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WORLD TRADE
ORGANIZATION

WT/DS221/R
15 July 2002

(02-3841)

  Original: English

UNITED STATES - SECTION 129(c)(1) OF THE
URUGUAY ROUND AGREEMENTS ACT
 


Report of the Panel


(Continued)


V. INTERIM REVIEW 53

A. BACKGROUND

5.1 In letters dated 29 May 2002, Canada and the United States requested an interim review by the Panel of certain aspects of the interim report issued to the parties on 22 May 2002. Neither party requested an interim review meeting. As agreed by the Panel, both parties were permitted to submit further comments on the other party's interim review requests. The United States submitted further comments on 4 June 2002.

B. COMMENTS BY CANADA

1. Terms of reference

5.2 Canada considers that the Panel misconstrued its terms of reference. Canada argues that, in interpreting its terms of reference, the Panel unduly restricted its analysis of the effect of section 129(c)(1) to preclude any analysis of other provisions of US law.54 In Canada's view, the terms of reference do not preclude the Panel from considering the provisions of title VII of the Tariff Act of 1930. According to Canada, the United States argued before the Panel that, notwithstanding that section 129 determinations cannot apply to "prior unliquidated entries", the Department of Commerce has other authority under title VII of the Tariff Act of 1930 to take any necessary actions with respect to such entries. Canada considers that this argument was raised by the United States as an affirmative defence and that it is, therefore, not relevant whether the authority relied on by the United States was within the Panel's terms of reference. Canada further submits that it was unnecessary, as a matter of WTO law, for Canada to have included the provisions of title VII of the Tariff Act of 1930 in the terms of reference of the Panel since Canada identified the provision of US law -- namely, section 129(c)(1) -- that prevents the Department of Commerce from taking the actions needed to apply section 129 determinations to "prior unliquidated entries" in accordance with the WTO obligations of the United States.

5.3 The United States responds that Canada's objections rest on a faulty premise. According to the United States, Canada incorrectly assumes that it had met its initial burden of demonstrating that section 129(c)(1) operated in the manner it had alleged. The United States considers that since the Panel found that, as a matter of US law, section 129(c)(1) does not have the effect of requiring or precluding any of the actions identified by Canada, Canada failed to meet its initial burden. In the view of the United States, the issue of whether the United States relied on an "affirmative defence" does not, therefore, arise. The United States also notes that the Panel acted properly in not examining other potential "measures" that Canada did not include in its panel request.

5.4 The Panel does not agree with Canada that it has misconstrued its terms of reference. Indeed, in its interim review comments, Canada itself acknowledges that it has included section 129(c)(1) in the Panel's terms of reference, but not the provisions of title VII of the Tariff Act of 1930.55 We see no need, therefore, to reconsider our finding that the only measure that is within our terms of reference is section 129(c)(1).56

5.5 Canada argues that the Panel's terms of reference do not preclude the Panel from "considering" or "analysing" the provisions of title VII of the Tariff Act of 1930 as part of its assessment of the WTO-consistency of section 129(c)(1). We agree and note that neither in footnote 123 nor elsewhere in our findings did we state that our terms of reference preclude us from doing so. As a matter of avoiding any misunderstanding in this regard, we made minor drafting changes to the last sentence of footnote 123, and also the last sentence of the similar footnote 112.

5.6 As an additional matter, we note that neither footnote 123 nor any other statement in our findings should be taken to mean that we somehow failed to "consider" or "analyse" title VII of the Tariff Act of 1930 or other relevant provisions of US law in determining the WTO-consistency of section 129(c)(1). In fact, we have carefully considered and analysed all relevant provisions of US law brought to the attention of the Panel by Canada and the United States. As part of that analysis, we have also considered the relationship between title VII of the Tariff Act of 1930 and section 129(c)(1). This is apparent both from the questions we put to the parties57 and from our findings58.

5.7 Our analysis of section 129(c)(1) -- including its effect -- was done taking into account all provisions of US law referred to by the parties. This allowed us to understand the meaning and operation of section 129(c)(1). Nonetheless, it does not follow that all the provisions of US law that are relevant to the Panel's analysis of section 129 become part of the terms of reference of the Panel. The only measure included in our terms of reference is section 129(c)(1). Consequently, we can only determine the WTO-consistency of that measure.

5.8 Accordingly, with the exception of the minor changes we made to footnotes 123 and 112, we did not modify our findings in response to Canada's arguments regarding our interpretation of the terms of reference.

