CANADA - MEASURES AFFECTING THE EXPORT
OF CIVILIAN AIRCRAFT



Recourse by Brazil to Article 21.5 of the DSU




Report of the Panel

(Continuation)

ANNEX 1-5

RESPONSES BY BRAZIL

TO QUESTIONS FROM THE PANEL

(14 February 2000)

Canada Account

Q1. Could Brazil please elaborate regarding the basis on which it considers the Policy Guideline "purely hortatory" (Brazil's second submission at para. 69)? In Brazil's view, what changes would be necessary for it to become mandatory?

Response

The Policy Guideline adopted for Canada Account is hortatory because, according to Brazil's information, Policy Guidelines are not binding in Canadian law and cannot fetter Ministerial discretion. They provide guidance on how decision makers will exercise their discretion, but they are not binding and do not require a specific outcome. In Maple Lodge Farms v. Canada [1982] 2SCR 2 at 7, the Supreme Court of Canada held that Ministerial discretion cannot be fettered through the issuance of a Policy Guideline.

The Federal Court of Canada has also held that Policy Guidelines may be issued, but should not be drawn so narrowly that they "crystallize into binding and conclusive rules." See Dawkins v. Canada [1992] 1 FC 639 at 649. Similarly, decision-makers that issue Policy Guidelines may not construe those Policy Guidelines as binding obligations which restrict their ability to exercise discretion. Saunders Farms v. B.C. [1985] 32 Admin. L.R. (2d) 145 (BCCA).

Therefore, the Policy Guideline adopted by Canada for use with Canada Account cannot bind the Minister because that would fetter Ministerial discretion and violate Canadian law. Consequently, as the Policy Guideline is not binding but merely provides direction, it is merely hortatory.

In fact, Canada's actions demonstrate that its Policy Guideline does not remove Canada Account financing from the category of prohibited export subsidies; the policy was already in existence before the Panel determined that Canada provided prohibited export subsidies via the Canada Account. Despite the fact that Canada stated to the Panel in the original proceedings, on at least three different occasions, that Canada Account financing and loan guarantees for exports "have been consistent with the interest rate provisions of the OECD Consensus, as required by Item (k) of Annex I," the Panel determined that Canada Account support constituted prohibited export subsidies.¹ If this policy did not provide a disincentive for Canada to maintain prohibited export subsidies via the Canada Account before the Panel's determination, why would it do so after the Panel's determination?

As to what changes would be necessary for the guideline to become mandatory under Canadian law, Brazil would note that it is not expert on Canadian law. However, it would seem that a minimum mandatory language should be used, and provision should be made for consequences in the event of non-compliance.

Q2. Does Brazil agree with Canada's identification of the "interest rate provisions" of the OECD Arrangement as set forth at paragraphs 69-80 of its oral statement and in the document provided by Canada entitled "Item (k): Interest Rates Provisions of the OECD Arrangement"? Are there other provisions of the OECD Arrangement that Canada has not mentioned but that in Brazil's view form part of the "interest rate provisions" of the OECD Arrangement in the sense of the second paragraph of item (k) of the Illustrative List of Export Subsidies? Are there any provisions identified by Canada that in Brazil's view do not form part of the "interest rate provisions" of the OECD Arrangement in the sense of the second paragraph of item (k) of the Illustrative List of Export Subsidies? Please explain in detail.

Response

Brazil, like most Members of the WTO, is not a Participant in the OECD Arrangement, and for that reason has limited knowledge of the Arrangement and its workings. Therefore, rather than questioning the specific list of "interest rates provisions" listed by Canada, Brazil has asked Canada a series of questions regarding the significance of the provisions it cites.

It should fall to Canada, as one of a minority of WTO Members that is a Participant in the Arrangement, to explain what those provisions are and how, precisely, it will apply them. As stated in its Statement to the Panel, Brazil's understanding is that in their application - and not merely in their identification - the provisions of the OECD Arrangement are subject to widely-varying interpretations by the various Participants. There is no dispute settlement mechanism in the Arrangement to regulate or constrain those different interpretations. There are no publicly-available documents recording the agreement of the Participants to abide by particular interpretations of particular provisions.

Brazil understands, however, that in applying the Arrangement, some Participants have adopted rather controversial interpretations of various provisions that affect the scope of financing subject to the disciplines of the Arrangement. Brazil's questions to Canada are posed in an attempt to discover whether Canada itself, as a Participant in the Arrangement, has adopted some of these interpretations in its provision of export financing.

