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WTO Dispute Settlement: Current Cases

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European Yearbook of International Economic Law 2013

Part of the book series: European Yearbook of International Economic Law ((volume 4))

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Abstract

2011 has been an important year for the WTO dispute settlement system: the Appellate Body issued six reports and ten panels published their reports. This chapter—like its two predecessors in the previous two editions of this Yearbook—will provide an overview of all these 16 decisions. The main factual aspects of the cases and its findings, as well as selected systemic implications will be sketched out. The aim of this series is to give the reader a condensed overview. At the same time, the extensive use of references by way of footnotes referring to the relevant passages in the single reports should allow and encourage the reader to dive into areas of his or her particular interest in more depth.

The views expressed in this article are those of the author and should not in any way be attributed to the German government.

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Notes

  1. 1.

    All reports are publicly available at the WTO website: http://www.wto.org/english/tratop_e/dispu_e/dispu_status_e.htm.

  2. 2.

    For a brief overview of the different types of rulings and stages of WTO dispute settlement cf. Krallmann, WTO Dispute Settlement—The Establishment of ‘Binding Guidance’ by the Appellate Body in US Stainless Steel and Recent Dispute Settlement Rulings, in: Herrmann/Terhechte (eds.), European Yearbook of International Economic Law 2011, p. 417 (419–420).

  3. 3.

    Throughout the chapter, language is taken from the respective decisions. However, quotes with inverted commas are reserved for special terms and longer quotes.

  4. 4.

    Cf. a previous contribution on the role of WTO jurisprudence in Krallmann, WTO Dispute Settlement—The Establishment of ‘Binding Guidance’ by the Appellate Body in US Stainless Steel and Recent Dispute Settlement Rulings, in: Herrmann/Terhechte (eds.), European Yearbook of International Economic Law 2011, p. 417 (417–418).

  5. 5.

    Hufbauer, WTO Judicial Appointments: Bad Omen for the Trading System, http://www.piie.com/blogs/?p=2209.

  6. 6.

    Report of the Panel, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/R, para. 2.1.

  7. 7.

    Report of the Panel, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/R, para. 7.5.

  8. 8.

    Report of the Panel, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/R, paras. 7.33 and 7.218.

  9. 9.

    Report of the Panel, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/R, paras. 7.105 and 7.122.

  10. 10.

    Report of the Panel, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/R, paras. 7.129 and 7.138.

  11. 11.

    Report of the Panel, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/R, paras. 7.139 and 7.158 et seq.

  12. 12.

    Report of the Panel, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/R, paras. 7.156 et seq.

  13. 13.

    Report of the Panel, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/R, para. 7.218; cf. the explanation in para. 7.224 that some of the individual Chinese measures could be WTO consistent but that these measures ‘operating in concert’ are inconsistent with Article XI(1) of the GATT 1994.

  14. 14.

    Report of the Panel, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/R, para. 7.218.

  15. 15.

    Report of the Panel, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/R, para. 7.205.

  16. 16.

    Report of the Panel, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/R, paras. 7.260 and 7.282.

  17. 17.

    Report of the Panel, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/R, paras. 7.299 and 7.306.

  18. 18.

    Report of the Panel, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/R, para. 7.355.

  19. 19.

    Report of the Panel, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/R, paras. 7.408, 7.435 and 7.466.

  20. 20.

    Report of the Panel, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/R, paras. 7.512 et seq., 7.577, 7.590 and 7.604.

  21. 21.

    Report of the Panel, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/R, paras. 7.627-7.628.

  22. 22.

    Report of the Panel, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/R, paras. 7.669-7.670.

  23. 23.

    Report of the Panel, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/R, paras. 7.679 and 7.756.

  24. 24.

    Report of the Panel, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/R, paras. 7.757 and 7.797.

  25. 25.

    Report of the Panel, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/R, paras. 7.808 and 7.861.

  26. 26.

    Report of the Panel, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/R, para. 7.958.

  27. 27.

    Report of the Panel, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/R, para. 7.1082.

  28. 28.

    Report of the Panel, United States – Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS406/R, paras. 2.1-2.8 and 2.24-2.25.

  29. 29.

    Report of the Panel, United States – Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS406/R, paras. 7.178 and 7.182.

  30. 30.

    Report of the Panel, United States – Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS406/R, paras. 7.2-7.3.