2. Burden of proof

5.9 Canada asserts that the Panel misapplied the burden of proof. According to Canada, once Canada had shown that section 129 prevents the Department of Commerce from applying determinations implemented under section 129 to "prior unliquidated entries", it was for the United States to claim and demonstrate that it had some other authority whereby it could take any necessary actions with respect to "prior unliquidated entries". Although Canada accepts that it was up to Canada to demonstrate that section 129 mandates the United States to take WTO inconsistent action or not to take action which is required by its WTO obligations, in Canada's view, this obligation cannot extend so far as to require it to carry the burden of disproving the effect of measures other than the measure about which it has complained. Canada notes, in this regard, that since the United States raised the affirmative defence that measures other than section 129 would permit the Department of Commerce to take the necessary actions with regard to "prior unliquidated entries", it was for the United States -- and not Canada -- to discharge the burden of proving the effect of those measures.

5.10 The United States responds that if Canada believes that a particular measure of a WTO Member "as such" fails to meet an alleged obligation to implement adverse WTO reports with respect to what Canada terms "prior unliquidated entries", the burden is on Canada to establish that the measure mandates action inconsistent with that alleged obligation. According to the United States, Canada failed to meet this burden with respect to section 129(c)(1). In the view of the United States, the issue of whether the United States relied on an "affirmative defence" and whether the Panel misapplied the burden of proof does not, therefore, arise.

5.11 The Panel is unable to agree with Canada's assertion that it has misapplied the burden of proof in this case. As we have stated at para. 6.23 below, it was for Canada to demonstrate, inter alia , that section 129(c)(1) mandates the United States to take or not take the action identified by Canada. Contrary to what Canada would have the Panel believe, however, Canada cannot discharge that burden merely by demonstrating that determinations made and implemented under section 129 are not applicable to "prior unliquidated entries". As is clear from our findings, the fact that section 129 determinations do not apply to "prior unliquidated entries" does not, in itself, establish that section 129(c)(1) requires (or has the effect of requiring) any of the actions listed in para. 6.31 or precludes (or has the effect of precluding) any of the actions listed in para. 6.32.59 As a result, on a correct application of the burden of proof, the burden of proof did not shift to the United States, as Canada suggests, once Canada had shown that section 129 determinations do not apply to "prior unliquidated entries".

5.12 Canada's additional argument that the Panel inappropriately required Canada to carry the burden of disproving the effect of measures about which Canada did not complain is misplaced. Canada did not identify a single paragraph in our findings to support this assertion. In fact, it could not do so, as our findings make it clear that we required Canada to prove the effect of section 129(c)(1), and not to disprove the effect of measures about which Canada did not complain.60

5.13 In the light of the foregoing considerations, we are not convinced that there is a need to change our findings in response to Canada's arguments regarding our application of the burden of proof. We should note, however, that our review of the relevant parts of our findings resulted in a minor drafting change at para. 6.73.

C. COMMENTS BY THE UNITED STATES

5.14 All of the comments submitted by the United States related to typographical errors.

5.15 The Panel made appropriate corrections.

VI. FINDINGS

A. MEASURE AT ISSUE

6.1 The Panel recalls that its terms of reference are as follows:

To examine, in the light of the relevant provisions of the covered agreements cited by Canada in document WT/DS221/4, the matter referred to the DSB by Canada in that document, and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements.61

6.2 Document WT/DS221/4 is Canada's request for the establishment of a panel in this case. It states that "[t]he measure at issue is section 129(c)(1) of the URAA (19 USC �3538(c)(1))". Document WT/DS221/4 does not "specifically identify" any other measure.62

6.3 Throughout these proceedings, Canada never argued that it was making legal claims in respect of a measure or measures other than section 129(c)(1). Indeed, in its very first submission to the Panel, Canada confirmed that "[a]t issue in this dispute is section 129(c)(1) of the Uruguay Round Agreements Act [�]".63

6.4 We note that, in the course of these proceedings, Canada made numerous references to the provisions of title VII of the United States Tariff Act of 1930, as amended.64 However, Canada has not argued that title VII of the Tariff Act of 1930 or any of its sections was itself a measure within this Panel's terms of reference. As a result, we need not examine whether the relationship between title VII of the Tariff Act of 1930 and section 129(c)(1) is such that title VII, or any of its individual sections, could be considered to be "included" in our terms of reference.65

6.5 In the light of the above, we conclude that the only measure that is within this Panel's terms of reference is section 129(c)(1). Accordingly, we will examine whether section 129(c)(1), taken alone, is inconsistent with the WTO provisions invoked by Canada.

