ࡱ> _aMN`@ nbjbj tuuO5GND(((DlX|X|X||}l|~~(~~~~t(******IR*](~~*((~~(~(~(( ((~~ p*7X|~,40,%~d%Xll((((%(pЅL6R, ~X ЅЅЅ**l074L$0"l04L ANNEX C Submissions of Third Parties ContentsPageAnnex C-1 Third Party Submission of China 17 March 2005C-2Annex C-2 Oral Statement of China 21 April 2005C-10Annex C-3 Third Party Submission of the European Communities 17March2005C-13Annex C-4 Oral Statement by the European Communities 21 April 2005C-20 ANNEX C-1 Third Party Submission of China 17 March 2005 Table of Contents I. Introduction 3 II. Whether the USDOC Administrative Review Determination Is Properly Before This Compliance Panel 3 A. The Threshold Issue Presented in These Proceedings 3 B. Terms of Reference of An Article 21.5 Panel 3 C. Chinas Views on The Threshold Issue 4 III. Whether Arms-Length Transaction and Non-affiliation Are One and The Same Condition or Two Separate Conditions to Necessitate A Pass through Analysis 6 A. The Analysis of the Appellate Body 7 B. The Rulings of the Original Panel and the Appellate Body 7 C. Chinas View on the Issue of Pass-through 8 IV. Conclusion 9 I. Introduction 1. China welcomes this opportunity to present its views in these proceedings involving the United States compliance with the DSB recommendations and rulings in United States Final Countervailing Duty Determination With Respect to Certain Softwood Lumber from Canada. China believes these proceedings relate to the correct understanding of Article 21.5 of the DSU and ArticleVI:3 of GATT 1994 as well as the rulings by the original Panel and the Appellate Body in the original dispute in which China has systemic interests. 2. In this third party submission, China will focus on the following two key issues: (i) the threshold issue of whether the USDOC administrative review determination is properly before this Panel; (ii) whether the five external factors identified by the USDOC can be used to exempt the US from conducting pass-through analysis as required by the rulings of the original panel and the Appellate Body with respect to sales of logs between tenured harvesters/sawmills and unrelated sawmills. II. Whether the USDOC Administrative Review Determination Is Properly Before This Compliance Panel A. The Threshold Issue Presented in These Proceedings 3. In the Request for Establishment of A Panel, Canada refers to the following measures by the US: (i) the Section 129 Determination; and (ii) the First Administrative Review Determination (the Review Determination). In its First Written Submission, Canada argues that the US, by adopting these measures taken to comply, continues to violate its obligations under Article VI:3 of the GATT 1994 and Articles 10 and 32.1 of the SCM Agreements and failed to implement the recommendations and rulings of the DSB. The US, in turn, request a preliminary ruling that the Review Determination is not a measure[] taken to comply and thus falls outside the scope of these Article 21.5 proceedings. 4. Thus, a threshold issue presented in this dispute is whether the Review Determination is properly before this compliance panel. B. Terms of Reference of An Article 21.5 Panel 5. In Chinas view, ϲʹ jurisprudence establishes that the mandate of an Article 21.5 panel is subject to two limitations. 6. First, the mandate of a compliance panel shall be confined by the coverage of the measures referred to by the complaining party in its panel request. If the parties to a dispute do not agree otherwise, a compliance panel, as an ordinary panel, shall have the standard terms of reference set forth in Article 7.1 of the DSU. Specifically, the outer edge of the terms of reference of a compliance panel shall be the scope of the panel request by the complaining party at a given dispute. This has been confirmed by many compliance panels. 7. Second, the mandate of a compliance panel shall be limited by the scope of measures taken to comply with DSB recommendations and rulings. The Appellate Body in Canada Aircraft (Article 21.5 Brazil) held that, Proceedings under Article 21.5 do not concern just any measure of a Member of the ϲʹ; rather, Article21.5 proceedings are limited to those measures taken to comply with the recommendations and rulings of the DSB. (original emphasis) In EC - Bed Linen (21.5), the Appellate Body explicitly stated that "[i]f a claim challenges a measure which is not a 'measure taken to comply', that claim cannot properly be raised in Article 21.5 proceedings." (Original Emphasis) 8. Practically, there may be fewer disputes over whether a measure is cited by the complaining party in its panel request. Rather, many of the disputes rest with whether a particular measure, although cited by the complaining party, is a measure[] taken to comply. This is exactly the case in this dispute. C. Chinas Views on The Threshold Issue 9. In these proceedings, both parties seem to have no dispute on whether the Review Determination was cited by Canada in its panel request. As noted on the document WT/DS257/19, the parties to this dispute agreed that the Panel should have standard terms of reference. As a result, the Panels terms of reference shall be defined by Canadas Request for Establishment of a Panel (WT/DS257/15). In that document, Canada manifestly referred to the Review Determination issued by the USDOC. However, Article21.5 proceedings are limited to those measures taken to comply with the recommendations and rulings of the DSB and it is, ultimately, for an Article21.5 panel and not for the complainant or the respondent to determine which of the measures listed in the request for its establishment are measures taken to comply. Therefore, the threshold issue in this dispute is whether the Review Determination cited by Canada in its panel request is properly before this panel. 10. In this dispute, it may be argued, on the one hand, that the Review Determination was made in a totally separate investigation procedure and based on the import data that is irrelevant to that of the original investigation. On the other hand, it is arguable that the two determinations at issue were made under the framework of the same set of proceedings which effectively affects import of softwood lumber from Canada and the Review Determination supersedes the Section 129 Determination. In Chinas view, the first argument relates to the question of whether the Review Determination is a measure[] taken to comply while the second argument concerns the matter whether the Section 129 Determination is rendered non-existent. 11. Initially, the Review Determination may not be properly categorized as a measure[] taken to comply. This point has been elaborated by the US in its First Submission. The date of commencement of the review process was well before the date when the DSB adopted the panel and Appellate Body report. The Review Determination was not issued under the US domestic proceedings that are specifically enacted to address its violation of ϲʹ rules concerning a countervailing duty measure (Section 129(b) of the Uruguay Round Agreements Act). 