ࡱ> q bjbjt+t+ AAţw]*ZZZ4NNNNhT lNw\0X::\(0<\>>>>>>$]<\nzZZX<\%. O ZZ<\v<}{NNF|[World Trade OrganizationWT/DS70/AB/RW 21 July 2000(00-2989)Original: English CANADA MEASURES AFFECTING THE EXPORT OF CIVILIAN AIRCRAFT RECOURSE BY BRAZIL TO ARTICLE 21.5 OF THE DSU AB-2000-4 Report of the Appellate Body  TOC \o "1-3" I. Introduction  PAGEREF _Toc487421786 \h 1 II. Arguments of the Participants and the Third Participants  PAGEREF _Toc487421787 \h 3 A. Claims of Error by Appellant Brazil  PAGEREF _Toc487421788 \h 3 B. Arguments by Appellee Canada  PAGEREF _Toc487421789 \h 5 C. Third Participants  PAGEREF _Toc487421790 \h 6 III. Issue Raised in this Appeal  PAGEREF _Toc487421791 \h 8 IV. Technology Partnerships Canada  PAGEREF _Toc487421792 \h 8 V. Findings and Conclusions  PAGEREF _Toc487421793 \h 17  World Trade Organization Appellate Body Canada Measures Affecting the Export of Civilian Aircraft Recourse by Brazil to Article 21.5 of the DSU Brazil, Appellant Canada, Appellee European Communities, Third Participant United States, Third Participant  AB-2000-4 Present: Feliciano, Presiding Member Bacchus, Member Ehlermann, Member  Introduction Brazil appeals certain issues of law and legal interpretation in the Panel Report, Canada Measures Affecting the Export of Civilian Aircraft, Recourse by Brazil to Article 21.5 of the DSU (the "Article21.5 Panel Report"). The Article 21.5 Panel was established to consider a complaint by Brazil that certain measures taken by Canada to comply with the recommendations and rulings of the Dispute Settlement Body (the "DSB"), in Canada Measures Affecting the Export of Civilian Aircraft ("Canada Aircraft"), were not consistent with Article3.1(a) of the Agreement on Subsidies and Countervailing Measures (the "SCMAgreement"). The original panel found, interalia, that "Canada Account debt financing since 1January1995 for the export of Canadian regional aircraft" and "[Technology Partnerships Canada] assistance to the Canadian regional aircraft industry [constitute] export subsidies inconsistent with Article[s] 3.1(a) and 3.2 of the SCM Agreement". The original panel concluded that "Canada shall withdraw [these] subsidies within 90 days." Before the Appellate Body, Canada appealed certain of the original panel's legal interpretations relating to Technology Partnerships Canada ("TPC") assistance. Canada did not appeal the original panel's findings relating to the Canada Account. The Appellate Body upheld the original panel's finding that TPC assistance to the Canadian regional aircraft industry constitutes export subsidies inconsistent with Articles 3.1(a) and 3.2 of the SCM Agreement. Canada took steps to implement the recommendations and rulings of the DSB with respect to both the Canada Account and TPC. Taking the view that these measures were not consistent with Article3.1(a) of the SCM Agreement, Brazil requested that the matter be referred to the original panel, pursuant to Article 21.5 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (the "DSU"). On 9 December 1999, in accordance with Article 21.5 of the DSU, the DSB referred the matter to the original panel. The Article 21.5 Panel Report was circulated to the Members of the World Trade Organization (the "ϲʹ") on 9 May 2000. The Article21.5 Panel concluded that: (1) Canada has implemented the 20 August 1999 DSB recommendation that Canada withdraw TPC assistance to the Canadian regional aircraft industry within 90 days, and that (2) Canada has failed to implement the 20 August 1999 recommendation of the DSB that Canada withdraw the Canada Account assistance to the Canadian regional aircraft industry within 90 days. On 22 May 2000, Brazil notified the DSB of its intention to appeal certain issues of law covered in the Article21.5 Panel Report and legal interpretations developed by the Article21.5 Panel, pursuant to Article4.8 of the SCM Agreement and paragraph 4 of Article 16 of the DSU, and filed a Notice of Appeal pursuant to Rules 20 and 31(1) of the Working Procedures for Appellate Review (the "Working Procedures"). Brazil appeals the Article21.5 Panel's findings relating to TPC; the Article21.5 Panel's findings relating to the Canada Account are not appealed by Canada and, therefore, do not form part of this appeal. On 29May2000, Brazil filed its appellant's submission. On 5June2000, Canada filed an appellee's submission. On the same day, the European Communities and the UnitedStates each filed a third participant's submission. The oral hearing in the present appeal was held on 21 June 2000. The participants and third participants presented oral arguments and responded to questions put to them by the Members of the Division hearing the appeal. Arguments of the Participants and the Third Participants Claims of Error by Appellant Brazil Brazil alleges that the Article 21.5 Panel erred in law by failing to observe the clear mandate in its terms of reference and the requirement in Article 21.5 of the DSU that it review the revised TPC programme for its consistency with Article 3.1(a) of the SCM Agreement. Instead, the Article21.5 Panel limited its review to whether the revised TPC was consistent with the recommendations and rulings of the DSB in the original dispute and concluded that "Canada has implemented the DSB recommendation in respect of TPC assistance to the Canadian regional aircraft industry." (emphasis added) The Article21.5 Panel also considered that its review was limited to the specific "factual circumstances" detailed in the original panel report. In conducting its review in this limited fashion, the Article21.5 Panel rejected certain evidence and legal arguments, raised by Brazil, that related to the consistency of the new measure with Article 3.1(a) of the SCM Agreement. In view of these errors, Brazil requests that the Appellate Body reverse the Article21.5 Panel's