statements by the united states at the meeting of the wto ...€¦ · hot-rolled steel products...

Statements by the United States at the Meeting of the WTO Dispute Settlement Body

Geneva, September 26, 2018

1. SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED

BY THE DSB

A. UNITED STATES – ANTI-DUMPING MEASURES ON CERTAIN

HOT-ROLLED STEEL PRODUCTS FROM JAPAN: STATUS REPORT BY

THE UNITED STATES (WT/DS184/15/ADD.187)

The United States provided a status report in this dispute on September 13, 2018, in

accordance with Article 21.6 of the DSU.

The United States has addressed the DSB’s recommendations and rulings with respect to

the calculation of anti-dumping margins in the hot-rolled steel anti-dumping duty

investigation at issue.

With respect to the recommendations and rulings of the DSB that have yet to be

addressed, the U.S. Administration will work with the U.S. Congress with respect to

appropriate statutory measures that would resolve this matter.

U.S. Statements at the September 26, 2018, DSB Meeting

2


BY THE DSB

B. UNITED STATES – SECTION 110(5) OF THE US COPYRIGHT ACT:

STATUS REPORT BY THE UNITED STATES (WT/DS160/24/ADD.162)



The U.S. Administration will continue to confer with the European Union, and to work

closely with the U.S. Congress, in order to reach a mutually satisfactory resolution of this

matter.

Second Intervention

As we have noted at prior meetings of the DSB, by intervening under this item, China

attempts to give the appearance of concern for intellectual property rights.

China has been engaging in industrial policy which has resulted in the transfer and theft

of intellectual property and technology to the detriment of the United States and our

workers and businesses. China’s stated intention is to achieve global dominance in

advanced technology. This causes harmful trade-distortive policies and practices.

These unfair policies and practices affect all WTO Members, not just the United States.

The aggregate impact of China’s policies worldwide is much higher than the estimated

$50 billion in annual harm some of China’s policies are causing to the United States.

These policies and practices force innovators to hand over their technology and know-

how as the price of doing business in China. China also uses non-economic means to

obtain technology, such as using state-controlled or -influenced funds and companies to

buy up businesses solely for purposes of acquiring technology for domestic use, or

imposing burdensome intellectual property licensing requirements in China.

The best way for China to support fairness in the world trading system is to remedy the

problems it has created. China should change its behavior: stop distorting markets, stop

forcing companies to transfer technology, and create a level playing field that will give

all countries a better chance to succeed.


3

For now, we can say that, as the companies and innovators of China and other Members

well know, the intellectual property protection that the United States provides within its

own territory equals or surpasses that of any other Member.

Indeed, as China also well knows, none of the damaging technology transfer practices of

China that we have discussed at recent DSB meetings are practices that Chinese

companies or innovators face in the United States.


4


BY THE DSB

C. EUROPEAN COMMUNITIES - MEASURES AFFECTING THE APPROVAL

AND MARKETING OF BIOTECH PRODUCTS: STATUS REPORT BY THE

EUROPEAN UNION (WT/DS291/37/ADD.125)

The United States thanks the European Union (“EU”) for its status report and its

statement today.

The United States continues to remain concerned with the EU’s measures affecting the

approval of biotech products. Delays persist and affect the dozens of applications that

have been awaiting approval for months or years, or that have already received approval.

Even when the EU finally approves a biotech product, EU member States continue to

impose bans on the supposedly approved product. As we have discussed at several prior

meetings, the EU maintains legislation that permits EU member States to “opt out” of

certain approvals, even where the European Food Safety Authority (“EFSA”) has

concluded that the product is safe. Of note, at least seventeen member States, as well as

certain regions within EU member States, have submitted requests to opt out of EU

approvals.

The United States again urges the EU to ensure that all of its measures affecting the

approval of biotech products, including measures adopted by individual EU member

States, are based on scientific principles, and that decisions are taken without undue

delay.


5


BY THE DSB

D. UNITED STATES – ANTI-DUMPING AND COUNTERVAILING

MEASURES ON LARGE RESIDENTIAL WASHERS FROM KOREA:




On December 15, 2017, the United States Trade Representative requested that the U.S.

