scholarly journals US – Shrimp: United States – Import Prohibition of Certain Shrimp and Shrimp Products: Recourse to Article 21.5 of the DSU by Malaysia

2003 ◽  
Vol 2 (S1) ◽  
pp. 41-71
Author(s):  
Robert Howse ◽  
Damien J. Neven
Keyword(s):  
United States ◽  
Simple Model ◽  
Environmental Standards ◽  
Economic Perspective ◽  
Trade Off ◽  
Appellate Body ◽  
The Us ◽  
Original Case ◽  
Dispute Settlements ◽  
Environmental Measures

This study discusses the ruling of the Appellate Body (AB) in the recourse to Article 21.5 of the DSU by Malaysia in the context of the US import prohibition of certain shrimp and shrimp products from a legal and economic perspective. The first part of the chapter (section 2) discusses the background of the case, and, in particular, presents the main issues at stake in the Panel and AB decisions in the original case as well as their main findings. Section 3 discusses the key elements of the compliance panel and its subsequent appeal and identifies a few issues that are discussed in further detail. In section 4, in the context of a simple model, we first consider the consequences of making imports contingent on the adoption of environmental measures in exporting countries. We find that the attractiveness of such measures depends heavily on the characteristics of abatement technology and the range of policies available in the exporting countries. Finally, section 5 briefly discusses the trade-off between flexibility in the imposition of environmental standards and the enforcement of dispute settlements’ rulings.

Extraterritorial Shrimps, NGOs and the WTO Appellate Body

1999 ◽  
Vol 48 (1) ◽  
pp. 199-206 ◽  
Author(s):  
Asif H. Qureshi
Keyword(s):  
United States ◽  
Dispute Settlement ◽  
Market Access ◽  
The United States ◽  
Consultation Process ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
The Us ◽  
Wto Appellate Body ◽  
Dispute Settlement System

At the centre of the international trading order, under the framework of the World Trade Organization (WTO), lies a dispute-settlement system. This system offers a graduated conflict-resolution mechanism that begins with a consultation process; progresses to adjudication, through a panel system, and ends in an appellate process.1 Under this machinery, in October 1996 India, Malaysia, Pakistan and Thailand (the complainants) requested joint consultations with the United States, regarding the US prohibition on the importation of certain shrimps and shrimp products caught with fishing technology considered by the United States adversely to affect the population of sea turtles—an endangered species under CITES.2 The US prohibition arose from section 609 of Public Law 101–1623 and associated regulations and judicial rulings (hereafter referred to as section 609). In a nutshell the complainants claimed denial of market access to their exports, and the United States justified this on grounds of conservation. However, as a consequence of the failure of the consultations, the WTO Dispute Settlement Body established a panel, around April 1997, to consider a joint complaint against the United States in relation to section 609. Australia, Ecuador, the European Communities, HongKong, China, Mexico and Nigeria joined the complainants as third parties. In May 1998 the panel's report was published, containing a decision in favour of the complainants. In July 1998 the United States appealed to the WTO Appellate Body, and in October 1998 the Appellate Body issued its report.4

scholarly journals United States – Continued Dumping and Subsidy Offset Act of 2000 (WT/DS217/AB/R: DSR 2003:I,375)

2006 ◽  
Vol 5 (S1) ◽  
pp. 52-86
Author(s):  
Henrik Horn ◽  
Petros C. Mavroidis
Keyword(s):  
United States ◽  
Hong Kong ◽  
European Community ◽  
The United States ◽  
Third Parties ◽  
Federal State ◽  
Byrd Amendment ◽  
Appellate Body ◽  
The Us ◽  
Wto Appellate Body