12. However, in Chinas view, the fact that the Review Determination is not a measure[] taken to comply does not lead to a decisive answer to the question of whether this measure is properly before this panel. China recalls that, on the basis of the plain language of Article 21.5, the purpose of the proceedings under this provision is to review and solve the dispute on the existence or consistency with a covered agreement of measures taken to comply with the recommendations and rulings of the DSB. China believes that existence and consistency are two distinct aspects of the subject measure. The latter involves review that is not only limited to the issue of whether or not [a Member] has implemented the DSB recommendation, but also in the light of any provision of any of the covered agreements. On the other hand, the former relates to the status of the revised new measure. Both aspects are equally important though the existence matter is crucial in solving the threshold issue in these proceedings. 13. The dispute of Australia Automotive Leather (21.5 US) demonstrates similar fact pattern that deserves the reference by this Panel. In that dispute, Australia, subsequent to the DSB recommendations and rulings, ordered the repayment of the grants of A$8.065 million from Howe on 14 September 1999 and reported to the DSB that it had carried out the recommendations and rulings of the DSB. However, on the same date, Australia provided a loan of A$13.65 million on non-commercial terms to Howe's parent company, ALH. The U.S. requested an Article 21.5 panel and submitted that it is clear that if the Panel can determine the "existence" of measures taken to comply with the ruling, it can consider whether the measures purportedly taken to comply were effectively rendered non-existent. Australia maintained that the loan of A$13.65 was not part of the implementation of the DSBs rulings and recommendations which was not even notified to the DSB. In considering this issue, the compliance panel said, The 1999 loan is inextricably linked to the steps taken by Australia in response to the DSB's ruling in this dispute, in view of both its timing and its nature. In our view, the 1999 loan cannot be excluded from our consideration without severely limiting our ability to judge, on the basis of the United States' request, whether Australia has taken measures to comply with the DSB's ruling. In the absence of any compelling reason to do so, we decline to conclude that a measure specifically identified in the request for establishment is not within our terms of reference. . In Chinas view, in an Article 25.1 procedure, if the complaining party submits that a measure[] taken to comply is invalidated by a subsequent measure, the compliance panel should at least assess this claim that relates to the measure[] taken to comply on the basis of relevant facts the subsequent measure. To exclude the second measure would put the panel at the risk of failing to make a comprehensive and well-founded judgement on the existence of a measure taken to comply with DSB recommendations and rulings. 14. As China understands, the US applies a retrospective countervailing duty assessment system. Under such a system, the results of a review (if conducted), not only determine the duty that shall be assessed on the goods imported during the period of review, but also establish the amount of cash deposit for future imports of the subject product following the review. In this sense, the results of a review may be deemed to replace the original determination except in certain extraordinary cases (e.g., in case where the amount of subsidization found to be zero in a review the result of which will not lead to the termination of the original determination). Thus, China believes, due to the countervailing duty assessment system adopted by the US, the results of an administrative review may, at least in form, replace the original final determination. 15. In the particular factual circumstance of this dispute, the Review Determination was announced ten days after the Section 129 Determination took effect. Thus, the Review Determination established a new rate for cash deposit for the goods from Canada and replaced the rate in the Section 129 Determination. Such changes in the applicable duty rate deserve further consideration on whether the Review Determination, in substance, rendered the non-existence of the Section 129 Determination. Therefore, China is of the view that the facts presented by Canada in these proceedings, at least, have demonstrated that there is likelihood that the Review Determination may nullify the Section 129 Determination. 16. On the basis of the above, it follows that if the Review Determination is found not to be a measure[] taken to comply, it is still of importance to establish whether, as a matter of fact, the Section 129 Determination is nullified by the Review Determination and therefore, no measure[] taken to comply exists. In Chinas opinion, in order to perform the duty of mak[ing] an objective assessment of the matter before it as required by Article 11 of the DSU, it is advisable for the Panel to keep the Review Determination within its terms of reference instead of disregarding it at the very beginning of the procedure. In the meantime, however, China wishes to emphasize that, if the Review Determination is held not to be a measure taken to comply, the panel need only review the Review Determination to the extent that it can make a ruling on whether the Section 129 Determination was rendered non-existent and it is not the task of this Panel to review the Review Determination as a measure[] taken to comply in parallel with the Section 129 Determination. 17. Furthermore, it has been consistently ruled by compliance panels that it may be appropriate to consider events occurring until the date of panel request. Such a view supports the position that this Panel should consider the Review Determination, as relevant facts, which happened prior to the panel request. 18. In summary, China is of the opinion that, although the Review Determination may not be a measure taken to comply, it is closely linked to and may have an important effect on the existences of the purported measure taken to comply the Section 129 determination. On such basis, China believes it is the mandate of this Panel to consider the Review Determination in these proceedings. China suggests that the Panel may assess: (i) whether Section 129 Determination fully implements the DSB recommendations and rulings and is consistent with the covered agreements; and (ii) if it does, whether the Review Determination invalidates the Section 129 Determination and consequently renders the non-existence of the latter. III. Whether Arms-Length Transaction and Non-affiliation Are One and The Same Condition or Two Separate Conditions to Necessitate A Pass-through Analysis 19. In its First Written Submission, Canada argues that the US failed to conduct pass-through analysis for three reasons, one of which is the USDOC imposed two conditions to limit the number of log transactions requiring analysis. These two conditions are: (i) the transacting parties are unrelated; and (ii) none of the external factors identified by the USDOC exists. The US, in its First Submission, does not deny its application of these two conditions. 