Department of Commerce make a determination under section 129 of the Uruguay Round

Agreements Act to address the DSB’s recommendations relating to the Department’s

countervailing duty investigation of washers from Korea. On December 18, the

Department of Commerce initiated a proceeding to make such determination. Following

initiation, Commerce issued initial and supplemental questionnaires seeking additional

information.

On April 4, 2018, Commerce issued a preliminary determination revising certain aspects

of its original determination. Following issuance of the preliminary determination,

Commerce provided interested parties with the opportunity to submit comments on the

issues and analysis in the preliminary determination and rebuttal comments. Commerce

reviewed those comments and rebuttal comments and took them into account for

purposes of preparing the final determination.

On June 4, 2018, Commerce issued a final determination, in which Commerce revised

certain aspects of its original determination. Specifically, Commerce revised the analysis

underlying the CVD determination, as it pertains to certain tax credit programs, in

accordance with findings adopted by the DSB.

The United States continues to consult with interested parties on options to address the

recommendations of the DSB relating to antidumping measures challenged in this

dispute.


6


BY THE DSB

F. UNITED STATES – CERTAIN METHODOLOGIES AND THEIR

APPLICATION TO ANTI DUMPING PROCEEDINGS INVOLVING CHINA:




As explained in that report, the United States continues to consult with interested parties

on options to address the recommendations of the DSB.

Second Intervention

The United States takes note of China’s statement and will convey it to capital.

The United States is willing to discuss this matter with China on a bilateral basis.

To be clear, however, it is incorrect to suggest that the United States has taken no action.

As we have reported to the DSB, the United States continues to consult with interested

parties on options to address the recommendations of the DSB. That internal process is

ongoing.

In addition, the United States is aware of China’s request pursuant to Article 22.2 of the

DSU for authorization to suspend concessions and other obligations. China’s decision to

proceed in that regarding is disappointing, and not constructive.

On September 19, 2018, the United States objected to the level of suspension proposed

by China on September 9, 2018, referring the matter to arbitration pursuant to Article

22.6 of the DSU.


7


BY THE DSB

H. UNITED STATES – ANTI-DUMPING MEASURES ON CERTAIN OIL

COUNTRY TUBULAR GOODS FROM KOREA: STATUS REPORT BY THE

UNITED STATES (WT/DS488/12)



As explained in that report, the United States continues to consult with interested parties

on options to address the recommendations of the DSB.

Second Intervention

The United States takes note of Korea’s statement and will convey it to capital.

The United States is willing to discuss this matter with Korea on a bilateral basis.

To be clear, however, it is incorrect to suggest that the United States has taken no action.

As we have reported to the DSB, the United States continues to consult with interested

parties on options to address the recommendations of the DSB. That internal process is

ongoing.


8

2. UNITED STATES – CONTINUED DUMPING AND SUBSIDY OFFSET ACT OF

2000: IMPLEMENTATION OF THE RECOMMENDATIONS ADOPTED BY THE

DSB

As the United States has noted at previous DSB meetings, the Deficit Reduction Act –

which includes a provision repealing the Continued Dumping and Subsidy Offset Act of

2000 – was enacted into law in February 2006. Accordingly, the United States has taken

all actions necessary to implement the DSB’s recommendations and rulings in these

disputes.

We recall, furthermore, that the EU has acknowledged that the Deficit Reduction Act

does not permit the distribution of duties collected on goods entered after October 1,

2007, almost 11 years ago.

With respect to the EU’s request for status reports in this matter, as we have already

explained at previous DSB meetings, there is no obligation under the DSU to provide

further status reports once a Member announces that it has implemented the DSB

recommendations and rulings, regardless of whether the complaining party disagrees

about compliance.

The United States is pleased that Canada clarified at the last DSB meeting that it

disagrees with the EU’s view on the requirement to provide status reports. Canada

explained that it does not consider that a Member must submit a status report where the

Member announces that it has taken all actions necessary to comply with the DSB’s

recommendations and rulings.

And as we have noted many times previously, the EU has demonstrated repeatedly it

shares this understanding, at least when it is the responding party in a dispute. Once

again, this month the EU has provided no status report for disputes in which there is a

disagreement between the parties on the EU’s compliance.

This includes the EU – Large Civil Aircraft dispute (DS316), in which the DSB recently

adopted two further reports finding that the EU has not complied. The EU’s decision to

initiate yet another compliance proceeding under Article 21.5 of the DSU does not

distinguish the disputes: the EU has claimed compliance, and the US disagrees. Based on

the position taken by the EU, we would expect the EU to file a status report for the item.