B. CLAIMS AND ARGUMENTS OF THE PARTIES AND ANALYTICAL APPROACH OF THE PANEL

1. Arguments of the parties

6.6 According to Canada, section 129(c)(1) provides that a new antidumping or countervailing duty determination made by the Department of Commerce or the ITC to bring a previous antidumping, countervailing duty or injury determination into conformity with an adverse WTO panel or Appellate Body report applies only to imports that enter the United States on or after the date that the USTR directs implementation of the new determination. In Canada's view, section 129(c)(1) implies that imports that entered the United States prior to that date, and that are subject to an order imposing potential liability for the payment of antidumping or countervailing duties, remain subject to future administrative review determinations and definitive duty assessment without regard to the new determination made by the Department of Commerce or the ITC and any consequent revocation or amendment of the original order.

6.7 Canada refers to the latter type of imports as "prior unliquidated entries", since those imports entered the United States prior to the date on which the USTR directs implementation of a new determination pursuant to section 129(a)(6) and section 129(b)(4) and remain unliquidated (that is, the definitive duty, if any, to be levied on the imports remains undetermined) on that date. For the purposes of this dispute, Canada is assuming that the USTR directs the Department of Commerce or the ITC to implement an adverse DSB ruling at the end of the reasonable period of time accorded to a Member pursuant to Article 21.3 of the DSU. Canada refers to that date as the "implementation date".

6.8 Canada considers that where an order imposing duty liability on imports has been revoked or amended under section 129(c)(1) in response to an adverse WTO ruling, there is no legal basis in the AD Agreement, the SCM Agreement or the GATT 1994 for the United States to conduct administrative reviews and to assess definitive antidumping or countervailing duties with respect to "prior unliquidated entries" without regard to the new determination made by the ITC or the Department of Commerce pursuant to section 129 and the revocation or amendment of the original order. Canada further argues that there is no legal basis in the AD Agreement, the SCM Agreement or the GATT 1994 for the United States to retain cash deposits collected in respect of "prior unliquidated entries" pending the determination of definitive duty liability for those entries, to the extent that these cash deposits were made pursuant to the original order, which has been revoked or amended only with respect to entries that entered the United States on or after the implementation date.

6.9 Canada asserts that section 129(c)(1) requires the Department of Commerce, in determining whether to retain cash deposits previously collected on "prior unliquidated entries" and whether to conduct administrative reviews and assess duties with respect to such entries, to disregard (i) the new determination made by the ITC or the Department of Commerce pursuant to paragraphs (a)(6) and (b)(4) of section 129, and (ii) any revocation or amendment of the original order. Canada submits that where a new determination results in a negative finding of injury, a negative finding of dumping or subsidization, or a reduction in the dumping or subsidization margin, and the Department of Commerce, as a result of section 129(c)(1), subsequently retains cash deposits previously collected in respect of "prior unliquidated entries", conducts an administrative review of "prior unliquidated entries" or assesses definitive antidumping or countervailing duties with respect to such entries without taking into account the new determination and the adverse DSB ruling, the Department of Commerce is acting inconsistently with the obligations of the United States under the AD Agreement, the SCM Agreement or the GATT 1994.

6.10 Specifically, Canada claims that section 129(c)(1) is inconsistent with:

(a) Article VI:2, VI:3 and VI:6(a) of the GATT 1994;

(b) Articles 1, 9.3, 11.1 and 18.1 of the AD Agreement; and

(c) Articles 10, 19.4, 21.1 and 32.1 of the SCM Agreement.

6.11 Canada further submits that, in view of the fact that section 129(c)(1) is inconsistent, in its view, with the aforementioned provisions of the AD Agreement, the SCM Agreement and the GATT 1994, section 129(c)(1) is also inconsistent with Article 18.4 of the AD Agreement, Article 32.5 of the SCM Agreement and Article XVI:4 of the WTO Agreement, because these provisions require that a Member's laws be in conformity with its WTO obligations as of the entry into force of the WTO Agreement.

