Thursday, April 14, 2011
[IWS] CRS: WTO DISPUTE SETTLEMENT: Status of U.S. Compliance in Pending Cases [11 March 2011]
IWS Documented News Service
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Institute for Workplace Studies----------------- Professor Samuel B. Bacharach
School of Industrial & Labor Relations-------- Director, Institute for Workplace Studies
Cornell University
16 East 34th Street, 4th floor---------------------- Stuart Basefsky
New York, NY 10016 -------------------------------Director, IWS News Bureau
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Congressional Research SErvice (CRS)
WTO Dispute Settlement: Status of U.S. Compliance in Pending Cases
Jeanne J. Grimmett, Legislative Attorney
March 11, 2011
http://www.opencrs.com/document/RL32014/2011-03-11/download/1005/
[full-text, 83 pages]
Summary
Although the United States has complied with adverse rulings in many past World Trade
Organization (WTO) disputes, there are currently 11 cases in which rulings have not yet been
implemented or the United States has taken action and the dispute has not been fully resolved.
Under WTO dispute settlement rules, a WTO Member will generally be given a reasonable period
of time to comply with an adverse WTO decision. While the Member is expected to remove the
offending measure by the end of this period, compensation and temporary retaliation are available
if the Member has not acted or taken sufficient action by this time. Either disputing party may
request a compliance panel if there is disagreement over whether a Member has complied.
Remaining unsettled are long-standing disputes with the European Union (EU) regarding a music
copyright statute (DS160) and a statutory trademark provision affecting property confiscated by
Cuba (DS176), as well as a dispute with Japan over a provision of U.S. antidumping law
(DS184). The Continued Dumping and Subsidy Offset Act of 2000 (“Byrd Amendment”), which
was held WTO-inconsistent in January 2003 and repealed effective October 2005, remains the
target of sanctions by complainants EU and Japan due to continued payments to U.S. firms
authorized under the repeal legislation (P.L. 109-171) (DS217/DS234). Congress placed limits on
funds that are available for these distributions in December 2010 (P.L. 111-291, ยง 822). In
addition, the United States and Antigua have been consulting on the resolution of outstanding
issues in Antigua’s challenge of U.S. online gambling restrictions (DS285). Compensation
agreements entered into by the United States with various WTO Members in exchange for the
withdrawal by the United States of its WTO gambling commitments, an action taken by the
United States to resolve the case, will not enter into effect until issues with Antigua are resolved.
Congress repealed a WTO-inconsistent cotton program at issue in Brazil’s 2002 complaint over
U.S. cotton subsidies in P.L. 109-171, but other programs were also successfully challenged and
the United States was later found not to have fully complied (DS267). The United States since
made statutory and administrative changes affecting the export credit guarantee program faulted
in the case. While Brazil obtained authorization from the WTO to retaliate in the case, the two
countries entered into a preliminary agreement in April 2010 that forestalled the imposition of
sanctions and signed a framework agreement in June 2010 aimed at permanently resolving the
dispute. The latter includes Brazil’s pledge not to impose sanctions during the life of the
agreement and contemplates possible legislative resolution of the dispute in the 2012 farm bill.
Brazil had earlier announced that it was entitled to impose $829.3 million in annual retaliation,
$591 million of which would consist of import surcharges on U.S. goods.
Five pending cases involve the U.S. practice of “zeroing,” under which the Department of
Commerce (DOC), in calculating dumping margins in antidumping (AD) proceedings, disregards
non-dumped sales. The U.S. practice was successfully challenged by the EU (DS294/DS350),
Japan (DS322), Mexico (DS344), and South Korea (DS402), resulting in broad WTO prohibitions
on U.S. use of the practice. The United States took administrative action to resolve one aspect of
DS294 by abandoning zeroing in original AD investigations as of 2007. It has yet to fully comply,
however, either in this case or in DS350, DS322, or DS344. While the EU and Japan requested
the WTO to authorize sanctions, each agreed to suspend U.S.-requested arbitration of their
proposals in 2010 on the understanding that the United States would resolve outstanding issues in
a timely fashion. To this end, DOC in December 2010 proposed to eliminate the use of zeroing in
later stages of U.S. AD proceedings. A compliance panel proceeding is currently under way in the
dispute with Mexico (DS344). An adverse panel report was adopted in Korea’s challenge
(DS402) on February 24, 2011.
Contents
WTO Dispute Settlement Procedures ..........................................................................................1
Uruguay Round Agreements Act (URAA): Statutory Requirements for Implementing WTO Decisions ...........................4
Section 102: Domestic Legal Effect of WTO Decisions .........................................................4
Federal Law....................................................................................................................4
State Law........................................................................................................................5
Preclusion of Private Remedies .......................................................................................6
Domestic Implementation of WTO Decisions Involving Administrative Action .....................7
Section 123: Regulatory Action Generally.......................................................................7
Section 129: Agency Determinations in Trade Remedy Proceedings ................................8
Judicial Responses ..............................................................................................................12
Pending Cases Involving Legislative Action..............................................................................14
Section 110(5)(B) of the Copyright Act (Music Copyrights)(DS160) ...................................15
Recent Developments....................................................................................................16
Section 211 of the Omnibus Appropriations Act of 1998 (Trademark Exclusion Involving Property Confiscated by Cuba)(DS176)...............17
Recent Developments....................................................................................................17
Antidumping Measures on Hot-Rolled Steel Products from Japan (DS184) .........................18
Recent Developments....................................................................................................21
Continued Dumping and Subsidy Offset Act (DS217/DS234)..............................................22
Recent Developments....................................................................................................25
Subsidies on Upland Cotton (DS267) ..................................................................................26
Recent Developments....................................................................................................39
Measures Affecting Cross-Border Supply of Gambling and Betting Services (DS285).........41
Recent Developments....................................................................................................49
Pending Cases Involving Administrative Action ........................................................................50
Background: “Zeroing” in Antidumping Proceedings ..........................................................51
U.S. Use of Zeroing ......................................................................................................51
Challenges to the U.S. Use of Zeroing in the WTO........................................................56
Laws, Regulations, and Methodology for Calculating Dumping Margins (“Zeroing”)
(DS294)..........................................................................................................................59
Recent Developments....................................................................................................67
Measures Relating to Zeroing and Sunset Reviews (DS322)................................................68
Recent Developments....................................................................................................74
Final Anti-Dumping Measures on Stainless Steel from Mexico (DS344)..............................74
Recent Developments....................................................................................................76
Continued Existence and Application of Zeroing Methodology (DS350) .............................77
Recent Developments....................................................................................................78
Use of Zeroing in Anti-Dumping Measures Involving Products from Korea (DS402) ..........79
Contacts
Author Contact Information ......................................................................................................80
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Director, IWS News Bureau
Institute for Workplace Studies
Cornell/ILR School
16 E. 34th Street, 4th Floor
New York, NY 10016
Telephone: (607) 255-2703
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