20. In the following, China would like to share with the parties to this dispute as well as this Panel its views on this disputed issue. A. The Analysis of the Appellate Body 21. In the course of reaching its conclusion, the Appellate Body largely relied on the interpretation of Article VI:3 of the GATT 1994. In its report, the Appellate Body stated that, The phrase "subsid[ies] bestowed ... indirectly", as used in Article VI:3, implies that financial contributions by the government to the production of inputs used in manufacturing products subject to an investigation are not, in principle, excluded from the amount of subsidies that may be offset through the imposition of countervailing duties on the processed product. Where the producer of the input is not the same entity as the producer of the processed product, it cannot be presumed, however, that the subsidy bestowed on the input passes through to the processed product. In such case, it is necessary to analyze to what extent subsidies on inputs may be included in the determination of the total amount of subsidies bestowed upon processed products. For it is only the subsidies determined to have been granted upon the processed products that may be offset by levying countervailing duties on those products. (original emphasis in italic and added emphasis in bold) The Appellate Body seemed to be of the view that if subsidies are bestowed on an entity different from the producer of the subject product, pass-through of subsidies cannot be presumed. In this respect, the Appellate Body did not emphasize that the transactions between the two entities shall be free of interference by any external factor. In addition, the Appellate Body found further supports from the definition of subsidy in Article 1 of the SCM Agreement as well as its interpretation of benefit in Canada Aircraft. In such analysis, the Appellate Body also focused on whether the cumulative condition in Article 1 of the SCM Agreement are met for the producer of the subject products and whether the producer of the subject product is an indirect recipient. All such legal analysis, in Chinas view, relies on the presumption that the two entities, producer of the input and producer of the subject product, are not the same entity. 22. The Appellate Body, in its analysis, did mention from time to time the term arms-length transactions. However, it did not put forward the implication of this term. Neither did it base its analysis on the presumption that the transactions at issue are free from influence by any external factors. B. The Rulings of the Original Panel and the Appellate Body 23. Paragraph 167(e) of the Appellate Body Report is as follows, upholds the Panel's finding, in paragraph 7.99 of the Panel Report, that USDOC's failure to conduct a pass-through analysis in respect of arm's length sales of logs by tenured harvesters/sawmills to unrelated sawmills is inconsistent with Articles 10 and 32.1 of the SCM Agreement and Article VI:3 of the GATT 1994; This ruling does mention the terms arms length sales and unrelated in parallel. However, referring to paragraph 7.99 of the original Panel Report would easily exclude any potential confusion that may be caused by the use of these two terms, which reads, We therefore conclude that, for the reasons set forth above, the USDOC's failure to conduct a pass-through analysis in respect of logs sold by tenure-holding timber harvesters (whether or not also lumber producers) to unrelated sawmills producing subject softwood lumber; (emphasis added) The above ruling does not refer to arms-length transactions as an extra condition to necessitate pass-through analysis. The condition is only that the tenure-holding timber harvesters are unrelated to sawmills. If the Appellate Body intended to insert arms-length transaction as an addition condition, it should have said so and should have partially reversed the original panels ruling on this matter. Therefore, the term arms-length transactions in the ruling of the Appellate Body can be understood to bear the same meaning as that of unrelated. C. Chinas View on the Issue of Pass-through 24. In Chinas view, under the particular factual circumstances of this dispute and the countervailing duty investigation on softwood lumber, it is not necessary to satisfy the test of five external factors identified by the USDOC in order to require for a pass-through analysis. 25. First, China agrees with the analysis by the Appellate Body that an instance that require for pass-through analysis is one where the direct recipient of the subsidies at issue is not the same entity as the producer of the countervailed subject product. In this respect, the meaning of the so-called same entity is obvious both entities are not related to or affiliated with each other in any other way so that they cannot be treated as one and the same. Such an instance does not imply that the transactions at issue should be free of interference by any of the five external factors identified by the USDOC. 26. Second, it is possible that the five external factors may affect the transactions between the separate entities and thereby influence the pass-through of the direct subsidies on the production of logs. For example, due to limitations on log sales in Crown tenure contracts, the tenured harvester may not sell its products to the sawmills at fair market value. As a result, the transaction price may be lower than fair market value through which, subsidies on logs pass through to the production of the subject products. In Chinas view, it is the external factors and, potentially, other unknown factors that cause the transaction price to be below fair market value and thereby, result in pass-through of subsidies. 27. China further submits that the influence by any external factor can be fully taken into account if a proper pass-through test is carried out. By choosing a permissible market benchmark, the investigating authorities could precisely calculate the part of benefits that are passed through to the purchasers of logs. Conversely, if the investigating authorities rule that, due to the existence of external factors, pass-through of subsidies need not be analyzed and can be presumed in its totality, the calculated subsidy amount would not reflect the actual amount of benefits that are actually bestowed indirectly on the production of the subject product. Such an approach would most likely lead to imposition of countervailing duty in excess of subsidies bestowed directly, or indirectly on the subject product in violation of Article VI:3 of the GATT 1994. 28. On the basis of the above, China is of the view that the five external factors identified by the USDOC could not exempt the US from conducting pass-through analysis with respect to sales of logs between unrelated harvesters/sawmills and sawmills. IV. Conclusion 29. In conclusion, China is of the following views: (i) Although the Review Determination may not be a measure taken to comply with the DSB recommendations and rulings at issue, it is closely linked to and may have an important effect on the existences of the purported measure[] taken to comply the Section 129 determination; it is the mandate of this Panel to consider the Review Determination in these proceedings from the perspective of whether it invalidates the Section 129 Determination; (ii) The five external factors identified and applied by the USDOC in the Section 129 Determination could not exempt the U.S. from conducting pass-through analysis as required by the rulings of the original panel and the Appellate Body with respect to sales of logs between unrelated harvesters/sawmills and sawmills. ANNEX C-2 ORAL STATEMENT OF CHINA 21 April 2005 Introduction 1. Mr. Chairman, members of the Panel, it is our great honor to appear before you today to present the views of China as a third-party to these proceedings. As the Panel already has our written submission, we do not intend to restate all the comments contained in that document. Rather, we seek to offer the Panel a concise synopsis of the views of China in regards to the current dispute between Canada