This chapter addresses the dispute brought to the World Trade Organization (WTO) by India concerning anti-dumping duties imposed by the European Communities (EC) on cotton-type bed linen. An earlier complaint brought by India challenged the anti-dumping duties on a number of points, including the EC practice of “zeroing” for the computation of dumping margins (which had the effect of assigning a negative dumping margin a weight of zero when computing a weighted average dumping margin). India prevailed in that dispute, and the EC responded with Council Regulation (EC) No. 1644/2001, amending the original anti-dumping measure on bed linen from India. India was of the view that the amended measure did not comply with EC obligations under the WTO Anti-dumping Agreement, and brought the proceeding under Art. 21.5 of the DSU that is the subject of this chapter.

The WTO Anti-Dumping (AD) Agreement requires that anti-dumping duties be reviewed at least every five years (Art. 11.3); pursuant to this requirement, domestic trade authorities in the United States are charged with the task of making a determination as to whether, after five years, revoking the duties would be likely to lead to continuation or recurrence of dumping (Commerce) and of material injury (US International Trade Commission, or USITC). This is called a Sunset Review; a negative determination of likelihood, either with respect to dumping or injury, will result in the duties expiring, the “sun” setting, as it were.

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.

This chapter addresses the Appellate Body (AB) report on European Community – Antidumping Duties on Malleable Cast Iron Tube or Pipe Fittings from Brazil. The underlying Panel determination was appealed by the complainant Brazil only. Following the approach it took before the Panel, Brazil raised a number of issues concerning the antidumping investigation by the European Community (EC).

This note addresses the Word Trade Organization (WTO) dispute United States – Final Countervailing Duty Determination With Respect To Certain Softwood Lumber From Canada (WT/DS257); denoted “Softwood Lumber IV” below. The issues discussed by the Panel and the Appellate Body (AB) in this dispute are very closely related to those examined by the Panel in United States – Preliminary Countervailing Duty Determination With Respect To Certain Softwood Lumber From Canada (WT/DS236); to be referred to as “Softwood Lumber III.” This dispute was not appealed, and the AB thus did not have the opportunity to provide its view on the issues raised in the dispute. The fundamental character of several of the issues at stake in both these disputes makes the AB’s determination in Softwood Lumber IV particularly interesting.

Since the inception of the WTO, safeguard measures have regularly been the subject of dispute settlement proceedings. The latest in this chain of disputes concerns the definitive safeguard measures imposed by the United States on a wide range of steel products in 2002.

The safeguards investigation of steel imports was initiated under the US law by the US International Trade Commission (USITC) at the request of the United States Trade Representative (USTR) in June, 2001. The request covered four broad categories of steel products, which were divided into 33 categories by the USITC for purposes of data collection. Ultimately, the USITC defined 27 separate “industries” producing steel products within the scope of the investigation. For each of these industries, the USITC proceeded to determine whether imports had increased, and if so, whether increased imports were a substantial cause of serious injury or threat of injury. This analysis resulted in negative determinations for 15 industries, affirmative determinations for eight industries, and “divided” determinations (a 3–3 vote) for four industries.

This chapter reviews the panel report on Mexico – Measures Affecting Telecommunication Services. The Panel considered claims by the United States that Mexico acted inconsistently with its obligations in respect to the liberalization of its market for telecommunication services. It is the first Panel to consider solely the rules agreed upon in the General Agreement on Trade in Services (GATS). It is also the first Panel to deal with the telecommunication services industry and its complex layers of legislation, in particular the rules agreed to in the Telecommunications Reference Paper (TRP) on pro-competitive regulatory principles. Viewed from this perspective, this report is, because of its potential as a precedent, of particular significance.

The WTO case brought by India in 2002 to challenge aspects of the European Communities’ Generalized System of Preferences (GSP) brings fresh scrutiny to a policy area that has received little attention in recent years – trade preferences for developing countries. The idea for such preferences emerged from the first United Nations Conference on Trade and Development (UNCTAD) in 1964. The ensuing negotiations led to Resolution 21(ii) at the second session of UNCTAD in 1968, acknowledging “unanimous agreement” in favor of the establishment of preferential arrangements. Tariff discrimination violates the most-favored nation (MFN) obligation of General Agreement on Tariffs and Trade (GATT) Art. I, however, and thus the legal authority for preferential tariff schemes had to await a GATT waiver of this obligation, which came in 1971. The waiver was to expire after 10 years, but the authority for preferences was extended by the GATT Contracting Parties Decision of November 28, 1979 on Differential and More Favorable Treatment, Reciprocity and Fuller Participation of Developing Countries, popularly known as the “Enabling Clause,” and now incorporated into the law of the WTO along with the GATT itself.

This arbitration on the level of countermeasures, pursuant to the Dispute Settlement Understanding (DSU) 22.6, originates from findings against the United States with respect to a provision of the 1916 Anti-Dumping Act, which permits a private cause of action for treble damages against an alleged dumping importer or producer where the dumping meets certain criteria including, notably, a predatory intention. An unusual feature of this case is that, apparently, the provision in question has never been used, at least against the European Community (EC), the complainant. In any case, the provision in question was found to be in violation of the WTO Anti-Dumping Agreement, both because it would impose measures on dumping other than and in addition to anti-dumping duties, and because in so doing, the procedural requirements of the Anti-Dumping Agreement would not be followed.

This chapter reviews the decision by the Appellate Body (AB) regarding measures affecting the importation of apples in Japan. Section 2 of the chapter presents some background facts. Section 3 considers the Sanitary and Phytosanitary (SPS) agreement and emphasizes the fact that it imposes a discipline on risk-reducing measures even in the absence of discrimination or protectionism. Section 4 discusses how the evaluation of risk-reducing measures can be undertaken in the context of the SPS agreement. Our discussion focuses on two issues: the scope of the mandate given to the adjudicators and the standard of review that they should apply. We emphasize the difficulty of the task faced by the adjudicators, namely to distinguish between determining the level of risk that a country will find optimal to support (which cannot be challenged) and determining whether risk-reducing measures are necessary to achieve the chosen level of risk. We further observe that the common methodology used by Panels, namely to evaluate the existence of risk in the absence of risk-reducing measures, has limited applicability.