Los Miembros examinan solicitudes en relación con una medida de salvaguardia aplicada por los EU con el sector del azúcar de la India

DS562 United States – Safeguard Measure on Imports of Crystalline Silicon Photovoltaic Products

China submitted its first request for a panel to review a US safeguard measure on imports of crystalline silicon photovoltaic cells. China noted that the measure, which took effect in January 2018, is in the form of a tariff rate quota imposed for a period of four years, with unchanging in-quota quantities and annual reductions in the rates of duty applicable to goods entered in excess of those quantities in the second, third and fourth years. The duty rate for the first year was set at 30%.

China said the measure violates the core principles of the WTO disciplining the proper use of safeguard measures. The United States failed to provide a reasoned and adequate explanation of any of the essential conditions justifying the imposition of a safeguard, it said.  This is not the first challenge against US safeguard measures, China noted, with several prior challenges resulting in the US measures being found WTO-inconsistent and Korea initiating similar proceedings against the US solar cells safeguard last year. Consultations were held on 22 October 2018 with a view to reaching a mutually satisfactory solution, China noted, but the talks failed to resolve the dispute, prompting China to submit its request for the panel.

The United States said that WTO rules allow a member to temporarily suspend concessions in order to take a safeguard action 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. The US has exercised this right with respect to crystalline silicon photovoltaic products and imposed a safeguard. The US process was open and transparent, and fully in accordance with both US domestic safeguard law and WTO obligations. In addition, China’s request for a panel improperly includes a claim not raised in its request for consultations. For these reasons, the US said, it is not in a position to agree to the establishment of a panel.

The DSB agreed to revert to the matter.

DS579, DS580, DS581: India – Measures Concerning Sugar and Sugarcane

Australia, Brazil and Guatemala presented their first requests for the establishment of panels to determine whether measures in India supporting the domestic sugar and sugarcane sector are compatible with WTO rules.  The three initiated separate dispute complaints challenging India’s domestic support that includes a system of administered prices for sugarcane, a minimum selling price for sugar and the setting of prices for sugar such as stockholding requirements and subsidies to maintain buffer stocks as well as additional measures that provide financial assistance to sugarcane producers, both at the federal and state levels. The three also charge that India provides subsidies contingent on export through «Minimum Indicative Export Quotas» (MIEQ) or other sugar export incentives.

Brazil, Australia and Guatemala said that, as a result of the domestic support measures, India is in violation of its obligations under the WTO’s Agreement on Agriculture as the resulting sugar support exceeds India’s “de minimis” level of 10% of the value of production, while the export subsidies are prohibited subsidies under the Agreement on Subsidies and Countervailing Measures (SCM Agreement).

Australia said the subsidies have led to a sharp jump in India’s sugar production which has contributed to significant oversupply on the global market, while Brazil said that India’s big increase in sugar allocated for its mandatory export quota has depreciated the international price of sugar, harming Brazilian exporters.  Guatemala also cited harm to its sugar industry resulting from overproduction in India and a subsequent fall in global sugar prices. Consultations between the three complainants and India aimed at resolving the dispute were not successful, prompting each of the three to request WTO dispute panels to rule on their complaints.

India responded that its measures are aimed at preventing exploitation of over 35 million vulnerable low-income, resource-poor farmers and enabling them to have a just and equitable share in economic development, a goal that all WTO members solemnly took upon themselves during the Uruguay Round and reaffirmed in the Doha Ministerial Declaration. The measures identified by the three do not violate India’s WTO obligations and do not have any trade-distorting effect on the global sugar trade, nor do they adversely affect the three’s commercial interests, it said.

In fact, India said, the measures have resulted in increasing the domestic price of sugar within India, thereby making imports of sugar into India more lucrative and making exports from India uneconomical. India said it was surprised by the decisions of the three to request panels despite its offer to continue engagement to resolve any issues and was not in a position to agree to any of the three panel requests.

The DSB agreed to revert to the matter.

DS234: United States – Continued Dumping and Subsidy Offset Act of 2000

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. Brazil and Canada supported the EU statement, while the United States said it has taken all actions necessary to implement the ruling.

DS316: European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft: Implementations of the recommendations adopted by the DSB

The United States said that once again the European Union has failed to provide a status report to the DSB concerning dispute DS316. The European Union repeated that the matter is subject to new compliance proceedings and thus there was no obligation on the EU to submit a status report.

US statement on transparency in WTO dispute settlement

The United States delivered a statement on the need for greater transparency in WTO dispute settlement. For more than 20 years, the US has called on members to support the WTO by bringing openness and accountability to its operations, it said, an issue of systemic importance that is critical for the legitimacy of the WTO. To that end, the US has formally offered to open every panel proceeding that it is party to and invited every other member to agree to make this happen.