and the United States. In short, the issues we will focus on today pertain to (1) whether the administrative Review Determination of the US Department of Commerce is properly within the mandate of this Panel and (2) whether the five external factors identified by the US Department of Commerce exempt the US from conducting a pass through analysis as required by the original Panel and the Appellate Body in their rulings. USDOC Administrative Review Determination 2. China is of the opinion that the mandate of an Article 21.5 panel is subject to two limitations. First, the mandate of a compliance panel shall be confined by the coverage of the measures referred to by the complaining party in its panel request. Second, as held by the Appellate Body in Canada - Aircraft (Article 21.5 Brazil), Article 21.5 proceedings are limited to those measures taken to comply with the recommendations and rulings of the DSB. 3. Applying the first limitation to this dispute, it seems indisputable that Canada specifically and explicitly refers to the DOCs Administrative Review Determination in its panel request and therefore, this measure passes the test of the first limitation. However, to reiterate what was said above, the mandate of this Panel shall be limited to those measures taken to comply with the recommendations and rulings of the DSB. 4. In this regard, given the facts of this dispute, China tends to agree with the US that the Review Determination may not be properly categorized as a measure taken to comply. However, while China does not consider the Review Determination to be a measure taken to comply, it also does not believe that a decisive answer has yet been reached in regards to whether the Review Determination is properly before this Panel. The underlying purpose of these proceedings is to review and to resolve this particular dispute as to the existence or consistency with a covered agreement of measures taken to comply with the recommendations and rulings of the DSB. Although the words existence and consistency are of equal importance, in this particular dispute, China surmises that the correct interpretation of existence will be crucial to the resolution of whether the Review Determination is properly before the Panel. 5. The dispute of Australia Automotive Leather (21.5 US) offers pertinent insight concerning such interpretation and deserves the attention of this Panel. In a similar fact pattern to the current dispute, Australia, on the one hand, ordered the repayment of a grant, a move that was purported to withdraw the illegal subsidy; while on the other hand, it provided a non-commercial loan to the parent company of the subsidy recipient. The United States requested an Article 21.5 panel. That compliance panel stated that the loan in dispute was inextricably linked to the steps taken by Australia in response to the DSBs ruling . . . in view of both its timing and its nature. The panel determined that the loan cannot be excluded from our consideration without severely limiting our ability of judge, on the basis of the United States request, whether Australia has taken measures to comply with the DSBs ruling. Consequently, believing there to be no presence of a compelling reason to act otherwise, the panel declined to conclude that a measure specifically identified in the request for establishment . . . was not in the panels terms of reference. 6. Consequently, in Chinas view, because Canada has submitted that a measure taken to comply has been invalidated by a subsequent measure, this Panel should at least be allowed to assess the relationship between the Section 129 Determination and the Review Determination. To exclude such an assessment would put this Panel at the risk of failing to make a comprehensive and well-founded judgment as to the existence of a measure taken to comply with the relevant DSB recommendations and rulings. 7. Looking at the particular facts of this dispute, the Review Determination was announced ten days after the Section 129 determination took effect which resulted in the establishment of a new rate for the cash deposit for Canadian goods and replaced the rate in the Section 129 determination. Such facts warrant further consideration on whether these changes rendered the non-existence of the Section 129 determination. 8. For all the reasons above, China believes that while the Review Determination itself may not be classified as a measure taken to comply, it is inextricably linked to the steps taken by the US in response to the DSBs ruling in both its timing and its nature. Because excluding the Review Determination would severely limit the Panels ability to judge, upon Canadas request, whether the US has taken measures to comply with the DSBs rulings and recommendations, China concludes the Review Determination to be within this Panels mandate. The Pass-Through Analysis 9. We now turn briefly to the second issue of the dispute, namely that of the pass-through analysis conducted by the US. Specifically, the issue revolves around the DOC imposing two conditions that in effect limited the number of log transactions that were subjected to a pass-through analysis. 10. The DOC effectively required that relevant log transactions (1) be conducted between unrelated parties; and (2) satisfy an arms length transaction test before a pass-through analysis was necessitated. As a result, the question ultimately becomes whether the phrases arms length transaction and unrelated are one and the same or rather distinctive terminology. 11. In its report, the Appellate Body seemed to be of the view that if subsidies are bestowed on an entity different from the producer of the subject product, then a pass-through of subsidies cannot be presumed. However, the Appellate Body did not intimate that the transactions between the two entities had to be free of interference by external factors. Neither did it base its analysis on such a premise. 12. Referring specifically to paragraph 167(e) of the Appellate Body Report, in which the Appellate Body affirms the original Panels finding with respect to sales of logs by tenured harvesters/sawmills to sawmills, the phrases arms length sales and unrelated are mentioned in parallel. However, looking at paragraph 7.99 of the original Panel Report, which the Appellate Body has purportedly affirmed, there is no mention of the phrase arms length transactions or arms length sales; rather the only condition referenced is that the parties be unrelated. If the Appellate Body had intended to impose an extra condition, as the US actually did, it should have said so and partially reversed the original Panels rulings. Therefore, China believes that the phrase arms length transactions in the ruling of the Appellate Body should be construed to bear the same meaning as that of unrelated. 13. Finally, China would like to present its own views on the five external factors identified by the US DOC. China believes that it is not necessary to satisfy this test of five external factors in order to require a pass-through analysis. China submits that an instance requiring a pass-through analysis is one where the direct recipient of the subsidies at issue is not the same entity as the producer of the countervailed subject product. Such an instance does not require the transactions to be free of influence by any external factors. 