We fail to see how the EU’s behavior is consistent with the alleged systemic view it has

been espousing under this item for more than 10 years.


9

As the EU is aware, the United States has announced in this dispute that it has

implemented the DSB’s recommendations and rulings. If the EU disagrees, there would

simply appear to be a disagreement between the parties to the dispute about the situation

of compliance.


10

3. EUROPEAN COMMUNITIES AND CERTAIN MEMBER STATES – MEASURES

AFFECTING TRADE IN LARGE CIVIL AIRCRAFT: IMPLEMENTATION OF THE

RECOMMENDATIONS ADOPTED BY THE DSB

A. STATEMENT BY THE UNITED STATES

The United States notes that once again the European Union has not provided Members

with a status report concerning the dispute EU – Large Civil Aircraft (DS316).

The United States has raised this same issue at recent past DSB meetings, where the EU

similarly chose not to provide a status report.

Interestingly, at the August 27 DSB meeting, the EU argued that Article 21.6 of the DSU

requires that “the issue of implementation shall remain on the DSB’s agenda until the

issue is resolved.” And also of interest, the EU then argued that where the EU does not

agree with another Member’s “assertion that it has implemented the DSB

recommendations and rulings,” “the issue remains unresolved for the purposes of Article

21.6 DSU.”

The United States therefore finds it difficult to reconcile this stated EU position with the

EU’s actions in this dispute. At the August 27 DSB meeting, the EU admitted that there

remains a disagreement as to whether the EU has complied in this dispute.

Under the EU’s own view, therefore, the EU should be providing a status report. Yet it

has failed to do so.

The only difference that we can see is that, now that the EU is a responding party, the EU

is choosing to contradict the reading of DSU Article 21.6 it has long promoted.

The EU’s purported rationale is that it need not provide a status report because it is

pursuing a second compliance panel under Article 21.5 of the DSU. But as the United

States has explained at past DSB meetings, there is nothing in Article 21.6 of the DSU to

support this position.

In short, the conduct of every Member when acting as a responding party, including the

EU, shows that WTO Members understand that a responding party has no obligation

under DSU Article 21.6 to continue supplying status reports once that Member

announces that it has implemented the DSB’s recommendations.


11

As the EU allegedly disagrees with this position, it should for future meetings provide

status reports. At this meeting, it should welcome the opportunity we are affording it to

update the DSB for the first time with any detail on its alleged implementation efforts.


12

4. ARTICLE 17.6 OF THE UNDERSTANDING ON RULES AND PROCEDURES

GOVERNING THE SETTLEMENT OF DISPUTES AND APPELLATE REVIEW OF

PANEL FINDINGS OF FACT, INCLUDING DOMESTIC LAW: STATEMENT BY

CHINA

The United States welcomes China’s placement of this item on the agenda of today’s

meeting. Article 17.6 of the Understanding on Rules and Procedures Governing the

Settlement of Disputes (“DSU”) and appellate review of panel findings of fact, including

domestic (or municipal) law, is an important systemic issue with significant implications

for the operation of the dispute settlement system.

At the DSB meeting on August 27, 2018, the United States in its statement provided a

detailed analysis of two particular aspects of this issue: (1) the Appellate Body’s lack of

authority to review a panel’s findings of fact; and (2) the Appellate Body’s assertion that

it can review panel findings concerning the meaning of a Member’s municipal law. We

would refer delegations to that statement for a thorough discussion of these issues.

In our statement today, we intend to highlight a few of the key issues and comments of

other Members speaking under this item at the August 27 DSB meeting and to provide

some initial reactions to China’s statement today.

1. The Appellate Body Lacks the Authority to Review a Panel’s Findings of Fact

With regard to the Appellate Body’s lack of authority to review a panel’s findings of fact,

the United States highlighted for Members the relevant provisions of the DSU and

discussed the Appellate Body’s failure to analyze the text of those provisions when it first

asserted it had the authority to review panel fact-finding.

In particular, in DSU Article 11, Members agreed that “a panel should make an objective

assessment of the matter before it, including an objective assessment of the facts of the

case and the applicability of and conformity with the relevant covered agreements”. In

other words, WTO panels are to make factual and legal findings.

