European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft
Total Page:16
File Type:pdf, Size:1020Kb
FINAL NON-BCI VERSION U.S. AND EC BUSINESS CONFIDENTIAL INFORMATION REDACTED EUROPEAN COMMUNITIES AND CERTAIN MEMBER STATES – MEASURES AFFECTING TRADE IN LARGE CIVIL AIRCRAFT (WT/DS316) ANSWERS OF THE UNITED STATES OF AMERICA TO THE PANEL’S QUESTIONS IN CONNECTION WITH THE FIRST SUBSTANTIVE MEETING July 6, 2007 Table of Reports Short Form Full Citation Australia – Leather Panel Report, Australia – Subsidies Provided to Producers and Exporters of Automotive Leather, WT/DS126/R, adopted 16 June 1999 Brazil – Aircraft (AB) Appellate Body Report, Brazil – Export Financing Programme for Aircraft, WT/DS46/AB/R, adopted 20 August 1999 Canada – Aircraft (Panel) Panel Report, Canada – Measures Affecting the Export of Civilian Aircraft, WT/DS70/R, adopted 20 August 1999, as modified by the Appellate Body Report, WT/DS70/AB/R Canada – Aircraft (AB) Appellate Body Report, Canada – Measures Affecting the Export of Civilian Aircraft, WT/DS70/AB/R, adopted 20 August 1999 Canada – Autos (AB) Appellate Body Report, Canada – Certain Measures Affecting the Automotive Industry, WT/DS139/AB/R, WT/DS142/AB/R, adopted 19 June 2000 Dominican Republic – Appellate Body Report, Dominican Republic – Measures Cigarettes (AB) Affecting the Importation and Internal Sale of Cigarettes, WT/DS302/AB/R, adopted 19 May 2005 EC – Bananas III (AB) Appellate Body Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/AB/R, adopted 25 September 1997 EC – Biotech Panel Report, European Communities – Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R, WT/DS292/R, WT/DS293/R, circulated 29 September 2006 EC – Computer Equipment Appellate Body Report, European Communities – Customs (AB) Classification of Certain Computer Equipment, WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R, adopted 22 June 1998 EC – Customs Matters Appellate Body Report, European Communities – Selected (AB) Customs Matters, WT/DS315/AB/R, adopted 11 December 2006 EC – Hormones (AB) Appellate Body Report, EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998 EC – Poultry (Panel) Panel Report, European Communities – Measures Affecting the Importation of Certain Poultry Products, WT/DS69/R, adopted 23 July 1998, as modified by the Appellate Body Report, WT/DS69/AB/R EC – Poultry (AB) Appellate Body Report, European Communities – Measures Affecting the Importation of Certain Poultry Products, WT/DS69/AB/R, adopted 23 July 1998 EC – Sugar Exports GATT Panel Report, European Communities – Refunds on (Australia) Exports of Sugar, BISD 26S/290, adopted 6 November 1979 EC – Sugar Exports GATT Panel Report, European Communities – Refunds on (Brazil) Exports of Sugar – Complaint by Brazil, BISD 27S/69, adopted 10 November 1980 Guatemala – Cement I Appellate Body Report, Guatemala – Anti-Dumping (AB) Investigation Regarding Portland Cement from Mexico, WT/DS60/AB/R, adopted 25 November 1998 India – Patent Protection Appellate Body Report, India – Patent Protection for (US) (AB) Pharmaceutical and Agricultural Chemical Products, WT/DS50/AB/R, adopted 16 January 1998 Indonesia – Autos Panel Report, Indonesia – Certain Measures Affecting the Automobile Industry, WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R, adopted 23 July 1998 Japan – Alcohol (AB) Appellate Body Report, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November, 1996 Korea – Beef (AB) Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/AB/R, WT/DS169/AB/R, adopted 10 January 2001 Korea – Commercial Panel Report, Korea – Measures Affecting Trade in Commercial Vessels Vessels, WT/DS273/R, adopted 11 April 2005 Korea – Dairy Safeguard Appellate Body Report, Korea – Definitive Safeguard Measure (AB) on Imports of Certain Dairy Products, WT/DS98/AB/R, adopted 12 January 2000 Mexico – Rice (AB) Appellate Body Report, Mexico – Definitive Anti-Dumping Measures on Beef and Rice; Complaint with Respect to Rice, WT/DS295/AB/R, adopted 20 December 2005 US – Cotton Subsidies Panel Report, United States – Subsidies on Upland Cotton, (Panel) WT/DS267/R, adopted 21 March 2005, as modified by the Appellate Body Report, WT/DS267/AB/R US – Cotton Subsidies Appellate Body Report, United States – Subsidies on Upland (AB) Cotton, WT/DS267/AB/R, adopted 21 March 2005 US – Countervailing Panel Report, United States – Countervailing Measures Measures (Panel) Concerning Certain Products from the European Communities, WT/DS212/R, adopted 8 January 2003, as modified by the Appellate Body Report, WT/DS212/AB/R US – Countervailing Appellate Body Report, United States – Countervailing Measures (AB) Measures Concerning Certain Products from the European Communities, WT/DS212/AB/R, adopted 8 January 2003 US – Countervailing Panel Report, United States – Countervailing Measures Measures (21.5) Concerning Certain Products