4. Statistical analysis of Turkey's imports of textile and clothing products under restraint

(a) Imports of 61 textile and clothing product categories under restraint

41. Table II.3 below is based on (i) information provided to the CRTA on the QRs applied by Turkey on imports of certain textile and clothing products from 25 WTO Members (WT/REG22/7) and (ii) import statistics made available by Turkey to the Panel. The data shown below therefore correspond to imports into Turkey of textile and clothing products in the 61 categories identified in the Annex to the document cited under (i) above as being restricted by Turkey for at least one WTO Member in 1997. ⁴³ The statistics in Table II.3 distinguish imports into Turkey from the EC-15 and those originating in other countries (including India).

    Table II.3: Turkey's imports of 61 textile and clothing product categories under restraint, from the EC-15 and other countries, 1994-1997

    Origin	Import values				Shares
    	1994	1995	1996	1997	1994	1995	1996	1997
    	($ million)				(Percentages)
    EC-15	181	326	646	747	25	25	45	47
    Other countries	556	960	802	853	75	75	55	53
    Imports from all origins	736	1,286	1,448	1,600	100	100	100	100

    Source: WT/REG22/7 and Government of Turkey.

42. For the 61 categories of textiles and clothing under restraint, Turkey's imports from all non-EC countries (including India) accounted for 4.5 and 5 per cent of its total imports from those countries in 1994 and 1995, respectively, (i.e. prior to the introduction of the restraints) and for less than 4 per cent of the corresponding totals in 1996 and 1997. The share of imports of those same product categories in Turkey's total imports from the EC-15 increased from 1.7 per cent in 1994 to 3 per cent in 1997. ⁴⁴

    (b) Imports of the 19 textile and clothing product categories under restraint for India

43. Statistics provided by India show that the value of its exports to Turkey of the 19 product categories under restriction dropped in 1996 and continued to decline in the following year, albeit less markedly; in 1995, exports under those categories had virtually trebled over their level in 1994. Such fluctuations were mainly due to variations in exports of restricted textile products to Turkey. A different behaviour is observed in India's exports to Turkey of other � unrestricted � products during the period 1994-1997: their share in India's total exports of textiles and clothing to Turkey has increased throughout the period, from 32 per cent in 1994 to 87 per cent in 1997. (See Table II.4, and more detailed statistics in the Annex to this report, Appendix 3a.)

    Table II.4: India's exports of textiles and clothing to Turkey, 1994-1997

    	Export values				Annual change
    	1994	1995	1996	1997	95/94	96/95	97/96
    	($ thousand)				(Percentages)
    Textiles Restricted products	13,960	41,840	21,700	19,570	200	-48	-10
    Clothing Restricted products	252	396	104	297	57	-74	186
    Textiles and clothing All products	20,842	94,636	69,022	147,271	354	-27	113
    Restricted products	14,212	42,236	21,804	19,867	197	-48	-9
    Other products	6,630	52,400	47,218	127,404	690	-10	170

    Source: Government of India.

44. Data derived from trade statistics supplied by Turkey on its imports from India of the restricted 19 product categories in 1994 to 1997 differ in magnitude or movement from those provided by India. ⁴⁵ Nevertheless, they point at similar overall trends, both with respect to imports of product categories under restraint and with respect to imports of other textile and clothing products. (See Table II.5, and more detailed statistics in the Annex to this report, Appendix 3b.)

    Table II.5: Turkey's imports of textiles and clothing from India, 1994-1997

    	Import values				Annual change
    	1994	1995	1996	1997	95/94	96/95	97/96
    	($ thousand)				(Percentages)
    Textiles Restricted products	12,949	45,530	31,651	30,528	252	-30	-4
    Clothing Restricted products	133	153	352	131	15	130	-63
    Textiles and clothing All products	32,457	104,678	93,992	137,343	223	-10	46
    Restricted products	13,082	45,683	32,003	30,659	249	-30	-4
    Other products	19,375	58,995	61,989	106,684	204	5	72

    Source: Government of Turkey.

45. In Table II.6, based on Turkish statistics, Turkey's imports of the 19 product categories under restraint for India and of other textile and clothing products are broken down by selected origins, for the 1994-1997 period. Imports from all origins into Turkey of the 19 product categories under restraint for India accounted in both 1994 and 1995 for 24 per cent of Turkey's total imports of textiles and clothing, this share declining to 19 per cent in 1997.

46. Turkey's imports of the 19 categories of textiles and clothing under restraint for India from all non-EC countries (including India) accounted for less than 3 per cent of Turkey's imports of all products (including textiles and clothing) from those countries in both 1994 and 1995, and for less than 2 per cent of the corresponding totals in 1996 and 1997. The share of imports of the same 19 product categories in Turkey's imports of all products (including textiles and clothing) from the EC-15 doubled from 0.5 per cent in 1994 to 1.1 per cent in 1997. ⁴⁶

    Table II.6: Turkey's imports of the 19 textile and clothing product categories under restraint for India, by selected origins, 1994-1997

    Origin	Import values				Shares
    	1994	1995	1996	1997	1994	1995	1996	1997
    	($ million)				(Percentages)
    EC-15	56	101	237	280	14	16	37	41
    Other countries	336	548	400	406	86	84	63	59
    of which: India	13	46	32	31	3	7	5	5
    Imports from all origins	392	649	637	686	100	100	100	100

    Source: Government of Turkey.