  31. 31.

    Report of the Panel, United States – Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS406/R, para. 7.41.

  32. 32.

    Report of the Panel, United States – Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS406/R, para. 7.99. Though ‘Article 2.1 of the TBT Agreement seems to be modelled on Article III:4 of the GATT 1994,’ ‘the absence in the TBT Agreement of language such as that in Article III:1 of the GATT 1994’ was taken into account, cf. paras. 7.95 and 7.103.

  33. 33.

    Report of the Panel, United States – Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS406/R, para. 7.109.

  34. 34.

    Report of the Panel, United States – Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS406/R, para. 7.116.

  35. 35.

    Report of the Panel, United States – Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS406/R, paras. 7.188, 7.231, 7.244 and 7.246-7.247.

  36. 36.

    Report of the Panel, United States – Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS406/R, para. 7.281.

  37. 37.

    Report of the Panel, United States – Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS406/R, paras. 7.343 and 7.347.

  38. 38.

    Report of the Panel, United States – Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS406/R, paras. 7.358-7.361. However, note should be taken that the burden of proof is on the complainant, para. 7.364.

  39. 39.

    Report of the Panel, United States – Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS406/R, para. 7.369.

  40. 40.

    Report of the Panel, United States – Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS406/R, paras. 7.415 and 7.421.

  41. 41.

    Report of the Panel, United States – Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS406/R, para. 7.550.

  42. 42.

    Report of the Panel, United States – Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS406/R, paras. 7.572 et seq.

  43. 43.

    Report of the Panel, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/R, paras. 2.3 et seq.

  44. 44.

    Report of the Panel, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/R, paras. 2.34 et seq.

  45. 45.

    http://en.wikipedia.org/wiki/Tuna.

  46. 46.

    Report of the Panel, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/R, paras. 7.143-7.144.

  47. 47.

    Report of the Panel, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/R, para. 7.150

  48. 48.

    Report of the Panel, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/R, para. 7.153.

  49. 49.

    Report of the Panel, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/R, para. 7.155.

  50. 50.

    Report of the Panel, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/R, paras. 7.156 and 7.175.

  51. 51.

    Report of the Panel, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/R, para. 7.246.

  52. 52.

    Report of the Panel, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/R, paras. 7.246-7.250

  53. 53.

    Report of the Panel, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/R, para. 7.278.

  54. 54.

    Report of the Panel, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/R, paras. 7.291 and 7.377-7.378.

  55. 55.

    Report of the Panel, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/R, para. 7.369

  56. 56.

    Report of the Panel, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/R, para. 7.373.

  57. 57.

    Report of the Panel, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/R, paras. 7.425 and 7.444.

  58. 58.

    Report of the Panel, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/R, paras. 7.453 et seq.

  59. 59.

    Report of the Panel, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/R, para. 7.460.

  60. 60.

    Report of the Panel, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/R, para. 7.465.

  61. 61.

    Report of the Panel, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS 381/R, paras. 7.573 and 7.578; the panel found the US labelling requirements to be consistent with Article 2.4 of the TBT Agreement. The provision was regarded to be a relevant international standard and that the US failed to base its own labelling requirements thereon. However, Mexico failed to demonstrate that the AIDCP standard taken on its own would be sufficient to fulfil the set US objectives, cf. paras. 7.707, 7.716 and 7.740.

    To avoid confusion of these seemingly contradictory findings: In contrast to this isolated application of the measure under Article 2.4 of the TBT Agreement, the panel held under its assessment of Article 2.2 of the TBT Agreement that the dolphin-safe requirements of the AIDCP in conjunction with the existing standard of the US regime would be possible, cf. para. 7.577.

    The panel exercised judicial economy with regard to Mexico’s claim under the GATT 1994 since materially all aspects had been addressed under the panel’s assessment under the TBT Agreement, cf. para. 7.748.

  62. 62.

    Report of the Panel, United States – Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/R, para. 7.140.

  63. 63.

    Report of the Panel, United States – Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/R, paras. 2.1 and 7.87.

  64. 64.

    Report of the Panel, United States – Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/R, paras. 7.65 and 7.100; examples of concrete labels used can be found in paras. 7.113 et seq.

  65. 65.

    Report of the Panel, United States – Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/R, paras. 2.2 and 7.123.

  66. 66.