By contrast, under DSU Article 17.6, Members agreed that the Appellate Body would

have a significantly more limited role than panels. Article 17.6 of the DSU expressly

limits the scope of appellate review: “[a]n appeal shall be limited to issues of law covered

in the panel report and legal interpretations developed by the panel.”

On its face, this would not include panel fact-finding and, thus, appellate review of

factual findings would appear to be contrary to the Appellate Body’s limited authority

under Article 17.6 of the DSU.


13

Several Members speaking under this item at the August 27 DSB meeting agreed with

this basic characterization. For example, the EU suggested Article 17.6 of the DSU

reflects the idea that only panels are the triers of fact and that the scope of appellate

review should be limited to legal issues. China also agreed that factual issues generally

fall outside the scope of appellate review. Japan and Australia both commented that the

text of the DSU clearly limits the scope of issues that may be properly put before the

Appellate Body to legal issues contained in the panel report.

However, contrary to the clear text of Article 17.6, the Appellate Body has asserted that it

can review panel factual findings. We highlighted for Members that the appellate report

in which the Appellate Body asserted it could review panel fact-finding under Article 11

of the DSU contains no analysis of the text of that article. In particular, the Appellate

Body provided no interpretation of the term “should make” or explain how it could be

understood as expressing a “duty,” or legal obligation.

In China’s statement today, China appears to misunderstand this point. We have not

argued a panel need not conduct an objective assessment of the matter before it. As we

explained at the August 27 DSB meeting, the language in Article 11 of the DSU that the

Appellate Body relied upon is: “a panel should make an objective assessment of the

matter before it, including an objective assessment of the facts of the case.” Key to this

text is the word “should.”

As we noted, Members are all familiar with the difference between “should” and “shall”

and choose carefully whether to use “should” or “shall” in particular parts of the

agreements they negotiate. In fact, Members have been known to spend weeks or even

longer negotiating over exactly this point – whether to use “should” or “shall.”

Yet, in describing the text of Article 11, the Appellate Body did not engage on this

important textual issue. Instead, the Appellate Body simply referred to this “should

make” language as a “mandate” and a “requirement” for panels. To the contrary, the

decision of WTO Members to use the term “should” indicates that Members did not

intend to create a legal obligation subject to appellate review, a conclusion that is directly

reinforced by the limitation on appeals to issues of law in Article 17.6.

The United States also pointed out that the Appellate Body’s approach under Article 11

has shifted over time, which would appear to be a result of the fact that Members never

agreed that the Appellate Body would review a panel’s factual findings and therefore

never negotiated the basis or standard for such a review. Instead, the Appellate Body has

struggled to formulate its own approach, without the benefit of guidance from Members.


14

And, as previously discussed, the Appellate Body’s decision to undertake a review of

panel fact-finding has had a number of adverse effects on the dispute settlement system,

including an increased workload due to the number of appeals under Article 11. This, in

turn, has increased the complexity of appeals, the length of submissions, and the need for

the Appellate Body to devote additional time and resources to such appeals to become

familiar with the basis for panels’ factual findings.

2. The Appellate Body Lacks the Authority to Review a Panel’s Factual Findings on

the Meaning of a WTO Member’s Domestic Law

With regard to municipal law, in the WTO system, as in any international law dispute

settlement system, the meaning of municipal law is an issue of fact. The interpretation

and application of the relevant covered agreement would be the issues of law for the

WTO dispute settlement system.

At the August 27 DSB meeting, we noted that the relevant provisions of the DSU –

including Articles 6.2, 11, and 12.7 – reflect this straightforward division between issues

of fact and law. The DSU makes clear that the measure at issue is the core fact to be

established by a complaining party, and the WTO consistency of that measure is the issue

of law.

The United States also pointed out that the proposition that municipal law is an issue of

fact is well-recognized in other international legal systems generally. In the WTO

context in particular, we noted that a number of WTO panels and WTO Members have

routinely analyzed, argued, or found that the meaning of a Member’s domestic law is an

issue of fact. Members will recall that the United States cited a number of examples at

the August 27 DSB meeting.

In its statement today, China appears to suggest that this is a disputed proposition.