findings and conclusions with respect to the revised TPC programme. According to Brazil, Article 21.5 of the DSU requires a panel to conduct a four-part analysis: (i) whether the parties disagree as to (ii) the existence or (iii) consistency with a covered agreement of (iv) measures taken to comply with the recommendations and rulings of the DSB. Brazil considers that the sole question in this appeal relates to element (iii). The term "consistency" is defined as "[t]he quality, state, or fact of being consistent; agreement (with something, of things etc.); uniformity, regularity." The word "consistent" is defined as "[a]greeing in substance or form; congruous, compatible (with, []to), not contradictory; marked by uniformity or regularity." The ordinary meaning of Article 21.5, therefore, requires an evaluation of a Members implementation measures for agreement or congruity with the covered agreements. This could, in the view of Brazil, involve a review of those measures for consistency with any provision of any covered agreement, subject only to the original panel's terms of reference and the scope of the claim brought under Article 21.5. This interpretation, Brazil believes, is supported by the context of Article21.5, namely the overall implementation mechanism detailed in Articles21 and 22 of the DSU. Monitoring compliance would become meaningless if Members could satisfy their implementation obligations by adopting remedial measures that are inconsistent with their ϲʹ obligations. In that case, a Member would be able to shield its implementation measures from the "expedited" review envisioned in Article21.5 by tailoring measures around the specific "factual circumstances" addressed in the original panel or Appellate Body decisions. The implementing Member may also wish to establish that its implementation measures are ϲʹ-consistent. The review by panels, under Article 21.5, of implementation measures for consistency with the covered agreements also enhances one of the central purposes of the DSU, namely prompt compliance with the recommendations and rulings of the DSB and prompt settlement of ϲʹ disputes. Brazil notes that other Article 21.5 panels have concluded that their mandate included the determination of whether a Member's implementation measures were consistent with the covered agreements, and not just with the specific recommendations and rulings of the DSB and the specific factual circumstances of the original panel and Appellate Body reports. By limiting its review under Article 21.5 of the DSU to whether the revised TPC programme is consistent with the recommendations and rulings of the DSB, the Article21.5 Panel rejected as irrelevant evidence submitted by Brazil in support of one of its principal legal arguments. The evidence rejected is evidence on the revised TPCs continued "specific targeting" of the aerospace and regional aircraft industries. The Article21.5 Panel reasoned that the evidence and argument involved "factual circumstances which themselves were not part of our original ruling" and that such, therefore, were "not relevant to the present dispute, which concerns the issue of whether or not Canada has implemented the DSB recommendation on TPC assistance to the Canadian regional aircraft industry." (emphasis added) Brazil recalls the importance, in the original panel report, of the export-orientation or export propensity of the Canadian regional aircraft industry. This export-orientation is translated into TPCs funding priorities, which have also not changed with the revised TPC. Since the inception of the programme, Brazil states, 65percent of TPC contributions have gone to the aerospace industry. Similarly, Canada has acknowledged that two-thirds of all contributions under the revised TPC will go to that industry. The economic significance of this specific targeting is considerable, since Canada has slated available funds under the revised TPC to increase by 396percent between now and 2003. In sum, Brazil argued to the Article21.5 Panel that where the overwhelming export orientation of an industry has been repeatedly heralded by a government, and cited as its motivation for funding that industry, the continued specific targeting of that industry can serve as a fact from which an inference of defacto export contingency can be drawn. The Article21.5 Panels erroneous interpretation of the legal standard in Article21.5, however, prevented it from making this analysis. For these reasons, Brazil requests that the Appellate Body find the Article21.5 Panel to have been in error, and that it accordingly reverse the Article21.5 Panel's findings and conclusions with respect to the revised TPC. Brazil acknowledges the difficulty faced by the Appellate Body in completing the Article21.5 Panels analysis in this case, in which some facts are in dispute or are not the subject of a specific factual finding by the Article21.5 Panel. Arguments by Appellee Canada In this proceeding, Brazil claims that the Article21.5 Panel did not make a determination as to whether the amended TPC programme conforms with Article 3.1 (a) of the SCM Agreement, and that this alleged failure constitutes a legal error. In Canada's view, Brazil's appeal is without merit. The Article21.5 Panel specifically found that Canada had complied with the DSB recommendations regarding TPC assistance. Since the DSB's recommendations in the original dispute included a recommendation for Canada to conform TPC assistance to its obligations under the SCM Agreement, the Article21.5 Panel did make the finding that, according to Brazil, the Article21.5 Panel did not make. Canada notes that Brazil devotes much time to arguing points that are not disputed by Canada and, more significantly, are not inconsistent with the decision of the Article21.5 Panel. Canada does not dispute that the mandate of the