    Report of the Panel, United States – Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/R, paras. 7.228 and 7.550.

  67. 67.

    Report of the Panel, United States – Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/R, para. 7.147.

  68. 68.

    Report of the Panel, United States – Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/R, paras. 7.162, 7.196 and 7.216.

  69. 69.

    Report of the Panel, United States – Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/R, para. 7.256.

  70. 70.

    Report of the Panel, United States – Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/R, paras. 7.299 et seq.

  71. 71.

    Report of the Panel, United States – Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/R, paras. 7.420 and 7.546.

  72. 72.

    Report of the Panel, United States – Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/R, para. 7.596.

  73. 73.

    Report of the Panel, United States – Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/R, para. 7.605.

  74. 74.

    Report of the Panel, United States – Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/R, paras. 7.609-7.613.

  75. 75.

    Report of the Panel, United States – Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/R, para. 7.620.

  76. 76.

    Report of the Panel, United States – Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/R, para. 7.651.

  77. 77.

    Report of the Panel, United States – Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/R, paras. 7.670 and 7.693.

  78. 78.

    Report of the Panel, United States – Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/R, paras. 7.700-7.701 and 7.716 et seq.

  79. 79.

    Report of the Panel, United States – Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/R, paras. 7.719-7.719.

  80. 80.

    Krallmann, WTO Dispute Settlement: Current Cases, in: Herrmann/Terhechte (eds.), European Yearbook of International Economic Law 2012, p. 577 (602–608).

  81. 81.

    Report of the Appellate Body, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, para. 650.

  82. 82.

    Report of the Appellate Body, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, para. 659.

  83. 83.

    Report of the Appellate Body, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, paras. 667 and 684.

  84. 84.

    Report of the Appellate Body, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, para. 698.

  85. 85.

    Report of the Appellate Body, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, paras. 708–710.

  86. 86.

    Report of the Appellate Body, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, paras. 712 and 715.

  87. 87.

    Report of the Appellate Body, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, paras. 722–723.

  88. 88.

    Report of the Appellate Body, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, paras. 726 et seq.

  89. 89.

    Report of the Appellate Body, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, paras. 735–736.

  90. 90.

    Report of the Appellate Body, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, paras. 795–796.

  91. 91.

    Report of the Appellate Body, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, para. 838.

  92. 92.

    Report of the Appellate Body, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, paras. 927 and 929.

  93. 93.

    Report of the Appellate Body, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, para. 894 on the US benchmark and paras. 921–922 on the EU benchmark. The Appellate Body furthermore rejected the EU argument that the maximum ceilings of support for Airbus and Boeing as agreed upon in the bilateral Agreement between the EU and the USA on trade in large civil aircraft, which was concluded in 1992, defined the ceilings of when a benefit would be conferred, cf. for more detail para. 851.

  94. 94.

    Report of the Appellate Body, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, para. 952.

  95. 95.

    Report of the Appellate Body, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, para. 967.

  96. 96.

    Report of the Appellate Body, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, paras. 980–981. For some of the facilities in question the Appellate Body could not fully complete the analysis based on this correct benchmark: the lease of land in Hamburg and the use of the extended runway in Bremen were found to be a benefit, whereas the Appellate Body could not complete its analysis on special purpose facilities in Hamburg and infrastructure in Toulouse, cf. paras. 984 et seq.

  97. 97.

    Report of the Appellate Body, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, para. 1012. However, the Appellate Body could not decide whether a transfer of shares in Dassault Aviation to Aérospatiale by the French government was a benefit, cf. para. 1027.

  98. 98.

    Report of the Appellate Body, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, para. 1042.

  99. 99.

    Report of the Appellate Body, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, para. 1044.

  100. 100.

    Report of the Appellate Body, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, para. 1045.

  101. 101.

    Report of the Appellate Body, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, para. 1048.

  102. 102.

    Report of the Appellate Body, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, paras. 1050–1051.

  103. 103.

    Report of the Appellate Body, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, para. 1063.

  104. 104.

    Report of the Appellate Body, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, paras. 1092–1093.

  105. 105.

    Report of the Appellate Body, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, paras. 1097–1098.

  106. 106.

    Report of the Appellate Body, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, paras. 1115 et seq. and 1213.

  107. 107.

    Report of the Appellate Body, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, paras. 1123, 1130, 1137 and 1147.

  108. 108.