14. In addition, China believes that the five external factors may themselves be responsible for resulting in the pass-through of subsidies. However, to skip a pass-through analysis would presume that the subsidies are passed through in its entirety. Such an approach would most likely exaggerate the actual benefit indirectly bestowed on the subject product producers. China believes, by using an appropriate pass-through analysis, the effects of the five external factors can be fully accounted for without incorrectly calculating the actual amount of benefit on the subject product producers. Conclusion 15. Mr. Chairman, that concludes the third-party statement of China. Thank you very much for the attention. ANNEX C-3 THIRD PARTY SUBMISSION BY THE EUROPEAN COMMUNITIES 17 March 2005 TABLE OF CONTENTS I. INTRODUCTION 14 II. THE SCOPE OF DSU ARTICLE 21.5 PROCEEDINGS 15 III. IS THE ADMINISTRATIVE REVIEW WITHIN THE SCOPE OF THIS PROCEEDING 17 IV. CONCLUSION 19 I. INTRODUCTION 1. The European Communities (EC) welcomes this opportunity to present its views in this DSU Article 21.5 proceeding. Canada claims that the United States has failed to implement the recommendations and rulings of the DSB in United States Lumber CVD Final. The Appellate Body found that the countervailing duty imposed on softwood lumber was not based on a pass-through-analysis ensuring that the numerator is not artificially inflated through non-subsidised arms length sales. 2. The United States informed the DSB on 17 December that it had implemented its recommendations and rulings through a determination pursuant to Section 129(b) of the Uruguay Round Agreements Act (Section 129 determination). The Section 129 determination reduced the original rate of 18.79% to a rate of 18.62% (because of no pass-through in some cases) and was effective on 10 December 2004. However, ten days later, the first administrative review of the countervailing duty order kicked in, establishing a definitive countervailing duty rate for the period of review and replacing the amended Section 129 countervailing duty cash deposit rate with a new cash deposit rate (17.18%, not containing any reduction resulting from a lack of pass-through). 3. Canada claims that the United States failed to implement the recommendations and rulings of the DSB because neither the Section 129 determination nor the administrative review carry out the pass-through analysis required by Articles VI:3 of the GATT 1994 and Articles 10 and 32.1 of the SCM Agreement. 4. The United States has raised a preliminary objection contending that the administrative review is not a measure taken to comply within the meaning of Article 21.5 of the DSU and therefore not within the jurisdiction of this 21.5 Panel. According to the United States, the administrative review is legally separate from the original investigation/ Section 129 determination and concerns new factual data. The United States relies on EC Bed linen 21.5, to argue that annual administrative review measures are entirely new determinations and therefore not a measure taken to comply within the scope of Article 21.5 proceeding. 5. The EC considers that the US arguments are entirely misconceived. The US view (if accepted) would turn the US system of countervailing duty assessment into a moving target that escapes the ϲʹ disciplines. Given that WTO jurisprudence is limited, the EC will confine this third party brief to this important jurisdictional question. As will be detailed below: % Article 21.5 panels, in principle, have jurisdiction on all factual and legal matters relating to the resolution of the original dispute (as defined by that panel s terms of reference); % The measure to be reviewed by this DSU Article 21.5 Panel is the continued application of a countervailing duty on the basis of the administrative review (superseding both the original determination and the Section 129 review). 6. This submission concludes that the Panel should dismiss the preliminary objection made by the United States. However, the EC wishes to clarify that it does not take a position on whether or not the administrative review complies with the recommendations and rulings of the DSB. The EC expects to provide its views on this substantive issue at the oral hearing (after having received the parties rebuttal submissions). II. THE SCOPE OF DSU ARTICLE 21.5 PROCEEDINGS 7. The scope of DSU Article 21.5 proceedings has several aspects that have not yet been fully clarified in ϲʹ jurisprudence. Some jurisdictional issues relate to the claims that can be made in a DSU Article 21.5 proceeding. Here, the Appellate Body has already clarified that panels are to review the totality of claims relating to the consistency of that measure with the covered agreements (continuing violations, new violations and consequential violations of the covered agreements). The precise issue before this Panel is whether the phrase taken to comply limits the 21.5 Panels jurisdiction to reviewing only a measure explicitly taken to comply (here the Section 129 review) as opposed to an administrative review. 8. Article 21.5 of the DSU provides in relevant part: Where there is disagreement as to the existence or consistency with a covered agreement of measures taken to comply with the recommendations and rulings such dispute shall be decided through recourse to these dispute settlement procedures, including wherever possible resort to the original panel. The panel shall circulate its report within 90 days after the date of referral of the matter to it. When the panel considers that it cannot provide its report within this time frame, it shall inform the DSB in writing of the reasons for the delay together with an estimate of the period within which it will submit its report. 9. Contrary to what the US argues, the phrase taken to comply cannot be read to limit the 21.5 proceeding to those measures that were explicitly taken to replace the measure at issue in the original proceedings. The phrase taken to comply must be read together with its immediate and broader context as well as the purpose of the DSU to reach a prompt solution of a dispute. 10. Most importantly, it is preceded by the term existence and followed by the expression with the recommendations and rulings of the DSB. This suggests that the role of a 21.5 Panel is different from the task of an original Panel. While the original Panel is faced with a dispute relating to a precise measure, the 21.5 Panel is tasked to assess whether or not there is a failure to comply and whether or not the original dispute has been resolved. 11. Indeed, the broader purpose of Article 21.5 of the DSU is to secure the solution of a dispute between two ϲʹ Members relating to the measures brought before the original Panel. This purpose is reflected in Article 3.3 of the DSU which reads; The prompt settlement of situations in which a Member considers that any benefits accruing to it directly or indirectly under the covered agreements are being impaired by measures taken by another Member is essential to the effective functioning of the ϲʹ and the maintenance of a proper balance between the rights and obligations of Members. 