Short Title | Full Case Title and Citation |
Argentina – Textiles and Apparel | Panel Report, Argentina – Measures Affecting Imports of Footwear, Textiles, Apparel and Other Items, WT/DS56/R, adopted 22 April 1998, modified by Appellate Body Report, WT/DS56/AB/R, DSR 1998:III, 1033 |
Australia – Salmon | Appellate Body Report, Australia – Measures Affecting Importation of Salmon, WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, 3327 |
Canada – Aircraft | Appellate Body Report, Canada – Measures Affecting the Export of Civilian Aircraft, WT/DS70/AB/R, adopted 20 August 1999, DSR 1999:III, 1377 |
Canada – Autos | Panel Report, Canada – Certain Measures Affecting the Automotive Industry, WT/DS139/R, WT/DS142/R, adopted 19 June 2000, modified by Appellate Body Report, WT/DS139/AB/R, WT/DS142/AB/R, DSR 2000:VII, 3043 |
Canada – Dairy | Panel Report, Canada – Measures Affecting the Importation of Milk and the Exportation of Dairy Products, WT/DS103/R, WT/DS113/R, adopted 27 October 1999, modified by Appellate Body Report, WT/DS103/AB/R, WT/DS113/AB/R, DSR 1999:VI, 2097 |
Canada – Dairy (Article 21.5 – New Zealand and US II) | Appellate Body Report, Canada – Measures Affecting the Importation of Milk and the Exportation of Dairy Products – Second Recourse to Article 21.5 of the DSU by New Zealand and the United States, WT/DS103/AB/RW2, WT/DS113/AB/RW2, adopted 17 January 2003, DSR 2003:I, 213 |
Canada – Wheat Exports and Grain Imports | Panel Report, Canada – Measures Relating to Exports of Wheat and Treatment of Imported Grain, WT/DS276/R, adopted 27 September 2004, upheld by Appellate Body Report, WT/DS276/AB/R, DSR 2004:VI, 2817 |
Chile – Price Band System | Appellate Body Report, Chile – Price Band System and Safeguard Measures Relating to Certain Agricultural Products, WT/DS207/AB/R, adopted 23 October 2002, DSR 2002:VIII, 3045 |
Chile – Price Band System | Panel Report, Chile – Price Band System and Safeguard Measures Relating to Certain Agricultural Products, WT/DS207/R, adopted 23 October 2002, modified by Appellate Body Report, WT/DS207AB/R, DSR 2002:VIII, 3127 |
Dominican Republic – Import and Sale of Cigarettes | Appellate Body Report, Dominican Republic – Measures Affecting the Importation and Internal Sale of Cigarettes, WT/DS302/AB/R, adopted 19 May 2005 |
Dominican Republic – Import and Sale of Cigarettes | Panel Report, Dominican Republic – Measures Affecting the Importation and Internal Sale of Cigarettes, WT/DS302/R, adopted 19 May 2005, modified by Appellate Body Report, WT/DS302/AB/R |
EC – Approval and Marketing of Biotech Products | Panel Report, European Communities – Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R, WT/DS292/R, WT/DS293/R, Corr.1 and Add.1, 2, 3, 4, 5, 6, 7, 8 and 9, adopted 21 November 2006 |
EC – Bananas III | Appellate Body Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/AB/R, adopted 25 September 1997, DSR 1997:II, 591 |
EC – Export Subsidies on Sugar (Australia) | Panel Report, European Communities – Export Subsidies on Sugar, Complaint by Australia, WT/DS265/R, adopted 19 May 2005, modified by Appellate Body Report, WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R |
EC – Hormones | Appellate Body Report, EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, DSR 1998:I, 135 |
EC – Poultry | Appellate Body Report, European Communities – Measures Affecting the Importation of Certain Poultry Products, WT/DS69/AB/R, adopted 23 July 1998, DSR 1998:V, 2031 |
Guatemala – Cement I | Appellate Body Report, Guatemala – Anti-Dumping Investigation Regarding Portland Cement from Mexico, WT/DS60/AB/R, adopted 25 November 1998, DSR 1998:IX, 3767 |
India – Autos | Panel Report, India – Measures Affecting the Automotive Sector, WT/DS146/R, WT/DS175/R and Corr.1, adopted 5 April 2002, DSR 2002:V, 1827 |