    Report of the Appellate Body, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, para. 1170.

  109. 109.

    Report of the Appellate Body, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, paras. 1178–1204.

  110. 110.

    Report of the Appellate Body, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, paras. 1214 et seq.

  111. 111.

    Report of the Appellate Body, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, para. 1228.

  112. 112.

    Report of the Appellate Body, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, para. 1300.

  113. 113.

    Report of the Appellate Body, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, para. 1356.

  114. 114.

    Report of the Appellate Body, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, para. 1411.

  115. 115.

    Report of the Panel, United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint), WT/DS 353/R, para. 2.1.

  116. 116.

    Report of the Panel, United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint), WT/DS 353/R, para. 7.116.

  117. 117.

    Report of the Panel, United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint), WT/DS 353/R, paras. 7.121, 7.126 and 7.133.

  118. 118.

    Report of the Panel, United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint), WT/DS 353/R, paras. 7.332-7.333.

  119. 119.

    Report of the Panel, United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint), WT/DS 353/R, para. 7.589.

  120. 120.

    Report of the Panel, United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint), WT/DS 353/R, paras. 7.480 and 7.515.

  121. 121.

    Report of the Panel, United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint), WT/DS 353/R, paras. 7.779 and 7.819.

  122. 122.

    Report of the Panel, United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint), WT/DS 353/R, para. 7.889.

  123. 123.

    Report of the Panel, United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint), WT/DS 353/R, paras. 7.927 and 7.939.

  124. 124.

    Report of the Panel, United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint), WT/DS 353/R, para. 7.953.

  125. 125.

    Report of the Panel, United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint), WT/DS 353/R, paras. 7.968-7.970.

  126. 126.

    Report of the Panel, United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint), WT/DS 353/R, para. 7.1027. Furthermore, the provision of access to NASA's facilities, its equipment and its employees was seen as the provision of goods and services to Boeing.

  127. 127.

    Report of the Panel, United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint), WT/DS 353/R, paras. 7.1040-7.1041.

  128. 128.

    Report of the Panel, United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint), WT/DS 353/R, para. 7.1110.

  129. 129.

    Report of the Panel, United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint), WT/DS 353/R, para. 7.1171.

  130. 130.

    Report of the Panel, United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint), WT/DS 353/R, para. 7.1257.

  131. 131.

    Report of the Panel, United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint), WT/DS 353/R, para. 7.1311.

  132. 132.

    Report of the Panel, United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint), WT/DS 353/R, paras. 7.1452 et seq. and 7.1463.

  133. 133.

    Report of the Panel, United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint), WT/DS 353/R, para. 7.1577.

  134. 134.

    Report of the Panel, United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint), WT/DS 353/R, para. 7.1590.

  135. 135.

    Report of the Panel, United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint), WT/DS 353/R, paras. 7.1667 and 7.1669-7.1670.

  136. 136.

    Report of the Panel, United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint), WT/DS 353/R, para. 7.1854.

  137. 137.

    Report of the Panel, Philippines – Taxes on Distilled Spirits, WT/DS396/R, paras. 2.3-2.4, 7.88 and 7.183.

  138. 138.

    Report of the Panel, Philippines – Taxes on Distilled Spirits, WT/DS396/R, para. 2.34.

  139. 139.

    Report of the Panel, Philippines – Taxes on Distilled Spirits, WT/DS396/R, para. 7.31.

  140. 140.

    Report of the Panel, Philippines – Taxes on Distilled Spirits, WT/DS396/R, paras. 7.35 and 7.37.

  141. 141.

    Report of the Panel, Philippines – Taxes on Distilled Spirits, WT/DS396/R, paras. 7.39-7.40.

  142. 142.

    Report of the Panel, Philippines – Taxes on Distilled Spirits, WT/DS396/R, paras. 7.48 and 7.62-7.63.

  143. 143.

    Report of the Panel, Philippines – Taxes on Distilled Spirits, WT/DS396/R, para. 7.137; the discrimination was also more than de minimis, cf. para. 7.154.

  144. 144.

    However, the panel narrowed the scope of imported products that would have to be regarded as like products, cf. Report of the Appellate Body, Philippines—Taxes on Distilled Spirits,WT/DS396/AB/R, para. 183 in conjunction with para. 174. Furthermore, the Appellate Body also reversed the panel on a procedural issue since it misinterpreted a claim of the EU, cf. paras. 191 and 260.

