WTO Panels Established to Review Chinese Barley
Duties, EU Palm Oil Measures
[ABS News Service/01.06.2021]
At
a meeting of the Dispute Settlement Body (DSB) on 28 May, WTO members agreed to
the establishment of two new dispute panels: one at the request of Australia regarding
Chinese anti-dumping and countervailing duties on Australian barley; and the second
at the request of Malaysia concerning European Union measures on palm oil and oil
palm crop-based biofuels.
Australia
submitted its second request for a panel to determine whether China's decision to
impose anti-dumping and countervailing duties on imports of barley from Australia
is consistent with WTO rules. Australia's
first request was blocked by China at the last DSB meeting on 28
April.
Australia
noted that China is imposing anti-dumping duties of 73.6% and countervailing duties
of 6.9% on Australian barley, and that consultations held on 28 January of this
year and subsequent exchanges of information failed to resolve the matter. As no concrete steps have been taken by China
to respond to Australia's concerns, Australia said it is again requesting the establishment
of a panel. Australia reiterated that it
values its strong economic and community ties with China and remained open to further
discussions with China on the matter.
China
said it would vigorously defend itself in the proceedings and was confident that
the duty measures would be found consistent with WTO requirements. China added that it was open to continued talks
with Australia on the matter with the aim of reaching a positive outcome.
The DSB
agreed to the establishment of the panel.
Canada, the European Union, the United States, India, Russia, Singapore,
Norway, the United Kingdom, Japan, New Zealand, Brazil and Ukraine reserved their
rights to participate as third parties in the proceedings.
Malaysia
submitted its second request for a panel to examine certain measures imposed by
the European Union and EU member states regarding palm oil and oil palm crop-based
biofuels from Malaysia. Malaysia's first request was blocked by
the EU at the DSB meeting on 28 April.
Malaysia said that consultations held on 17 March with the EU regrettably
failed to resolve the dispute, so once again it was submitting its request for a
panel to examine the matter.
The EU
said it regretted Malaysia's decision to renew its request for a panel but that
it believed the measures at stake were fully justified and that it was confident
it would prevail in the dispute proceedings.
The EU also said it was ready to discuss interim arrangements which would
allow for a possible appeal to be heard in the dispute, mentioning in this regard
the multi-party interim appeal
arrangement (MPIA).
The DSB
agreed to the establishment of a panel. Thailand,
Korea, Brazil, Russia, the UK, the US, Singapore, Guatemala, Australia, Colombia,
Indonesia, Japan, Norway, China, Ukraine, India, El Salvador and Canada reserved
their rights to participate as third parties in the proceedings.
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. It said it would continue putting this item on
the DSB agenda as long as the US has not fully implemented the ruling.
The United
States said it has taken all actions necessary to implement the ruling and that,
once a member has said it has complied with a ruling, that member should no longer
be required to submit status reports on implementation. The US said the EU was not asking other WTO members
to submit status reports where these members have said they achieved compliance
with the rulings in question.
The EU
countered that the cases cited by the US were different from the CDSOA dispute,
where the US was continuing to make disbursements of duties collected to US firms
and where the WTO has authorized the EU and other members to impose retaliatory
measures against the US for its non-compliance with the ruling.
Canada
voiced its support for the EU position and said it would maintain its position that
this item remain on the DSB agenda until the US stopped transferring collected duties
to US industry.
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 US said the EU is making the
erroneous claim that by submitting a communication claiming that it has complied
with the ruling in DS316, the EU as the responding party no longer needs to file
a status report, even though the US as the complaining party does not agree with
the EU’s assertion that it has complied.
The EU
once again countered that no status report was required since the dispute proceedings
were not concluded. The EU notified a new
set of compliance measures and those measures were subject to a panel ruling in
December 2019 that was appealed by the EU shortly thereafter. The EU is concerned that, with the current blockage
of the two-tiered multilateral dispute system, it is losing the possibility of a
proper appellate review of the serious flaws contained in that compliance panel
report. While the blockage continues, the
EU said it stands ready to discuss with the US alternative ways to deal with this
appeal.
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 with 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. Some delegations described
a two-tier dispute settlement system, with a panel and appeals stage, as a core
part of the multilateral trading system, and that restoring it was a key element
of any future reform of the WTO. The absence
of a functioning Appellate Body also undermines the right of all WTO members, several
delegations noted.
The United
States said it was not in a position to support the proposed decision. The US continues to have systemic concerns with
the Appellate Body, which it has explained and raised for more than 16 years and
across multiple administrations. The US said
it looked forward to further discussions with members on those concerns.
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."