UNITED STATES - CONTINUED DUMPING AND SUBSIDY OFFSET ACT OF
2000
AB-2002-7
Report of the Appellate Body
(Continued)
ANNEX 1
UNITED STATES - CONTINUED DUMPING AND
SUBSIDY OFFSET ACT OF 2000
Notification of an Appeal by the United States
under paragraph 4 of Article 16 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (DSU)
The following notification, dated 18 October 2002, sent by the United States to
the Dispute Settlement Body (DSB), is circulated to Members. This notification
also constitutes the Notice of Appeal, filed on the same day with the Appellate
Body, pursuant to the Working Procedures for Appellate Review.
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Pursuant to Article 16 of the Understanding on Rules and Procedures Governing
the Settlement of Disputes ("DSU") and Rule 20 of the Working Procedures for
Appellate Review, the United States hereby notifies its decision to appeal to
the Appellate Body certain issues of law covered in the report of the single
panel established in response to the requests of Australia, Brazil, Canada,
Chile, the European Communities, India, Indonesia, Japan, Korea, Mexico, and
Thailand in the disputes United States - Continued Dumping and Subsidy Offset
Act of 2000 ("CDSOA") (WT/DS217/R and WT/DS234/R) and legal interpretations
developed by the Panel.
1. The United States seeks review by the Appellate Body of the Panel's legal
conclusion that the Continued Dumping and Subsidy Offset Act of 2000 ("CDSOA")
is inconsistent with Articles VI:2 and VI:3 of the General Agreement on Tariffs
and Trade 1994 ("GATT 1994"), Article 18.1 of the Agreement on the
Implementation of Article VI of the General Agreement on Tariffs and Trade 1994
("Antidumping Agreement") and Article 32.1 of the Agreement on Subsidies and
Countervailing Measures (" SCM Agreement "). These findings are in error, and are
based on erroneous findings on issues of law and related legal interpretations
with respect to Articles VI:2 and VI:3 of GATT 1994, Article 18.1 of the
Antidumping Agreement and Article 32.1 of the SCM Agreement , including, for
example:
(a) the Panel's legal conclusions that the CDSOA acts specifically in response
to dumping, the CDSOA has an adverse bearing on dumping, the CDSOA operates
against dumping, actions objectively capable of offsetting or preventing dumping
or subsidization constitute action against dumping or subsidization, and Article
18.1 of the Antidumping Agreement and Article 32.1 of the SCM Agreement
apply to
the CDSOA or to specific actions that have an adverse bearing on the practice of
dumping or the practice of subsidization;
(b) the Panel's legal conclusion that Article 18.1 of the Antidumping Agreement
and Article 32.1 of the SCM Agreement include a conditions of competition or
competitive advantage test;
(c) the Panel's legal conclusions that the Appellate Body's interpretation of
GATT Article VI:2 and the Antidumping Agreement in US - 1916 Act applies equally
to GATT Article VI:3 and the SCM Agreement , and that Part III and Part V of the SCM Agreement contain the only permissible remedies for subsidization;
(d) the Panel's legal conclusion that the CDSOA constitutes specific action
against the practice of dumping and specific action against the practice of
subsidization;
(e) the Panel's legal conclusion that the CDSOA acts "against" dumping and/or a
subsidy because of a claimed adverse impact on the competitive relationship
between dumped/subsidized imports and the goods produced by "affected domestic
producers," and the improper shifting of the burden of proof to the United
States to prove that the CDSOA does not have an adverse bearing on the
competitive relationship between dumped/subsidized imports and the goods
produced by "affected domestic producers;"
(f) the Panel's legal conclusion that it need not examine footnote 24 of the
Antidumping Agreement and footnote 56 of the SCM Agreement because it had
already concluded that the CDSOA constitutes "specific action" against dumping
and subsidization;
(g) the Panel's legal conclusion that the legislative intent of the CDSOA is
relevant to determining whether the CDSOA is consistent with WTO obligations;
and
(h) the Panel's legal conclusion that the CDSOA creates a "financial incentive"
to file or support dumping/countervail petitions and therefore acts "against"
dumping and/or a subsidy.
2. The United States seeks review by the Appellate Body of the Panel's legal
conclusion that the CDSOA is inconsistent with Article 5.4 of the Antidumping
Agreement and Article 11.4 of the SCM Agreement . These findings are in error,
and are based on erroneous findings on issues of law and on related legal
interpretations with respect to Article 5.4 of the Antidumping Agreement and
Article 11.4 of the SCM Agreement , including, for example:
(a) the Panel's legal conclusion that the CDSOA violates Article 5.4 of the
Antidumping Agreement and Article 11.4 of the SCM Agreement despite its findings
that the U.S. has implemented these obligations under various provisions of U.S.
law, that the CDSOA does not amend these laws and that U.S. investigating
authorities observe the quantitative thresholds;
(b) the Panel's legal conclusion that the CDSOA renders the quantitative
thresholds in Article 5.4 of Antidumping Agreement and 11.4 of the SCM Agreement
meaningless;
(c) the Panel's legal conclusion that the CDSOA violates Article 5.4 of the
Antidumping Agreement and Article 11.4 of the SCM Agreement because it " in
effect mandates" domestic producers to support the initiation of
dumping/countervail investigations and/or creates a financial incentive for
domestic producers to support the initiation of dumping/countervail
investigations; and
(d) the Panel's legal conclusion that the United States has not acted in good
faith in enacting the CDSOA.
3. The United States seeks review by the Appellate Body of the Panel's legal
conclusion that the CDSOA violates Article 18.4 of Antidumping Agreement,
Article 32.5 of the SCM Agreement , and Article XVI:4 of the Marrakesh Agreement
Establishing the World Trade Organization.
4. The United States seeks review by the Appellate Body of the Panel's legal
conclusion that the benefits accruing to the Complaining Parties under the WTO
Agreement have been nullified or impaired.
5. The United States seeks review by the Appellate Body of the Panel's legal
conclusion that the Panel has the discretion under Article 9.2 to reject a
party's request for the Panel to submit separate reports
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