Body
of the errors of law and legal interpretation by the Panel in its Report and
requests findings by the Appellate Body as noted below. Non-appeal of an issue
does not signify agreement therewith.
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The Panel erred in its interpretation of
the relationship of the Information Technology Agreement ("ITA-1" or
"the ITA") with India's WTO Schedule
·
There is "no textual link in the
GATT 1994 indicating that Members' legal obligations, for the purposes of
applying Articles II:1(a) and (b), could be contained in the ITA"
·
WT/Let/181 must be interpreted according
to the ITA
·
The Panel found that the ITA does not
limit the scope of tariff commitments set forth in India's WTO Schedule.
·
The products which, as Japan alleges, should
be given tariff-free treatment were never covered under the ITA and hence were
not negotiated.
·
It erred in its interpretation in Para.
7.77 of its Report as ITA-1 and WT/Let/181 remain relevant to interpret India's
WTO Schedule
·
India, therefore, requests the Appellate Body to reverse or
set aside the Panel's
conclusions
and the Panel's legal interpretations contained in paragraph 7.90 and complete
the analysis regarding the applicability of Article 48 of the VCLT.
India notified its decision
to appeal the panel report in the case brought by Japan in “India — Tariff
Treatment on Certain Goods” (DS584). The panel report was circulated to WTO
members on 17 April. The appeal was circulated to WTO members on 25 May.
Given the ongoing lack of
agreement among WTO members regarding the filling of Appellate Body vacancies,
there is no Appellate Body Division available at the current time to deal with
the appeals.
Highlights:
I. THE ITA IS RELEVANT AND LIMITS/MODIFIES THE
SCOPE OF THE TARIFF COMMITMENTS SET FORTH IN INDIA'S WTO SCHEDULE.
II. ORDER OF ANALYSIS OF ARTICLE 48 OF THE VIENNA
CONVENTION ON LAW OF TREATIES ("VCLT").
III. APPLICATION OF ARTICLE 48(1) OF VCLT.
A. The Panel erred in its analysis on the
requirement of existence of India's assumption that the scope of its WTO tariff
commitments would not be expanded beyond the scope of its ITA undertakings.
B. The Panel erred in its analysis of the
requirement of India's Assumption forming an essential basis of India's consent
to be bound by its WTO Schedule.
C. The Panel erred in its analysis of
requirement of India's Assumption being in error.
IV. APPLICATION OF ARTICLE 48(2) OF THE VCLT.