India – Patents (US) | Appellate Body Report, India – Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/AB/R, adopted 16 January 1998, DSR 1998:I, 9 |
Japan – Alcoholic Beverages II | Appellate Body Report, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I, 97 |
Japan – Apples | Appellate Body Report, Japan - Measures Affecting the Importation of Apples, WT/DS245/AB/R, adopted 10 December 2003, DSR 2003:IX, 4391 |
Japan – Film | Panel Report, Japan – Measures Affecting Consumer Photographic Film and Paper, WT/DS44/R, adopted 22 April 1998, DSR 1998:IV, 1179 |
Korea – Various Measures on Beef | Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/AB/R, WT/DS169/AB/R, adopted 10 January 2001, DSR 2001:I, 5 |
Korea – Various Measures on Beef | Panel Report, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/R, WT/DS169/R, adopted 10 January 2001, modified by Appellate Body Report, WT/DS161/AB/R, WT/DS169/AB/R, DSR 2001:I, 59 |
Mexico – Taxes on Soft Drinks | Panel Report, Mexico – Tax Measures on Soft Drinks and Other Beverages, WT/DS308/R, adopted 24 March 2006, modified by Appellate Body Report, WT/DS308/AB/R |
Turkey – Textiles | Panel Report, Turkey – Restrictions on Imports of Textile and Clothing Products, WT/DS34/R, adopted 19 November 1999, modified by Appellate Body Report, WT/DS34/AB/R, DSR 1999:VI, 2363 |
US – Carbon Steel | Appellate Body Report, United States – Countervailing Duties on Certain Corrosion-Resistant Carbon Steel Flat Products from Germany, WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX, 3779 |
US – Certain EC Products | Appellate Body Report, United States – Import Measures on Certain Products from the European Communities, WT/DS165/AB/R, adopted 10 January 2001, DSR 2001:I, 373 |
US – FSC (Article 21.5 – EC) | Appellate Body Report, United States – Tax Treatment for "Foreign Sales Corporations" – Recourse to Article 21.5 of the DSU by the European Communities, WT/DS108/AB/RW, adopted 29 January 2002, DSR 2002:I, 55 |
US – Gasoline | Panel Report, United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/R, adopted 20 May 1996, modified by Appellate Body Report, WT/DS2/AB/R, DSR 1996:I, 29 |
US – Shrimp | Panel Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/R and Corr.1, adopted 6 November 1998, modified by Appellate Body Report, WT/DS58/AB/R, DSR 1998:VII, 2821 |
US – Wheat Gluten | Appellate Body Report, United States – Definitive Safeguard Measures on Imports of Wheat Gluten from the European Communities, WT/DS166/AB/R, adopted 19 January 2001, DSR 2001:II, 717 |
US – Wool Shirts and Blouses | Appellate Body Report, United States – Measure Affecting Imports of Woven Wool Shirts and Blouses from India, WT/DS33/AB/R and Corr.1, adopted 23 May 1997, DSR 1997:I, 323 |
Chairperson: Ms Marie-Gabrielle Ineichen-Fleisch
Members: Mr Johann Frederick Kirsten
Mr Yoichi Suzuki5
"To examine, in the light of the relevant provisions of the covered agreements cited by the United States in document WT/DS334/4, the matter referred to the DSB by the United States in that document, and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements."6
"Rice is the predominant staple food for 17 countries in Asia and the Pacific, nine countries in North and South America and eight countries in Africa. Rice provides 20 per cent of the world's dietary energy supply, while wheat supplies 19 per cent and maize 5 per cent."9
(i) HS 1006.10: Rice in the husk, also known as paddy or rough rice, is "rice grain still tightly enveloped by the husk".
(ii) HS 1006.20: Husked rice, also known as brown or cargo rice, has had the husk "removed by mechanical huskers [but] is still enclosed in the pericarp. Husked rice almost always contains a small quantity of paddy."