We begin, for example, with Article 2 of the Arrangement, which states that it applies to "official support for exports." The Arrangement contains no definition of the term "official support," and Brazil has confirmed with the OECD that the Participants have not reached agreement on a definition.² As a result, Brazil understands, some Participants take the position that "official support" consists only of the provision of support at rates below a government's cost of funds. According to those Participants, support extended at rates equal to or above the government's cost of funds constitutes so-called "market window" support. These Participants consider that, so long as support is granted through this "market window," it may be provided at rates below the minimum Commercial Interest Reference Rates ("CIRR") applicable to "official support" for exports. This interpretation of the "market window" exception may be perfectly acceptable, but it demonstrates why Brazil considers Canada's statement that it will "comply with the OECD Arrangement" ambiguous.

Further, there is an apparent discrepancy in the particular "interest rates provisions" identified by Canada, even under Canada's own standard. According to Canada, the "interest rates provisions" of the OECD Arrangement, incorporated into Item (k), include those provisions that "affect what the interest rate and the amount of interest payable will be in a given transaction."³ Brazil understands that the so-called "Knaepen Package," which took effect on 1 April 1999, requires Participants to adhere to certain sovereign and country risk premiums. These requirements may have been incorporated into the Arrangement, and may be incorporated via Canada's listing of Article 21(a). As a non-Participant, Brazil does not know whether this is the case. However, those requirements, which in Canada's words "affect what the interest rate and the amount of interest payable will be in a given transaction," should be included as "interest rates provisions" of the Arrangement, or Canada should explain why they are not. Thus far, Canada has been silent on this point.

Finally, Brazil has not knowingly asserted in this proceeding that Canada will not comply with the "non-derogation commitment," as Canada argues at paragraph 71 of its Oral Statement. Indeed, Brazil is not certain what that commitment is, and Canada has not specified which provisions compose the "non-derogation commitment set forth in the Arrangement." If Canada is referring to Article 27, however, titled "No Derogation for Export Credits," Brazil notes that Canada has not included this provision on its list.

Q3. Could Brazil describe in detail what it considers is required for full compliance with the interest rate provisions of the OECD Arrangement in the sense of the second paragraph of item (k) of the Illustrative List of Export Subsidies. That is, what precisely would Canada have to do for Canada Account transactions in the regional aircraft sector to qualify for the safe haven of the second paragraph of item (k)? How if at all does this differ from what Canada has said would be necessary? If Canada Account transactions in the regional aircraft sector complied to the letter with all of the provisions of the OECD Arrangement that Canada identified in paragraphs 69-80 of its oral statement and in the Canadian document entitled "Item (k): Interest Rates Provisions of the OECD Arrangement", does Brazil believe that such transactions would qualify for the safe haven in the second paragraph of item (k)? Please explain in detail.

As discussed in its response to Question 2, Brazil considers that Canada has not fulfilled its implementation commitments by merely listing what it considers the "interest rates provisions" of the OECD Arrangement to be. Canada should state how it intends to apply those provisions, and what it means when it says it will "comply" with them.

Brazil has described above the ambiguities surrounding the application of the Arrangement regarding, for example, the definition of "official support" and the concept of "market windows." Without information from Canada regarding how it intends to apply each of the provisions included on its list, a non-Participant like Brazil will have no way of knowing what to "comply with" those provisions actually means. Only with this information could the Panel, or any WTO Member who is a non-Participant in the Arrangement, reasonably determine whether the Canada Account, as the Panel's question states, "complies to the letter with all of the provisions of the OECD Arrangement" included on Canada's list.

The Arrangement would appear to make the obtaining of information difficult for non-Participants. For example, it appears to Brazil that Article 52 of the Arrangement requires a Participant intending to match alleged non-conforming terms and conditions by another Participant to inform that Participant. However, Article 53 appears to permit a Participant to match the alleged non-conforming terms and conditions of a non-Participant by simply notifying other Participants of that fact, with no notice to the non-Participant. Thus, if the matching provisions of the OECD Arrangement were considered to be part of its "interest rates provisions," it would appear that a Participant would have to notify another WTO Member that is a Participant but not one that, like Brazil, is not a Participant. It is also unclear to Brazil what a non-Participant's obligations would be under these provisions. The point is, however, that it is up to Canada as the Member invoking the second paragraph of Item (k) to explain whether it intends to comply with these, and the other provisions, and if so, how it intends to do so. This is not a question of proof; it is a question of explanation.