On January 16, 2003, the WTO Appellate Body (AB) issued its report on the appeal by the United States (US) of the Panel decision in United States – Continued Dumping and Subsidy Offset Act of 2000. The report concerns the consistency of the United States Continued Dumping and Subsidy Offset Act of 2000 (the “CDSOA,” or the so-called Byrd Amendment) with several WTO provisions. This legislation requests the federal state to distribute proceeds from antidumping and countervailing duties to all US economic operators that have supported a request previously submitted to the ratione materiae competent US authority to investigate alleged dumping or subsidization. The appeal was directed against the Panel’s finding that the Byrd legislation was inconsistent with the US obligations under the WTO Antidumping Agreement (AD), and the Agreement on Subsidies and Countervailing Measures (SCM). A total of 11 complainants (Australia, Brazil, Canada, Chile, the European Community, India, Indonesia, Japan, Korea, Mexico, and Thailand), and five additional third parties (Argentina, Costa Rica, Hong Kong (China), Israel, and Norway), evidence the interest among WTO Members in the issues at stake in the dispute.

Killing the Byrd Amendment with the right stone

2004 ◽  
Vol 3 (1) ◽  
pp. 119-127 ◽  
Author(s):  
JAGDISH BHAGWATI ◽  
PETROS C. MAVROIDIS
Keyword(s):  
United States ◽  
Byrd Amendment ◽  
Appellate Body ◽  
The Us ◽  
Wto Appellate Body ◽  
The Right ◽  
Wto Agreements

On 16 January 2003, the WTO Appellate Body issued its report on United States – Continued Dumping And Subsidy Offset Act Of 2000 (WTO Doc. WT/DS217 and 234/AB/R). In this report, the Appellate Body condemned the so-called US Byrd Amendment by finding that it was inconsistent with the US obligations under the WTO Agreements on Antidumping (AD) and Subsidies and Countervailing Measures (SCM).

scholarly journals China – Countervailing and Anti-dumping Duties on Grain Oriented Flat-rolled Electrical Steel from the United States: exporting US AD/CVD methodologies through WTO dispute settlement?

2014 ◽  
Vol 13 (2) ◽  
pp. 229-266 ◽  
Author(s):  
THOMAS J. PRUSA ◽  
EDWIN VERMULST
Keyword(s):  
United States ◽  
Dispute Settlement ◽  
Electrical Steel ◽  
The United States ◽  
Republic Of China ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
The Us ◽  
Target Country ◽  
Injury Analysis

AbstractIn July 2009, Chinese steel producers of grain oriented electrical steel filed anti-dumping (AD) and countervailing duty (CVD) cases against US and Russian producers. The US challenged the duties for a variety a reasons, many of which involved deficiencies in the producers' application to China's investigating authority, the Ministry of Commerce of the People's Republic of China (MOFCOM). The US also challenged certain aspects of MOFCOM's injury analysis. The Panel and Appellate Body ruled in favor of the US on virtually every issue. Given the deficiencies in the application and China's handling of the case, the Panel and AB decisions were justified. In a larger sense, however, we believe China may well emerge as the ‘winner’ in this dispute as this case establishes important standards for allegations and evidence in applications, standards that other countries (including the US) likely have failed to meet when they have imposed AD and CVD orders on the largest target country, China.

scholarly journals United States – Anti-Dumping Measures on Polyethylene Retail Carrier Bags from Thailand: a cat in the bag

2012 ◽  
Vol 11 (2) ◽  
pp. 257-271 ◽  
Author(s):  
THOMAS J. PRUSA ◽  
EDWIN VERMULST
Keyword(s):  
United States ◽  
Policy Change ◽  
The United States ◽  
Panel Report ◽  
Relative Simplicity ◽  
Appellate Body ◽  
Course Of Action ◽  
Long Line ◽  
The Us ◽  
Wto Appellate Body

AbstractThis paper analyzes the dispute between Thailand and the United States regarding the method of calculating the anti-dumping duty on polyethylene retail carrier bags from Thailand. In December 2006, after a series of WTO Appellate Body reports, the United States ceased zeroing in original investigations. The United States implemented the policy change prospectively, that is only for future cases. Consequently, the margins in this case remained unchanged because they had been calculated in 2004. Thailand challenged the United States' use of zeroing in the final determination. The US did not contest the claim. The Panel confirmed that zeroing was used and, following the long line of Appellate Body rulings, found the United States' practice inconsistent with Article 2.4.2 of the Anti-Dumping Agreement. After the Panel Report was adopted, the United States retroactively applied the policy change to the facts of this case and recalculated the margins without zeroing. The relative simplicity of the panel proceeding and the United States' willingness to amend the calculations following the adoption of the Panel Report may invite other WTO members to pursue a similar course of action in instances where their exporters have been subjected to US zeroing.