(iii) HS 1006.30: Semi-milled or wholly-milled rice, whether or not polished or glazed, corresponds to "whole rice grains from which the pericarp has been partly removed" and "whole rice grains from which the pericarp has been removed through special tapering cylinders", respectively. It is otherwise known as white rice.11
TURKISH PADDY RICE PRODUCTION FIGURES PROVIDED BY PARTIES (TONNES)19 | |||
Figures provided by the United States in exhibit US-45 | Figures provided by Turkey in exhibit TR-24 | ||
Sep 2001 – Aug 2002 | 360,000 | 360,000 | 2001 |
Sep 2002 – Aug 2003 | 360,000 | 360,000 | 2002 |
Sep 2003 – Aug 2004 | 415,000 | 372,000 | 2003 |
Sep 2004 – Aug 2005 | 500,000 | 490,000 | 2004 |
Sep 2005 – Aug 2006 | 600,000 | 550,000 | 2005 |
Sep 2006 – Aug 2007 | 600,000* | ||
* estimate |
TURKISH MILLED RICE PRODUCTION FIGURES PROVIDED BY THE PARTIES (TONNES) | |||
Figures provided by the United States in exhibit US-45 | Figures provided by Turkey in exhibit TR-24 | ||
Sep 2001 – Aug 2002 | 234,000 | 216,000 | 2001 |
Sep 2002 – Aug 2003 | 234,000 | 216,000 | 2002 |
Sep 2003 – Aug 2004 | 270,000 | 223,000 | 2003 |
Sep 2004 – Aug 2005 | 300,000 | 294,000 | 2004 |
Sep 2005 – Aug 2006 | 360,000 | 330,000 | 2005 |
Sep 2006 – Aug 2007 | 360,000* | 390,000** | 2006 |
* estimate | ** Turkey's response to question 49(c) |
TURKISH MILLED RICE CONSUMPTION FIGURES PROVIDED BY PARTIES (TONNES) | |||
Figures provided by the United States in exhibit US-45 | Figures provided by Turkey in exhibit TR-24 | ||
Sep 2001 – Aug 2002 | 540,000 | 540,000 | 2001 |
Sep 2002 – Aug 2003 | 545,000 | 545,000 | 2002 |
Sep 2003 – Aug 2004 | 550,000 | 550,000 | 2003 |
Sep 2004 – Aug 2005 | 560,000 | 560,000 | 2004 |
Sep 2005 – Aug 2006 | 570,000 | 570,000 | 2005 |
Sep 2006 – Aug 2007 | 575,000* | ||
* estimate |
ANNUAL WEIGHT-BASED FIGURES ON REALIZED IMPORTS BY TYPE OF RICE (TONNES) | |||||
Period | Party submitting information | Paddy Rice | Brown Rice | Milled Rice | Annual total |
2003 | United States* | 247,723 | 10,036 | 213,519 | 471,997 |
Turkey** | 247,723 | 10,934 | 213,528 | 472,186*** | |
2004 | United States* | 26,749 | 26,177 | 101,188 | 154,485 |
Turkey** | 35,432 | 26,176 | 103,887 | 165,496*** | |
2005 | United States* | 102,198 | 42,193 | 158,423 | 302,814 |
Turkey** | 102,197 | 42,193 | 158,422 | 302,813*** | |
2006 Jan-Nov | United States* | 91,744 | 41,704 | 53,063 | 186,513 |
2006 Jan-Sep | Turkey** | 102,761 | 54,430 | 87,597 | 244,789*** |
* Exhibit US-81rev, source: Turkish Statistics Corporation (TUIK) ** Exhibit TR-23, source: UFT. See also exhibit TR-25. *** Based on figures in exhibit TR-23 |
"Turkey's argument that rice imports have increased from 2004 through 2006 is misleading. First, imports of rice in 2004 fell from 2003 levels... As shown in exhibit US-45, TY (trade, or calendar year) imports were 151,000 metric tons in 2004, as compared to 320,000 metric tons in 2003... [Subsequently, r]ice imports did not rebound to previous levels. While TY imports in 2005 were 298,000 metric tons, they fell again in 2006 to approximately 154,000 metric tons, which is virtually the same quantity of imports as in 2004."40
These differences between the milled rice equivalent figures presented by each party could be due to the different methods of converting import figures for paddy and brown rice into the milled rice equivalent.41 In any event, despite the Panel's questions pointing out the differences42, the parties' responses did not provide a completely satisfactory explanation for them.
