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WORLD TRADE
ORGANIZATION

WT/DS136/AB/R
WT/DS162/AB/R
28 August 2000

(00-3369)
 
  Original: English

UNITED STATES — ANTI-DUMPING ACT OF 1916

AB-2000-5

AB-2000-6




Report of the Appellate Body



 
  1. Introduction
     
  2. Arguments of the Participants and Third Participants 

  1. Claims of Error by the United States - Appellant

  1. Claims Against the 1916 Act as Such
     
  2. Applicability of Article VI of the GATT 1994 and the Anti-Dumping Agreement to the 1916 Act
     
  3. Articles VI:1 and VI:2 of the GATT 1994, Certain Provisions of the Anti-Dumping Agreement and Article XVI:4 of the WTO Agreement 

  1. Arguments by the European Communities - Appellee/Third Participant 

  1. Claims Against the 1916 Act as Such 
     
  2. Applicability of Article VI of the GATT 1994 and the Anti-Dumping Agreement to the 1916 Act
     
  3. Articles VI:1 and VI:2 of the GATT 1994, Certain Provisions of the Anti-Dumping Agreement and Article XVI:4 of the WTO Agreement
  1. Arguments by Japan - Appellee/Third Participant

  1. Claims Against the 1916 Act as Such 
     
  2. Applicability of Article VI of the GATT 1994 and the Anti-Dumping Agreement to the 1916 Act 
     
  3. Articles VI:1 and VI:2 of the GATT 1994, Certain Provisions of the Anti-Dumping Agreement and Article XVI:4 of the WTO Agreement  

  1. Claims of Error by the European Communities and Japan - Appellants

  1. Third Party Rights
     
  2. Conditional Appeals 

  1. Arguments by the United States - Appellee 

  1. Third Party Rights
     
  2. Conditional Appeals

  1. Arguments by India and Mexico - Third Participants

  1. India
     
  2. Mexico

  1. Issues Raised in these Appeals
     
  2. Claims Against the 1916 Act as Such

  1. Jurisdiction of the Panel to Hear Claims Against the 1916 Act as Such
     
  2. Mandatory and Discretionary Legislation

  1. Applicability of Article VI of the GATT 1994 and the Anti-Dumping Agreement to the 1916 Act
     
  2. Articles VI:1 and VI:2 of the GATT 1994, Certain Provisions of the Anti-Dumping Agreement and Article XVI:4 of the WTO Agreement 
     
  3. Third Party Rights 
     

  4. Articles III:4 and XI of the GATT 1994 and Article XVI:4 of the WTO Agreement
     
  5. Findings and Conclusions  


WORLD TRADE ORGANIZATION
APPELLATE BODY
 
United States - Anti-Dumping Act of 1916 AB-2000-5 and AB-2000-6
United States, Appellant/Appellee Present:
European Communities, Appellant/Appellee/Third Participant  
Japan, Appellant/Appellee/Third Participant Lacarte-Muró, Presiding Member
India, Third Participant
Mexico, Third Participant
Ehlermann, Member
Feliciano, Member

I. Introduction

1. The United States, the European Communities and Japan appeal from certain issues of law and legal interpretations in the Panel Reports, United States - Anti-Dumping Act of 1916, complaint by the European Communities (the "EC Panel Report")1 and United States - Anti-Dumping Act of 1916, complaint by Japan (the "Japan Panel Report").2 These Panel Reports were rendered by two Panels composed of the same three persons.3 The two Panel Reports, while not identical, are alike in all major respects.

2. The Panel was established to consider claims by the European Communities and Japan that Title VIII of the United States Revenue Act of 1916 (the "1916 Act")4 is inconsistent with United States' obligations under the covered agreements. The 1916 Act allows, under certain conditions, civil actions and criminal proceedings to be brought against importers who have sold foreign-produced goods in the United States at prices which are "substantially less" than the prices at which the same products are sold in a relevant foreign market.5

3. The European Communities claimed that the 1916 Act is inconsistent with Articles VI:1 and VI:2 of the General Agreement on Tariffs and Trade 1994 (the "GATT 1994"), Articles 1, 2.1, 2.2, 3, 4 and 5 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the "Anti-Dumping Agreement ") and Article XVI:4 of the Marrakesh Agreement Establishing the World Trade Organization (the "WTO Agreement "). In the alternative, the European Communities claimed that the 1916 Act is inconsistent with Article III:4 of the GATT 1994. Japan claimed that the 1916 Act is inconsistent with Articles III:4, VI and XI of the GATT 1994, Articles 1, 2, 3, 4, 5, 9, 11, 18.1 and 18.4 of the Anti-Dumping Agreement and Article XVI:4 of the WTO Agreement .