scholarly journals Managing the Trade-Public Health Linkage in Defence of Trade Liberalisation and National Sovereignty: An Appraisal of United States-Measures affecting the Production and Sale of Clove Cigarettes

2017 ◽  
Vol 17 (4) ◽  
pp. 1285
Author(s):  
Tapiwa Victor Warikandwa ◽  
Patric C Osode
Keyword(s):  
Public Health ◽  
United States ◽  
World Trade Organisation ◽  
Legal Framework ◽  
Trade Liberalisation ◽  
Appellate Body ◽  
The Us ◽  
Health Related ◽  
Environment And Trade ◽  
Legal Subjects

Under the legal framework of the World Trade Organisation (WTO), countries have great flexibility to unilaterally adopt environmental regulations that have effect within their territories only. However, the same discretion does not apply to measures that adversely affect imports or exports. An absence of clear guidelines on how to address some of the attendant issues poses challenges to the effectiveness of a trade-environment linkage. Not surprisingly, attempts to link the environment and trade have resulted in a number of jurisprudentially significant cases in which the WTO's Panel and Appellate Body have tried to address critical questions about the Organisation's capacity to address or manage legal or quasi-legal subjects falling outside the scope of its legal framework. In this regard the Panel and Appellate Body reports in the case of United States - Measures Affecting the Production and Sale of Clove Cigarettes  (US-Clove Cigarettes) have re-ignited the debate on the Organisation's existential challenge of balancing the rights of the sovereign to freely regulate matters pertaining to health or the environment within its domestic domain with the need to maintain the sanctity of the multilateral trade order. This article demonstrates that in the US-Clove Cigarettes case the WTO Panel and Appellate Body, whilst managing to successfully defend the integrity of WTO Member States' treaty commitments and the overarching importance of trade liberalisation within the organisation's policy foundations even in the context of public health-related regulations, failed to provide any substantive affirmation of the development-related challenges facing developing countries that are part of the WTO family.

Appellate Body Report, United States – Clove Cigarettes

2012 ◽  
Vol 3 (2) ◽  
pp. 251-256 ◽  
Author(s):  
Benn McGrady
Keyword(s):  
Public Health ◽  
United States ◽  
World Trade Organization ◽  
World Trade ◽  
The United States ◽  
Case Note ◽  
Tobacco Products ◽  
Appellate Body ◽  
The Us ◽  
The World

In September 2011, the World Trade Organization (WTO) released the report of a panel tasked with considering a complaint brought by Indonesia concerning prohibitions on certain flavored tobacco products implemented by the United States (US). The panel concluded that the US violated WTO law and recommended that the US be asked to bring its laws into conformity with WTO law.The US appealed the panel's decision. The Appellate Body of the WTO upheld the panel report on April 4, 2012. This case note gives a brief overview of the Appellate Body's report and examines the implications for tobacco control and public health more generally.

scholarly journals Revisiting Procedure and Precedent in the WTO: An Analysis ofUS – Countervailing and Anti-Dumping Measures (China)

2016 ◽  
Vol 15 (2) ◽  
pp. 375-395 ◽  
Author(s):  
MOSTAFA BESHKAR ◽  
ADAM S. CHILTON
Keyword(s):  
United States ◽  
The United States ◽  
Market Economies ◽  
Us Congress ◽  
Appellate Body ◽  
The Us ◽  
Antidumping Duties ◽  
Appeals Court

AbstractAfter not applying countervailing duty (CVD) law against non-market economies (NMEs) for two decades, the United States opened a CVD investigation against China in 2006. After extensive litigation, a US appeals court ruled that it was illegal to apply CVD law to NMEs. While that ruling was being appealed, the US Congress passed legislation stipulating that the application of CVD law to NMEs starting in 2006 was legal. China challenged this legislation at the WTO. The dispute resulted in a ruling that left open the possibility that the legislation violated the GATT, as well as a finding that the United States must investigate its application of countervailing and antidumping duties against China. This dispute has implications for a number of current WTO debates including: whether Appellate Body rulings create a binding precedent, whether the Appellate Body should have authority to remand cases, and what information should be required in panel requests.