6.12 Canada considers that, in making the above claims, Canada is not seeking retroactive application of adverse DSB rulings. Whereas Canada considers that the DSU contemplates prospective implementation of adverse DSB rulings, in its view, the principle of prospective implementation does not justify the United States making legal determinations with respect to "prior unliquidated entries" after the implementation date on a WTO inconsistent basis. Canada submits that the logical outcome of prospective implementation of an adverse DSB ruling in a retrospective duty assessment system is for the United States to apply new determinations implemented under section 129 to "prior unliquidated entries" as well as future entries. Canada emphasizes that it is not seeking to have the United States apply such determinations to entries which were liquidated before the implementation date. In Canada's view, to do so would amount to a retroactive application of an adverse DSB ruling.

6.13 The United States argues that Canada has failed to establish that section 129(c)(1) is inconsistent with Articles VI:2, VI:3, and VI:6(a) of the GATT 1994, Articles 1, 9.3, 11.1, 18.1 and 18.4 of the AD Agreement, Articles 10, 19.4, 21.1, 32.1 and 32.5 of the SCM Agreement, and Article XVI:4 of the WTO Agreement.

6.14 The United States considers that any discussion of whether section 129(c)(1) is inconsistent with the WTO obligations of the United States must start with an understanding of the obligations that the DSU imposes with respect to implementing adverse WTO reports. The United States submits, in this regard, that the DSU creates an obligation on the part of a Member whose measure has been found to be WTO inconsistent to bring that measure into conformity in a prospective manner. In the view of the United States, prospective implementation in a case involving an antidumping or countervailing duty measure requires a Member to ensure that a new, WTO-consistent antidumping or countervailing duty determination applies to all merchandise that enters for consumption on or after the date of implementation.

6.15 The United States asserts that there is no requirement to apply a new, WTO-consistent antidumping or countervailing duty determination to "prior unliquidated entries". The United States submits that, pursuant to Article 21 of the DSU, there is no obligation to cease or otherwise suspend a WTO inconsistent measure with respect to its impact on entries that take place during the reasonable period of time. In the view of the United States, neither the AD Agreement, nor the SCM Agreement or the GATT 1994 addresses the timing of the implementation of adverse WTO reports. The United States adds that, to the extent that those agreements refer to effective dates for any purpose, those effective dates are based on the date of entry. The United States submits that using the date of entry as the basis for implementation is, therefore, consistent with the basic manner in which the AD Agreement and the SCM Agreement operate.

6.16 Regarding section 129(c)(1), the United States argues that that provision specifies that a new, WTO-consistent determination which the USTR directs the Department of Commerce to implement will be effective as to all entries that occur on or after the date of implementation. The United States submits that, with that action, the United States will have met its obligations in respect of the implementation of an adverse WTO report, because all entries occurring on or after the date of implementation would enter and be treated in accordance with the WTO report. The United States considers, therefore, that section 129(c)(1) is not inconsistent with Articles VI:2, VI:3, and VI:6(a) of the GATT 1994, Articles 1, 9.3, 11.1 and 18.1 of the AD Agreement, Articles 10, 19.4, 21.1 and 32.1 of the SCM Agreement.

6.17 The United States contends that Canada can only establish that section 129(c)(1) is inconsistent with Article 18.4 of the AD Agreement, Article 32.5 of the SCM Agreement and Article XVI:4 of the WTO Agreement to the extent that it establishes that section 129(c)(1) is inconsistent with the other WTO obligations relied on by Canada. Since the United States is of the view that section 129(c)(1) does not contravene any of those other WTO obligations, it considers that section 129(c)(1) does not infringe Article 18.4 of the AD Agreement, Article 32.5 of the SCM Agreement or Article XVI:4 of the WTO Agreement.

6.18 The United States further argues that, in any event, Canada must establish that section 129(c)(1) mandates action that is inconsistent with the WTO obligations of the United States or that it precludes action that is consistent with those obligations. The United States submits that if section 129(c)(1) does not mandate or preclude any of the actions identified by Canada, then Canada's claims must fail, regardless of what it means to implement a new antidumping or countervailing duty determination in a WTO-consistent manner.

6.19 According to the United States, section 129(c)(1) only addresses the application of a new, WTO-consistent determination to entries made on or after the date of implementation. In the view of the United States, section 129(c)(1) does not mandate that the Department of Commerce take, or preclude Commerce from taking, any particular action with respect to "prior unliquidated entries" in a separate segment of an antidumping or countervailing duty proceeding, such as in a separate administrative review. The United States submits that Canada has, therefore, failed to demonstrate that section 129(c)(1) mandates WTO inconsistent action or precludes WTO-consistent action and that, as a consequence, Canada's claims must fail.

