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UNITED STATES - MEASURES TREATING
Note by the Secretariat: This Panel Report shall be adopted by the Dispute
Settlement Body (DSB) within 60 days after the date of its circulation unless a
party to the dispute decides to appeal or the DSB decides by consensus not to
adopt the report. If the Panel Report is appealed to the Appellate Body, it
shall not be considered for adoption by the DSB until after the completion of
the appeal. Information on the current status of the Panel Report is available
from the WTO Secretariat.
(a) Assuming for Purposes of Argument that Canada's Interpretation of Article 1
of the SCM Agreement Is Correct, Section 771(5) Does Not Violate US WTO
Obligations Because Section 771(5) Does Not Mandate that the DOC Treat Export
Restraints as Subsidies
(b) Canada's Claims Concerning "US Practice" Under Section 771(5) Should
be Dismissed
(c) The Panel Should Dismiss Canada's Claims Concerning the SAA and the Preamble
Because Neither Document Was Identified as a Measure in Canada's Panel Request
and Because Neither Document Constitutes a "Measure" Within the Meaning of
Article 6.2 of the DSU
(a) To Be A Countervailable Subsidy, A Practice Must Satisfy The Definition Of
"Financial Contribution"
(b) The Treatment Of Export Restraints As An "Indirect Subsidy" Is Inconsistent
With The Express Terms Of The SCM Agreement
(c) The US Measures Also Violate The United States' Obligation To Bring Its Law
Into Conformity With The WTO Agreements
(a) Canada Bears the Burden of Proof
(b) The SCM Agreement Does Not Preclude Treating an Export Restraint as a
Subsidy
(i) As an Economic Matter, Export Restraints Are Recognized as Subsidies
(ii) Ruling Out the Possibility that Export Restraints Could Constitute
Subsidies Would Be Inconsistent with the Object and Purpose of the SCM Agreement
(iii) The Text and Context of Article 1.1 Indicate that an Export Restraint Can
Constitute an Indirect Subsidy Within the Meaning of Subparagraph (iv)
(iv) Nothing in the Negotiating History of the SCM Agreement Precludes the
Possibility that an Export Restraint Could Constitute a Subsidy
(a) GATT/WTO Case Law
(b) The US Measures At Issue
(a) Section 771(5)
(b) The SAA
(c) The Preamble
(d) US "Practice"
(e) The Measures Taken Together
(a) "Entrusts or Directs"
(i) "Authoritative Instruction"
(ii) "Alternative Choices"
(iii) The "Slippery Slope"
(b) "Private Body"
(c) To Carry Out One or More of the Type of Functions Illustrated in (i) to
(iii) Which Would Normally Be Vested in the Government and that in No Real Sense
Differs from Practices Normally Followed by Governments
(d) Object and Purpose
(a) Scope of rulings
(b) Rules of treaty interpretation
(c) Definition of "financial contribution" in the SCM Agreement
(d) Text and context of the elements of the definition of "financial
contribution" in the SCM Agreement
(i) A government "entrusts or directs"
(ii) "Private body"
(iii) "To carry out one or more of the type of functions illustrated in (i)
to (iii) above"
(iv) "Which would normally be vested in the government" and "the practice, in no
real sense, differs from practices normally followed by governments"
(e) Object and purpose
(f) Negotiating History
(i) Negotiating history of the inclusion of the "financial contribution"
requirement
(ii) Negotiating history of the definition of "financial contribution"
(iii) Summary
(g) Conclusion
(a) Application of the mandatory vs. discretionary distinction
(b) The measures
(c) The measures "separately" and "taken together"
(i) The Statute
(ii) The Statement of Administrative Action
(iii) The Preamble to the US Countervailing Duty Regulations
(iv) US "Practice"
(v) Summary
(d) Conclusion
LIST OF ANNEXES
ANNEX A
Parties' Answers to Written Questions
Contents Page
A-2
A-17
Annex B Third Party Submissions
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