  145. 145.

    Report of the Appellate Body, Philippines – Taxes on Distilled Spirits,WT/DS396/AB/R, para. 125.

  146. 146.

    Report of the Appellate Body, Philippines – Taxes on Distilled Spirits,WT/DS396/AB/R, paras. 126 and 128.

  147. 147.

    Krallmann, WTO Dispute Settlement: Current Cases, in: Herrmann/Terhechte (eds.), European Yearbook of International Economic Law 2012, p. 577 (589–591).

  148. 148.

    Report of the Appellate Body, Thailand – Customs and Fiscal Measures on Cigarettes from the Philippines, WT/DS371/AB/R, para. 82.

  149. 149.

    Report of the Appellate Body, Thailand – Customs and Fiscal Measures on Cigarettes from the Philippines, WT/DS371/AB/R, paras. 108, 114 and 119.

  150. 150.

    Report of the Appellate Body, Thailand – Customs and Fiscal Measures on Cigarettes from the Philippines, WT/DS371/AB/R, paras. 181 and 222. The Appellate Body corrected an error by the panel on Thailand's justification according to Article XX of the GATT 1994 but Thailand failed to establish the necessary elements for a justification, cf. paras. 169–170 and 180.

  151. 151.

    Report of the Appellate Body, Thailand – Customs and Fiscal Measures on Cigarettes from the Philippines, WT/DS371/AB/R, para. 145.

  152. 152.

    Report of the Appellate Body, Thailand – Customs and Fiscal Measures on Cigarettes from the Philippines, WT/DS371/AB/R, paras. 147 and 150.

  153. 153.

    Report of the Appellate Body, Thailand – Customs and Fiscal Measures on Cigarettes from the Philippines, WT/DS371/AB/R, paras. 156 and 160–161.

  154. 154.

    Krallmann, WTO Dispute Settlement: Current Cases, in: Herrmann/Terhechte (eds.), European Yearbook of International Economic Law 2012, p. 577 (609–612).

  155. 155.

    Report of the Appellate Body, European Communities – Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China, WT/DS 397/AB/R, paras. 287 and 289–290.

  156. 156.

    Report of the Appellate Body, European Communities – Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China, WT/DS 397/AB/R, para. 366.

  157. 157.

    Report of the Appellate Body, European Communities – Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China, WT/DS 397/AB/R, para. 308.

  158. 158.

    Report of the Appellate Body, European Communities – Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China, WT/DS 397/AB/R, para. 328.

  159. 159.

    Report of the Appellate Body, European Communities – Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China, WT/DS 397/AB/R, paras. 348, 351 and 354.

  160. 160.

    Report of the Appellate Body, European Communities – Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China, WT/DS 397/AB/R, para. 369.

  161. 161.

    Report of the Appellate Body, European Communities – Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China, WT/DS 397/AB/R, para. 376.

  162. 162.

    Report of the Appellate Body, European Communities – Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China, WT/DS 397/AB/R, para. 385.

  163. 163.

    Report of the Appellate Body, European Communities – Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China, WT/DS 397/AB/R, para. 409.

  164. 164.

    Report of the Appellate Body, European Communities – Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China, WT/DS 397/AB/R, paras. 411 et seq.

  165. 165.

    Report of the Appellate Body, European Communities – Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China, WT/DS 397/AB/R, para. 418.

  166. 166.

    Report of the Appellate Body, European Communities – Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China, WT/DS 397/AB/R, paras. 430 and 468.

  167. 167.

    Krallmann, WTO Dispute Settlement: Current Cases, in: Herrmann/Terhechte (eds.), European Yearbook of International Economic Law 2012, p. 577 (584–588).

  168. 168.

    Report of the Appellate Body, United States – Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, WT/DS 379/AB/R, para. 317.

  169. 169.

    Report of the Appellate Body, United States – Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, WT/DS 379/AB/R, para. 318.

  170. 170.

    Report of the Appellate Body, United States – Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, WT/DS 379/AB/R, paras. 319–320.

  171. 171.

    Report of the Appellate Body, United States – Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, WT/DS 379/AB/R, paras. 346–347 and 356.

  172. 172.

    Report of the Appellate Body, United States – Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, WT/DS 379/AB/R, paras. 377–378.