Article21.5 Panel was to assess whether Canadas implementation measures comply with the recommendation of the DSB that Canada bring TPC into conformity with Canadas obligations under the SCM Agreement. Brazil's arguments that Canada had not eliminated TPC's alleged "targeting" of industries with a propensity to export were rejected because the same allegations and arguments had already been considered in the original panel proceedings, where they were found not to form part of the basis for the finding that TPC assistance was export contingent. In rejecting Brazil's claims of "specific targeting", the Article21.5 Panel was not refusing to consider new facts; it was rejecting the need to reconsider facts and contentions that had not changed. Brazils argument was precisely that nothing had changed regarding the alleged targeting. The Article21.5 Panel rejected that argument because Brazil was presenting the same allegations that had not been, and continued not to be, a basis for finding export contingency. In fact, Brazil was asking the Article21.5 Panel to reconsider, and perhaps overrule, the original panel and Appellate Body decisions on a point that Brazil did not appeal during the original proceedings before the Appellate Body. Canada, therefore, requests that the Appellate Body reject Brazil's appeal as there is no basis for Brazil's contention that the Article21.5 Panel failed to assess whether Canada's "measures taken to comply with the recommendations and rulings" of the DSB were in conformity with the SCMAgreement. Third Participants 1. European Communities The European Communities begins with comments on the agreement reached between Brazil and Canada, in this dispute, inter alia, on the conduct of proceedings under Article21.5 of the DSU. The European Communities believes that, although parties may make agreements relating to procedural issues in dispute settlement proceedings, such agreements may not affect the rights of third parties. In certain Article21.5 disputes, parties have agreed bilaterally to dispense with formal consultations under Article 4 of the DSU. The European Communities considers this to be inconsistent with the DSU and prejudicial to third party rights. While this issue was not raised before the Article21.5 Panel and is not the subject of an appeal, the European Communities considers that it would be useful to all Members to have a ruling on this issue and would appreciate a statement from the Appellate Body to the effect that "the parties to a dispute may not enter into agreements regarding the conduct of dispute settlement proceedings that prejudice the rights and interests of other Members, in particular to participate as third parties."  The European Communities agrees with Brazil that monitoring compliance under Article 21.5 of the DSU should be meaningful and consistent with the DSU's objective of prompt settlement and compliance. The terms of reference of an Article 21.5 panel must be considered to include the "matter" before the original panel, as well as the additional question of whether that "matter" has been properly resolved (existence and consistency of implementation measures). However, Article21.5 does not allow an examination of claims that could have been but were not included in the original panel's terms of reference. Nor could an Article 21.5 review extend to any provision of any covered agreement, subject only to the terms of reference and the scope of the claim brought under Article21.5. For instance, it would be inappropriate for Brazil to argue, under Article21.5 of the DSU, that the revised TPC programme was inconsistent with Article 5 of the SCM Agreement. In the present dispute, however, the Article21.5 Panel was entitled to examine the compatibility of the restructured TPC with Article 3.1(a) of the SCM Agreement. In conducting this examination, the Article21.5 Panel was required to consider all the factual circumstances of the amended programme in order to ensure that the de facto export contingency had in fact been removed. The European Communities acknowledges that, in its substantive analysis, the Article21.5 Panel compared the new factual situation with the old, rather than assessing the new factual situation under the SCM Agreement. However, since the substance of Brazils complaint was that in reality "nothing had changed" in the restructured TPC, it is perhaps understandable that the Article21.5 Panel considered that the questions of the existence of implementation of the DSB's recommendations and rulings and of the conformity with the SCM Agreement were very similar, if not the same. The European Communities believes the Article21.5 Panel correctly understood its mandate under Article 21.5 of the DSU. However, there are indications in its Report, notably in paragraph5.17, that the Article21.5 Panel may not have actually applied the appropriate legal standard. The European Communities, nonetheless, considers that the facts before the Article21.5 Panel did not establish, as a legal matter, that the restructured TPC was inconsistent with Article3.1(a) of the SCMAgreement. Even if the Panel had taken the "specific targeting" into account, this would not have altered the outcome of the case. Canada is not precluded from limiting eligibility for a subsidy to certain sectors or from concentrating funding on certain industries. Moreover, the export-oriented nature of the regional aircraft industry cannot by itself justify such a finding. 