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

·         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).

·         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.

·         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.

[Click here for full text of the Report]