World Trade Organization
Has The Matter Been Settled and Adjudicated?
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Has The Matter Been Settled and Adjudicated?India considered that the matter that the complainants had presented to the Panel in their first submissions concerned the application of the discretionary licensing system which had already been the subject of complaints brought by each of the complainants under the DSU. Both complaints concerned the application of India's discretionary licensing system to automobiles imported in the form of semi-knocked down or completely knocked down components or kits (SKD/CKD kits). This licensing system had already been the subject of complaints brought by each of the complainants under the Dispute Settlement Understanding (DSU). India noted that the European Communities65 and the United States66, together with other developed country Members,67 brought complaints in July 1997 under the DSU against all of India's import restrictions notified under Article XVIII:B, including cars. Basing themselves on a determination by the International Monetary Fund that India's foreign exchange reserves were adequate, the European Communities and the United States claimed that India's import restrictions were no longer justified by Article XVIII:B. According to Article 21.3(b) of the DSU, the recommendations and rulings of the DSB must be implemented within a reasonable period of time, the length of which may be determined by agreement between the parties to the dispute. India and the United States agreed that India would remove its restrictions in stages and that the reasonable period of time would expire on 1 April 2001.68 India must therefore bring its import restrictions, including those applied to SKD/CKD kits, into conformity with its WTO obligations by that date. According to the mutually agreed solution with the European Communities, India must accord to the EC treatment no less favourable than that accorded to any other country in respect of the elimination of the restrictions.69 As a consequence, the implementation period effectively ended on 1 April 2001, both under the solution agreed with the European Communities under Article 3.6 of the DSU and under the agreement reached with the United States pursuant to Article 21.3(b) of the DSU. In the complaint brought by the European Communities, a mutually agreed solution was found which was notified to the Dispute Settlement Body (DSB). In the complaint brought by the United States, the DSB issued rulings on the basis of panel and Appellate Body findings. Under Articles 3.6 and 21.3(b) of the DSU, India agreed with both the European Communities and the United States to bring the licensing system into conformity with its WTO obligations as of 1 April 2001. This commitment covered also the application of India's discretionary licensing system to SKD/CKD kits. In India's view, the matter raised by the European Communities and the United States in the case before this Panel had therefore already been settled and adjudicated in accordance with the DSU. India considered that the dispute with the European Communities had been settled through an exchange of letters notified to the DSB on 7 April 1998 as a mutually agreed solution under Article 3.6 of the DSU. The exchange of letters stipulated that the import restrictions applied to specified products would be phased out in stages by 31 March 2003. It further stipulated that, as long as India complied with its phase-out commitments, "the European Communities will refrain from action under GATT Article XXII or Article XXIII" as regards the restrictions notified by India under Article XVIII:B.70 The joint notification of this settlement to the DSB also made clear that the European Communities and India had reached a mutually agreed solution with respect to the whole of the dispute on which the European Communities had requested consultations. India had fully complied with every aspect of the mutually agreed solution notified in accordance with Article 3.6 of the DSU. Notwithstanding the fact that India had fully complied with the notified solution, the European Communities had re-invoked the DSU with respect to the application of the discretionary licensing to one of the items notified under Article XVIII:B. It was not clear from the submission what precisely the scope of measure at issue was. The complainants referred to the import licensing regime, Public Notice No. 60 and the MOUs. They acknowledged that the import licensing regime applied to CKD/SKD kits would not be applied after 1 April 2001. They also seemed to acknowledge that Public Notice No. 60, which implemented that licensing regime, would no longer be operational after that date. Their concern seemed to relate primarily to measures India might take after 1 April in respect of the MOUs outside the framework of the import licensing regime and Public Notice No. 60. India asked the Panel to request the complainants to clarify whether in their view the measure at issue in this proceeding was the enforcement of MOUs through the import licensing regime and Notice No. 60 or whether it was limited to the enforcement of MOUs outside the licensing regime and Notice No. 60. If the complainants were to respond that their complaints related to the enforcement of MOUs through the import licensing regime and Public Notice No. 60, India would ask the Panel to issue a preliminary ruling to the effect that both complaints were inadmissible because the DSU cannot be invoked in respect of the same matter twice. In this context, India requested the Panel to ask the complainants to clarify whether or not, in their view, India must cease the application of its import licensing regime to CKD/SKD kits after 1 April 2001 as a result of the agreements that India concluded with the complainants under Article 3.6 and 21:3(b) of the DSU. In particular, India asked the panel to request the United States to answer the following questions: Would the United States consider itself entitled to suspend concessions in accordance with Article 22 of the DSU if India were to maintain its licensing regime for CKD/SKD kits and Public Notice No. 60 after 1 April 2001 contrary to the findings of the panel on India - Quantitative Restrictions. If so, what additional rights did the United States expect to obtain from the present proceeding? If not, should India await the results of the present proceeding before acting on this matter? 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 1.04 Mb. Share with your friends:
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