12. Moreover, Article 3.7 of the DSU clarifies that Article 21.5 proceedings form part of the adjudication of an initial dispute by determining whether the defendant has withdrawn the measure or otherwise complied. Article 3.7 of the DSU reads: In the absence of a mutually agreed solution, the first objective of the dispute settlement mechanism is usually to secure the withdrawal of the measures concerned if these are found to be inconsistent with the provisions of any of the covered agreements. The provision of compensation should be resorted to only if the immediate withdrawal of the measure is impracticable and as a temporary measure pending the withdrawal of the measure which is inconsistent with a covered agreement. The last resort which this Understanding provides to the Member invoking the dispute settlement procedures is the possibility of suspending the application of concessions or other obligations under the covered agreements on a discriminatory basis vis--vis the other Member, subject to authorization by the DSB of such measures. 13. This particular nature of the DSU Article 21.5 proceeding was explicitly recognised by the Panel in Australia Salmon (21.5) which even considered a measure taken during the Article 21.5 proceeding on the basis of the following consideration: To do otherwise would, in our view, go against the principle of prompt settlement of disputes and could hamper implementation of both DSB recommendations in the original dispute and our findings in this case. 14. Although the Appellate Body has not yet been faced with the precise point at issue here, it has already confirmed the above principle in Canada Aircraft 21.5: In our view, the phrase "measures taken to comply" refers to measures which have been, or which should be, adopted by a Member to bring about compliance with the recommendations and rulings of the DSB. In principle, a measure which has been "taken to comply with the recommendations and rulings" of the DSB will not be the same measure as the measure which was the subject of the original dispute, so that, in principle, there would be two separate and distinct measures34: the original measure which gave rise to the recommendations and rulings of the DSB, and the "measures taken to comply" which are or should be adopted to implement those recommendations and rulings. 15. Moreover, the Appellate Body clarified in the accompanying footnote 34: We recognize that, where it is alleged that there exist no "measures taken to comply", a panel may find that there is no new measure. 16. The Panel in EC Bed linen, on which the United States relies, based itself explicitly on the Australia Salmon 21.5 case law and only discarded later review measures adopted by the EC as they were: not so clearly connected to the panel and Appellate Body reports concerned, both in time and in respect of the subject-matter, that any impartial observer would consider them to be measures taken to comply. 17. It is important to note that the two measures in EC Bed linen were not dismissed from the scope of that 21.5 proceeding because they were review measures. They were dismissed because they did not relate to the original dispute between the EC and India. 18. The EC submits that the case-by-case test applied by the Panel in EC Bed linen should be further interpreted in line with the above considerations. In particular, it is the ECs submission that the scope of the 21.5 proceeding is determined by all aspects of the measure giving rise to the initial dispute. The purpose of the 21.5 proceeding is to determine whether or not the defendant has complied by either withdrawing that measure or bringing it otherwise in full compliance with the covered agreements. Whether a measure is taken to comply must then be decided on a case-to-case basis having regard to the original dispute (as defined by the terms of reference of the Panel) and the particular obligations of the covered agreement at issue. 19. As already confirmed by the DSU Article 21.5 Panel in EC Bed linen, it is for the Panel alone to determine which measures it reviews when determining whether or not there is compliance. Moreover, the appropriate date for assessing the compliance of a Member with the recommendations of the DSB is the date of establishment of the Article 21.5 panel. III. IS THE ADMINISTRATIVE REVIEW WITHIN THE SCOPE OF THIS PROCEEDING? 20. Canada claims that the United States failed to comply with the rulings and recommendations of the DSB (pass-through analysis) because none of the measures taken by the United States carries out such pass-through analysis. 21. The United States defends itself legally by arguing that the administrative review is a separate measure from the (i) original determination and (ii) Section 129 determination and, hence, not before the Panel. 22. The US view is based on the assumption that the measures to be attacked in countervailing duty cases are the determinations made by the investigating authorities. This is false. As is clarified in Article 10 of the SCM Agreement, the measure of concern is the imposition of a countervailing duty, defined as a special duty levied for the purpose of offsetting a subsidy. The ϲʹ Member imposing the countervailing duty is under the obligation to demonstrate through an investigation and determination that such duty is not in excess of the subsidy as required by Article VI:3 of the GATT 1994. Therefore, the accompanying determinations play a significant role in assessing whether the duty is in excess of a subsidy. However, it is the duty itself that interferes with trade and is the measure of concern. To the extent a countervailing duty is not imposed on the basis of a proper determination, it is incompatible with ϲʹ law. 23. The United States has a retrospective system of imposing countervailing duties. The administrative review at hand in this case is a hybrid instrument. It fixes the final duty rate for the assessment period with retrospective effect. It is similar to a retrospective assessment within the meaning of Article 9.3 of the Anti-Dumping Agreement and it certainly is not a fully-fledged review of both the subsidy and injury within the meaning of Article 21 of the SCM Agreement. Significantly, the administrative review does not change the date of the expiry of the measure under Article 21.3. The administrative review happens to change the cash deposit rate provisionally for future imports, but only subject to a further annual review in the future. 24. While footnote 52 of the SCM Agreement recognises the existence of such annual reviews used in a retrospective system, it does not, as suggested by the United States, recognise that these types of administrative review are separate from the original determination (and or a Section 129 determination). 25. The United States has not disputed Canadas characterisation of the administrative review as superseding both the original countervailing duty determination and the Section 129 determination. As explained by the United States, the Section 129 determination exclusively focused on the original investigation and partially redid it. However, that Section 129 determination was only in place for 10 days. It was then superseded by the administrative review which definitively fixed the duties for the relevant period. At the date of the establishment of the Panel (14 January 2005) only the administrative review was effectively in place. 26. According to ϲʹ jurisprudence, a measure that essentially replaces an earlier measure remains within the terms of reference of an original Panel. A fortiori, a 21.5 Panel must be in a position to assess whether an annual administrative review determination that confirms and supersedes the original determination relating to the same countervailing duty constitutes a continuing violation. 