2. United States In its submission, the United States avers that it "has a strong interest in the systemic implications of the issues presented in this appeal." However, the United States does not make specific arguments on the substantive issues involved. As a result, no arguments by the UnitedStates are summarized here. Issue Raised in this Appeal This appeal raises the issue of whether the Article21.5 Panel erred in finding that Canada had "implemented the recommendation of the DSB concerning TPC assistance to the Canadian regional aircraft industry", in particular, by declining to examine Brazil's argument that the revised TPC programme is inconsistent with Article3.1(a) of the SCM Agreement on the ground that that industry is "specifically targeted" for TPC assistance because of its export-orientation. Technology Partnerships Canada The original panel found, for the reasons enumerated in paragraph 9.340 of the original panel report, that TPC assistance to the Canadian regional aircraft industry involved subsidies that were contingent, in fact, upon export performance and, thus, inconsistent with Article3.1(a) of the SCMAgreement. The Article21.5 Panel summarized, as follows, the steps taken by Canada to implement the recommendations and rulings of the DSB regarding TPC: 5.3 Canada has taken two types of action in order to implement the recommendation of the DSB concerning TPC assistance to the Canadian regional aircraft industry. First, Canada has terminated existing TPC activities in the Canadian regional aircraft sector. Thus, Canada (1) has cancelled funding under five TPC transactions identified by Canada, (2) has withdrawn approvals-in-principle for two new TPC funding projects in the regional aircraft sector, and (3) has closed all TPC files in the regional aircraft sector. 5.4 Second, Canada has restructured the TPC programme and documentation so that, in its opinion, most of the factual considerations forming the basis for the Panel's finding of de facto export contingency no longer apply. According to Canada, the only factual consideration still applicable is the export orientation of the Canadian regional aircraft industry. Brazil's complaint, in the Article 21.5 proceedings, regarding TPC was limited to the second type of action taken by Canada to comply with the recommendations and rulings of the DSB, namely the restructuring of the TPC programme. Brazil does not disagree with the manner in which Canada has terminated existing TPC activities in the Canadian regional aircraft sector, and the Article21.5 Panel did not examine those termination measures. Before the Article21.5 Panel, Brazil made four different arguments to establish that the revised TPC programme involves de facto export contingent subsidies that are inconsistent with Article 3.1(a) of the SCM Agreement. The Panel considered each of these arguments in turn. For the reasons quoted below, the Article21.5 Panel declined to examine the substance of the first of the four arguments made by Brazil, namely that the revised TPC programme "specifically targeted" the Canadian regional aircraft industry for assistance because of its export-orientation: the "specific targeting" concept (in those or other words) did not form part of our reasoning regarding contingency in fact on export performance in that dispute. That is, of the factual considerations enumerated by us at para. 9.340 of our Report, none concerned the alleged targeting of the Canadian aerospace industry generally, or the Canadian regional aircraft industry in particular, by TPC, none concerned the amount of total TPC funding directed at the Canadian aerospace or regional aircraft industries, and none concerned the fact that the aerospace or regional aircraft industries were eligible for TPC assistance. Indeed, we consider that the question of whether TPC assistance is "specifically targeted" to the aerospace and regional aircraft industries is not relevant to the present dispute, which concerns the issue of whether or not Canada has implemented the DSB recommendation on TPC assistance to the Canadian regional aircraft industry. (italics added) The Article21.5 Panel next stated that the recommendations and rulings of the DSB: cannot have required Canada to take implementation action to ensure that TPC assistance is not "specifically targeted" at the aerospace and regional aircraft industries, because such alleged "specific targeting" did not form part of the basis for the finding of de facto export contingency that gave rise to that recommendation. (emphasis added) The Article21.5 Panel then held, as regards this argument of Brazil, that: we do not consider it necessary to examine Brazil's argument that "nothing has changed" because TPC assistance continues to "specifically target" the Canadian aerospace and regional aircraft industries. The Article21.5 Panel went on to examine the merits of Brazil's three other arguments and rejected each of them. The Article21.5 Panel, therefore, concluded that it was "unable to accept Brazil's claim that Canada has not implemented the recommendation of the DSB concerning TPC assistance to the Canadian regional aircraft industry."  Brazil's present appeal is limited to the Article21.5 Panel's treatment of its argument relating to the "specific targeting" of the Canadian regional aircraft industry because of its export-orientation. On appeal, Brazil submits that the Article21.5 Panel erred by failing to examine the revised TPC programme for its consistency with Article 3.1(a) of the SCM Agreement, as required by Article21.5 of the DSU and by the Article21.5 Panel's terms of reference. Instead, Brazil asserts that the Article21.5 Panel limited its review to an examination only of whether Canada had amended the TPC programme to make it consistent with "the recommendations and rulings of the DSB". Brazil contends that in so doing, the Article21.5 Panel erred by confining itself to the original panel's findings in Canada Aircraft and by declining to consider Brazil's "specific targeting" argument. Article 4.7 of the SCM Agreement provides: If the measure in question is found to be a prohibited subsidy, the panel shall recommend that the subsidizing Member withdraw the subsidy