Q4. Concerning Canada's proposal that the Panel endorse the verification mechanism suggested by Canada, Brazil states that it considers that resolution of the matter in the context of dispute settlement "is not clearly compatible with the spirit, if not the letter, of Article 19 of the DSU" (Brazil's second submission at para. 78). Could Brazil please elaborate on this point. In particular, in what specific sense might Canada's proposal be considered out of keeping with the spirit and with the letter of Article 19? Are there any other provisions of the DSU or the SCM Agreement that would be relevant to Canada's proposal?

Response

Under Article 19.1 of the DSU, a Panel may make recommendations that a Member violating its commitments bring its measure into conformity with a particular agreement. Within the context of prohibited export subsidies, however, Panels are, more specifically, required by Article 4.7 of the Subsidies Agreement to recommend that a Member providing such a subsidy "withdraw the subsidy." Put simply, while a bilateral transparency and verification mechanism may be desirable, it is not a replacement for the requirement that Canada withdraw the prohibited export subsidies identified in the recommendations and rulings of the DSB. Canada is proposing that the Panel recommend verification, not implementation. Brazil would also note that Article 3.2 of the Dispute Settlement Understanding provides that recommendations and rulings of the Dispute Settlement Body cannot add to the obligations of the Members. A verification requirement would add to the obligations of the parties.

Bilateral discussions between Brazil and Canada regarding transparency and verification of programmes maintained for the support of their regional aircraft manufacturers are on-going. Whether those discussions succeed or fail will depend in part on Canada's willingness to submit a broader range of programmes than merely the Canada Account and TPC to the terms of any transparency and verification arrangement. Any such arrangement must be truly reciprocal to be acceptable to Brazil.

Further, the proposed bilateral agreement envisions the disclosure of extensive amounts of highly confidential commercial information. Confidentiality requirements, therefore, are vital in any bilateral arrangement. As the Panel is aware, confidentiality has been, and continues to be, an issue in these cases.

The Panel will recall that in Brazil - Export Financing Programme for Aircraft, WT/DS46, the interim report of the original Panel, containing its findings and conclusions, was prematurely released to the Parties, despite the understanding - otherwise adhered to in these proceedings - that all reports would be issued simultaneously. Late in the afternoon of the premature release, Northwest Airlines announced that it was awarding a contract for a large number of aircraft to the Canadian producer, Bombardier, rather than to Embraer of Brazil. Northwest had previously informed both manufacturers that it would await the results of the WTO proceedings before making its decision. Brazil is confident that it did not provide the interim report in DS46 to Northwest.

Likewise, in this Article 21.5 proceeding, the Panel will recall that Brazil's confidential Second Submission to this Panel somehow was obtained by the European Communities, despite the fact that it had not been provided to the EC by Brazil. While it has not been established exactly how the unauthorized disclosure to the EC occurred, the Panel will appreciate that incidents of this nature do not contribute to building confidence that unauthorized disclosure of highly sensitive commercial information under a transparency agreement will not occur.

Technology Partnerships Canada

Q1. At paras. 18 and 19 of its second submission, Brazil claims that "[a]t a minimum, Canada's implementation measures must ensure that prohibited export subsidies cannot be granted to the regional aircraft industry under the facts surrounding the operation of the TPC programme . . ." (emphasis in original). Out of preference, Brazil would have Canada implement the Panel's findings on TPC assistance by eliminating the TPC programme altogether with respect to the regional aircraft sector.

(a) Please comment on Canada's assertion (para. 32 of oral submission of Canada) that, with regard to TPC assistance to the regional aircraft industry, Brazil has set Canada an "impossible burden of proof". Is it possible, in practice, for a panel to verify that a sovereign state has eliminated all discretionary authority to grant de facto export subsidies to a specific sector of its domestic industry? Is the elimination of all such discretionary authority required by Article 3.1(a) of the SCM Agreement?

Response

Brazil does not agree that it suggested that a sovereign state must eliminate all of its discretionary authority. Obviously, a sovereign state cannot do that and remain a sovereign state. Nor does Brazil agree that it has set Canada "an impossible burden of proof." Brazil recognizes that it bears the burden of showing that Canada has failed to implement, and Brazil has done so. Brazil has shown that all the essential elements of the programme remain unchanged, and that many of these elements will never change. It then becomes Canada's burden to explain how Brazil was wrong and how Canada's purported changes actually constitute effective implementation. This Canada has not done. This is especially true here, where Canada has admitted that it has not in fact yet even completed its revisions of the programme.