4. In the EC Panel Report, circulated to Members of the World Trade Organization (the "WTO") on 31 March 2000, the Panel concluded that:

(i) the 1916 Act violates Article VI:1 and VI:2 of the GATT 1994;

(ii) the 1916 Act violates Articles 1, 4 and 5.5 of the

Anti-Dumping Agreement;

(iii) the 1916 Act violates Article XVI:4 of the Agreement Establishing the WTO;

(iv) as a result, benefits accruing to the European Communities under the WTO Agreement have been nullified or impaired.6

5. In the Japan Panel Report, circulated to Members of the WTO on 29 May 2000, the Panel concluded that:

(i) the 1916 Act violates Article VI:1 and VI:2 of GATT 1994;

(ii) the 1916 Act violates Articles 1, 4.1, 5.1, 5.2, 5.4, 18.1 and 18.4 of the Anti-Dumping Agreement;

(iii) the 1916 Act violates XVI:4 of the Agreement Establishing the WTO; and

(iv) as a result, benefits accruing to Japan under the WTO Agreement have been nullified or impaired.7

6. In both Panel Reports, the Panel recommended that the Dispute Settlement Body (the "DSB") request the United States to bring the 1916 Act into conformity with its obligations under the WTO Agreement.8

7. On 29 May 2000, the United States notified the DSB of its intention to appeal certain issues of law covered in the EC Panel Report and the Japan Panel Report and certain legal interpretations developed by the Panel, pursuant to paragraph 4 of Article 16 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (the "DSU"), and filed two Notices of Appeal pursuant to Rule 20 of the Working Procedures for Appellate Review (the "Working Procedures"). In view of the close similarity of the issues raised in the two appeals, it was decided, after consultation with the parties, that a single Division would hear and decide both appeals.9 On 8 June 2000, the United States filed one appellant's submission for both appeals. On 13 June 2000, the European Communities and Japan filed a joint other appellants' submission in respect of both appeals.10 On 23 June 2000, the European Communities and Japan each filed an appellee's/third participant's submission11, and the United States filed an appellee's submission.12 On the same day, India and Mexico each filed a third participant's submission.13

8. The oral hearing in the two appeals was held on 19 July 2000. The participants and third participants presented oral arguments and responded to questions put to them by the Members of the Division hearing the appeals.

II. Arguments of the Participants and Third Participants

A. Claims of Error by the United States - Appellant

1. Claims Against the 1916 Act as Such

(a) Jurisdiction of the Panel to Hear Claims Against the 1916 Act as Such

9. The United States argues that the Panel erred in failing to dismiss the claims raised by the European Communities and Japan under Article VI of the GATT 1994 and the Anti-Dumping Agreement for lack of jurisdiction. In each dispute, the complaining party invoked the jurisdiction of the Panel pursuant to Article 17 of the Anti-Dumping Agreement. However, when Article 17 of the Anti-Dumping Agreement is invoked as a basis for a panel's jurisdiction to determine claims made under that Agreement, it is necessary for the complaining party to challenge one of the three types of measure set forth in Article 17.4 of that Agreement, i.e., a definitive anti-dumping duty, a provisional measure or a price undertaking. In the view of the United States, a Member wishing to challenge another Member's anti-dumping law as such must wait until one of the three measures referred to in Article 17.4 is also challenged.

10. The United States considers that this rule is clearly established by the text and context of Article 17.4 of the Anti-Dumping Agreement, as well as by the Appellate Body Report in Guatemala - Anti-Dumping Investigation Regarding Portland Cement from Mexico ("Guatemala - Cement ").14 In the present cases, the complainants only challenged the 1916 Act as such, and did not challenge any measure of the type identified in Article 17.4. For this reason alone, according to the United States, the Panel's findings must be vacated for lack of jurisdiction.

11. The United States also contends that the Panel erred in finding that it had jurisdiction to consider claims under Article VI of the GATT 1994. The United States considers that Article VI of the GATT 1994 and the Anti-Dumping Agreement form part of an inseparable package of rights and obligations and that, based on the reasoning of the Appellate Body in Brazil - Measures Affecting Desiccated Coconut15, one part of such a package cannot be invoked independently of the other. The United States thus concludes that, since the Panel did not possess jurisdiction to consider the Anti-Dumping Agreement claims, and since Article VI cannot be invoked independently of the Anti-Dumping Agreement, it follows that the Panel also lacked jurisdiction to consider claims under Article VI of the GATT 1994.