without delay. (emphasis added) Pursuant to this provision, the recommendations and rulings of the DSB in the original proceedings required Canada to "withdraw" the measure "found to be a prohibited export subsidy". As we have already noted, the Article21.5 Panel's terms of reference embrace only the measures taken by Canada with a view to restructuring the TPC programme, which was found to involve prohibited export subsidies. As such, the present proceedings involve only the measures taken by Canada for the purpose of "withdrawing" the prohibited export subsidies through the restructuring of the TPC programme. We are, therefore, not asked, in this appeal, to address any other aspect of Canada's obligation, under Article 4.7 of the SCMAgreement, to "withdraw" the measures found to be prohibited export subsidies. Canada restructured the TPC programme by amending TPC's operating documentation, with effect from 18 November 1999. In that respect, Canada introduced, inter alia, the following new TPC documents: "Special Operating Agency Framework Document"; "Terms and Conditions"; "Investment Application Guide"; and, "Investment Decision Document". The new TPC "Terms and Conditions" document states that the "granting of contributions will not be contingent, either in law or in fact, upon actual or anticipated export performance" (Section 6.1). This is repeated in the TPC Investment Application Guide (Section 5). Section 5 of that Guide also states that "administering officials will not request or consider information concerning the extent to which applicant or recipient enterprises do or may export." The subject-matter of these proceedings is determined by Article 21.5 of the DSU, as well as, of course, by the Panel's terms of reference. Article 21.5 of the DSU stipulates: 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. Proceedings under Article 21.5 do not concern just any measure of a Member of the ϲʹ; rather, Article 21.5 proceedings are limited to those "measures taken to complywith the recommendations and rulings" of the DSB. 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 measures: 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. In these Article 21.5 proceedings, the measure at issue is a new measure, the revised TPC programme, which became effective on 18November1999 and which Canada presents as a "measure taken to comply with the recommendations and rulings" of the DSB. Brazil asserts that this revised TPC programme is not "consistent" with Article 3.1(a) of the SCMAgreement, and Canada agrees that the Article 21.5 Panel was entitled to examine the revised TPC programme for its "consistency" with Canada's obligations under Article3.1(a). We agree with the parties that the "consistency" of the revised TPC programme with Article3.1(a) of the SCMAgreement is the relevant issue. Furthermore, in our view, the obligation of the Article21.5 Panel, in reviewing "consistency" under Article 21.5 of the DSU, was to examine whether the new measure the revised TPC programme was "in conformity with", "adhering to the same principles of" or "compatible with" Article 3.1(a) of the SCMAgreement. In short, both the DSU and the Article21.5 Panel's terms of reference required the Article21.5 Panel to determine whether the revised TPC programme involved prohibited export subsidies within the meaning of Article3.1(a) of the SCM Agreement. We add also that the examination of "measures taken to comply" is based on the relevant facts proved, by the complainant, to the Article 21.5 panel, during the panel proceedings. Therefore, the "minimum implementation standard" that the Article 21.5 Panel expressed and which, it said, was "effectively" agreed between the parties, should be viewed with caution. The Article21.5 Panel said that Canada's implementation should " 'ensure' that future TPC assistance to the Canadian regional aircraft industry will not be defacto contingent on export performance." (emphasis added) The use in this standard of the words "ensure" and "future", if taken too literally, might be read to mean that the Panel was seeking a strict guarantee or absolute assurance as to the future application of the revised TPC programme. A standard which, if so read, would, however, be very difficult, if not impossible, to satisfy since no one can predict how unknown administrators would apply, in the unknowable future, even the most conscientiously crafted compliance measure. In conducting its review under Article 21.5 of the DSU, the Article21.5 Panel declined to examine Brazil's argument that "the Canadian regional aircraft industry continues to be 'specifically targeted' for TPC assistance because of its undisputed export orientation." The Article21.5 Panel stated that this argument "did not form part" of the reasoning of the original panel and was "not relevant to the present dispute, which concerns the issue of whether or not Canada has implemented the DSB recommendation". (emphasis added) We have already noted that these proceedings, under Article 21.5 of the DSU, concern the "consistency" of the revised TPC programme with Article 3.1(a) of the SCM Agreement. Therefore, we disagree with the Article21.5 Panel that the scope of these Article 21.5 dispute settlement proceedings is limited to "the issue of whether or not Canada has implemented the DSB recommendation". The recommendation of the DSB was that the measure found to be a prohibited export subsidy must be withdrawn within 90 days of the adoption of the Appellate Body Report and the original panel report, as modified that is, by 18November1999. That recommendation to "withdraw" the prohibited export subsidy did not, of course, cover the new measure because the new measure did not exist when the DSB made its recommendation. It follows then that the task of the Article21.5 Panel in this case is, in fact, to