SIGNIFICANT REDUCTION OR LACK OF IMPORTS | |||||||||||||
2003 | RICE Type | ||||||||||||
Jan | Feb | Mar | Apr | May | Jun | Jul | Aug | Sep | Oct | Nov | Dec | ||
no imports | paddy | ||||||||||||
no imports | no imports | brown | |||||||||||
significantly lower imports | milled | ||||||||||||
only EC imports | mainly EC imports | only EC imports | |||||||||||
2004 | |||||||||||||
Jan | Feb | Mar | Apr | May | Jun | Jul | Aug | Sep | Oct | Nov | Dec | ||
parties disagree whether any imports | no imports | minimal EC imports | no imports | significantly lower imports | no imports | paddy | |||||||
no imports | significantly lower imports | no imports | brown | ||||||||||
minimal EC imports | no imports | milled | |||||||||||
2005 | |||||||||||||
Jan | Feb | Mar | Apr | May | Jun | Jul | Aug | Sep | Oct | Nov | Dec | ||
no imports | significantly lower imports | paddy | |||||||||||
significantly lower imports | significantly lower imports | no imports | brown | ||||||||||
significantly lower imports | milled | ||||||||||||
only EC imports | |||||||||||||
2006 | |||||||||||||
Jan | Feb | Mar | Apr | May | Jun | Jul | Aug | Sep | |||||
parties disagree whether any imports | parties disagree whether any imports | no imports | paddy | ||||||||||
parties disagree whether any imports | parties disagree whether any imports | brown | |||||||||||
parties disagree whether any imports | milled | ||||||||||||
Based on data in exhibits US-81rev, TR-25 and TR-26 | |||||||||||||
"according to the information provided by Turkey in exhibit TR-25, there seems to have been no imports of... paddy rice or brown rice in the months of October in 2003, 2004 and 2005. In addition, the data in exhibit TR-33 suggest that no rice imports whatsoever (paddy, brown or milled) took place in February and March 2004. Further, the data in exhibit TR-33 seem to suggest that there were no rice imports other than EC/Former Yugoslav Republic of Macedonia out-quota rice imports in October – December 2003 and in September – October 2005."49
Parties did not contest these observations made by the Panel. In addition, in response to another question by the Panel50, the parties pointed out that no imports of milled rice took place in April 2004.51
MONTHLY AVERAGE LANDED CIF PRICES FOR PADDY RICE (Unit Price per Tonne in US Dollars) | ||||||||
MONTH | 2003 | 2004 | 2005 | 2006 | ||||
United States* | Turkey** | United States* | Turkey** | United States* | Turkey** | United States* | Turkey** | |
January | 222 | 218 | n/a | 897 | 255 | 262 | 279 | 257 |
February | 155 | 154 | n/a | 0 | 967 | 964 | n/a | 229 |
March | 241 | 241 | n/a | 0 | 275 | 273 | 576 | 537 |
April | 179 | 179 | 721 | 726 | 252 | 254 | 273 | 268 |
May | 182 | 177 | n/a | 0 | 230 | 231 | n/a | 265 |
June | 461 | 457 | 190 | 191 | 240 | 243 | 266 | 265 |
July | 156 | 159 | 272 | 273 | 236 | 237 | 257 | 258 |
August | 211 | 214 | 266 | 268 | 264 | 260 | 263 | 260 |
September | 181 | 175 | 307 | 305 | n/a | 0 | n/a | 0 |
October | n/a | 0 | n/a | 0 | n/a | 0 | ||
November | n/a | 0 | 888 | 885 | 201 | 200 | ||
December | n/a | 0 | 183 | 503 | 220 | 219 | ||
* based on exhibit US-55, source: Turkish Statistics Corporation (TUIK) ** based on exhibit TR-28 |
MONTHLY AVERAGE LANDED CIF PRICES FOR BROWN RICE (Unit Price per Tonne in US Dollars) | ||||||||
MONTH | 2003 | 2004 | 2005 | 2006 | ||||
United States* | Turkey** | United States* | Turkey** | United States* | Turkey** | United States* | Turkey** | |
January | n/a | 0 | n/a | 0 | 239 | 244 | 286 | 289 |
February | n/a | 0 | n/a | 0 | 230 | 236 | 273 | 358 |