‘Two Roads Diverged in [Soft]wood’ Targeted Dumping, Differential Pricing Methodology, and Zeroing: US – Canada Anti-Dumping in Softwood Lumber

2021 ◽  
pp. 1-14
Author(s):  
Eugene Beaulieu ◽  
Janet Whittaker
Keyword(s):  
United States ◽  
Export Price ◽  
The United States ◽  
Softwood Lumber ◽  
Appellate Body ◽  
The Us ◽  
Differential Pricing ◽  
Countervailing Duties ◽  
Wto Appellate Body ◽  
Price Differences

Abstract The United States and Canada have a long-standing series of disputes over softwood lumber that until now have focused on alleged subsidies and countervailing duties (CVDs). The United States changed things up this time around and the US Department of Commerce (USDOC) found dumping after applying the Differential Pricing Methodology to softwood lumber from Canada. The panel found that the USDOC erroneously aggregated export price differences when applying the differential pricing methodology (DPM), but departed from the WTO Appellate Body's previous ruling in US–Washing Machines regarding the use of zeroing and the inclusion of differential prices under Article 2.4.2 of the Anti-Dumping Agreement. To date, the United States and Canada have not been able to resolve the long-standing softwood lumber dispute, and this time the focus shifts from subsidies and countervailing duties to anti-dumping duties. It remains to be seen what happens in this specific dispute on appeal – if, and when, the WTO Appellate Body starts to function again. It will also be interesting to see whether this panel decision encourages parties to argue for, and future panels to permit departures from, Appellate Body rulings with which they disagree.

scholarly journals United States – Anti-Dumping Measures on Oil Country Tubular Goods (OCTG) from Mexico: a legal-economic assessment of sunset reviews

2008 ◽  
Vol 7 (1) ◽  
pp. 269-298 ◽  
Author(s):  
CHAD P. BOWN ◽  
JASPER WAUTERS
Keyword(s):  
United States ◽  
Economic Assessment ◽  
General Nature ◽  
Appellate Body ◽  
Review Analysis ◽  
The Us ◽  
Practical Effect ◽  
Wto Appellate Body ◽  
The Moment ◽  
Causation Analysis

AbstractThis paper reviews the WTO Appellate Body Report on United States – Anti-Dumping Measures on Oil Country Tubular Goods (OCTG) from Mexico (WT/DS282/AB/R 2 November 2005). This dispute concerns the disciplines imposed by the Anti-Dumping Agreement on WTO Members seeking to extend their anti-dumping measures beyond the original five-year period through a so-called sunset review. Our analysis focuses on the Appellate Body's finding in this case that no causation analysis is required in sunset reviews, and addresses the AB's approach towards the legal instrument that provides for the US policy in terms of sunset reviews, the Sunset Policy Bulletin. We conclude that the Anti-Dumping Agreement, as interpreted by the Appellate Body in this and other similar cases, imposes only minimal disciplines of a general nature on Members wishing to extend the anti-dumping measure beyond its original five-year period. We argue that the ‘textual’ argument relied on to support this deferential approach is weak and has resulted in undermining the practical effect of, what was considered to be, one of the major achievements of the Uruguay Round Anti-Dumping Agreement: limiting the life span of an anti-dumping measure to five years. From an economic perspective, Panels and the Appellate Body are simply debating the wrong type of questions. The prospective nature required by a sunset review analysis raises questions such as why exporters engaged in dumping in the first place, and what the conditions of the industry were so that the dumped imports caused injury. At the moment, sunset reviews seem adrift as panels and the Appellate Body fail to give guidance to Members on how to do a more economically sound and informed review.

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