2. Evaluation by the Panel

6.20 The Panel notes that Canada has made claims of violation under Articles VI:2, VI:3 and VI:6(a) of the GATT 1994; Articles 1, 9.3, 11.1 and 18.1 of the AD Agreement; and Articles 10, 19.4, 21.1 and 32.1 of the SCM Agreement. It has also made claims under Article 18.4 of the AD Agreement, Article 32.5 of the SCM Agreement and Article XVI:4 of the WTO Agreement.66

6.21 Canada argues that section 129(c)(1) is inconsistent with Article 18.4 of the AD Agreement, Article 32.5 of the SCM Agreement and Article XVI:4 of the WTO Agreement because it is inconsistent with the other WTO provisions invoked by Canada.67 Accordingly, it is clear from Canada's arguments that the success of these claims depends on that of its first group of claims. For this reason, we will refer to the first group of claims as "principal claims" and to the second as "consequential claims".68 Our findings will address Canada's principal claims first.

6.22 As concerns Canada's principal claims, we note that Canada in this case is challenging section 129(c)(1) "as such", that is to say independently of a particular application of section 129(c)(1). It is clear to us that a Member may challenge, and a WTO panel rule against, a statutory provision of another Member "as such" (for example, section 129(c)(1)), provided the statutory provision "mandates" the Member either to take action which is inconsistent with its WTO obligations69 or not take action which is required by its WTO obligations70. In accordance with the normal WTO rules on the allocation of the burden of proof, it is up to the complaining Member to demonstrate that a challenged measure mandates another Member to take WTO inconsistent action or not to take action which is required by its WTO obligations.71

6.23 In the light of the foregoing, it will be clear that Canada's principal claims will be sustained only if Canada succeeds in establishing that section 129(c)(1) mandates the United States to take action which is inconsistent with the WTO provisions which form the basis for those claims or mandates the United States not to take action which is required by those WTO provisions. In other words, for Canada to discharge its burden with respect to its principal claims, it must demonstrate both of two elements: first, that section 129(c)(1) mandates that the United States take or not take the action identified by Canada, and second that this mandated behaviour is inconsistent with the WTO provisions that it has invoked.

6.24 We consider that the issue of whether section 129(c)(1) mandates the United States to take certain action or not to take certain action is distinct from the issue of whether such behaviour would be inconsistent with the WTO provisions relied on by Canada. As a result, those two issues appear to us to be capable of independent examination.

6.25 We think that we need not address both of the aforementioned issues if we find that Canada has failed to meet its burden with respect to either one of them. As for the sequence in which we will address those issues, we find it appropriate, in the circumstances of this case, to analyse first whether section 129(c)(1) mandates the United States to take specified action or not to take specified action.72

6.26 With these considerations in mind, we now turn to analyse Canada's principal claims.

C. CANADA'S PRINCIPAL CLAIMS

6.27 In this Section, the Panel will address Canada's principal claims in respect of section 129(c)(1), i.e., Canada's claims under Articles VI:2, VI:3 and VI:6(a) of the GATT 1994; Articles 1, 9.3, 11.1 and 18.1 of the AD Agreement; and Articles 10, 19.4, 21.1 and 32.1 of the SCM Agreement.

6.28 As a preliminary matter, we note that an assessment of whether section 129(c)(1) is inconsistent with any of the aforementioned WTO provisions will inevitably involve us in a close examination of the meaning and scope of that section. It should be recalled, in this regard, that panels are entitled (indeed, even obliged) to conduct a detailed examination of the domestic law of a Member, to the extent that doing so is necessary for the purposes of determining the WTO-conformity of that Member's domestic law.73 For the purposes of such an examination, the meaning and scope of relevant provisions of domestic law are questions of fact.74

6.29 Our analysis of Canada's principal claims is structured in accordance with these principles governing a panel's assessment of a Member's domestic law. We first identify the various actions which, in Canada's view, are "required" or "precluded" by section 129(c)(1) and, if taken (in cases where they are required) or not taken (in cases where they are precluded), would result in violations of the WTO provisions invoked by Canada. We will then turn to ascertain the meaning and scope of section 129(c)(1). Next, we will examine, based on our understanding of section 129(c)(1), whether Canada has established, as a matter of US law, that section 129(c)(1) requires and/or precludes any of the actions it has identified. Thereafter, we will proceed to assess whether Canada has established, as a matter of WTO law, that section 129(c)(1) "mandates" the United States to take any of the actions identified by Canada and/or "mandates" the United States not to take any of the actions identified by Canada.75 Finally, if section 129(c)(1) mandates the United States to take any of the actions identified by Canada and/or mandates the United States not to take any of those actions, we will examine whether the United States would be in breach of the WTO provisions invoked by Canada if it were to take any of those actions (in cases where it is mandated to do so) or were not to take any of them (in cases where it is mandated not to do so).