(b) Mandatory and Discretionary Legislation

12. The United States requests the Appellate Body to reverse the Panel's analysis and findings regarding the distinction between mandatory and discretionary legislation. If the Panel found, or the Appellate Body finds, that the 1916 Act is ambiguous, then, the United States submits, the Panel should have asked, and the Appellate Body should ask, whether there is an interpretation of the 1916 Act that would permit the United States to act in conformity with its WTO obligations. Instead, according to the United States, the Panel interpreted and applied the distinction between mandatory and discretionary legislation in a way that has no basis in existing WTO/GATT jurisprudence, erred in treating the distinction as a "defence", and erred in its treatment of United States' municipal law relevant to this issue.

13. As regards the nature of the mandatory and discretionary legislation distinction, the United States considers that the Panel based its approach on a "gross misreading" of the panel report in United States Measures Affecting the Importation, Internal Sale and Use of Tobacco ("United States - Tobacco").16 Contrary to the Panel's finding, whether or not a law has been applied in the past does not determine the applicability of the distinction between mandatory and discretionary legislation. The United States also asks the Appellate Body to reject the Panel's finding in the Japan Panel Report that Article 18.4 of the Anti-Dumping Agreement renders the distinction between mandatory and discretionary legislation "irrelevant". The cases cited by the Panel, EC - Anti-Dumping Duties on Audio Tapes in Cassettes Originating in Japan ("European Communities - Audio Cassettes")17 and United States - Definition of Industry Concerning Wine and Grape Products ("United States - Wine and Grape Products")18, do not support such a conclusion. Furthermore, the United States contends, the ordinary meaning and context of Article 18.4 demonstrate that this provision does not modify or otherwise limit the distinction between mandatory and discretionary legislation.

14. The United States also underlines that there is no legal basis for the Panel's finding that the distinction between discretionary and mandatory legislation is a "defence" which the United States bore the burden of proving. The burden of proving that a measure is inconsistent with a WTO provision rests with the complaining party, which must demonstrate that the law in question mandates a violation of the relevant provision. Since the European Communities and Japan have not met the burden of proof, properly applied, the United States asks the Appellate Body to reverse the Panel's findings that the 1916 Act violates the provisions at issue in this dispute.

2. Applicability of Article VI of the GATT 1994 and the Anti-Dumping Agreement to the 1916 Act

15. The United States claims that the principal substantive error made by the Panel was its finding that Article VI of the GATT 1994, as interpreted by the Anti-Dumping Agreement, applies to the 1916 Act.

16. According to the United States, this finding is erroneous because it is based on an erroneous test for determining the applicability of Article VI. The correct analysis, in the view of the United States, is that for a Member's law to fall within the scope of Article VI, it must satisfy two criteria. First, the law must impose a particular type of border adjustment measure, namely, duties on an imported product. Second, the duties imposed by the Member's law must specifically target "dumping" within the meaning of Article VI:1. Consequently, the United States concludes, if the Member's law imposes a type of measure other than duties, or if it does not specifically target dumping, it is not governed by Article VI.

17. The United States submits that, with respect to dumping, Article VI of the GATT 1994 simply provides Members with a right to use anti-dumping duties, and then sets forth rules regulating the manner in which Members may exercise this right. Article VI does not attempt to regulate other types of measure that a Member may want to take in order to counteract dumping, as that task is left to other GATT provisions, including Article III:4 of the GATT 1994. The United States considers that the ordinary meaning of the terms used in Article VI - and, in particular, Article VI:2 - as well as the limited role of Article VI within the GATT framework, Articles 1 and 18.1 of the Anti-Dumping Agreement, the panel reports in Japan - Trade in Semi-Conductors ("Japan - Semi-Conductors")19 and EEC - Regulation on Imports of Parts and Components ("EEC - Parts and Components")20 and the negotiating history of Article VI, confirm such an interpretation of the scope of Article VI.

18. According to the United States, the word "may" in Article VI:2 of the GATT 1994 confirms that Article VI provides a right that Members would not otherwise have - the right to impose duties - but does not contain any prohibition on the use of other types of measure. Article 1 of the Anti-Dumping Agreement means that a Member's actions are governed by Article VI and the Anti-Dumping Agreement if a Member is applying one of the specified measures to counteract dumping, i.e., anti-dumping duties, provisional measures or price undertakings. Article 18.1 of the Anti-Dumping Agreement and its footnote 24 also make clear that when specific action taken against dumping is in the form of anti-dumping duties, provisional measures or price undertakings, such action must comply with Article VI, as interpreted by the Anti-Dumping Agreement, but that when specific action against dumping takes another form, such action is governed by the provisions of the GATT 1994 other than Article VI.