III. Preliminary Points⁴⁷

A. Issues

1. Following the establishment and composition of the Panel, Turkey submitted on 14 August 1998 that some points needed to be addressed by the Panel ahead of any examination of the substance of the complaint brought by India. Turkey claimed that:
   1. the request for the establishment of the panel was insufficiently precise in terms of the measures at issue and the product coverage of such measures; by omitting to make clear reference to the measures complained of and their precise product coverage, India had frustrated Turkey's rights of defense;
   2. the failure by India to direct the complaint to the European Communities as well as Turkey, because the measures at issue stemmed from the Turkey-EC customs union, meant that the complaint should necessarily fail; and
   3. rules concerning the consultation stage of the dispute settlement procedure with respect to trade in textile and clothing products had not been followed by India.

2. In the view of Turkey, the Panel should make a preliminary ruling on these points, rejecting India�s complaint.

3. India requested the Panel to rule that Turkey�s request for preliminary rulings had factually and legally no basis, on the grounds that:

   1. the identification of the measures at issue (the restrictions Turkey imposed on textile and clothing products from India as from 1 January 1996, the date when Turkey began to align its restrictions to those of the European Communities) was sufficiently specific to enable Turkey to prepare its defense and the Panel to resolve the dispute;
   2. it was not possible to bring a complaint against the European Communities with respect to the measures at issue, since these had not been taken by the European Communities nor were they legally attributable to the European Communities because the territorial scope of its obligations under the WTO Agreement did not extend to the customs territory of Turkey. Also, in the absence of a provision for a co-respondent status in the DSU, the European Communities�s participation in the proceedings would not, by itself, oblige it to abide by the Panel�s ruling and agree to a modification of the common EC-Turkey regime governing restrictions on imports of textile and clothing products from third countries; and
   3. the special dispute settlement procedures of the ATC did not apply to all restrictions imposed on textile and clothing products but only to those for which the provisions of the ATC were invoked. Since Turkey had notified the TMB that its restrictions were not imposed under the provisions of the ATC but in accordance with Article XXIV of the GATT, the normal dispute settlement procedures applied to the restrictions at issue. The TMB, established for the sole purpose of supervising the implementation of the ATC, was obviously not the proper forum for the resolution of a dispute on the relationship between Article XXIV of GATT and the general prohibitions of new textile and clothing restrictions set out in Article XI of GATT and Article 2.4 of the ATC.

4. India also noted that procedural arguments made by Turkey could not be divorced from the facts and substantive arguments Turkey would present to the Panel. For instance, to rule on Turkey�s request the Panel would need to know whether Turkey presented any product-specific arguments, whether the measures at issue were taken by the European Communities or Turkey and which provisions of the GATT and/or the ATC Turkey invoked to justify its restrictions. India therefore stated its preference for the Panel to address the procedural points raised by Turkey after its substantive arguments were presented and an opportunity given to India to rebut those arguments.

5. Japan, the Philippines and the United States, as third parties, also submitted their views in this respect Both Japan and the United States considered that, in the absence of any standard working procedures for preliminary rulings, the procedural and organisational issues raised by Turkey should be disposed of by the Panel in limine litis, so that India would have an opportunity to address defects, if any, before the conclusion of the work of the Panel. The Philippines argued that the Panel should not consider Turkey's request for preliminary rulings because (i) the request was an ex parte communication in the sense of Article 18.1 of the DSU, not being required nor contemplated in the Panel's working procedures; (ii) the Panel's findings on the issues of law and fact involved in the request could deprive India and the third parties of their rights under procedural due process; and (iii) the issues raised in the request were inextricably linked with the substance of India's complaint and could not be resolved separately.

To continue with Precision of the Request for the Establishment of the Panel

⁴³ These product categories are the following: 1-10, 12-24, 26-29, 31-33, 35-37, 39, 46, 50, 61, 67, 68, 70, 72-74, 76-78, 83, 86, 90, 91, 97, 100, 110, 111, 117 and 118.

⁴⁴ Shares calculated on the basis of data in Tables II.2 and II.3.

⁴⁵ For the restricted product categories, differences are mainly concentrated in textiles. Since differences in trade dollar values are also found in volume terms, and most often pointing in the same direction, the impact of divergent unit values can hardly be the sole explanatory factor. Such differences may derive, not only from the usual time lags of international trade statistics, but also from computation methods. In particular, differences in the data relative to the restrictive product categories could thus be linked to the existence of various stages in the process of export/import licensing, which may serve as a source of the statistics. It is however to be noted that India's export data on unrestricted product categories are also largely at variance with the corresponding import data provided by Turkey.

⁴⁶ Shares calculated on the basis of data in Tables II.2 and II.6.

⁴⁷ See also para. 1.8 above.