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| 430 Panel Report on Argentina – Hides and Leather, WT/DS155/R, adopted on 16 February 2001, para. 11.17. 431 The Illustrative List of the TRIMs Agreement is referred to in its Article 2.2 and contained in the Annex to that Agreement. 432 The Panel recalls in this regard the Appellate Body's observation that "Article 13 of the DSU and Article 11.2 of the SPS agreement suggest that panels have a significant investigative authority. However, this authority cannot be used by a panel to rule in favour of a complaining party which has not established a prima facie case of inconsistency based on specific legal claims asserted by it. A panel is entitled to seek information and advice from experts and from any other relevant source it chooses, pursuant to Article 13 of the DSU and, in an SPS case, Article 11.2 of the SPS Agreement, to help it understand and evaluate the evidence submitted and the arguments made by the parties, but not to make the case for a complaining party". (Report of the Appellate Body, Japan – Agricultural Products II, WT/DS76/AB/R, adopted on 19 March 1999, para. 129). 433 The Panel notes that the TRIMS Agreement Illustrative List envisages measures relating to export requirements both in the context of Article XI:1, as noted above in the context of our analysis under Article XI:1, and in the context of Article III:4 of the GATT 1994, by listing as inconsistent with that provision measures which require "that an enterprise's purchases or use of imported products be limited to an amount related to the volume or value of local products that it exports" TRIMS Illustrative List, Item 1 (b). 434 Response to Question 47 (b) of the Panel. 435 See for example the Panel Report on Indonesia – Autos, WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R, adopted on 23 July 1998, para. 14.113 (DSR 1998:VI, 2201) ("… an origin-based distinction in respect of internal taxes suffices in itself to violate Article III:2, without the need to demonstrate the existence of actually traded like products.") See also the Panel Report on Canada – Autos, WT/DS139/R, WT/DS142/R, adopted on 19 June 2000, as modified by the Appellate Body Report, para. 10.74. See also the Compliance Panel Report on US – FSC (Article 21.5), WT/DS108/RW, circulated on 20 August 2001, para. 8.133.
436 Panel Report on Canada – Autos, WT/DS139/R, WT/DS142/R, adopted on 19 June 2000, as modified by the Appellate Body Report, para. 10.80. 437 Article III:1 refers to the application of measures "to imported or domestic products", which suggests that application to both is not necessary. 438 Thus, the "advantage" to be obtained could consist in a right to import a product. See for instance, the Report of the second GATT panel on EC – Bananas II as cited and endorsed in EC – Bananas III, WT/DS27/R/USA, adopted on 25 September 1997, as modified by the Appellate Body Report, para. 4.385 (DSR 1997:II, 943: "The Panel further noted that previous panels had found consistently that this obligation applies to any requirement imposed by a contracting party, including requirements 'which an enterprise voluntarily accepts to obtain an advantage from the government.' In the view of the Panel, a requirement to purchase a domestic product in order to obtain the right to import a product at a lower rate of duty under a tariff quota is therefore a requirement affecting the purchase of a product within the meaning of Article III:4." 439 In response to the Panel's question whether the European Communities was seeking a distinct ruling on Public Notice No. 60, separate from whether any MOU has been executed, the European Communities replied that it was seeking a distinct ruling. The European Communities argued that "[t]o the extent that the MOUs impose obligations that are inconsistent with the GATT and the TRIMs Agreement, a requirement to enter into an MOU is also inconsistent with those agreements, regardless of whether any manufacturer actually concludes a MOU." See EC's Response to Question 88. 440 The Appellate Body stated that "Article III protects expectations not of any particular trade volume but rather of the equal competitive relationship between imported and domestic products." See Appellate Body Report in Japan – Alcoholic Beverages II, WT/DS8/R, WT/DS10/R, WT/DS11/R, adopted on 1 November 1996, p. 16 (DSR 1996:I, 97). 441 Second Submission by India, para. 12. 442 Response to Question 2(b) by the Panel. 444 See document annexed to the Oral Statement of India at the interim review meeting. 445 See para. 3.7 above. 446 Para. 3.8 of the report. 447 Statement of India at the second meeting, para. 29 and Annex II to that statement. 448 Para. 3.8 of the report. 449 See also Questions 1 and 17 of the Panel. 450 See para 3.1. The United States also considered it would be appropriate for the Panel to rule on Public Notice No. 60 given that the requirements were still in place through the MOUs. The United States said it was not requesting the Panel to make findings on Public Notice No. 60 that were separate from its findings on the MOUs executed thereunder. The United States was, however, requesting that the Panel's findings encompass both Public Notice No. 60 and the individual MOUs (see para 3.2). See also para. 38 of the First Submission of the United States to the Panel. 451 Response to Question 2 (a) from the Panel. 452 Response to Question 72 from the Panel para. 10. 453 See Second Oral Statement para. 41. 454 Para. 3.5. See also Question 87 of the Panel. 455 The Panel notes, as a general matter, that if a respondent could make changes of any degree to a measure subject to challenge and then always be able to successfully argue that the Panel's report can have no ultimate normative effect because the changes are distinct measures from those originally envisaged, this could entirely frustrate the dispute settlement system. 