WTO
DSB Updates - US Firm on Stalling Appointments to Appellate Body
Members Pledge Flexible Arrangements in WTO Dispute Proceedings
during COVID Pandemic
At a meeting of the Dispute Settlement Body (DSB) on 18 December,
a group of WTO members signalled their intention to adopt
flexible arrangements in dispute proceedings during the ongoing COVID-19 pandemic,
including the holding of virtual and hybrid panel hearings, in order to ensure prompt
settlement of disputes. The DSB chair also announced that the Philippines and Thailand
have agreed to the appointment of a Facilitator to help mediate in their dispute
over Thai customs and fiscal measures on imported cigarettes from the Philippines.
The European
Union reiterated its request that the United States cease transferring anti-dumping
and countervailing duties to the US domestic industry, arguing that every such disbursement
was a clear act of non-compliance with the rulings on this matter. Canada supported
the EU statement, while the United States said it has taken all actions necessary
to implement the ruling.
The United
States said that once again the European Union has failed to provide a status report
to the DSB concerning dispute DS316, the US complaint against government subsidies
for the European aircraft manufacturer Airbus.
The European
Union repeated that the matter is subject to new compliance proceedings that are
still ongoing and thus there was no obligation on the EU to submit a status report.
The United
States and the EU exchanged view regarding recent EU efforts which Brussels says
brings it fully in line with the WTO's Airbus ruling, a claim contested by the US. Both sides said they will continue to engage in
efforts to reach a mutually acceptable solution to the aircraft subsidy disputes
which offers a level playing field for their respective aircraft manufacturers.
Indonesia
said that while it welcomed Australia's statement from last September saying that
it fully implemented the WTO ruling in DS529, it could not agree with Australia
that full compliance had been achieved. Indonesia
noted that interested parties in Australia can still request a review of the ministerial
decision to rescind the anti-dumping duties at issue and that in fact such a request
has been made, meaning that the decision to withdraw the duties could still be overturned.
Australia
reiterated that the ministerial decision to rescind the duties brings Australia
into full compliance with the ruling and that the duties remain revoked. Unless or until anything happens to change that,
Australia considers implementation has been achieved.
The DSB
chair, Ambassador Dacio Castillo of Honduras, provided
an update on his recent consultations with the Philippines and Thailand regarding
issues concerning dispute proceedings in DS371.
The DSB
chair drew members attention to the agreement reached by
the parties to pursue further Facilitator-assisted consultations, building on the
consultations undertaken by the chair to date, with Ambassador George Mina of Australia
acting as the agreed Facilitator.
A communication
from the Philippines and Thailand confirming this agreement will be circulated to
WTO members as document WT/DS371/44 in the coming days.
Both
Thailand and the Philippines welcomed the new initiative and thanked Australia's
ambassador for agreeing to serve as Facilitator.
Canada
made a statement on behalf of 16 delegations endorsing a “practice” document on
the use flexible arrangements in the conduct of dispute settlement proceedings during
the ongoing COVID-19 pandemic. In the practice
document, the endorsing members indicate their intention to cooperate with the panel
and the other parties to favor flexible arrangements, including recourse to virtual
or hybrid hearings, to ensure disputes can progress in a timely manner during the
pandemic. Canada noted that such flexible
arrangements have already been adopted in several disputes to date.
The other
members endorsing the practice document are Australia, Brazil, Colombia, Ecuador,
the European Union, Guatemala, Hong Kong China, Mexico, New Zealand, Peru, Chinese
Taipei, Singapore, Switzerland, Ukraine, and the United Kingdom. Canada invited other members to consider endorsing
the practice document.
Mexico,
speaking on behalf of 121 members, once again introduced the group's proposal to
start the selection processes for filling vacancies on the Appellate Body. The extensive number of members submitting the
proposal reflects a common concern over the current situation in the Appellate Body
that is seriously affecting the overall WTO dispute settlement system against the
best interest of members, Mexico said for the group.
Nearly
20 members took the floor to reiterate the importance of resolving the impasse over
the appointment of new members as soon as possible and re-establishing a functioning
Appellate Body. Many of the delegations described
a two-tier dispute settlement system, with a panel and appeals stage, as a core
part of the multilateral trading system. Several delegations noted it is now one
year since the Appellate Body has been unable to issue rulings due to the current
vacancies.
The United
States once again said that it was not in a position to support the proposal to
start the selection process because its systemic concerns regarding the Appellate
Body, which the US has identified for more than 16 years, remain unaddressed.
The United
States presented status reports with regard to DS184, “US
— Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan”, DS160, “United
States — Section 110(5) of US Copyright Act”, DS464, “United
States — Anti-Dumping and Countervailing Measures on Large Residential Washers from
Korea”, and DS471, “United
States — Certain Methodologies and their Application to Anti-Dumping Proceedings
Involving China.”
The European
Union presented a status report with regard to DS291, “EC
— Measures Affecting the Approval and Marketing of Biotech Products.”
Indonesia
presented its status reports in DS477 and
DS478, “Indonesia
— Importation of Horticultural Products, Animals and Animal Products.”
Brazil
made a statement regarding Indonesia's decision to file an appeal in its dispute
with Brazil in “Indonesia — Measures Concerning the Importation of Chicken Meat
and Chicken Products” (DS484).