27. Contrary to what the US attempts to argue, the Panel in EC Bed linen 21.5 does not stand for a general proposition that any review measure is outside the scope of a 21.5 proceeding. As noted already under point 17 above, the review measures at issue in that case were entirely different in nature. The EC applies a prospective system of assessing duties and therefore does not carry out such annual administrative reviews. The measures at hand in EC Bed linen were either specific reviews of anti-dumping duties imposed on exporters from other Members (Egypt and Pakistan) or entirely new determinations in a review based on results of an event subsequent to the EC having adopted the implementing measure in EC Bed linen. 28. Also the final US argument that it would not be possible to fully assess a new set of facts relating to an assessment review, based on a wholly new administrative record, within the 90 day period prescribed by Article 21.5 and that therefore administrative reviews must be subject to a different proceeding, is without merit. The Appellate Body already recognised that the examination of an Article 21.5 measure can require assessment of a new set of facts. The 90 day period reflects the right of the complaining Member to a prompt resolution of the original dispute by determining whether or not compliance exist before he may resort to suspension of concessions. 29. Accepting the US view that the administrative review is not subject to a DSU 21.5 Panel review would turn the US system of duty assessment into a moving target that escapes from countervailing duty disciplines. Each administrative review would have to be subject to a new panel request, and by the time the panel, Appellate Body and implementation procedure was completed, another administrative review would have overtaken the results of any Section 129 determination. A new panel would have to be started against this review, creating a Groundhog Day situation. IV. CONCLUSION 30. For the above reasons, the EC considers that the Panel has full jurisdiction over the administrative review measure in this case and that the US preliminary objection should therefore be dismissed. ANNEX C-4 ORAL STATEMENT BY THE EUROPEAN COMMUNITIES 21 April 2005 TABLE OF CONTENTS I. INTRODUCTION 20 II. MEASURE TAKEN TO COMPLY 20 III. PASS-THROUGH 21 IV. CONCLUSION 23 I. INTRODUCTION Mr. Chairman, Members of the Panel, good afternoon, and thank you for providing the European Communities (EC) with an opportunity to present its views before you today. 1. The EC intervenes in this proceeding because of its systemic interest in the correct interpretation of the SCM Agreement, the GATT 1994 and the DSU. This dispute raises two key issues: > What is a measure taken to comply within the meaning of Article 21.5 of the DSU? > What are the substantive and procedural requirements for ensuring a proper analysis of pass-through? II. MEASURE TAKEN TO COMPLY 2. The US continues to argue in its rebuttal submission that the administrative review is not a measure taken to comply. Indeed, the US does nothing to defend the administrative review, but only focuses on the determination under Section 129. The EC regrets that it has not received Canadas rebuttal submission on the due date (although this is a right of third parties under Article 10 of the DSU). The EC obtained Canadas rebuttal submission only this Tuesday after close of business, and had, therefore, only one working day to consider it. 3. From a first reading of Canadas submission, the EC can confirm that overall, it fully supports Canadas request to dismiss the US objection. Yet, the EC notes that there are some differences in the legal concepts on how to determine the scope of a DSU Article 21.5 proceeding. 4. The EC refers to all its arguments made in its third party submission, which it will not repeat today. As detailed therein, the broad mandate of DSU Article 21.5 panels stems directly from the term existence of a measure taken to comply read in the light of the broader purpose of DSU Article 21.5 to secure a prompt solution of a dispute between ϲʹ Members. Canada also explicitly agreed with the ECs basic proposition that the jurisdiction of DSU Article 21.5 Panels must, therefore, be determined in a way that prevents implementation measures from becoming moving targets. 5. There are different legal concepts on how to do this. Canada and China put much emphasis on the fact that the administrative review while not being the measure taken to comply undid the Section 129 determination and, therefore, falls (as a successor measure) under the Panels purview. While the EC agrees with this characterisation of the relationship between the administrative review and the Section 129 determination, it considers that this general procedural criterion (Panels terms of reference also cover successor acts) is not exclusively determinative for the jurisdiction of this DSU 21.5 Panel. 6. Given the major systemic importance of this issue, in particular for the EC, the EC respectfully requests the Panel to give the third parties further opportunity to comment in detail on Canadas arguments on how to define the scope of an Article 21.5 proceeding through written questions. 7. Let me close todays observations on this point by noting that, ironically, the US, through its preliminary objection, brings itself into a catch-22 situation. If it rejects the consideration by the Panel of the administrative review as compliance measure, no measure taken to comply existed (because the Section 129 determination had expired before the establishment of the 21.5 Panel). The Panels report could therefore be quite short. III. PASS-THROUGH 8. Turning now to the key substantive issue in this dispute: pass-through. The US and Canada disagree whether the US investigating authorities have done enough in terms of procedure and substance to demonstrate that subsidies received by certain upstream producers were passed-through to the down-stream producer of lumber products. 9. The need to ensure a pass-through analysis is not written explicitly into the SCM Agreement but stems directly from the obligation of a ϲʹ Member imposing a countervailing duty to comply with Article VI:3 of the GATT 1994, and Article 10 of the SCM Agreement which require that investigating authorities: before imposing countervailing duties, must ascertain the precise amount of a subsidy attributed to the imported products under investigation. 10. There are different situations in which the need for a pass-through analysis may arise, e.g., whether a subsidy was extinguished following a transfer of ownership. This Panel is tasked to assess whether the US investigating authorities established that subsidies to input producers benefited the downstream producers of the processed product subject to the investigation. The key question is whether the US investigating authorities established that benefits received by the input producers have been passed through, at least in part, from producers of logs to producers of softwood lumber (and remanufactured lumber) which are the products subject to the investigation. 11. The US and Canada disagree on whether the approach taken by the US investigating authorities suffices to establish the correct amount of subsidisation. 12. The EC as a third party is not in a position to comment in detail on this fact-intensive issue before the Panel. However, it wishes to offer a few general comments: 13. As regards the test for pass-through, the main parties appear to disagree on the meaning of arms length, in particular, whether it refers exclusively to a related person test. The EC notes that neither of these two notions are set out anywhere in the SCM Agreement. The obligation of an investigating authority is to establish the precise amount of subsidisation benefiting the product on which a CVD is imposed in accordance with Article VI:3 of the GATT 1994. 