  173. 173.

    Report of the Appellate Body, United States – Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, WT/DS 379/AB/R, paras. 431 et seq.

  174. 174.

    Report of the Appellate Body, United States – Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, WT/DS 379/AB/R, para. 456.

  175. 175.

    Report of the Appellate Body, United States – Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, WT/DS 379/AB/R, para. 446.

  176. 176.

    Report of the Appellate Body, United States – Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, WT/DS 379/AB/R, paras. 486 et seq.

  177. 177.

    Report of the Appellate Body, United States – Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, WT/DS 379/AB/R, paras. 541 et seq.

  178. 178.

    Report of the Appellate Body, United States – Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, WT/DS 379/AB/R, paras. 547 et seq.

  179. 179.

    Report of the Appellate Body, United States – Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, WT/DS 379/AB/R, para. 568.

  180. 180.

    Report of the Appellate Body, United States – Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, WT/DS 379/AB/R, para. 572.

  181. 181.

    Report of the Appellate Body, United States – Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, WT/DS 379/AB/R, para. 583.

  182. 182.

    Report of the Panel, European Union – Anti-Dumping Measures on Certain Footwear from China, WT/DS405/R, para. 2.

  183. 183.

    Report of the Panel, European Union – Anti-Dumping Measures on Certain Footwear from China, WT/DS405/R, paras. 7.115 and 7.121.

  184. 184.

    Report of the Panel, European Union – Anti-Dumping Measures on Certain Footwear from China, WT/DS405/R, paras. 7.83 et seq. for the as such claim and paras. 7.140 and 7.147 for the as applied claim.

  185. 185.

    Report of the Panel, European Union – Anti-Dumping Measures on Certain Footwear from China, WT/DS405/R, para. 7.105.

  186. 186.

    Report of the Panel, European Union – Anti-Dumping Measures on Certain Footwear from China, WT/DS405/R, para. 7.709.

  187. 187.

    Report of the Panel, European Union – Anti-Dumping Measures on Certain Footwear from China, WT/DS405/R, paras. 7.180f.

  188. 188.

    Report of the Panel, European Union – Anti-Dumping Measures on Certain Footwear from China, WT/DS405/R, para. 7.194.

  189. 189.

    Report of the Panel, European Union – Anti-Dumping Measures on Certain Footwear from China, WT/DS405/R, paras. 7.215 and 7.226.

  190. 190.

    Report of the Panel, European Union – Anti-Dumping Measures on Certain Footwear from China, WT/DS405/R, para. 7.266.

  191. 191.

    Report of the Panel, European Union – Anti-Dumping Measures on Certain Footwear from China, WT/DS405/R, paras. 7.388 and 7.391.

  192. 192.

    Report of the Panel, European Union – Anti-Dumping Measures on Certain Footwear from China, WT/DS405/R, paras. 7.541.

  193. 193.

    Goode, Dictionary of Trade Policy Terms, (5th ed.) 2007, p. 491.

  194. 194.

    For more information on the technique of zeroing and other cases that condemned the use of zeroing, cf. Krallmann, WTO Dispute Settlement—The Establishment of ‘Binding Guidance’ by the Appellate Body in US Stainless Steel and Recent Dispute Settlement Rulings, in: Herrmann/Terhechte (eds.), European Yearbook of International Economic Law 2011, p. 417 (438–446) and Krallmann, WTO Dispute Settlement: Current Cases, in: Herrmann/Terhechte (eds.), European Yearbook of International Economic Law 2012, p. 577 (591–592).

  195. 195.

    Report of the Appellate Body, United States – Continued Existence and Application of Zeroing Methodology, WT/DS350/AB/R, para. 312.

  196. 196.

    Report of the Panel, United States – Use of Zeroing in Anti-Dumping Measures Involving Products from Korea, WT/DS402/R, para. 2.1.

  197. 197.

    Report of the Panel, United States – Use of Zeroing in Anti-Dumping Measures Involving Products from Korea, WT/DS402/R, paras. 7.12 and 7.20.

  198. 198.

    Report of the Panel, United States – Use of Zeroing in Anti-Dumping Measures Involving Products from Korea, WT/DS402/R, para. 7.35.

  199. 199.

    Report of the Panel, United States – Anti-Dumping Administrative Reviews and Other Measures Related to Imports of Certain Orange Juice from Brazil, WT/DS382/R, paras. 2.1-2.2 and 7.130.

