Brazil - Measures Affecting Desiccated Coconut, complaint by the Philippines (WT/DS22): Report of the Appellate Body

Summary

INTRODUCTION

The Philippines and Brazil appeal from certain issues of law and legal interpretations in the Panel Report, Brazil - Measures Affecting Desiccated Coconut (the “Panel Report”). That Panel was established to consider a complaint by the Philippines against Brazil relating to the countervailing duties imposed by Brazil on imports of desiccated coconut from the Philippines pursuant to Interministerial Ordinance No. 11 (the “Ordinance”) on 18 August 1995.

The application for initiation of the countervailing duty investigation was filed with the Brazilian authorities on 17 January 1994. The investigation was initiated on 21 June 1994, provisional countervailing duties were imposed on 23 March 1995, and definitive countervailing duties were imposed on 18 August 1995. The Marrakesh Agreement Establishing the World Trade Organization (the “WTO Agreement”) entered into force for both parties to this dispute, Brazil and the Philippines, on 1 January 1995, that is, after the application for, and the initiation of, the investigation and prior to the imposition of the provisional and definitive countervailing duties.

The Panel Report was circulated to Members of the World Trade Organization (the “WTO”) on 17 October 1996. It contains the following conclusions:

a. Article VI of GATT 1994 does not constitute applicable law for the purposes of this dispute. As a result, the substance of the Phil- ippines’ claims under that Article, and of its claims under Articles I and II of GATT 1994 which derive from their claims of inconsistency with Article VI of GATT 1994, cannot be considered by this Panel.

b. The Agreement on Agriculture does not constitute applicable law for the purposes of this dispute. As a result, the substance of the Philippines’ claims under that Agreement cannot be considered by this Panel.

c. The Philippines’ claim regarding Brazil's failure to consult is not within the terms of reference of this Panel and therefore its substance cannot be considered.

The Panel made the following recommendation:

The Panel, having concluded that the substance of the Philippines’ claims are not properly before it, recommends that the Dispute Settlement Body make such a ruling.