However, two of the examples we provided at the August 27 DSB meeting were

instances in which China argued the meaning of municipal law was a factual issue. In

particular:


15

o China, in EC – Fasteners: “China submits that the issue of the ‘meaning’ or

‘scope’ of Article 9(5) of the Basic AD Regulation is an issue of fact . . . .

Therefore, it rejects the European Union's argument that the scope of Article 9(5)

of the Basic AD Regulation is a legal issue and hence subject to appellate review

pursuant to Article 17.6 of the DSU.”1

o China, in US – Countervailing and Anti-Dumping Measures (China): “The

meaning of prior municipal law must be determined as a matter of fact, by

reference to the laws themselves and the manner in which those laws have been

interpreted by domestic courts.”2

These appear to be clear and unambiguous statements by China of its understanding that

the meaning of municipal law is a factual issue. We would ask China how it reconciles

these statements with its statement today? Which accurately reflects China’s position?

We would note with agreement Japan’s statement at the August 27 DSB meeting that

there is little room for debate that municipal law itself is a matter of fact in WTO law.

We would also agree with Australia’s statement at that meeting that domestic law and the

meaning of domestic law is a question of fact, to be determined by a panel on the basis of

the evidence put before it by the parties to a dispute and, as such, is not subject to

appellate review.

The United States also highlighted for Members that the basis for the Appellate Body’s

treatment of the meaning of municipal law as a legal issue, to be decided by the Appellate

Body de novo in an appeal, is flawed and without textual support in the DSU. The

Appellate Body often attempts to justify its approach by citing its own prior reports, and

the United States illustrated that those reports themselves reflect a failure to engage with

the text of the DSU.

At the August 27 DSB meeting, the United States also explained the flawed logic of the

Appellate Body’s approach. The Appellate Body reasons that when a panel examines

municipal law to assess compliance with the WTO Agreements, the panel’s examination

of the meaning of that municipal law becomes a legal question. This does not follow

logically. It is one thing to determine what a municipal law means and how it operates.

1 Appellate Body Report, European Communities – Definitive Anti-Dumping Measures on Certain Iron or Steel

Fasteners from China, WT/DS397/AB/R, adopted 28 July 2011, para. 74 (emphasis added).

2 Panel Report, United States – Countervailing and Anti-Dumping Measures on Certain Products from China,

WT/DS449/R and Add.1, as modified by Appellate Body Report WT/DS449/AB/R, para. 7.142 (emphasis added).

See also id., paras. 7.160, 7.228.


16

It is an entirely different matter to determine whether – given a particular meaning and

operation – the municipal law is consistent with WTO obligations.

Australia noted that the Appellate Body in US – Upland Cotton (21.5 – Brazil) had

indicated that the distinction between issues of law and issues of fact “can be difficult to

draw,” but Australia considered it to be incumbent on the Appellate Body and Members

engaged in appellate proceedings to maintain the distinction and respect the limits placed

on the scope of appellate review by the DSU. We would agree.

The Appellate Body’s erroneous approach to municipal law eliminates the lines explicitly

drawn by Members in the DSU between factual and legal issues, and is inconsistent with

the appropriate functioning of the dispute settlement system. It departs from the basic

division of responsibilities where panels determine issues of fact and law, and the

Appellate Body may be asked to review specific issues of law and legal interpretations.

In Brazil’s statement at the August 27 DSB meeting, Brazil asked what would be the

relevance of the Appellate Body’s role as set out in the DSU if the meaning of domestic

law were to be considered a factual question and therefore not subject to appeal. The

answer to this question is simple. The Appellate Body’s role would remain what was

agreed by Members in Article 17.6 of the DSU, which provides that “[a]n appeal shall be

limited to issues of law covered in the panel report and legal interpretations developed by

the panel.” In other words, the Appellate Body would continue to determine whether,

based on the factual evidence (which includes the municipal law at issue), to uphold,

modify, or reverse the legal findings and conclusions of the panel that have been

appealed.3

China in its statement noted that the United States has filed Article 11 appeals of panel

findings of fact. Once the Appellate Body took upon itself the role of reviewing panel

findings of fact, relying incorrectly on Article 11, it unfortunately became a feature of the

system – unless the Appellate Body reversed itself, or it were addressed by Members.

Until that happened, we wonder which Member explained to its domestic stakeholders

that it would not avail itself of that opportunity if other WTO Members were making use

of that second bite at the apple.