19. The United States claims that the Panel engaged in a flawed analysis of the scope of Article VI and, as a result, erroneously concluded that Article VI of the GATT 1994 and the Anti-Dumping Agreement apply to all anti-dumping measures. The United States reasons that, when the correct test is applied, it is clear that Article VI does not apply to the 1916 Act. The United States underscores that the 1916 Act does not impose any type of border adjustment, much less duties, on imported products: it is an internal law.

20. The United States adds that the 1916 Act is also not subject to Article VI because it does not specifically target "dumping" within the meaning of Article VI:1. Although one element of a 1916 Act claim is the existence of a price difference between two national markets, the United States argues that this element alone is not sufficient under the 1916 Act. Rather, the United States contends, such a price difference is simply one indicator, or supporting evidence, of the possible existence of the activity which the 1916 Act does target, i.e., predatory pricing by the importer in the United States' market, which consists of sales at predatorily low price levels with the intent to destroy, injure, or prevent the establishment of an American industry or to restrain trade in or monopolize a particular market. According to the United States, the existence of such predatory intent is the primary indicator of the anti-competitive conduct which is targeted by the 1916 Act, as the United States' courts have held.

3. Articles VI:1 and VI:2 of the GATT 1994, Certain Provisions of the Anti-Dumping Agreement and Article XVI:4 of the WTO Agreement

21. The United States observes that the Panel found that the 1916 Act violates various substantive and procedural requirements of Article VI of the GATT 1994 and the Anti-Dumping Agreement. The United States requests the Appellate Body to reverse these findings as they were all based on the Panel's erroneous view of the scope of Article VI and the Anti-Dumping Agreement.

22. The United States reiterates that the Panel found support for its broad view of the scope of Article VI in Article VI:1 even though the actual text of this provision does not address the issue of whether Article VI regulates all actions against dumping, or only the imposition of anti-dumping duties. The United States recalls that, on its interpretation of Article VI:2 of the GATT 1994 and Articles 1 and 18.1 of the Anti-Dumping Agreement, a Member may take specific action against dumping - other than the imposition of anti-dumping duties - so long as such action is in accordance with, or consistent with, the provisions of the GATT 1994 other than Article VI. If the Appellate Body accepts this interpretation, it follows that Article VI does not apply to the 1916 Act, the claims made by the European Communities and Japan under the various provisions of Article VI and the Anti-Dumping Agreement must fail, and the Panel's findings of violations of those provisions must be reversed. In addition, the United States submits, since the Panel's findings of violation of Article XVI:4 of the WTO Agreement are based on its findings of violation of Article VI, the Appellate Body must also reverse the findings of violation of Article XVI:4.

B. Arguments by the European Communities - Appellee/Third Participant

1. Claims Against the 1916 Act as Such

(a) Jurisdiction of the Panel to Hear Claims Against the 1916 Act as Such

23. The European Communities requests the Appellate Body to reject the United States' arguments on the issue of jurisdiction on the basis that this ground of appeal is both untimely and unfounded. The United States could have and should have raised this objection before the interim review stage of the panel proceedings in the case brought by the European Communities. Interim review is only intended to allow review of "precise aspects" of the report and not the presentation of new arguments. The European Communities relies in particular on the principle that procedural objections must be raised in a timely manner and in good faith, as confirmed by the Appellate Body in Korea - Definitive Safeguard Measure on Imports of Certain Dairy Products ("Korea - Dairy Safeguards")21 and United States - Tax Treatment for "Foreign Sales Corporations" ("United States - FSC").22

24. The European Communities also argues that the jurisdictional arguments of the United States are misconceived since Article 17.4 of the Anti-Dumping Agreement only applies to proceedings involving the imposition of the measures identified in that provision and does not generally shelter anti-dumping legislation from scrutiny under the dispute settlement mechanism. Even if it did, the legislation would still have to comply with Article XVI:4 of the WTO Agreement, which has also been invoked in this proceeding and is properly before the Appellate Body.

