U.S. Trade Representative Report on the WTO Appellate Body
The U.S. Trade Representative has published the following report detailing concerns with the WTO dispute settlement system, in particular with respect to the Appellate Body.
- U.S. Trade Representative Report on the Appellate Body of the World Trade Organization (February 2020)
U.S. Statements on the WTO Dispute Settlement Understanding
The United States has delivered the following statements in the WTO Dispute Settlement Body (DSB) on concerns raised by the functioning of the Appellate Body under the terms of the WTO Dispute Settlement Understanding (DSU).
- U.S. statements on continued service by former Appellate Body members
- U.S. statement on DSU Article 17.5 and the Appellate Body’s exceeding of the mandatory 90-day deadline for appeals
- U.S. statement on DSU Article 17.6 and the Appellate Body’s exceeding of its role by reviewing panel findings of fact, including on the meaning of a WTO Member’s domestic law
- U.S. statement on the Appellate Body’s issuance of advisory opinions contrary to DSU Articles 7.1, 11, 17.6, and 3.2
- U.S. statement on the Precedential Value of Panel or Appellate Body Reports under the WTO Agreement and DSU
- U.S. statement on Systemic Concerns Regarding the Compensation of Appellate Body Members
U.S. Statements on Interpretive Errors by the WTO Appellate Body
The United States has delivered the following statements in the WTO Dispute Settlement Body (DSB) on interpretive errors introduced by the WTO Appellate Body in the context of particular reports. For a more comprehensive list, please refer to Annex B-2 of the U.S. Trade Representative Report on the Appellate Body of the World Trade Organization (February 2020) (link above).
- US – Countervailing Measures (Article 21.5) (DS437): U.S. Statement in the DSB Meeting of August 15, 2019
(WT/DSB/M/433) (expressing concerns that the appellate report’s erroneous findings relating to public body, third-country benchmarks, and de facto specificity would weaken the ability of WTO Members to use WTO tools to discipline injurious subsidies and that the Appellate Body breached Article 17.2 of the DSU by allowing a former member to consider an appeal after their term had expired) - US – Tuna II (Article 21.5 – US) (DS381): U.S. Statement in the DSB Meeting of January 11, 2019
WT/DSB/M/417) (expressing concerns that the Appellate Body’s interpretation of the nondiscrimination obligation under the TBT Agreement and GATT 1994 calls for reviewing factors unrelated to any difference in treatment due to national origin) - EU – Biodiesel (Argentina) (DS473): U.S. Statement in the DSB Meeting of October 26, 2016
(WT/DSB/M/387) (expressing concerns that the Appellate Body exceeded its limited authority to review legal issues by reviewing panel findings of fact, including factual findings relating to the meaning of the EU’s domestic law) - US – Washing Machines (DS464): U.S. Statement in the DSB Meeting of September 26, 2016
(WT/DSB/M/385) (expressing concerns with the Appellate Body’s approach to substantive claims under the Antidumping Agreement and Subsidies Agreement as well as the proper role of the Appellate Body in reviewing claims by a party and findings by a panel)
- US – COOL (Article 21.5) (DS384, DS386): U.S. Statement in the DSB Meeting of May 29, 2015
(WT/DSB/M/362) (expressing concerns with the Appellate Body’s findings concerning Article 2.1 of the TBT Agreement and the Appellate Body’s failure to comply with the mandatory 90-day deadline for issuing a report)
- US – Carbon Steel (DS436): U.S. Statement in the DSB Meeting of December 19, 2014
(WT/DSB/M/354) (expressing concerns with the Appellate Body’s interpretations of the Subsidies Agreement, e.g., relating to benchmarks and public body, and with the Appellate Body’s violation of Article 17.5 of the DSU by disregarding the mandatory 90-day deadline for issuing a report)
- US – Countervailing and Antidumping Measures (DS449): U.S. Statement in the DSB Meeting of July 22, 2014
(WT/DSB/M/348) (expressing concerns that the Appellate Body violated Article 17.6 of the DSU and exceeded its authority to review legal issues by reviewing panel findings of fact, including factual findings relating to the meaning of U.S. domestic law)
- EC – Seal Products (Canada, Norway) (DS400, DS401): U.S. Statement in the DSB Meeting of June 18, 2014
(WT/DSB/M/346) (expressing concerns with the Appellate Body’s interpretation of the national treatment provisions of the GATT 1994 and TBT Agreement, and with the Appellate Body’s violation of Article 17.5 of the DSU by disregarding the mandatory 90-day deadline for issuing a report)
- Canada – Renewable Energy (EU, Japan) (DS412, DS426): U.S. Statement in the DSB Meeting of May 24, 2013
(WT/DSB/M/322) (expressing concerns with the Appellate Body’s analysis of “benefit” under Article 1.1(b) of the Subsidies Agreement)
- US – Anti-Dumping and Countervailing Duties (DS379): U.S. Statement in the DSB Meeting of March 25, 2011
(WT/DSB/M/294) (expressing grave concerns with the Appellate Body’s findings relating to “public body” and the concurrent imposition of antidumping and countervailing duties)
- US – Continued Zeroing (DS350): U.S. Statement in the DSB Meeting of February 19, 2009
(WT/DSB/M/265) (expressing concern that the Appellate Body’s findings incorrectly expanded the scope of the proceedings, concern with the Appellate Body’s interpretation of the Antidumping Agreement with regard to zeroing, and concern that the Appellate Body had failed to apply the special standard of review under the Anti-Dumping Agreement)
- US – Steel Safeguards (DS248, DS249, DS251, DS252, DS253, DS254, DS258, DS259): U.S. Statement in the DSB Meeting of December 10, 2003
(WT/DSB/M/160) (expressing concerns that the Appellate Body had created additional obligations for imposing safeguard measures)
U.S. Papers Submitted as part of the 1994 Decision on the Application and Review of the Understanding on Rules and Procedures Governing the Settlement of Disputes
- U.S. Proposal for Additional Guidance on the Measure Under Review (March 16, 2006)
- U.S. Proposal for Additional Guidance on the Proper Interpretative Approach (October 24, 2005)
- U.S. Proposal for Additional Guidance on the Use of Public International Law (October 21, 2005)
- Questions Regarding Improving Flexibility and Member Control (February 25, 2005)
- U.S. and Chilean Paper on Improving Flexibility and Member Control Submitted for WTO Dispute Settlement Negotiations - amendment text (March 11, 2003)
- U.S. Paper on Transparency (February 10, 2003)
- U.S. Paper on Transparency (August 9, 2002)