As a result, the fact that Members have raised such challenges does not answer the

question of whether the DSU gives to the Appellate Body the authority to review panel

findings of fact on appeal.

3 Article 17.13 of the DSU.


17

For the reasons we explained at the August 27 DSB meeting, and again today, we do not

see how one reconciles the Appellate Body’s review of panel fact-finding with the

express limitation in Article 17.6 of the DSU of appellate review to legal issues.

We did not hear a compelling explanation in China’s statement today. How would China

explain this?

To conclude, as with the Appellate Body’s impermissible review of panel findings of fact

more generally, the Appellate Body’s treatment of municipal law represents a departure

from the agreed text of the DSU and a serious waste of the limited resources of the WTO

dispute settlement system. Numerous WTO Members have regretted the complexity of

and delays to WTO dispute settlement system, and here is one reason, added to the

system by the Appellate Body.

We appreciate Members’ engagement and comments on these important issues. And we

welcome the statement we heard at the August 27 meeting that “any proposal to change

established rules of the DSU” “should be tested and argued in light of the values they

embody or the new values Members may want it to embody.” Here, we are discussing a

departure by the Appellate Body from the established rules of the DSU.

Second Intervention

We appreciate the engagement by Members speaking under this item today. There would

appear to be several issues that could warrant further discussion by Members, and we

look forward to that. However, there is a particular assertion that is important to correct

today. One Member suggested that U.S. concerns with appellate review of panel fact-

finding are new and have been only recently raised by the United States. In our August

27 DSB statement, we quoted from a statement the United States made in 2002

expressing concerns on this issue, so that Member’s assertion does not reflect reality.


18

5. CANADA – MEASURES GOVERNING THE SALE OF WINE

A. REQUEST FOR THE ESTABLISHMENT OF A PANEL BY AUSTRALIA

(WT/DS537/8)

The United States fully supports Australia’s request for the establishment of a panel in

this dispute. With respect to the U.S. concerns with British Columbia’s regulations

governing the sale of wine in grocery stores, we refer to our prior statements.

On July 20, 2018, the DSB established a panel in DS531. At this meeting, the DSB will

establish a panel to examine Australia’s complaint in DS537. In DS537, Australia makes

identical claims concerning the same measures addressed in DS531, and Australia also

makes additional claims concerning other Canadian measures.

Under these circumstances, and in light of Article 9.3 of the DSU, the United States

considers that the same persons serving on the DS531 panel should serve on the DS537

panel. The United States is ready to cooperate with the panels and the parties to this

dispute with a view to harmonizing the timetable for the panel process in these disputes.


19

6. UNITED STATES – SAFEGUARD MEASURE ON IMPORTS OF CRYSTALLINE

SILICON PHOTOVOLTAIC PRODUCTS

A. REQUEST FOR THE ESTABLISHMENT OF A PANEL BY THE REPUBLIC

OF KOREA (WT/DS545/7)

As the United States stated at the August 27 meeting of the DSB:

o The WTO Agreement recognizes the right of Members to temporarily suspend

concessions and other obligations when a product is being imported into its territory

in such increased quantities and under such conditions as to cause serious injury or

threat of serious injury to the Member’s domestic industry.

o The United States has exercised this right with respect to imports of imports of

crystalline silicon photovoltaic products. The United States imposed a safeguard

measure after the competent authority, the U.S. International Trade Commission,

determined that increased imports of CSPV products were the substantial cause of

serious injury to the domestic industry producing like or similar products.

Accordingly, the United States regrets that Korea has chosen for a second time to request

establishment of a panel with regard to this matter.

The United States is prepared to engage in these proceedings and to explain to the panel

that Korea has no legal basis for its claim.


20

7. UNITED STATES – SAFEGUARD MEASURE ON IMPORTS OF LARGE

RESIDENTIAL WASHERS

A. REQUEST FOR THE ESTABLISHMENT OF A PANEL BY THE REPUBLIC

OF KOREA (WT/DS546/4)

As the United States stated at the August meeting of the DSB:

o The WTO Agreement recognizes the right of Members to temporarily suspend

concessions and other obligations when a product is being imported into its territory

in such increased quantities and under such conditions as to cause serious injury or

threat of serious injury to the Member’s domestic industry.

o The United States has exercised this right with respect of imports of large residential

washers. An independent investigative authority, the U.S. International Trade

Commission, determined that the domestic industry producing like or similar

products was seriously injured and that the cause of that injury was increased imports

of the products at issue.

o The U.S. process was open and transparent, and fully in accord with both domestic

U.S. safeguard laws and WTO obligations.