(b) Mandatory and Discretionary Legislation

25. In relation to the issue of the relevance and meaning of the alleged distinction between mandatory and discretionary legislation in WTO law, the European Communities contests that any such general principle exists and refers the Appellate Body to the report of the panel in United States - Sections 301-310 of the Trade Act of 1974 ("United States - Section 301 ").23

26. The European Communities also considers that the existing GATT and WTO case law clearly demonstrates that the alleged distinction between mandatory and discretionary legislation would in any event not protect the 1916 Act from review in dispute settlement proceedings.

2. Applicability of Article VI of the GATT 1994 and the Anti-Dumping Agreement to the 1916 Act

27. On the central question of the scope of application of Article VI of the GATT 1994, the European Communities supports the view of the Panel that Article VI recognizes the existence of a specific problem in international trade - dumping - and establishes a specific discipline which must be followed by WTO Members in dealing with it. This discipline applies to rules and measures taken thereunder, which, viewed objectively, deal with dumping. The discipline is not limited to rules which provide for the imposition of duties at the frontier.

28. The European Communities bases its interpretation of the scope of Article VI of the GATT 1994 on the text of Article VI itself, as well as on Articles 1 and 18.1 of the Anti-Dumping Agreement. In particular, Article VI:1 establishes that Article VI applies to measures which: (i) are targeted at imports; and (ii) provide a remedy against trading practices defined by reference to price discrimination in the form of lower prices in the importing country than those in the country of export. When Article VI:2, on which the United States relies, is read in the context of Article VI:1, it is clear that the word "may" simply means that the imposition of duties is optional, and that the amount of any such duty may not be greater than the margin of dumping. Furthermore, according to the European Communities, Article 18.1 of the Anti-Dumping Agreement and footnote 24 make clear that "specific action" against dumping may only be taken in accordance with Article VI, but this does not prevent the application of safeguard measures or countervailing duties (pursuant to and in conformity with Articles XIX and VI of the GATT 1994, respectively) to conduct which may also involve dumping.

29. The European Communities considers that the arguments made by the United States on appeal mischaracterize the Panel's findings, and find no support in the text or context of Article VI, Articles 1 or 18.1 of the Anti-Dumping Agreement, or the panel reports in Japan - Semi-Conductors or EEC - Parts and Components. The European Communities cautions that the arguments of the United States as regards the scope of Article VI of the GATT 1994 would eviscerate the disciplines of Article VI and allow Members easily to circumvent their WTO obligations by modifying their legislation to provide for fines instead of anti-dumping duties.

3. Articles VI:1 and VI:2 of the GATT 1994, Certain Provisions of the Anti-Dumping Agreement and Article XVI:4 of the WTO Agreement

30. Since the European Communities believes that the Panel correctly interpreted the scope of Article VI of the GATT 1994 and the Anti-Dumping Agreement, the European Communities asks the Appellate Body also to uphold the Panel's related conclusions that the 1916 Act violates Article VI:1 and VI:2 of the GATT 1994 and Articles 1, 4.1, 5.4, 5.5, 18.1 and 18.4 of the Anti-Dumping Agreement.

31. The European Communities reasons that when an anti-dumping law, which falls within the scope of application of Article VI of the GATT 1994 and the Anti-Dumping Agreement, allows the imposition of sanctions other than duties, this is a breach of the discipline established by Article VI of the GATT 1994 and the Anti-Dumping Agreement. Likewise, if such a law provides for imposition of measures on the basis of criteria which do not fulfil the substantive requirements of the discipline, or pursuant to procedures which do not respect its procedural requirements, such measures also constitute breaches of the discipline. The European Communities contends that the 1916 Act breaches the discipline in all three respects.

C. Arguments by Japan - Appellee/Third Participant

1. Claims Against the 1916 Act as Such

(a) Jurisdiction of the Panel to Hear Claims Against the 1916 Act as Such

32. Japan argues that the Panel correctly concluded that it had jurisdiction. According to Japan, nothing in the text of Article 17 of the Anti-Dumping Agreement or its context takes away the well-established GATT/WTO right to challenge facially inconsistent legislation. Article 17.4 is a special and additional rule listed in Appendix 2 to the DSU. According to Japan, Article 17.4 is an exception to the general rule contained in Article 17.1 of the Anti-Dumping Agreement and, by its terms, Article 17.4 establishes special rules that apply only to challenges of actions taken by anti-dumping authorities.

(b) Mandatory and Discretionary Legislation

33. According to Japan the Panel correctly concluded that, in light of Article 18.4 of the Anti-Dumping Agreement, the distinction between mandatory and discretionary legislation is not relevant in this dispute. In any event, Japan contends, the 1916 Act is mandatory in character. When its substantive elements are established, the remedies (fines and/or imprisonment) prescribed by the 1916 Act must be imposed. Japan submits that the Panel also correctly concluded that the burden of proof was properly on the United States to substantiate its claim that the 1916 Act was not mandatory.