March | 1,498 | 214 | n/a | 0 | 239 | 238 | 303 | 324 |
April | 180 | 180 | n/a | 0 | 242 | 244 | 288 | 289 |
May | 129 | 131 | 248 | 247 | 242 | 241 | 300 | 301 |
June | 135 | 136 | 283 | 283 | 244 | 244 | 285 | 291 |
July | 167 | 165 | 287 | 287 | 238 | 239 | 292 | 321 |
August | 148 | 151 | 269 | 274 | n/a | 0 | n/a | 307 |
September | n/a | 0 | n/a | 0 | n/a | 0 | n/a | 342 |
October | n/a | 0 | n/a | 0 | n/a | 0 | ||
November | n/a | 0 | n/a | 0 | 270 | 268 | ||
December | n/a | 0 | 240 | 239 | 276 | 278 | ||
* based on exhibit US-55, source: Turkish Statistics Corporation (TUIK) ** based on exhibit TR-28 |
MONTHLY AVERAGE LANDED CIF PRICES FOR MILLED RICE (Unit Price per Tonne in US Dollars) | ||||||||
MONTH | 2003 | 2004 | 2005 | 2006 | ||||
United States* | Turkey** | United States* | Turkey** | United States* | Turkey** | United States* | Turkey** | |
January | 262.51 | 258 | 1,670.68 | 1,643 | 314.03 | 319 | 362.21 | 365 |
February | 231.42 | 231 | 716.27 | 711 | 307.82 | 310 | 373.86 | 375 |
March | 224.51 | 225 | n/a | 0 | 311.93 | 312 | 409.63 | 408 |
April | 234.16 | 233 | n/a | 0 | 365.04 | 368 | 437.45 | 441 |
May | 248.62 | 247 | 266.26 | 266 | 403.71 | 405 | 373.68 | 392 |
June | 356.52 | 355 | 287.09 | 288 | 376.41 | 380 | 383.9 | 384 |
July | 249.32 | 249 | 285.88 | 285 | 358.41 | 358 | 358.78 | 382 |
August | 357.35 | 364 | 399.42 | 403 | 453.41 | 451 | n/a | 332 |
September | 703.21 | 688 | 536.46 | 537 | 600.07 | 607 | n/a | 354 |
October | 612.62 | 607 | 559.77 | 561 | 671.78 | 671 | ||
November | 717.56 | 719 | 404.03 | 403 | 384.04 | 382 | ||
December | 473.97 | 464 | 403.76 | 411 | 405.76 | 361 | ||
* based on exhibit US-55, source: Turkish Statistics Corporation (TUIK) ** based on exhibit TR-28 |
"[T]he Panel has considered the information provided by Turkey on 'Monthly landed c.i.f. values' in exhibit TR-28, and noted a sharp increase in paddy rice prices in June 2003, January and November 2004, February 2005 and March 2006. Likewise, it has noted a sharp increase in milled rice prices in September 2003, January and August 2004 and September 2005. It has also noted a significant fall in the price for milled rice in December 2003."71
Parties did not contest these observations made by the Panel.
(a) obtain a Certificate of Control from MARA. The legal basis and the requirements for obtaining a Certificate of Control are explained below.82
(b) submit the Certificate of Control to the customs authorities at the port where the importation is to take place and complete the required customs form. The customs form requires information such as: (a) importer's identification information; (b) code of imported items; (c) description of the product being imported; (d) quantity of the product being imported; (e) country of origin; (f) value of the product being imported; (g) country in which the product was loaded; (h) port.83
(c) submit the approved Certificate of Control with the required attachments, the customs declaration and the phytosanitary certificate, to MARA.
(d) customs authorities conduct a documentation control as well as an identity check between the product actually imported and the product in the declaration.
(e) MARA's and customs officials perform physical inspections.
"In the framework of this Decree, the [FTU] is authorized:
d) To harmonize the technical legislation, which is published in the framework of the competencies given by the legislation to the [FTU] and the Ministries and other institutions, with the foreign trade and to lay down the application principles."
