DS577 United States — Anti-dumping and countervailing duties on ripe olives from Spain
The European Union welcomed the panel’s findings in the ruling issued on 20 February regarding US efforts to comply with an earlier panel decision concerning US anti-dumping and countervailing duties on imported ripe olives from Spain.
The EU said the compliance ruling leaves no room for doubt that the US has failed to comply with the original panel’s finding on the “pass-through” of subsidies from upstream olive producers to downstream processed products. The EU said it now expects the US to fully implement in a timely manner the compliance panel ruling and to finally provide relief to the Spanish olives sector. The EU said it reserves its right to take further steps should the US fail to take immediate action to implement the panel ruling.
The United States said while it was disappointed with the panel’s findings, it decided to permit the report to be adopted and noted its desire to work with the EU to resolve this dispute. The US noted that it took a number of actions in response to the original panel ruling and that the majority of those compliance actions were not challenged by the EU.
Canada said it supported the compliance panel’s conclusion that the US has not brought its measures into conformity with WTO rules.
The DSB then adopted the compliance panel report.
DS597 United States — Origin Marking Requirement (Hong Kong, China)
For the ninth time, the United States raised the matter of the panel ruling in DS597 at a DSB meeting. The US referred back to its previous statements regarding its position on essential security and its reason for placing this item on the DSB agenda. The US fundamentally disagrees with the panel’s approach, which suggests a state ought to defer consideration of its essential security interests until after a breakdown in relations with another member, it said. The US again drew attention to what it said was the alarming and deteriorating circumstances regarding human rights and freedom of speech in Hong Kong, China which justified its measure.
Hong Kong, China said it has made clear repeatedly its readiness to have the case heard by the Appellate Body and regretted the Appellate Body has been made defunct by one member. Even more deplorable is the same member has repeatedly abused the procedures of the DSB meetings to challenge the panel findings and smear Hong Kong, China, it said.
China said it was deeply concerned about the US repeatedly placing this item on the DSB agenda, which was in contradiction to WTO dispute rules. It is clear that the national security exception under the General Agreement on Tariffs and Trade (GATT 1994) is not entirely self-judging, China said, adding that it rejected in the strongest terms what it said were the false allegations of the US regarding the situation in Hong Kong, China.
The United States came back to say that it was not abusing the procedures of the DSB but that in each instance it has brought to light new facts and circumstances that continue to reinforce the US concerns expressed in this dispute.
Discussions concerning dispute settlement reform
Ambassador Ølberg reported on his recent consultations to hear delegations’ views on how to follow up on the MC13 Decision by ministers on dispute settlement reform, and on the issue of the appointment of a facilitator for the reform process following the departure of Mr. Marco Molina, the convenor of the informal review process. In their Decision, ministers reaffirmed their commitment to having a fully and well-functioning dispute settlement system accessible to all by 2024 and instructing officials to accelerate discussions in order to achieve this.
Ambassador Ølberg noted that 31 delegations representing two-thirds of the membership met with him from 11 to 13 March. He said delegations remain committed to the 2024 goal and are ready to accelerate work. Most members said they consider the General Council the appropriate forum to oversee the discussions, with a majority of members believing that the General Council would provide the necessary political impetus to complete this process by the mandated deadline. Two delegations prefer formalizing the process under the auspices of the DSB, to be overseen by the DSB Chair, given that this is a dispute settlement matter, he added.
On the issue of the facilitator, Ambassador Ølberg said many members believed that a facilitator should be at the level of Ambassador and have legal expertise and experience in WTO dispute settlement. It was also emphasized that a facilitator should be impartial, able to maintain the delicate balance between ensuring full participation and facilitating quick progress, and comfortable with holding members accountable to carry out the instruction from ministers by the deadline. Many members put forward different names of candidates for this role. Members also expressed the view that the facilitator should be supported by a legal expert from another delegation — preferably one who had actively participated in the previous informal process.
After the consultations, the Chair said he reached out to three candidates for the facilitator role whose names came up most often, but that unfortunately none of the three were available to take on this role. Accordingly, the Chair said he was unable to seek the appointment of a facilitator at the 21-22 March upcoming General Council meeting as he had hoped. Given the limited time left and in the interest of advancing this process, Ambassador Ølberg said he intends to continue consulting with members to determine the next steps and welcomed new suggestions for the facilitator role.
Twenty-five delegations took the floor to comment, with two speaking on behalf of groups of members. Views were expressed on issues such as when to formalize the process and in what WTO body, the qualities required of a new facilitator, and whether to continue with the “interest-based” approach taken in the informal process versus a more traditional “position-based” discussion with record-keeping and circulation of member proposals. Other issues included the status of the consolidated text that emerged from the informal process and was circulated in advance of MC13, and how best to ensure the talks are open, transparent and inclusive while advancing the progress made so far.
Appellate Body appointments
Colombia, speaking on behalf of 130 members, introduced for the 74th time the group’s proposal to start the selection processes for filling vacancies on the Appellate Body. The extensive number of members submitting the proposal reflects a common concern over the current situation in the Appellate Body which is seriously affecting the overall WTO dispute settlement system against the best interest of members, Colombia said for the group.
The United States repeated that it does not support the proposed decision to commence the appointment of Appellate Body members as its longstanding concerns with WTO dispute settlement remain unaddressed. Investing in dispute settlement reform presents an opportunity to build a new system that overcomes the problems of the past, the US said. As members engage on reform, they must bear in mind that re-launching the Appellate Body selection process will not address US concerns, and calls for the restoration of the Appellate Body undermine the collective efforts for reform, the US added.
Twenty-three members then took the floor to comment, with one speaking on behalf of a group of members. Many of these members noted the reaffirmation by ministers at MC13 to engage in discussions aimed at securing a fully functioning dispute settlement system by 2024 and the urgent need to resolve this issue in order to safeguard the security and predictability of the multilateral trading system. Restoring the Appellate Body was central to achieving this objective, several said. Six members made reference to the Multi-party interim appeal arrangement (MPIA) as a means of maintaining appeal rights in the absence of a functioning Appellate Body.
Colombia said that on behalf of the 130 members it regretted that for the 74th occasion members have not been able to launch the selection processes. Ongoing conversations about reform of the dispute settlement system should not prevent the Appellate Body from continuing to operate fully, and members should comply with their obligation under the Dispute Settlement Understanding to fill the vacancies as they arise, Colombia said for the group.
Surveillance of implementation
The United States 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”, and DS471, “United States — Certain Methodologies and their Application to Anti-Dumping Proceedings Involving China.”
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 DS477 and DS478, “Indonesia — Importation of Horticultural Products, Animals and Animal Products.”
Next meeting
The next regular DSB meeting will take place on 26 April.
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