from the European Communities – Recourse to Article 21.5 of the DSU by the European Communities, WT/DS212/RW, adopted 27 September 2005 US – FSC (Article 21.5) Appellate Body Report, United States – Tax Treatment for (AB) “Foreign Sales Corporations” – Recourse to Article 21.5 of the DSU by the European Communities, WT/DS108/AB/RW, adopted 29 January 2002 US – German Steel (AB) Appellate Body Report, United States – Countervailing Duties on Certain Corrosion-Resistant Carbon Steel Flat Products from Germany, WT/DS213/AB/R, adopted 19 December 2002 US – Lead Bars (AB) Appellate Body Report, United States – Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, WT/DS138/AB/R, adopted 7 June 2000 US – Shrimp (AB) Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, adopted 6 November 1998 US – Softwood Lumber Panel Report, United States – Final Countervailing Duty CVD Final (Panel) Determination with Respect to Certain Softwood Lumber from Canada, WT/DS257/R and Corr.1, adopted 17 February 2004, as modified by the Appellate Body Report, WT/DS257/AB/R US – Softwood Lumber Appellate Body Report, United States – Final Countervailing CVD Final (AB) Duty Determination with Respect to Certain Softwood Lumber from Canada, WT/DS257/AB/R, adopted 17 February 2004 US – Softwood Lumber Panel Report, United States – Final Dumping Determination on Dumping (Panel) Softwood Lumber from Canada, WT/DS264/R, adopted 31 August 2004, as modified by the Appellate Body Report, WT/DS264/AB/R US – Wool Shirts (AB) Appellate Body Report, United States – Measure Affecting Imports of Woven Wool Shirts and Blouses from India, WT/DS33/AB/R and Corr.1, adopted 23 May 1997 US – Zeroing (EC) (Panel) Panel Report, United States – Laws, Regulations and Methodology for Calculating Dumping Margins, WT/DS294/R, adopted 9 May 2006, as modified by the Appellate Body Report, WT/DS294/AB/R US – Zeroing (EC) (AB) Appellate Body Report, United States – Laws, Regulations and Methodology for Calculating Dumping Margins, WT/DS294/AB/R, adopted 9 May 2006 US – Zeroing (Japan) Panel Report, United States – Measures Relating to Zeroing and (Panel) Sunset Reviews, WT/DS322/R, adopted 23 January 2007, as modified by the Appellate Body Report, WT/DS322/AB/R US - Zeroing (Japan) (AB) Appellate Report, United States – Measures Relating to Zeroing and Sunset Reviews, WT/DS322/AB/R, adopted 23 January 2007 European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft (DS316) Answers of the United States to the Panel’s Questions in Connection with the First Substantive Meeting July 6, 2007 I. QUESTIONS TO THE UNITED STATES A. 1992 AGREEMENT 1. Please comment on the view expressed by the EC, at paragraphs 137, 139, 140, 143 and 144 of its FWS, that the Appellate Body’s findings in the EC – Poultry, US – Shrimp, US – FSC (21.5) and EC – Computer Equipment cases should be understood to mean that the term “parties” in Article 31(3)(c) of the VCLT refers to the parties to the particular dispute only, and not the entire Membership of the WTO. Response 1. The United States first refers the Panel to the U.S. discussion of Article 31(3)(c) of the VCLT in connection with the EC’s preliminary ruling request and updated preliminary ruling request. As explained there, the term “parties” in Article 31(3)(c) of the VCLT refers to all of the parties to a treaty (in the case of the WTO Agreement, all of the WTO Members), and not merely to the parties to a particular dispute. This is evident from the definition of “party” in Article 2.1(g) of the VCLT as well as from contrasting Article 31(3)(c) to other articles, in which the drafters of the VCLT expressly referred to parties to a dispute (e.g., Article 66(a)-(b)).1 2. The only parties to the 1992 agreement are the United States and the EC. As none of the other parties to the WTO Agreement are parties to the 1992 agreement, it is not a “relevant rule{} of international law applicable in the relations between the parties” within the meaning of Article 31(3)(c) of the VCLT. Therefore, the 1992 agreement is not relevant to interpretation of the SCM Agreement in resolving the present dispute. 1 See U.S. Response to EC Preliminary Ruling Request (“PRR”), para. 98 (Nov. 15, 2006); U.S. Comments on EC Answers to Panel’s Questions Concerning Temporal Scope of SCM Agreement, paras. 54-57 (Dec. 21, 2006). FINAL NON-BCI VERSION European Communities and Certain Member States – U.S. Answers to 1st Panel Questions Measures Affecting Trade in Large Civil Aircraft (WT/DS316) July 6, 2007 – Page 2 3. The U.S. understanding of Article 31(3)(c) of the VCLT is confirmed by the explanation of the panel in EC - Biotech.2 For the reasons discussed in the U.S. comments on the EC’s answers to the Panel’s questions concerning the temporal scope of the SCM Agreement, the EC’s critique of the panel’s reasoning in EC - Biotech is unfounded.3 4.