"Pursuant to subparagraph (d) of Article 4 of the Decree on Technical Regulations and Standardization for Foreign Trade which came in force with the Council of Ministers' Decree No. 2005/9454 on 7/9/2005, the conformity of the substances which are on the annex lists of this Communiqué and which are subject to the Entry into the Free Circulation Regime, the Internal Process Regime, the Regime on the Process under the Customs Control and the Temporary Import Regime, in respect of human health and safety, animal and plant existence and health shall be determined by the Ministry of Agriculture and Rural Affairs."87
"At import stage of the products, which have been included in the annex lists (Annex I, Annex II/A-B, Annex III, Annex IV, Annex V/A-B, Annex VI-A), control certificate approved by the Ministry of Agriculture and Rural Affairs shall be asked for by relevant customs administration. For getting control certificate, it is necessary to apply to the mentioned Ministry or to provincial affiliates (bodies) authorized by the Ministry with control certificate form (Annex VII), pro forma invoice or invoice and other documents which may be asked for, depending on product, by the Ministry..."88
"In case that the compatibility of substances, which are to be imported on the basis of control certificate, with human health and safety, animal and plant existence and health is determined by the Ministry or its authorized units, the importation of these substances is allowed."89
"[F]or processed agricultural products and agricultural products which are composed of more than one component. As rice does not involve more than one component, no other document such as 'the component list' is requested".96
Other information communiqués issued jointly by MARA and the Ministry of Health have approved particular additional specifications for rice.97
"Turkish customs authorities have the legal authority to reject the importation of a shipment of goods, even if a Certificate of Control has been issued and approved by MARA... If the imports fail to comply with the specifications cited in the Certificate of Control, and if the inspections reveal that the imports are not consistent with SPS requirements, these imports are rejected."101
"Given the strict confidentiality requirements provided by Turkish law... and the well-established communications and information-exchanges between the United States and a number of Turkish rice traders... Turkish officials involved in this Panel proceeding [did] not feel comfortable in risking information leaks and possible criminal accusations of violation of Turkish law on confidentiality."
It added that, while it:
"[stood] firm in relation to the truthfulness, completeness and usefulness of the information that it provided earlier by means of its... consolidation... [it was] not in a position to provide copies of the actual Certificates of Control for circulation."
Turkey concluded that:
"Exceptionally [it] would be willing to provide 'blacked-out' copies of the 56 'relevant' Certificates of Control only to the Panel and after a clear understanding with the Panel and between the parties to this dispute that these documents would not be made available to the United States nor to any other entity beside the Panel and the WTO Secretariat".116
(a) Letter No. 964 from MARA dated 10 September 2003, by which the period for issuing Certificates of Control for the importation of rice would begin on 1 March 2004.137
(b) Letter by which the General Directorate of the TMO requested that no Certificates of Control for the importation of rice be issued until 30 June 2004, because existing rice and paddy rice stocks were estimated to be adequate for the nation's needs until the end of June 2004.138
(c) Letter No. 107 from MARA dated 23 January 2004, by which the period for issuing Certificates of Control for the importation of rice and paddy rice would begin in July 2004.139
(d) Letter No. 689 dated 4 June 2004, from the General Directorate of the TMO, by which "the instruction was given to extend the term for stopping the issuance of [Certificates of Control], from July 01, 2004 to the beginning of January 2005, in order to protect [Turkish] national production, to redress the grievances of the domestic grower, [and] to conserve national currency reserves by avoiding excessive imports".140
(e) Letter No. 905 from MARA dated 28 June 2004, by which the period for issuing Certificates of Control for the importation of rice and paddy rice was to open on 1 January 2005, with a closing date of 1 August 2005 for rice and 1 September 2005 for paddy rice.141
"[I]t is verified that the opening date for the issuance of the Inspection Document [Certificate of Control] was indeed determined as August 1, 2005 by the administration as is evident from the 'approval' document issued by the Office dated 12.30.2004, number 1795; however, as stated by the 'approval' document issued on 7.29.2005, number 1304, the stocks of produced and imported husked rice in 2004 were deemed to be at a level that would meet the needs of the country handily; therefore no Inspection Document [Certificate of Control] would be issued until consumption volume and trade policies are reviewed, and a basis for the new practices is established. Under these circumstances, the court finds no basis for the claim of illegality in the decision not to grant an inspection document until the establishment of new practices, or in the procedure by which the plaintiff's request was declined."146
"(b) To determine the quantities and/or values of quotas and the procedure and principles of distribution... and to issue documents with this objective and to instruct to the relevant institutions and organizations concerning the implementation and necessary permissions.