14. The Appellate Body referred for contextual guidance to Article 19.3 of the SCM Agreement whereby countervailing duties shall be levied, in the appropriate amounts in each case, on a non-discriminatory basis on imports of such product from all sources found to be subsidised and causing injury. The Appellate Body recognised that this provision gives investigating authorities broad discretion to choose between different means of demonstrating and calculating the amount of the subsidisation, in particular whether they resort to sampling, aggregate or company specific investigations. 15. The precise methodological approach to determine pass-through (or better: the amount of benefit received by the producer of the target product) inevitably varies from case-to case. The pass-through is likely to be somewhere between 0 and 100% depending, amongst other things, on the relationship between the input supplier and the processor as well as the economic context. Where the producers of the input and the processed product form part of the same economic entity, it may be presumed that 100% of the subsidy passed through. By contrast, where the input product was sold on a functioning market at arms length and for fair market value, there is a presumption of 0% pass-through. 16. The existence and amount of pass-through must be established on a case-by-case basis. While a number of different factors may be relevant, the EC considers that the price charged by the input supplier to the producers of the product (in comparison to some relevant benchmark) plays a key role in measuring to which extent (if at all) the subsidy benefited the producer of the processed product. 17. The discretion of investigating authorities on how to establish pass-through is (as always) limited by the general obligation of investigating authorities to carry out an objective and unbiased examination, and the need to ensure that the countervailing duties are imposed in appropriate amounts in each case and on a non-discriminatory basis from all sources found to be subsidised. 18. Procedurally, the investigating authority must do its best to facilitate the pass-through examination, e.g., by preparing a questionnaire and offering a company-specific approach unless the number of respondents is too high to allow a meaningful individual examination to take place. In such cases sampling or similar techniques may be required. 19. The investigating authority must then provide an adequate and reasoned explanation why, on the basis of the information received, the amount of pass-through calculated in the individual case is appropriate and that its assessment of the facts on the record is objective and unbiased. IV. CONCLUSION 20. Mr. Chairman, Members of the Panel, this concludes our oral statement. I thank you for your attention and stand ready to respond to any questions you may have.  Notice of Implementation Under Section 129 of the Uruguay Round Agreements Act; Countervailing Measures Concerning Certain Softwood Lumber Products from Canada, 69 Fed. Reg. 75,305; Section 129 Determination: Final Countervailing Duty Determination, Certain Softwood Lumber from Canada; Notice of Amended Final Affirmative Countervailing Duty Determination and Notice of Countervailing Duty Order: Certain Softwood Lumber Products from Canada, 67 Fed. Reg. 36,070.  Notice of Final Results of Countervailing Duty Administrative Review and Rescission of Certain Company-Specific Reviews: Certain Softwood Lumber Products from Canada, 69 Fed. Reg. 75,917; and Issues and Decision Memorandum: Final Results of Administrative Review: Certain Softwood Lumber Products from Canada.  First Written Submission of Canada, paras. 35~40.  First Submission and Request for Preliminary Ruling of the United States (the First Submission of the US), para. 12.  EC - Bananas (21.5), WT/DS27/RW/ECU, para.6.5; Australia - Leather (21.5), WT/DS126/RW, para.6.3.  Canada Aircraft (Article 21.5 Brazil), WT/DS70/AB/RW, para 36.  EC - Bed Linen (21.5), WT/DS141/AB/RW, para.78.  Canada Aircraft (Article 21.5  Brazil), WT/DS70/AB/RW, para 36.  EC Bed Linen (Article 21.5  India), WT/DS141/AB/RW, para 78.  Canada - Aircraft (21.5), WT/DS70/AB/RW, para.40.  Australia - Salmon (21.5), WT/DS18/RW, para.7.10.  Australia  Automotive Leather (21.5 US), WT/DS126/RW, para. 6.2.  Australia Automotive Leather (21.5 US), WT/DS126/RW, para. 6.1.  Australia Automotive Leather (21.5 US), WT/DS126/RW, paras. 6.5.  See, e.g., EC Bed Linen (21.5), WT/DS141/RW, para. 6.28; US Shrimp (21.5), WT/DS58/RW, paras. 5.12~5.13.  First Written Submission of Canada, paras. 53 and 59.  See the First Submission of the US, para. 34. The US argues that [c]ontrary to Canadas arguments, nothing in the SCM Agreement, the GATT 1994, or the DSBs recommendations and rulings supports Canadas argument that an arms-length analysis should be restricted to, in essence, a per se test based on affiliation alone.  US Lumber CVDs Final, WT/DS257/AB/R, Para. 140.  US Lumber CVDs Final, WT/DS257/AB/R, Paras. 142~143  Canada Aircraft (Article 21.5 Brazil), WT/DS70/AB/RW, para.36.  Australia Automotive Leather (21.5 US), WT/DS126,RW, para.6.5.  Id.  Id.  Appellate Body Report, United States Lumber CVD Final, adopted on 17 February 2004.  19 U.S.C. 3538(b). Final Countervailing Duty Determination, Certain Softwood Lumber from Canada, 6 December 2004; Notice of Implementation Under Section 129 of the Uruguay Round Agreements Act; Countervailing Measures Concerning Certain Softwood Lumber Products From Canada, 69Fed. Reg. 75,305 (Dep't Commerce 16 December 2004).  Referred to as the assessment review in the US First Written submission.  Notice of Final Results of Countervailing Duty Administrative Review and Rescission of Certain Company-Specific Reviews: Certain Softwood Lumber Products from Canada, 69 Fed. Reg. 75,917 (Dep't Commerce 20 December 2004); and Issues and Decision Memorandum: Final Results of Administrative Review: Certain Softwood Lumber Products from Canada, December 13, 2004.  panel Request (WTDS257/15), Canadas First Written Submission, para. 72.  US First Written Submission, para. 12.  US First Written Submission, paras. 21-24.  US First Written Submission, paras. 15-16.  Appellate Body Report, United States Shrimp (21.5) , para. 87.  Panel Report, Australia Salmon (21.5), para. 7.21. Appellate Body Report, Canada Aircraft 21.5, para. 36 (footnote omitted).  Panel Report, EC Bed linen 21.5, para. 6.17.  Panel Report, EC Bed linen 21.5, para. 6.15.  Panel Report, United States Shrimp 21.5, paras. 5.12-5.13.  See description of the measure in Appellate Body Report, United States Lumber CVD Final, para. 2.  Panel Report US Softwood Lumber (Preliminary), para 7.151.  US First Written Submission, para. 21 and footnote 23.  Canadas First Written Submission.  See most recently, Panel Report Dominican Republic Cigarettes, paras. 7.11-7.21  US First Written Submission, para. 90.  Appellate Body Report, Canada Aircraft 21.5, para. 41. See also, Appellate Body Report, UnitedStates Shrimp 21.5, para. 86.  US rebuttal submission, paras. 2 and 46.  Appellate Body, US FSC 21.5, para. 251.  EC Third Party Submission, paras. 10-18.    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