456 In Indonesia – Autos, the National Car program was terminated and the regulations and decrees thereunder were revoked during the panel process. Citing previous GATT and WTO panel reports, the panel proceeded to make findings on the National Car program. In US – Section 337, the challenged measure was amended during the panel process but the panel refused to take into account such amendments. See also Argentina – Textiles, Report of the Appellate Body, para. 64. 457 See under the GATT, the Thailand – Cigarettes case: the panel took into account, in drawing its conclusions as to the compatibility of the measure submitted to it, an amendment in the measure on the basis of which it was able to conclude that the measure was no longer in violation of the relevant GATT provision: "the Panel observed that the new Thai measure, by eliminating business and municipal taxes on cigarettes, removed the internal taxes imposed on imported cigarettes in excess of those applied to domestic cigarettes. The Panel noted that (…) the Tobacco Act continued to enable the executive authorities to levy the discriminatory taxes. However, the Panel (…) found that the possibility that the Tobacco Act might be applied contrary to Article III:2 was, by itself, not sufficient to make it inconsistent with the General Agreement". The panel concluded that "the current regulations relating to the excise, business and municipal taxes on cigarettes are consistent with Thailand's obligations under Article III".
458 It should be stressed in this respect that none of the issues raised here relate to any alleged "worsening" of the situation likely to generate additional violations resulting from the measures at stake, but rather to whether the situation as examined has lost part or all of its legal or practical relevance. 459 See para. 1.4. 460 Australia – Salmon, Report of the Appellate Body, para. 223. 461 This was recalled by the Appellate Body in its report on US – Certain EC Products, where it observed that "there is an obvious inconsistency between the finding of the Panel that 'the 3 March Measure is no longer in existence' and the subsequent recommendation of the Panel that the DSB request that the United States bring its measure into conformity with its WTO obligations. The Panel erred in recommending that the DSB request the United States to bring into conformity with its WTO obligations a measure which the Panel has found no longer exists" (US – Certain EC Products, Report of the Appellate Body, WT/DS165/AB/R, adopted on 10 January 2001, para. 81). 462 Second Submission, para. 30. 463 The Canada – FIRA panel, in considering an argument by Canada that the undertakings were "private contractual" arrangements, found that: "The Panel carefully examined the Canadian view that the purchase undertakings should be considered as private contractual obligations of particular foreign investors vis-à-vis the Canadian government. The Panel recognized that investors might have an economic advantage in assuming purchase undertakings, taking into account the other conditions under which the investment was permitted. The Panel felt, however, that even if this was so, private contractual obligations entered into by investors should not adversely affect the rights which contracting parties, including contracting parties not involved in the dispute, possess under Article III :4 of the General Agreement and which they can exercise on behalf of their exporters. This applies in particular to the rights deriving from the national treatment principle, which – as stated in Article III :1 – is aimed at preventing the use of internal measures 'so as to afford protection to domestic production'." (paras 5.4 to 5.6). 464 The Panel also notes in this regard that signatories who might have reached the required level, at whatever date, would have, in India's own description, "moved out of the ambit of the MOU" in that regard regardless of the events of 1 April 2001: to the extent that manufacturers would have reached the 70% indigenization level, their situation would arguably not have been fundamentally altered by the continued application or not of Public Notice No. 60: Moving "out of the ambit of the MOU altogether" as described by India, arguably would have the same practical consequences as the general suppression of the import licensing regime, regardless of the continuation of Public Notice No. 60. We note however that there is a persisting disagreement on this issue among the parties, since both complainants remain concerned that it is unclear what the consequences of subsequently "slipping" below the required level may be. The Panel does not find it necessary, for the purpose of its analysis, to rule on this particular issue. 465 Para. 3.8, cited above. 466 Oral Statement at the interim review meeting, para. 12. This concern is also shared by the United States. 467 The Panel also notes that it does not seek to engage, in this analysis, in an assessment of the exact levels of any currently existing trade balancing obligations to be fulfilled. Indeed, none of the parties have provided any relevant evidence in that regard. While this is an issue which may be relevant in relation to the implementation of any recommendations the DSB might adopt in this case, such an analysis is not required in this context. 468 Public Notice No. 36 (RE-2000) / 1997-2002, 4th September 2001, as annexed by India to its Oral Statement during the interim review meeting, with the indication "To be published in the Gazette of India Extraordinary". 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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