The Panel will not, of course, be able to verify in these Article 21.5 proceedings that Canada never again will grant a subsidy de facto contingent on export to the regional aircraft industry. For the recommendations and rulings of the DSB in this case to have any meaning, however, withdrawal of the prohibited subsidy should consist of measures that make it clear to the Panel that Canada is not simply going to continue the same programme as before once these proceedings are completed. Otherwise, to obtain an effective remedy, Brazil would be required to engage in endless challenges to future generations of TPC subsidies issued under circumstances virtually identical to ones already judged to be prohibited by this Panel.

Brazil does not consider that the elimination of all discretionary authority is required by Article 3.1(a) of the Subsidies Agreement. For example, in Brazil's view, Article 3.1(a) does not prohibit the exercise of discretion in evaluating the financial or technical feasibility of a proposal. Rather, the specific question in this proceeding is whether Canada has "withdrawn the subsidy," under Article 4.7 of the Agreement. Under the "new" TPC, Canada has not withdrawn the subsidy; instead, the same, specifically-selected industries will receive even more TPC money than before for the same types of projects. By any reasonable standard, this is not sufficient to achieve the effective remedy required by Article 4.7.

(b) Would elimination of the TPC programme have the effect desired by Brazil (i.e., elimination of discretionary authority to grant prohibited export subsidies to the Canadian regional aircraft industry) if Canada were subsequently able to introduce a new programme that could, in principle, lead to the grant of de facto export subsidies to the Canadian regional aircraft industry?

Response

Brazil agrees that it is not possible to prevent all eventualities. However, the fact that a remedy could be subject to manipulation, does not mean that no remedy should be provided. Regardless of what new programmes are created in the future, the issue now before the Panel is whether Canada has fully implemented the DSB's recommendations and rulings.

Q2. Does Brazil consider that the provision of specific subsidies to export-oriented industries - in the absence of other factual considerations demonstrating de facto export contingency - necessarily violates Article 3.1(a) of the SCM Agreement? Please explain.

Response

When an industry is specifically targeted for a subsidy because of its undisputed export orientation, a violation of Article 3.1(a) of the SCM Agreement occurs. As the United States said, at paragraph 7 of its Third Party Submission, "there is a fundamental difference between a government granting a subsidy to an enterprise which happens to export and a government granting a subsidy to an enterprise because it exports."⁴

Moreover, Brazil has demonstrated that the export-orientation of the industry has not changed since the original Panel proceedings, and Canada has acknowledged that it maintains the same focus in the "new" TPC as it did in the "old" TPC - two-thirds of all funds will continue to go to the aerospace industry. Canada cannot maintain the identical focus on this industry, originally selected because of its exports, in the "new" TPC, with the export-orientation of the industry as evident as ever, and expect that the motivations underlying this focus in the "old" TPC are no longer relevant.

The Panel will recall that the Appellate Body concluded that a de facto export subsidy exists when it is "tied to" actual or anticipated exportation or export earnings. Brazil has shown that TPC subsidies were and, under the "new" TPC, will continue to be, provided to the aircraft sector because of its high export performance. As Canada has decided to provide subsidies to this industry because it exports, TPC subsidies clearly are "tied to" actual or anticipated exportation or export earnings.

Q3. At footnote 62 of its second submission, Brazil states that, "to reach sales forecasts", the Canadian regional aircraft industry must export. Is the grant of TPC assistance to the regional aircraft sector contingent on fulfillment of sales forecasts?

Response

Brazil noted in its submissions to the Panel that Canada has not yet provided 68 per cent of the documents associated with the "new" TPC. Therefore, Canada has made it impossible to determine whether this or other factors considered by the Panel in the original proceedings to constitute evidence demonstrating de facto export contingency are maintained in the "new" TPC. Canada has also admitted to the Panel that it has not yet completed the revision of many of these documents. For these reasons alone, the Panel may properly find that Canada has failed to implement the recommendations and rulings of the DSB.