1. Actions identified by Canada as required and/or precluded by section 129(c)(1)

6.30 As noted, the Panel begins its analysis of Canada's principal claims by identifying first the actions which Canada alleges are "required" or "precluded" by section 129(c)(1) and which, in its view, would give rise to violations of the WTO provisions it has identified.

6.31 First of all, Canada asserts that section 129(c)(1) "requires", or has the effect of "requiring", the Department of Commerce:

(a) to conduct administrative reviews with respect to "prior unliquidated entries"76 after the implementation date pursuant to an antidumping or countervailing duty order found by the DSB to be WTO inconsistent77;

(b) to make administrative review determinations regarding dumping or subsidization with respect to "prior unliquidated entries" after the implementation date pursuant to an antidumping or countervailing duty order found by the DSB to be WTO inconsistent78;

(c) to assess definitive antidumping or countervailing duties with respect to "prior unliquidated entries" after the implementation date pursuant to an antidumping or countervailing duty order found by the DSB to be WTO inconsistent79; and

(d) to retain cash deposits in respect of "prior unliquidated entries" after the implementation date at a level found by the DSB to be WTO inconsistent.80

6.32 Canada alleges, furthermore, that section 129(c)(1), by "precluding" particular actions, infringes the WTO provisions identified by Canada. Specifically, Canada asserts that section 129(c)(1) "precludes", or has the effect of "precluding", the Department of Commerce from:

(a) making administrative review determinations regarding dumping or subsidization with respect to "prior unliquidated entries" after the implementation date in a manner that is consistent with an adverse DSB ruling81;

(b) assessing definitive antidumping or countervailing duties with respect to "prior unliquidated entries" after the implementation date in a manner that is consistent with an adverse DSB ruling82; and

(c) refunding, after the implementation date, cash deposits collected on "prior unliquidated entries" pursuant to an antidumping or countervailing duty order found by the DSB to be WTO inconsistent.83

6.33 Having identified the actions which Canada alleges are either required or precluded by section 129(c)(1), we can now proceed to examine whether section 129(c)(1) in fact requires (or has the effect of requiring) and/or precludes (or has the effect of precluding) any of those actions.84



53 Pursuant to Article 15.3 of the DSU, the findings of the final panel report shall include a discussion of the arguments made at the interim review stage. This Section of the Panel report is therefore part of the Panel's findings.

54 Canada cites footnote 123, infra, as an example.

55 See, supra, para. 5.2 (last sentence).

56 See, infra, para. 6.5.

57 E.g., Panel Questions 3, 5, 6, 20, 21, 42, 84, 91, 93 and 94.

58 See, e.g., paras. 2.5-2.8, 6.50 and accompanying footnote, 6.69 and accompanying footnote, 6.70-6.71 and 6.84 and accompanying footnote.

59 See, infra, in particular paras. 6.55, 6.68-6.69 and 6.83-6.84.

60 See, infra, paras. 6.23, 6.70 and 6.85.

61 WT/DS221/5 (referring to WT/DSB/M/108).

62 Appellate Body Report, Guatemala - Anti-Dumping Investigation Regarding Portland Cement from Mexico ("Guatemala - Cement I "), WT/DS60/AB/R, adopted 25 November 1998, para. 86.

63 Canada's First Submission, para. 1. We note that, in its request for consultations, Canada stated that "[t]hese consultations concern Section 129(c)(1) of the Uruguay Round Agreements Act (the URAA) and the Statement of Administrative Action accompanying the URAA (at page 1026)". See WT/DS221/1. However, Canada's subsequent panel request does not reference the Statement of Administrative Action as a measure which is being challenged in addition to section 129(c)(1).