determine whether the new measure the revised TPC programme is consistent with Article3.1(a) of the SCMAgreement. Accordingly, in carrying out its review under Article 21.5 of the DSU, a panel is not confined to examining the "measures taken to comply" from the perspective of the claims, arguments and factual circumstances that related to the measure that was the subject of the original proceedings. Although these may have some relevance in proceedings under Article 21.5 of the DSU, Article 21.5 proceedings involve, in principle, not the original measure, but rather a new and different measure which was not before the original panel. In addition, the relevant facts bearing upon the "measure taken to comply" may be different from the relevant facts relating to the measure at issue in the original proceedings. It is natural, therefore, that the claims, arguments and factual circumstances which are pertinent to the "measure taken to comply" will not, necessarily, be the same as those which were pertinent in the original dispute. Indeed, the utility of the review envisaged under Article21.5 of the DSU would be seriously undermined if a panel were restricted to examining the new measure from the perspective of the claims, arguments and factual circumstances that related to the original measure, because an Article21.5 panel would then be unable to examine fully the "consistency with a covered agreement of the measures taken to comply", as required by Article 21.5 of the DSU. Consequently, in these proceedings, the task of the Article 21.5 Panel was not limited solely to determining whether the revised TPC programme had been rid of those aspects of the original measure the TPC programme, as previously constituted that had been identified in the original proceedings, in the context of all of the facts, as not being consistent with Canada's ϲʹ obligations. Rather, the Article21.5 Panel was obliged to examine the revised TPC programme for its consistency with Article3.1(a) of the SCMAgreement. The fact that Brazil's argument in these Article 21.5 proceedings "did not form part" of the original panel's reasoning relating to the previous TPC programme does not necessarily mean that this argument is "not relevant" to the Article21.5 proceedings, which relate to the revised TPC programme. In our view, the Article21.5 Panel should have examined the merits of Brazil's argument as it relates to the revised TPC programme. We conclude, therefore, that the Article21.5 Panel erred by declining to examine Brazil's argument that the revised TPC programme "specifically targeted" the Canadian regional aircraft industry for assistance because of its export-orientation. With a view to resolving this dispute, and considering that the undisputed facts on the record are adequate for this purpose, we believe that we should complete the Article21.5 Panel's analysis by examining this argument. In so doing, we observe that the essence of Brazil's argument is that the Canadian regional aircraft industry is "specifically targeted" for assistance in two different ways under the revised TPC programme. First, Brazil notes that the "Eligible Areas" for TPC assistance include "Aerospace and Defence", and that these industrial sectors are the sole such sectors to be identified expressly as eligible for TPC assistance. The other two "Eligible Areas" are "Environmental Technologies" and "Enabling Technologies", which could involve projects drawn from any industrial sector, including "Aerospace and Defence". In Brazil's view, the express identification of "Aerospace and Defence" as "Eligible Areas" puts these industrial sectors, which include the Canadian regional aircraft industry, in a privileged position and represents "specific targeting" of the Canadian regional aircraft industry. Second, Brazil maintains that the Canadian regional aircraft industry is also "specifically targeted", in practice, through the allocation of TPC funding assistance. According to Brazil, 65percent of TPC funding has, in the past, "gone to the [Canadian] aerospace industry". Brazil maintains that the reason for these two types of "targeting" is the high export-orientation of the industry. In support of this argument, Brazil relies on a series of statements made by Canadian Government Ministers, Members of Parliament, other government officials, and by the TPC itself, regarding the objectives of TPC. Brazil acknowledges that the statements it relies upon were made in connection with the old TPC programme, as previously constituted. Brazil argues, nevertheless, that the "specific targeting" is a fact that tends to establish that the revised TPC programme involves subsidies which are defacto export contingent. Canada does not contest any of the factual assertions made by Brazil in presenting its "specific targeting" argument. However, Canada emphasizes that the statements Brazil relies upon were made in relation to the old TPC programme, not to the revised programme. Canada also states that no TPC assistance has been granted or committed under the revised TPC programme to the Canadian regional aircraft industry. In other words, Canada asserts that there have been, thus far, no transactions involving the Canadian regional aircraft industry under this new measure. Brazil does not contest this assertion. It is worth recalling that the granting of a subsidy is not, in and of itself, prohibited under the SCMAgreement. Nor does granting a "subsidy", without more, constitute an inconsistency with that Agreement. The universe of subsidies is vast. Not all subsidies are inconsistent with the SCMAgreement. The only "prohibited" subsidies are those identified in Article3 of the SCMAgreement; Article 3.1(a) of that Agreement prohibits those subsidies that are "contingent, in law or in fact, upon export performance". We have stated previously