While some WTO members have joined the US in supporting greater transparency in WTO dispute settlement, most WTO members continue to insist on closed hearings and confidential submissions, the United States said. By pushing to keep dispute settlement closed and secret, these members deny other members, the public and the WTO itself of significant benefits – enhancing members’ understanding of the dispute settlement system and promoting confidence in the professionalism and objectivity of its adjudicators. The public has a legitimate interest in WTO dispute proceedings, the US added; acceptance of the results of WTO rulings may be facilitated if those being asked to assist in the task of implementation have confidence that the rulings are the result of a fair and adequate process.

The United States said there were no provisions under the WTO’s Dispute Settlement Understanding (DSU) that require non-transparent proceedings, that preclude open meetings, that preclude members from making their submissions public and that provide for confidentiality of «arguments» or «positions» of a party». The US said it was long overdue for members to agree to open all substantive dispute settlement meetings to observation by all members and the public, and that each member should immediately take steps in each dispute it is involved in to make its statements publicly observable and make its written submissions publicly available.

Several members thanked the United States for its initiative and said they supported improved transparency in WTO dispute proceedings. Others said they were not convinced by the US arguments and that WTO rules provided for confidentiality in WTO dispute proceedings. Several said the most important priority for members was resolving the deadlock over the appointment of new Appellate Body members, as there would be no meetings to be opened to the public if the blockage continued.

Appellate Body appointments

Mexico, speaking on behalf of 114 members, introduced once again the group’s proposal to start the selection processes for six vacancies in the Appellate Body – the four existing vacancies plus the two vacancies that will emerge when the second terms of Ujal Bhatia and Thomas Graham end on 10 December. Mexico welcomed Qatar and the 38-strong African Group of WTO members as new co-sponsors. The increasingly considerable number of members submitting the proposal reflects a common concern over the current situation in the Appellate Body that is seriously affecting its workings as well as the workings of the overall dispute settlement system against the best interest of members, it said. WTO members have a responsibility to safeguard and preserve the Appellate Body, the dispute settlement system and the multilateral trading system, Mexico said.

The United States responded that it was still not in the position to support the proposal and that the systemic concerns that it previously identified remain unaddressed. For more than 16 years, the US has been raising serious concerns with the Appellate Body’s overreaching and disregard for the rules set by WTO members. The US will continue to insist that WTO rules be followed and will continue efforts and discussions to seek a solution, it said.

Fifteen members took the floor, on their own behalf or on behalf of groups of WTO members, to express mounting concern over the impasse in the selection process. Several cited the increasing urgency to find a solution – only 20 weeks are left until the Appellate Body is down to one member – and the need for all members to play an active part in the discussions on overcoming the impasse being facilitated by the DSB chair, Ambassador David Walker of New Zealand. Several also reiterated that Article 17.2 of the DSU imposed an obligation on members to fill vacancies in the Appellate Body as they arise, and that the selection process and the concerns regarding the Appellate Body’s actions should not be linked.

The United States intervened for a second time to contest suggestions that it had failed to participate in the discussions on how to overcome the blockage – no member has been more engaged in these substantive issues than the US, it said. For the past year, the US has outlined in detail at successive DSB meetings what its position is and why the US believes the Appellate Body has strayed from the rules of the DSU. In both discussions among small groups of members as well as under the informal process under the General Council, US representatives have been there at every stage of the process seeking to gain better understanding of members’ views, it said. Last month, the US sought to engage members on the fundamental issue of why the Appellate Body has disregarded the clear rules set by members – members need to look deeper into this issue, and without two-way engagement, it is difficult to see how the US concerns can be addressed.

The DSB chair reiterated that the matter urgently requires meaningful engagement by all WTO members and that requirement becomes more urgent with each passing day. He noted that he reported to the General Council on 7 May regarding his informal process to overcome the impasse and that he held an informal open-ended meeting of members on 18 July for transparency purposes. Amb. Walker added that he will report back again to the General Council on 23 July.

Surveillance of implementation

The US 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», DS471, «United States — Certain Methodologies and their Application to Anti-Dumping Proceedings Involving China» and DS488, «US — Anti-Dumping Measures on Certain Oil Country Tubular Goods from Korea».

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 DS484, «Indonesia — Measures Concerning the Importation of Chicken Meat and Chicken Products», and DS477 and DS478, «Indonesia — Importation of Horticultural Products, Animals and Animal Products».

Next meeting

The next meeting of the DSB is scheduled for 15 August.

More information on WTO dispute settlement is available here.