Under the TPC Aerospace and Defence Sector Generic Model Agreement, applicants are required to report forecast and actual sales.⁵ Since Canada did not provide a new version of this document by the deadline for implementation of the recommendations and rulings of the DSB, the Panel should presume that the prior version still applies. Given its status as a generic form agreement, there is no reason why a new version of this document will not be created "until such time as the restructured programme approves and contracts new investments," as Canada suggests.

Brazil also notes that even after 18 November 1999, TPC's website states that TPC contributions, 65 per cent of which are allocated to the aerospace industry, "are forecasted to generate sales of more than $89.6 billion . . ."⁶ TPC therefore records and tracks sales forecasts.

Finally, Brazil notes that under the "new" TPC, one form of repayment of TPC contributions will be based upon "royalties on total company or division sales."⁷ To prepare a repayment schedule based upon royalties from sales, TPC must obtain information on and evaluate forecasted sales.

Q4. If, hypothetically (and as Brazil claims), the current measures taken by Canada to comply with the DSB recommendation are not a sufficient change in the factual situation which led to the initial conclusion that TPC assistance to the regional aircraft industry is de facto contingent on export, what alternative action(s) does Brazil consider Canada could take to implement the DSB recommendation other than withdrawal of the TPC programme in respect of the Canadian regional aircraft industry?

Response

Alternatives available to Canada would include making TPC funds available to Canadian industry generally, and changing TPC so that its contributions do not confer benefits, and therefore do not constitute subsidies, within the meaning of Article 1.1 of the SCM Agreement.

Q5. At para. 37 of its first submission, Canada claims that "[t]he restructuring of TPC has removed all elements that had formed the basis for the Panel and Appellate Body finding of de facto export contingency, with the exception of one, namely that the Canadian regional aircraft industry has a high propensity to export its final products". Does Brazil agree that all other elements that had formed the basis of the Panel and Appellate Body rulings on export contingency - with the exception of the export orientation of the Canadian regional aircraft industry - were removed by Canada? If not, why not? If yes, and if the export orientation is the only element remaining, does it not then logically follow that the subsidies granted are no longer export contingent, especially in the light of the Appellate Body's statement in para. 173 of its report that the "export orientation of a recipient may be taken into account as a relevant fact, provided that it is one of several facts which are considered and is not the only fact supporting a finding"?

Response

Brazil does not agree with Canada's claim that it has removed all elements forming the basis, in the original proceedings, for the determination that TPC contributions to the regional aircraft industry were de facto export contingent. In paragraph 15 of its Second Submission, Brazil describes the factors that in its view support a continued inference of de facto export contingency and a determination that Canada has not "withdrawn the subsidy":

• First, Brazil points to the export-orientation of the industry, along with the specificity of TPC, which maintains two-thirds of its contributions for the aerospace industry. That factor is discussed in the section beginning at paragraph 21 of Brazil's Second Submission (as well as in the section beginning at paragraph 18 of Brazil's First Submission).
   
• Second, Brazil notes that essentially the same projects continue to be eligible for contributions under the "new" TPC as were eligible under the "old" TPC. A discussion of this factor begins at paragraph 34 of Brazil's Second Submission (and is also included in Brazil's First Submission in the section commencing with paragraph 24).

• Third, Brazil shows that applicants for funds under the "new" TPC must demonstrate that their proposed project fulfills selection and assessment criteria, and programme goals and objectives, the achievement of which requires a commitment to export performance. Brazil also demonstrates that the link between these criteria and export is particularly evident for aerospace and regional aircraft industry applicants, which are awarded two-thirds of TPC funds. This discussion begins at paragraph 37 of Brazil's Second Submission (as well as in Brazil's First Submission in the section beginning with paragraph 31).

• Fourth, Brazil demonstrates that Canada has not amended or provided documents that the Panel considered resulted in an inference of de facto export contingency. Brazil's discussion of this factor begins at paragraph 51 of its Second Submission (and is also included with the section beginning at paragraph 35 of Brazil's First Submission).

In this regard, we would recall the language of the Panel in Australia - Leather, at paragraph 6.21, note 24: "The specific details of the factual evidence underlying the conclusion that the subsidies were in fact contingent upon export performance within the meaning of Article 3.1(a) of the SCM Agreement and therefore prohibited do not, in our view, determine what is required in order to 'withdraw the subsidy' within the meaning of Article 4.7 of the SCM Agreement.