that "a subsidy is prohibited under Article3.1(a) if it is 'conditional' upon export performance, that is, if it is 'dependent for its existence on' export performance." We have also emphasized that a "relationship of conditionality or dependence", namely that the granting of a subsidy should be "tied to" the export performance, lies at the "very heart" of the legal standard in Article 3.1(a) of the SCM Agreement. To demonstrate the existence of this "relationship of conditionality or dependence", we have also stated that it is not sufficient to show that a subsidy is granted in the knowledge, or with the anticipation, that exports will result. Such knowledge or anticipation does not, taken alone, demonstrate that the granting of the subsidy is "contingent upon" export performance. The second sentence of footnote 4 of the SCMAgreement stipulates, in this regard, that the "mere fact that a subsidy is granted to enterprises which export shall not for that reason alone be considered to be an export subsidy". (emphasis added) That fact, by itself, does not, therefore, compel the conclusion that there is a "relationship of conditionality or dependence", such that the granting of a subsidy is "tied to" export performance. However, we have also said that the export-orientation of a recipient "may be taken into account as a relevant fact, provided it is one of several facts which are considered and is not the only fact supporting a finding" of export contingency. (underlining added) Recalling all this, at its core, we see Brazil's argument about "specific targeting" essentially as a contention that the SCMAgreement precludes the two types of targeting Brazil identifies simply because of the high export-orientation of the Canadian regional aircraft industry. However, in our view, the fact that an industrial sector has a high export-orientation is not, by itself, sufficient to preclude that sector from being expressly identified as an eligible or privileged recipient of subsidies. Nor does the high export-orientation of an industry limit, in principle, the amount of subsidies that may be granted to that industry. As we have said, granting subsidies, in itself, is not prohibited. Under Article3.1(a) of the SCM Agreement, the subsidy must be export contingent to be prohibited. The two "targeting" factors may very well be relevant to an inquiry under Article 3.1(a) of the SCMAgreement, but they do not necessarily provide conclusive evidence that the granting of a subsidy is "contingent", "conditional" or "dependent" upon export performance. In these proceedings, we do not see the two "targeting" factors, by themselves, as adequate proof of prohibited export contingency. Moreover, the evidence that Brazil relies upon in seeking to demonstrate that the Canadian regional aircraft industry is "specifically targeted" because of its high export-orientation relates to the TPC as previously constituted, and not to the revised TPC programme. In particular, Brazil relies upon evidence of the high proportion of TPC funding allocated to the Canadian regional aircraft industry under the old TPC programme and on statements made in connection with that programme by Canadian Government Ministers, Members of Parliament, officials, and by TPC itself. The burden of explaining the relevance of the evidence, in proving the claim made, naturally rests on whoever presents that evidence. Brazil has not offered any convincing explanation as to why the evidence relating to the old TPC programme continues to be relevant to the revised TPC programme. We do not believe we should simply assume that this particular evidence is relevant in respect of the revised TPC programme. For all these reasons, we find that Brazil has not sufficiently established that the Canadian regional aircraft industry is "specifically targeted" because of its high export-orientation. We conclude that Brazil has failed to establish that the revised TPC programme is inconsistent with Article 3.1(a) of the SCM Agreement. We also conclude that Brazil has failed to establish that Canada has not implemented the recommendations and rulings of the DSB. The outcome of the present proceedings does not, of course, preclude possible subsequent dispute resolution proceedings regarding the ϲʹ-consistency of the revised TPC programme, or of specific instances of assistance actually granted under that programme. Findings and Conclusions For the reasons set out in this Report, the Appellate Body finds that the Article21.5 Panel erred by declining to examine Brazil's argument that the revised TPC programme is inconsistent with Article3.1(a) of the SCM Agreement on the ground that the Canadian regional aircraft industry is "specifically targeted" for TPC assistance because of its export-orientation. However, the Appellate Body finds that Brazil has failed to establish that the revised TPC programme is inconsistent with Article3.1(a) of the SCMAgreement and, accordingly, that Brazil has failed to establish that Canada has not implemented the recommendations and rulings of the DSB. Signed in the original at Geneva this 12th day of July 2000 by: _________________________ Florentino Feliciano Presiding Member _________________________ _________________________ James Bacchus Claus-Dieter Ehlermann Member Member WT/DS70/RW, 9 May 2000. The recommendations and rulings of the DSB resulted from the adoption, by the DSB, of the Appellate Body Report in Canada Aircraft and the original panel report in that dispute, as modified by the Appellate Body Report (Appellate Body Report, Canada Aircraft, WT/DS70/AB/R, adopted 20August1999; original panel report, Canada Aircraft, WT/DS70/R, adopted 20 August 1999, as modified by the Appellate Body Report). The DSB recommended that Canada "withdraw" its prohibited export subsidies within 90 days, that is, by 