Accordingly, the United States regrets that Korea has chosen for a second time to request

the establishment of a panel with regard to this matter.

The United States is prepared to engage in these proceedings and to explain to the panel

that Korea has no legal basis for its claims.


21

9. APPELLATE BODY APPOINTMENTS: PROPOSAL BY VARIOUS MEMBERS

(WT/DSB/W/609/REV.5)

The United States thanks the Chair for the continued work on these issues.

As we have explained in prior meetings, we are not in a position to support the proposed

decision.

The systemic concerns that we have identified remain unaddressed.

For example, at the DSB meeting in August of 2017, we made clear our concerns with

the issuance of appellate reports by individuals who are no longer members of the

Appellate Body. Yet, one year later, an individual who is not currently a member of the

Appellate Body continues to decide appeals.

As we have explained many times, it is for the DSB, not the Appellate Body, to decide

whether a person who is no longer an Appellate Body member can continue to serve on

an appeal.4 We refer back to our statements at earlier DSB meetings for more elaboration

on our concerns.

We therefore will continue our efforts and our discussions with Members and with the

Chair to seek a solution on these important issues.

4 Understanding on Rules and Procedures Governing the Settlement of Disputes, Arts. 17.1, 17.2 (“DSU”).


22

10. FOSTERING A DISCUSSION ON THE FUNCTIONING OF THE APPELLATE

BODY (JOB/DSB/2): STATEMENT BY HONDURAS

The United States thanks Honduras for its non-paper and for placing this item on the

agenda for today’s meeting.

We look forward to hearing other Members’ views on the options for addressing the

concerns that the United States has been raising for over a year. We appreciate that the

non-paper provides some of the possible options and that it recognizes that there may be

other possible approaches.

We would be interested in hearing of other approaches that Members are considering.

Second Intervention

Brazil suggested that Rule 15 is not unlike transitional rules existing in other international

tribunals. We would refer Members to our prior statements discussing this issue.5

Analogizing to the rules of other international tribunals that Brazil has not named fails to

acknowledge a fact apparent from even a cursory review of such rules: the rules for those

other tribunals are based on their constitutive texts.

A review of the rules applying to other international tribunals confirms that the issue of who

may continue to serve and decide a dispute is not a mere “working procedure” to be decided

by the tribunal.

One example is the Statute of the International Court of Justice, which is annexed to and an

integral part of the United Nations Charter.6

Another example is the Statute of the International Tribunal for the Law of the Sea, which

sets out for that Tribunal in Article 5(3) a transition rule for departing members.7

5 See DSB Meeting Minutes of February 28, 2018 (WT/DSB/M/409), para. 7.7; see also DSB Meeting Minutes of

March 27, 2018 (WT/DSB/M/410), para. 9.4. 6 Statute of the International Court of Justice, Art. 13(3) (“The members of the Court shall continue to discharge

their duties until their places have been filled. Though replaced, they shall finish any cases which they may have

begun.”); UN Charter, Art. 92 (“The International Court of Justice shall be the principal judicial organ of the United

Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent

Court of International Justice and forms an integral part of the present Charter.”). 7 Statute of the International Tribunal for the Law of the Sea, Art. 5(3) (“The members of the Tribunal shall continue

to discharge their duties until their places have been filled. Though replaced, they shall finish any proceedings

which they may have begun before the date of their replacement.”).


23

Similarly, for the European Court of Human Rights, Article 23(3) of the European

Convention on Human Rights sets out a rule for judges who have been replaced.8

Unlike those other tribunals, Rule 15 is not set out in the constitutive text of the WTO dispute

settlement system – the DSU. It has therefore not been agreed to by WTO Members.

8 European Convention on Human Rights, Art. 23(3) (“The judges shall hold office until replaced. They shall,

however, continue to deal with such cases as they already have under consideration.”).

statements by the united states at the meeting of the wto ...€¦ · hot-rolled steel products...

Documents