Q6. At para. 11 of its oral statement, Brazil "requests that should the Panel accept Canada's argument, it then recommend the retroactive payment of TPC subsidies to the regional aircraft industry". Was this request contained in Brazil's first two written submissions to the Panel? If not, why not? Is Brazil seeking repayment of TPC subsidies to the Canadian regional aircraft industry? If so, what would be the basis for the Panel to recommend repayment?

Response

Brazil's First and Second Submissions did not contain a request for this retroactive repayment, which, as expressly stated in paragraph 11 of its Statement for the Meeting of the Panel, is an alternative, though not a preferred, remedy. Brazil's presentation of arguments regarding the retroactive repayment of TPC subsidies was in response to the circulation of the Article 21.5 decision in Australia - Leather, which was not circulated to the Members until 21 January 2000, four days after Brazil's Second Submission was filed on 17 January 2000.

Brazil submits that retroactive repayment may be appropriate only in the event that either or both of two scenarios materializes. First, if the Panel considers itself required to follow the reasoning of the Panel in Australia - Leather, Brazil has argued that the factual similarity between Australia - Leather and the case at hand make the reasoning of Australia - Leather applicable here. Second, if the Panel accepts Canada's argument that "in the absence of any such financial contribution and a full consideration of [the] facts, there can be no grounds to support Brazil's allegations of de facto export contingency under the restructured TPC programme,"⁸ Brazil will be left without recourse to Article 21.5 review of Canada's implementation measures. In that event, Brazil will be left with no effective remedy apart from the retroactive repayment of TPC subsidies granted to the Canadian regional aircraft industry.

Question to both parties

Please comment on the EC argument (para. 7 of the EC's oral statement) that, in light of the Panel's terms of reference set forth in document WT/DS70/9, "[t]he Panel may not . . . in this case consider whether Canada has failed to implement the report retroactively since Brazil has only asked for a finding that the changes to the two programmes at issue have not implemented the Report".

Response

This argument was raised by the European Communities and the parties before the Panel in Australia - Leather and was not accepted by that Panel. As Brazil stated in its oral presentation, Brazil believes the EC and the parties were correct in their positions in Australia - Leather, and that the case was wrongly decided. However, the fact remains that this Panel, like the Panel in Australia - Leather, might not find itself constrained by the positions of the parties. In its statement, Brazil attempted to allow for this fact and to point out the implications of Australia - Leather for this case, should the Panel decide to accept the reasoning of that case.

ANNEX 1-6

COMMENTS OF BRAZIL ON CANADA'S RESPONSES

TO QUESTIONS FROM THE PANEL

(16 February 2000)

In Canada's answers to questions 1 and 2 posed by the Panel regarding TPC, Canada acknowledges (paras. 53-58) that it has actually completed very few changes to the TPC programme. Canada lists 24 documents pertaining to the TPC programme, but states that it has thus far in fact amended only three of these documents. There are drafts available for 13 documents. However, not even drafts are available for the remaining eight documents, including such potentially important materials as the "Statement of Work" and "Evaluation Framework". Canada's attempts to reform TPC are incomplete, leaving the Panel no basis on which to decide that TPC no longer retains its export contingency. For this simple reason alone, the Panel cannot conclude that Canada has implemented the rulings and recommendations of the DSB.

1 First Written Submission of Canada, 16 November 1998, para. 173 (Exhibit Bra-33). See also First Oral Submission of Canada, 26 November 1998, para. 101 ("Canada Account financing and loan guarantees for exports committed since the entry into force of the SCM Agreement have complied with the interest rate provisions of the OECD Consensus, as required by Item (k) of Annex I.") (Exhibit Bra-34); Second Written Submission of Canada, 4 December 1998, para. 77 ("Canada Account transactions are consistent with the interest rates provisions of the OECD Consensus.") (Exhibit Bra-35).

2 OECD Arrangement, Article 88. See also Correspondence with OECD Secretariat (Exhibit Bra-37).

3 Canadian document provided to the Panel on 6 February 2000, "Item (k): Interest Rates Provisions of the OECD Arrangement," pg. 1.

4 Emphasis in original.

5 Canada - Measures Affecting the Export of Civilian Aircraft, WT/DS70/R (14 April 1999) (Adopted as Modified by the Appellate Body, 20 August 1999) para. 9.340 (bullet point 10) ("Panel Report").

6 TPC Current Statistics, 6 December 1999 (Exhibit Bra-17).

7 Industry Canada News Release, 18 November 1999, pg. 4 (Exhibit Bra-18).