18November1999. Original panel report, Canada Aircraft, para. 10.1. Ibid., para. 10.4. WT/DS70/9 (23 November 1999). Article 21.5 Panel Report, para. 6.2. Pursuant to Rule 21(1) of the Working Procedures. Pursuant to Rule 22 of the Working Procedures. Pursuant to Rule 24 of the Working Procedures. WT/DS70/9 (23 November 1999). Article 21.5 Panel Report, para. 6.1. Ibid., para. 5.17. Brazil's appellant's submission, para. 16, citing The New Shorter Oxford English Dictionary (Fourth Ed. 1993). Ibid. Australia Measures Affecting Importation of Salmon, Recourse to Article 21.5 by Canada ("Australia Salmon, Article 21.5"), WT/DS18/RW, adopted 20 March 2000, para.7.10. Australia Salmon, Article 21.5, para. 7.10; European Communities Regime for the Importation, Sale and Distribution of Bananas, Recourse to Article 21.5 by Ecuador, WT/DS27/RW/ECU, adopted 6May1999, para. 6.8. Before the Article 21.5 Panel, Brazil made four arguments with a view to establishing that the revised TPC involves de facto export contingent subsidies that are inconsistent with Article 3.1(a) of the SCMAgreement. The four arguments that Brazil made were: that the revised TPC programme "specifically targeted" the Canadian regional aircraft industry for assistance because of its export-orientation; the nearness-to-the-market of the projects to be funded by the TPC; the "implicit" inclusion of export performance in the new TPC selection and assessment criteria; and, the absence of complete documentation for the revised TPC programme and the failure to replace all of the documentation relating to the "old" TPC (Brazil's four arguments are summarized in paragraph 5.15 of the Article 21.5 Panel Report and elaborated more fully in paragraphs 5.16, 5.19, 5.27 and 5.35 of the Article 21.5 Panel Report). Article 21.5 Panel Report, para. 5.17. Article 21.5 Panel Report, para. 5.17. Original panel report, Canada Aircraft, supra, footnote 2, para. 9.325. European Communities' third participant's submission, para. 15. United States' third participant's submission, p. 1. Article 21.5 Panel Report, para. 5.42. Original panel report, Canada Aircraft, supra, footnote 2, para. 9.348. Brazil's four arguments are identified, supra, in footnote 17 of this Report. These four arguments are also summarized in paragraph 5.15 of the Article 21.5 Panel Report and elaborated more fully in paragraphs 5.16, 5.19, 5.27 and 5.35 of the Article 21.5 Panel Report. Article 21.5 Panel Report, para. 5.17. Ibid. Article 21.5 Panel Report, para. 5.18. Ibid., para. 5.42. Brazil's appellant's submission, para. 12, and statement by Brazil at the oral hearing in response to questioning. Brazil appeals the Article21.5 Panel's treatment of Brazil's "first category of evidence", which related to the fact that "industries eligible for 'new' TPC assistance remain specifically targeted because of their export orientation and the expectation that that export orientation will continue" (Brazil's appellant's submission, para. 9). WT/DS70/9 (23 November 1999). Article21.3 of the DSU. WT/DS70/9 (23 November 1999). In the document requesting recourse to Article 21.5, Brazil identified the "new terms and conditions and a new administrative framework for the [TPC] program". 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. We note that the claim made by Brazil relating to the revised TPC programme, in this Article21.5 dispute, is the same as the claim made by Brazil in the original proceedings in relation to the TPC programme as previously constituted. In both cases, Brazil complained that the measure at issue was inconsistent with Article3.1(a) of the SCM Agreement. These proceedings do not, therefore, involve a claim under a provision of the SCM Agreement, or, even, a claim under a covered agreement, that was not examined in the original proceedings in Canada - Aircraft. See the dictionary meanings of "consistency" and "consistent" in The New Shorter Oxford English Dictionary (Clarendon Press, 1993), Vol. I, p. 486 and The Concise Oxford Dictionary (Clarendon Press, 1995), p. 285. The dictionary meaning of "consistency" includes the "quality" or "state" of "being consistent". Article 21.5 Panel Report, para. 5.12. Ibid. Article 21.5 Panel Report, para. 5.16. Ibid., para. 5.17. Supra, para. 37. Article21.5 Panel Report, para. 5.18. Brazil's first submission to the Article21.5 Panel, para. 21 (Article 21.5 Panel Report, p. 50). Brazil's first submission to the Article21.5 Panel, para. 19 (Article 21.5 Panel Report, p. 49). Appellate Body Report, Canada Certain Measures Affecting the Automotive Industry ("Canada Automotive Industry"), WT/DS139/AB/R, WT/DS142/AB/R, adopted 19June2000, para. 123. See also Appellate Body Report, Canada Aircraft, supra, footnote 2, para. 166. Appellate Body Report, Canada Aircraft, supra, footnote 2, para. 171; Appellate Body Report, Canada Automotive Industry, supra, footnote 45, para.107. We note that, in our Report, in Canada Aircraft, we said that the distinction between defacto and dejure contingency lies in the "evidence [that] may be employed to prove that a subsidy is export contingent" (supra, footnote 2, para. 167). While dejure contingency must be demonstrated on the basis of the "words of the relevant legal instrument", defacto contingency "must be inferred from the total configuration of the facts constituting and surrounding the granting of the subsidy" (Appellate Body Report, Canada Aircraft, supra, footnote 2, para. 167). Appellate Body Report, Canada Aircraft, supra, footnote 2, para. 172. Appellate Body Report, Canada Aircraft, supra, footnote 2, para. 173. As we have noted, supra, in paragraph 46, Canada asserts that no funding has been granted to the Canadian regional aircraft industry under the revised TPC programme, and Brazil does not contest this assertion. 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