64 Title VII of the Tariff Act of 1930, codified at 19 U.S.C. �� 1671 et seq.

65 We note that there may be circumstances in which a measure that is not specifically identified in a panel request may nevertheless be considered to be "included" in a measure that is specifically identified, if such a measure is "subsidiary or closely related" to the measure that is referenced in the panel request. See Panel Report, Japan - Measures Affecting Consumer Photographic Film and Paper ("Japan - Film "), WT/DS44/R, adopted 22 April 1998, DSR 1998:IV, 1179, para. 10.8. However, as already pointed out, Canada did not assert before us that title VII of the Tariff Act of 1930 or any of its sections should be considered to be "included" in Canada's references, in its panel request and elsewhere, to section 129(c)(1).

66 Canada has not pursued its claims under the DSU before the Panel.

67 Canada's First Submission, paras. 80 and 84; Canada's First Oral Statement, paras. 28-29.

68 We note that the explicit characterization of Canada's claims as either "principal" or "consequential" is ours and that Canada has not used these terms.

69 Appellate Body Report, United States - Anti-Dumping Act of 1916 ("US - 1916 Act "), WT/DS136/AB/R, WT/DS162/AB/R, adopted 26 September 2000, paras. 88-89. We note that both parties agree that the issue of whether section 129(c)(1) is a mandatory or discretionary provision is relevant to this dispute.

70 Both parties agree that a statutory provision may be challenged "as such" not only if it mandates WTO-inconsistent action, but also if it "precludes" action that is required by WTO rules. Canada's Second Oral Statement, para. 17; US Second Submission, para. 7. We understand the parties to this dispute to use the term "preclude" in the sense of "mandate not to". Whereas we are aware that another panel spoke of statutory provisions "precluding WTO-consistency" which could, as such, violate WTO provisions (see Panel Report, United States - Sections 301-310 of the Trade Act of 1974 ("US - Section 301 Trade Act "), WT/DS152/R, adopted 27 January 2000, footnote 675), we will, in the interests of clarity, use the expression "mandate not to" rather than "preclude".

71 Appellate Body Report, US - 1916 Act, supra, paras. 96-97; Panel Report, Brazil - Export Financing Programme for Aircraft - Second Recourse by Canada to Article 21.5 of the DSU ("Brazil - Aircraft (Article 21.5 - Canada II) "), WT/DS46/RW/2, adopted 23 August 2001, para. 5.50.

72 We note that the Panel in United States - Measures Treating Exports Restraints as Subsidies first considered whether certain action was in conformity with WTO requirements and only then addressed whether the measure at issue mandated such action. See Panel Report, United States - Measures Treating Export Restraints as Subsidies ("US - Export Restraints"), WT/DS194/R and Corr.2, adopted 23 August 2001, para. 8.14. In the circumstances of the case at hand, where there is a major factual dispute regarding whether section 129(c)(1) requires and/or precludes certain action, we think that a panel is of most assistance to the DSB if it examines the factual issues first. Moreover, we do not see how addressing first whether certain actions identified by Canada would contravene particular WTO provisions would facilitate our assessment of whether section 129(c)(1) mandates the United States to take certain action or not to take certain action. Finally, we have taken into account the fact that, in the present case, our ultimate conclusions with respect to Canada's claims would not differ depending on the order of analysis we decided to follow.

73 Appellate Body Report, United States - Section 211 Omnibus Appropriations Act of 1998 ("US - Section 211 Appropriations Act "), WT/DS176/AB/R, adopted 1 February 2002, para. 105; Appellate Body Report, United States - Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan ("US - Hot-Rolled Steel "), WT/DS184/AB/R, adopted 23 August 2001, para. 200; Appellate Body Report, India - Patent Protection for Pharmaceutical and Agricultural Chemical Products ("India - Patents (US) "), WT/DS50/AB/R, adopted 16 January 1998, DSR 1998:I, 9, para. 66; Panel Report, United States - Anti-Dumping Act of 1916 - Complaint by the European Communities ("US - 1916 Act (EC) "), WT/DS136/R and Corr.1, adopted 26 September 2000, as upheld by the Appellate Body Report, WT/DS136/AB/R, WT/DS162/AB/R, para. 6.51; United States - Anti-Dumping Act of 1916 - Complaint by Japan ("US - 1916 Act (Japan) "), WT/DS162/R and Add.1, adopted 26 September 2000, as upheld by the Appellate Body Report, WT/DS136/AB/R, WT/DS162/AB/R, para. 6.50.

