Canada export credits and loan guarantees for regional aircraft
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edc / IQ "as applied"Brazil requests "that the Panel find the Canada Account, EDC and IQ programmes inconsistent with Canada's obligations under the SCM Agreement as applied on the basis of evidence regarding specific transactions".90 Canada asserts that a challenge "as applied" is the same thing as a challenge to "specific transactions".91 In our view, there are a number of reasons why it would not be appropriate for us to make separate findings regarding the EDC and IQ programmes "as applied". First, we do not consider that Brazil's "as applied" claims are independent of its claims regarding "specific transactions". Indeed, Brazil itself acknowledges that "[i]n order for Brazil to prevail on its 'as applied' claims, the Panel must find that the challenged programmes have been applied in specific transactions in a manner that is inconsistent with the SCM Agreement".92 Since Brazil's "as applied" claims are not independent of its claims against "specific transactions", and since we make findings regarding "specific transactions", we see no practical purpose in making "as applied" findings. Second, we are unclear as to what the implications of a finding that a programme "as applied" is inconsistent with Article 3.1(a) of the SCM Agreement would be, particularly in the context of implementation. One possibility is that a panel might find that a programme "as applied" is inconsistent with Article 3.1(a) on the basis of findings that all "specific transactions" undertaken thus far under that programme are inconsistent with Article 3.1(a). In such a case, we fail to see what the value added in making a finding regarding the programme "as applied" would be, since the implications for implementation would not extend beyond those "specific transactions". At most, the implication would be that, in the future, the relevant Member should cease to exercise its discretion in a manner inconsistent with Article 3.1(a). This would add nothing to the basic requirement of Article 3.1(a) itself. Another possibility is that a panel might find that a programme "as applied" is inconsistent on the basis of findings that certain – but not all – "specific transactions" under that programme are inconsistent.93 In this case, the implications for implementation would extend beyond the "specific transactions" in respect of which the panel has made findings. We consider, however, that it would be inappropriate for a panel to extend its findings in this manner.94 Third, we recall our earlier remarks regarding the application of the mandatory / discretionary distinction.95 Further, we recall the statement of the panel in United States – Export Restraints that "the distinction between mandatory and discretionary legislation has a rational objective in ensuring predictability of conditions for trade. It allows parties to challenge measures that will necessarily result in action inconsistent with GATT/WTO obligations, before such action is actually taken"96. The conclusion by a panel that a programme is discretionary and therefore is not inconsistent with the WTO Agreement and a subsequent conclusion, by the same panel, that the programme "as applied" (i.e., the manner in which the discretion inherent in that programme has been applied) is inconsistent with the WTO Agreement would be of little value. In our view, findings regarding a programme "as applied" would undermine the utility of the mandatory / discretionary distinction. For these reasons, we reject Brazil's claims regarding the EDC and IQ programmes "as applied". information gathering by the panelIn a letter dated 21 May 2001, Brazil asked the panel to exercise its discretion under Article 13.1 of the DSU "to request from Canada documents and other information concerning the terms of any support from 1 January 1995 onward committed or granted by the Export Development Corporation ("EDC"), Canada Account, Investissement Québec ("IQ"), or any subsidiary organizations thereof, in connection with the sale of regional aircraft by Bombardier"97. This letter was received prior to the deadlines for the parties' first written submissions. On 12 June 2001, we informed the parties that we do "not consider it appropriate to seek any documents or information from either party until it has at least had an opportunity to review both parties' first written submissions". Having reviewed the parties' first written submissions, on 20 June 2001 the Panel asked Brazil "to provide full details of the terms and conditions of Embraer's offer of financing to Air Wisconsin", and Canada "to provide full details of the terms and conditions of its Air Wisconsin transaction". Both parties responded to this request on 25 June 2001. Canada failed to provide a copy of the information to Brazil on that date. Instead, Canada "ask[ed] the Panel to require that when this information is provided to Brazil, its disclosure be restricted to officials of the Government of Brazil and private legal counsel retained and paid for by the Government of Brazil who are directly involved in this dispute settlement proceeding". In a letter to Canada dated 26 June 2001, the Panel noted that Canada's letter of 25 June 2001 "was not copied to Brazil, contrary to paragraph 10 of the Panel's Working Procedures". The Panel further "note[d] that, with the limited exception of paragraph 16, its Working Procedures do not provide for any special procedures regarding the treatment of business confidential information. The Panel does not consider it appropriate to introduce such procedures under the present circumstances, i.e., on the basis of an ex parte request, and without an opportunity to consult with Brazil". For those reasons, the Panel returned Canada's submission of 25 June 2001. At the first substantive meeting, Canada informed the Panel that it had not intended to make an ex parte communication, and that it was not seeking to introduce any special procedures for the treatment of business confidential information. On that basis, its letter of 25 June 2001 was entered in the record. During the course of these proceedings, we also addressed a number of additional requests for information and / or documentation to Canada. Since we are not a commission of enquiry, we did not consider it appropriate to seek additional information and / or documentation on the basis of Brazil's general request of 21 May 2001. We only considered it appropriate to seek additional information / documentation from Canada on the basis of specific information and / or arguments submitted by Brazil. Directory: english -> tratop e -> dispu e dispu e -> Annex g list of exhibits submitted by the parties dispu e -> World Trade Organization dispu e -> World Trade Organization Download 0.58 Mb. Share with your friends:
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