(c) To determine the procedures and principles for use of the tariff quotas which are opened unilaterally according to international agreements or based on the bilateral or multilateral preferential trade agreements."149
"This Decree covers the procedures and principles related to the administration of quotas and tariff quotas that can be applied in the framework of the measures adopted based on the bilateral or multilateral preferential trade agreements or unilaterally by taking the international obligations into consideration."151
"[T]he procedures concerning the quotas and tariff quotas imposed under the Decree on Surveillance and Safeguard Measures for Imports and Administration of Quotas and Tariff Quotas, which was put into force in accordance with the Council of Ministers Decree No. 95/6814 of 30 April 1995 shall carry on under the provisions of this Decree."152
"References to the Decree on Surveillance and Safeguard Measures for Imports and Administration of Quotas and Tariff Quotas, which was put into force in accordance with the Council of Ministers Decree No. 95/6814 of 30 April 1995 concerning the administration of quotas and tariff quotas, shall be understood as referring to this Decree."153
"(a) to determine the procedures and principles of the application, distribution and use of quotas and tariff quotas and to prepare documents in this purpose...
(d) to coordinate and give instructions to the relevant institutions and organizations for the implementation of this Decree;
(e) to prepare Regulations and Communiqués concerning the implementation of this Decree."154
"[P]addy rice from [domestic] paddy producers having permission to plant paddy rice or from their cooperatives and unions [with proof of] this purchase with the certificate issued by Turkish Grain Board and... [to the] purchase of paddy rice or rice from [the] Turkish Grain Board."164
(a) The purchase of 1,000 kg of paddy rice from paddy producers permitted to plant paddy rice or from their cooperatives and unions, from regions other than Balikesir, Bursa, Çanakkale, Edirne, Istanbul, Kirkareli, Sakarya and Tekirdağ, allowed for the import of 800 kg of paddy rice, 640 kg of brown rice, or 480 kg of milled rice.
(b) The purchase of 1,000 kg of paddy rice from paddy producers permitted to plant paddy rice or from their cooperatives and unions located in Balikesir, Bursa, Çanakkale, Edirne, Istanbul, Kirkareli, Sakarya and Tekirdağ, allowed for the import of 600 kg of paddy rice, 480 kg of brown rice, or 360 kg of milled rice.
(c) The purchase of 1,000 kg of paddy rice from the TMO allowed for the import of 500 kg of paddy rice, 400 kg of brown rice, or 300 kg of milled rice.
(d) The purchase of 1,000 kg of milled rice from the TMO allowed for the import of 833 kg of paddy rice, 666 kg of brown rice, or 500 kg of milled rice.170
(a) The purchase of 1,000 kg of paddy rice from the TMO allowed for the import of 1,000 kg of paddy rice, 800 kg of brown rice, or 600 kg of milled rice.
(b) The purchase of 1,000 kg of milled rice from the TMO allowed for the import of 1,666 kg of paddy rice, 1,333 kg of brown rice, or 1,000 kg of milled rice.181
(a) The purchase of 1,000 kg of paddy rice from paddy producers permitted to plant paddy rice or from their cooperatives and unions, from regions other than Balikesir, Bursa, Çanakkale, Edirne, Kirkareli, Sakarya and Tekirdağ, allowed for the import of 1,000 kg of paddy rice, 800 kg of brown rice, or 600 kg of milled rice.
(b) The purchase of 1,000 kg of paddy rice from paddy producers permitted to plant paddy rice or from their cooperatives and unions located in Balikesir, Bursa, Çanakkale, Edirne, Kirkareli, Sakarya and Tekirdağ, allowed for the import of 700 kg of paddy rice, 560 kg of brown rice, or 420 kg of milled rice.
(c) The purchase of 1,000 kg of paddy rice from the TMO allowed for the import of 500 kg of paddy rice, 400 kg of brown rice, or 300 kg of milled rice.
(d) The purchase of 1,000 kg of milled rice from the TMO allowed for the import of 833 kg of paddy rice, 666 kg of brown rice, or 500 kg of milled rice.196
"[O]n the basis of the EU system... [i.e.] limiting TMO's purchases to emergency and supplementary purchases; transferring the existing storage facilities to the private sector, and then leasing such facilities to producers; maintaining TMO as a central institution with a view to facilitating emergency and intervention purchases in the medium term; and guaranteeing that the TMO's purchases are made only through the commodity markets.207"208
No particular reference is made to its participation in the Turkish rice market.