2. Applicability of Article VI of the GATT 1994 and the Anti-Dumping Agreement to the 1916 Act

34. In Japan's view, the Panel correctly concluded that the proper basis for applicability of Article VI of the GATT 1994 is the type of conduct addressed, not the remedies applied to the conduct. By its terms, the object of Article VI is to counteract "dumping". Japan underscores that anti-dumping duties are the instrument, not the object of Article VI.

35. Japan believes that its interpretation is supported by the plain meaning of Article VI, as well as Articles 1 and 18.1 of the Anti-Dumping Agreement. Japan also expresses concern that Members could easily circumvent WTO obligations if a Member could escape Article VI simply by enacting legislation providing for fines and/or imprisonment rather than anti-dumping duties.

36. Japan agrees with the Panel that the 1916 Act falls within the scope of Article VI of the GATT 1994. On its face, the 1916 Act addresses the same type of price discrimination as Article VI. The existence in the 1916 Act of certain additional requirements, which make the imposition of measures to counteract dumping more difficult than required by Article VI, do not make the Act fall outside the scope of Article VI. According to Japan, the historical context, legislative history and United States' case law regarding the 1916 Act all support this conclusion.

3. Articles VI:1 and VI:2 of the GATT 1994, Certain Provisions of the Anti-Dumping Agreement and Article XVI:4 of the WTO Agreement

37. Japan argues that since the Panel correctly determined that Article VI of the GATT 1994 and the Anti-Dumping Agreement were applicable to the 1916 Act, its findings and conclusions regarding violations of the GATT 1994 and Anti-Dumping Agreement provisions also were correct. In particular, the Panel correctly concluded that anti-dumping duties are the only permissible remedy to counteract dumping. The text of Article VI:2 of the GATT 1994 explicitly and unambiguously establishes that anti-dumping duties are the only authorized remedy for dumping, and Article 18.1 and footnote 24 of the Anti-Dumping Agreement confirm this conclusion. Japan adds that this conclusion is further supported by the object and purpose of Article VI:2, as well as by the negotiating history.


1 WT/DS136/R, 31 March 2000.

2 WT/DS162/R, 29 May 2000.

3 As the composition of both Panels was identical, we will refer to the Panels as "the Panel".

4 Act of 8 September 1916, 39 Stat. 756 (1916); 15 U.S.C. § 72.

5 Relevant factual aspects of the 1916 Act are set out at paras. 2.1 - 2.5 and 2.13 - 2.16 of the EC Panel Report, and at paras. 2.1 - 2.5 and 2.14 - 2.16 of the Japan Panel Report. Relevant portions of the 1916 Act are also reproduced in this Report, infra, para. 129.

6 EC Panel Report, para. 7.1.

7 Japan Panel Report, para. 7.1.

8 EC Panel Report, para. 7.2; Japan Panel Report, para. 7.2.

9 Pursuant to Rule 21 of the Working Procedures.

10 Pursuant to Rule 23(1) of the Working Procedures.

11 Pursuant to Rules 22 and 24 of the Working Procedures. The European Communities is an appellee in dispute WT/DS136 and a third participant in dispute WT/DS162. Japan is an appellee in dispute WT/DS162 and a third participant in dispute WT/DS136.

12 Pursuant to Rule 23(3) of the Working Procedures.

13 Pursuant to Rule 24 of the Working Procedures. India is a third participant in both disputes. Mexico is a third participant in dispute WT/DS136, but not in dispute WT/DS162.

14 Appellate Body Report, WT/DS60/AB/R, adopted 25 November 1998.

15 Appellate Body Report, WT/DS22/AB/R, adopted 20 March 1997.

16 Panel Report, adopted 4 October 1994, BISD 41S/131.

17 Panel Report (unadopted), ADP/136, circulated 28 April 1995.

18 Panel Report, adopted 28 April 1992, BISD 39S/436.

19 Panel Report, adopted 4 May 1988, BISD 35S/116.

20 Panel Report, adopted 16 May 1990, BISD 37S/132.

21 Appellate Body Report, WT/DS98/AB/R, adopted 12 January 2000.

22 Appellate Body Report, WT/DS108/AB/R, adopted 20 March 2000.

23 Panel Report, WT/DS152/R, adopted 27 January 2000.


To continue with D. Claims of Error by the European Communities and Japan - Appellants