74 Panel Report, US - Section 301 Trade Act, supra, para. 7.18.

75 We consider, in the circumstances of this case, that if Canada does not succeed in demonstrating, as a factual matter, that section 129(c)(1) "requires" (or has the effect of requiring) or "precludes" (or has the effect of precluding) any of the actions identified by it, Canada will not have established, as a matter of WTO law, that section 129(c)(1) "mandates" the United States to take any of those actions or "mandates" the United States not to take any of those actions.

76 Here and hereafter, we will use the term "prior unliquidated entries" in the sense ascribed to it by Canada. See, supra, para. 6.7. Unlike Canada, however, we will put the term in inverted commas to reflect the fact that it is not used in relevant US laws or regulations. See US replies to Panel Questions 5 and 20.

77 E.g., Canada's reply to Panel Question 74(b); Canada's Second Oral Statement, paras. 35 and 53; Canada's Second Submission, para. 32; Canada's reply to Panel Question 31. Canada considers that, after the implementation date, administrative reviews for "prior unliquidated entries" are, under WTO law, either: (i) not to be conducted in cases in which the ITC or the Department of Commerce makes a section 129 determination which results in the revocation of the original antidumping or countervailing duty order, or (ii) to be conducted on the basis of a section 129 determination by the Department of Commerce in cases in which such a determination does not result in the revocation of the original antidumping or countervailing duty order but may result in a lower definitive antidumping or countervailing duty being assessed on "prior unliquidated entries".

78 E.g., Canada's First Submission, paras. 33, 42 and 54.

79 E.g., Canada's First Submission, paras. 33, 42 and 54. We note that Canada also asserts that section 129(c)(1) requires the Department of Commerce to "make definitive duty determinations" with respect to "prior unliquidated entries". See Canada's Second Submission, para. 4. It appears to us that Canada's reference to the "making of definitive duty determinations" is a reference to the levying or assessment of definitive antidumping or countervailing duties. See Canada's reply to Panel Question 7. We further note that Canada has used, but not explained, the expression "definitive legal determinations of duty liability". See Canada's Second Submission, paras. 42 and 44. In the absence of any elaboration by Canada, we will not assume that the expression "definitive legal determinations of duty liability" covers any aspect of section 129(c)(1) that would not already be covered by Canada's broad reference to the actions identified in subparagraphs 6.31(b) and (c) above.

80 E.g., Canada's reply to Panel Question 74(a); Canada's Second Oral Statement, para. 35; Canada's Second Submission, para. 32. In Canada's view, the retention, after the implementation date, of cash deposits collected on "prior unliquidated entries" is not justified in whole or in part in cases in which: (i) the ITC or the Department of Commerce makes a section 129 determination which results in the revocation of the original antidumping or countervailing duty order, or (ii) the Department of Commerce makes a section 129 determination which may result in a lower definitive antidumping or countervailing duty being assessed on "prior unliquidated entries".

81 E.g., Canada's Second Oral Statement, para. 34; Canada's First Oral Statement, paras. 20-21.

82 E.g., Canada's Second Oral Statement, paras. 34-35; Canada's Second Submission, paras. 8 and 14; Canada's First Oral Statement, paras. 20-21.

83 E.g., Canada's replies to Panel Questions 71 and 80. According to Canada, after the implementation date, cash deposits collected on "prior unliquidated entries" must be refunded in whole or in part in cases in which: (i) the ITC or the Department of Commerce makes a section 129 determination which results in the revocation of the original antidumping or countervailing duty order, or (ii) the Department of Commerce makes a section 129 determination which may result in a lower definitive antidumping or countervailing duty being assessed on "prior unliquidated entries".

84 We note that the United States has argued, in response to a question from the Panel, that the issue of the conduct, after the implementation date, of administrative reviews concerning "prior unliquidated entries" and the issue of the retention, after the implementation date, of cash deposits collected on such entries are not within the Panel's terms of reference. In support of this view, the United States states that section 129(c)(1) does not address either of these issues and that Canada's misunderstanding of what section 129(c)(1) allegedly requires cannot bring within the Panel's terms of reference measures which Canada did not identify in its panel request. See US reply to Panel Question 74. We do not consider that the issues in question are outside our terms of reference. Canada's assertions regarding the conduct of administrative reviews and the retention of cash deposits are clearly related to section 129(c)(1), i.e., the measure at issue in this case. In such circumstances, we do not think that the mere fact that Canada may be mistaken in its understanding of what action section 129(c)(1) requires bars us from addressing Canada's assertions.


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