  200. 200.

    Report of the Panel, United States – Anti-Dumping Administrative Reviews and Other Measures Related to Imports of Certain Orange Juice from Brazil, WT/DS382/R, paras. 7.154, 7.161 and 7.193.

  201. 201.

    Report of the Panel, United States – Anti-Dumping Administrative Reviews and Other Measures Related to Imports of Certain Orange Juice from Brazil, WT/DS382/R, para. 7.143.

  202. 202.

    Report of the Panel, United States – Use of Zeroing in Anti-Dumping Measures Involving Products from Korea, WT/DS402/R, para. 7.31.

  203. 203.

    Krallmann, WTO Dispute Settlement—The Establishment of ‘Binding Guidance’ by the Appellate Body in US Stainless Steel and Recent Dispute Settlement Rulings, in: Herrmann/Terhechte (eds.), European Yearbook of International Economic Law 2011, p. 417 (420–429).

  204. 204.

    Report of the Panel, United States – Anti-Dumping Measures on Certain Shrimp from Viet Nam, WT/DS404/R, paras. 2.1 et seq.

  205. 205.

    Report of the Panel, United States – Anti-Dumping Measures on Certain Shrimp from Viet Nam, WT/DS404/R, paras. 7.95 and 7.142.

  206. 206.

    Report of the Panel, United States – Anti-Dumping Measures on Certain Shrimp from Viet Nam, WT/DS404/R, para. 7.227.

  207. 207.

    Report of the Panel, United States – Anti-Dumping Measures on Certain Shrimp from Viet Nam, WT/DS404/R, para. 7.167; cf. para. 7.191 on the question whether one of the exporters was discouraged to voluntarily respond to the US investigating authority.

  208. 208.

    Report of the Panel, United States – Anti-Dumping Measures on Certain Shrimp from Viet Nam, WT/DS404/R, paras. 7.237-7.238.

  209. 209.

    Report of the Panel, United States – Anti-Dumping Measures on Certain Shrimp from Viet Nam, WT/DS404/R, paras. 7.237 et seq.

  210. 210.

    Krallmann, WTO Dispute Settlement: Current Cases, in: Herrmann/Terhechte (eds.), European Yearbook of International Economic Law 2012, p. 577 (593–595).

  211. 211.

    Report of the Appellate Body, United States – Measures Affecting Imports of Certain Passenger Vehicle and Light Truck Tyres from China, WT/DS399/AB/R, para. 140.

  212. 212.

    Report of the Appellate Body, United States – Measures Affecting Imports of Certain Passenger Vehicle and Light Truck Tyres from China, WT/DS399/AB/R, para. 158.

  213. 213.

    Report of the Appellate Body, United States – Measures Affecting Imports of Certain Passenger Vehicle and Light Truck Tyres from China, WT/DS399/AB/R, paras. 169–170.

  214. 214.

    Report of the Appellate Body, United States – Measures Affecting Imports of Certain Passenger Vehicle and Light Truck Tyres from China, WT/DS399/AB/R, para. 185, cf. also para. 195 in more detail.

  215. 215.

    Report of the Appellate Body, United States – Measures Affecting Imports of Certain Passenger Vehicle and Light Truck Tyres from China, WT/DS399/AB/R, paras. 241 and 249.

  216. 216.

    Report of the Appellate Body, United States – Measures Affecting Imports of Certain Passenger Vehicle and Light Truck Tyres from China, WT/DS399/AB/R, para. 319.

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  1. Federal Ministry of Economics and Technology, Berlin, Germany

    Andreas Krallmann

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  1. European Law, European and, University of Passau Chair for Constitutional and Administrat, Passau, Germany

    Christoph Herrmann

  2. Chair for Public Law, University of Erlangen-Nürnberg, Erlangen, Germany

    Markus Krajewski

  3. Chair for Public Law, European and, Leuphana University Lüneburg, Lüneburg, Germany

    Jörg Philipp Terhechte

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Krallmann, A. (2013). WTO Dispute Settlement: Current Cases. In: Herrmann, C., Krajewski, M., Terhechte, J. (eds) European Yearbook of International Economic Law 2013. European Yearbook of International Economic Law, vol 4. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-33917-2_19

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