Note, for example, the procedural agreement between the United States and Brazil in Brazil`s challenge to U.S. cotton subsidies. Agreement between Brazil and the United States concerning the Procedures under Articles 21 and 22 of the DSU and Article 4 of the SCM Agreement, United States – Subsidies on Upland Cotton, WT/DS267/22 (8 July 2005). See Sylvia A. Rhodes, The Article 21.5/22 Problem: Clarification through Bilateral Agreements? 3 J. Int`l Econ. L. 553 (2000). 9. The dispute settlement provisions of covered agreements may be used for measures affecting compliance that are taken by governments or regional or local authorities in the territory of a Member. Where the enlarged dispute settlement body has decided that a provision of a covered agreement has not been complied with, the responsible member shall take appropriate measures at its disposal to ensure that it is complied with. The provisions of the covered agreements and of this Agreement relating to compensation and suspension of concessions or other obligations shall apply in cases where such compliance could not be ensured (17).
1. Panels shall be composed of well-qualified governmental and/or non-governmental persons, including persons who have served on a panel or referred a matter to a panel, who have represented a Member or Party to GATT 1947, or who have represented a Covered Agreement or any of its prior conventions in the Council or committee; or to the Secretariat, informed or published on international trade law or international trade policy, or has served as a senior official in charge of a Member`s trade policy. 3. Where a request for consultation is made on the basis of a covered agreement, the Member to whom the request is addressed shall, unless otherwise agreed, respond to the request within 10 days of the date of its receipt and shall enter into consultations in good faith within a maximum period of 30 days from receipt of the request; with the aim of finding a mutually satisfactory solution. If the Member does not respond within 10 days of receipt of the request, or does not enter into consultations within a maximum period of 30 days or such other mutually agreed period after receipt of the request, the Member which requested consultations may immediately request the establishment of a panel. The EU requested Article 21(5) consultations in December 2008,30 but the proceedings involving the US were suspended under a bilateral agreement. In a May 2009 Memorandum of Understanding to resolve the underlying dispute over bovine hormones, the US and the EU agreed, among other things, that the EU would expand market access for US beef exports in three phases. In the first phase, the US will be able to maintain the retaliatory tariffs currently in place on EU products and will not introduce the new tariffs it announced in January 2009 as part of its carousel retaliation provision (see below).
Both parties also agreed to suspend WTO disputes for the first 18 months of the agreement (i.e., 31 The USTR deferred the imposition of additional duties on the new items until September 19, 2009 and formally terminated those duties as of that date.32 As a result of these measures, the obligations were never imposed. The dispute settlement procedure is initially based on consultations between the Governments concerned. If these consultations fail, the matter may be referred to a dispute resolution body. (At any point in the process, the parties can settle their disputes and close the proceeding.) After both parties have set out their arguments, the panel publishes a report containing its conclusions on the wto-consistency of the challenged measure. The report also includes the panel`s recommendations. As a last resort, the Dispute Settlement Agreement allows complaining countries to impose trade-related sanctions on WTO member states that violate a WTO Agreement. In 1998, the EU presented a more comprehensive challenge to Article 301, based on various obligations under Article 23 of the DSU, which, as we have already mentioned, excludes certain unilateral measures in trade disputes relating to WTO agreements. Article 301 can generally be used consistently with the DSU, although some of the United States` trading partners have complained that the law allows unilateral action and imposes negotiations by the threat of sanctions.
In the United States – Sections 301 to 310 of the Trade Act of 1974 (DS152), the WTO Panel concluded that the wording of Section 304, which requires the USTR to determine the legality of a foreign practice on a certain date, is prima facie inconsistent with Article 23, as it requires a provision of the USTR in certain cases – and reserves the right, by law: That the USTR notes that a practice is WTO-inconsistent – before the DSU procedures are completed.45 However, the Panel also noted that the serious threat of a breach of findings and, therefore, of prima facie inconsistency due to the United States` commitments has been eliminated, as in the Declaration on Administrative Measures In the Uruguay Round (H.Doc. 103-316), a document submitted to Congress at the same time as the Uruguay Round Agreements, and the United States. the commitments before the Panel that the USTR would use its legal discretion to implement Article 301 in accordance with WTO commitments. Furthermore, the Panel could not conclude that the DSU violated Section 306 of the Trade Act of 1974, which instructs the USTR to make the decision to impose retaliation before a certain date, because the ambiguities of “sequencing” in the DSU are interpreted differently in good faith. The panel report, which was not appealed, was adopted in January 2000.46 Without the adoption of multilateral rules on the matter, the parties to the dispute have entered into ad hoc procedural arrangements in individual disputes, under which compliance panel procedures and retaliation request procedures, including the settlement of retaliatory proposals, go ahead in turn.24 In general, Members agree that: if a compliance committee determines that a member has not complied with the rules, the predominant member may comply with its request for retaliation even if the 30-day period of the DSU has expired. If the losing party does not comply with the Committee`s recommendations within the time limit, it must enter into consultations with the winning party in order to reach an agreement on compensation. Compensatory payments can be granted in different ways (e.g. B, tariff reductions or the abolition of quotas for certain products). If no agreement on compensation can be reached within 20 days of the expiry of the time limit, the DPO may allow the winning party to impose equivalent trade sanctions (e.g. increase.B d duties) on the losing party. 4.
In order to facilitate the selection of participants for the discussion, the Secretariat shall maintain an indicative list of governmental and non-governmental persons possessing the qualifications referred to in paragraph 1, from which panelists may be selected, as appropriate. This list was published on 30 September. The list of non-governmental panelists (BISD 31S/9) established in November 1984 and the other lists and tentative lists established under one of the conventions concerned retain the names of the persons on those lists and the supplementary lists at the time of entry into force of the WTO Agreement. Members may periodically propose names of governmental and non-governmental persons for inclusion in the indicative list, providing relevant information on their knowledge of international trade and on the sectors or subject matter of the agreements covered, and such names shall be added to the list after approval by the credit rating agency. For each of the persons on the list, the list shall indicate the specific experience or areas of expertise of the persons in the sectors or subject matter of the agreements covered. 2. In accordance with Article 3(2), the panel and the Appellate Body may not, in their conclusions and recommendations, supplement or reduce the rights and obligations provided for in the covered agreements. 2. Panels shall examine the relevant provisions of all covered agreements cited by the parties to the dispute. Article 23 of the DSU requires WTO Members to invoke the DSU procedures in disputes relating to the WTO Agreements and to act in accordance with the DSU, i.e. not unilaterally, when taking various dispute settlement measures.