Turkish Grain Board Announced Prices*:222
Turkish Marketing Year (Sept/Aug) | Paddy Procurement Prices from Producers for Osmancik | Milled Rice Sales Price for Osmancik |
2003/2004 | 700 | 1250 |
2004/2005 | 756 | 1500 |
2005/2006 | 720 | 1500 |
2006/2007 | 720 | 1500 |
*Sources: Turkish Grain Board website 2004/2005, 2005/2006 and 2006/2007. Turkish Rice Millers Association 2003/2004 prices. Paddy prices are for rice with average milling rate. |
Paddy Rice Selling Prices Declared by the TMO (Yearly Averages)*:223
BALDO | OSMANCIK | |
2004* | 840 | 743 |
2005 | 978 | 871 |
2006 | 970 | 772 |
* No data available for the period prior to January 2004 |
Rice Selling Prices (Wholesale) Declared by TMO (Yearly Averages):224
BALDO | OSMANCIK | |
2003 | 1,352 | 1,209 |
2004 | 1,543 | 1,338 |
2005 | 1,741 | 1,469 |
2006 | 1,630 | 1,470 |
Selling Price by the TMO of Osmancik Milled Rice as Presented by the United States and Turkey:
United States | TURKEY | |
2003/2004 (2003) | 1,250 | 1,209 |
2004/2005 (2004) | 1,500 | 1,338 |
2005/2006 (2005) | 1,500 | 1,469 |
2006/2007 (2006) | 1,500 | 1,470 |
PURCHASING PRICES DECLARED BY TMO AND PRICES RECEIVED BY GROWERS FOR LONG GRAIN PADDY RICE(NEW TURKISH LIRAS BY TONNES) | ||
DECLARED PRICE | RECEIVED PRICE* | |
2002 | 600 | 554 |
2003 | 700 | 628 |
2004 | 756 | 695 |
2005 | 720 | 612 |
2006 | 720 | 639 |
* The difference between the declared and the received prices is due to quality |
"[P]addy rice harvest season would begin as of September; and that even though it is difficult to make an accurate estimate, it is expected to be at the level of the previous year (370,000 tons); and that it would be appropriate to extend the period of [Certificates of Control] issuance which would initially have begun in July 01 2004, until January 2005, in order to protect the national growers, to redress their grievances and to avert building paddy rice and rice stocks needlessly".
The letter concludes by requesting a rescheduling of the opening date for the period of issuance of Certificates of Control to 1 January 2005 for milled rice and paddy rice, with a closing date of 1 August 2005 for milled rice and 1 September 2005 for paddy rice.234
"The applicability of the Tariff Quota System will not be possible in the coming years. Our producers should be supported through paying the price difference to close the gap with world prices, and the system should be operated without leading to international disputes. Meanwhile, the temporary ban of issuance of control certificates during harvest season will be suitable to be kept in place".
The letter concludes by requesting that the dates to issue Certificates of Control to import milled rice and paddy rice be rearranged to begin on 1 April 2006 and close on 1 August 2006. It also recommends that Certificates of Control be issued one at a time, each limited to 10,000 tonnes for milled rice and 15,000 tonnes for paddy rice. New Certificates of Control for the importation of rice would only be authorized after the quota of each previous certificate was fully used.237
(a) The alleged denial or failure to grant licences to import rice at or below the bound rate of duty;
(b) The alleged requirement that importers must purchase specified quantities of domestic rice, in order to be allowed to import specified quantities of rice at reduced-tariff levels;
(c) Turkey's administration of tariff-rate quotas for reduced tariff duty imports of rice; and,
(d) Turkey's administration of its import regime for rice, more generally.
(a) That Turkey's alleged denial or failure to grant licences to import rice at or below the bound rate of duty is inconsistent with:
(i) Article XI:1 of the GATT 1994, because it is a prohibition or restriction on imports, other than in the form of a duty, tax or other charges;
(ii) Article 4.2 of the Agreement on Agriculture, because it is a measure of the kind that have been required to be converted into ordinary customs duties and which Members may not maintain or resort to;
(iii) Articles 1.4(a) and 1.4(b) of the Import Licensing Agreement and Articles X:1 and X:2 of the GATT 1994, because Turkey has not published such measure and, thus, has neither provided an opportunity for governments and traders to become acquainted with it, nor has it provided Members with the opportunity to provide written comments and to discuss those comments upon request; and
(iv) Articles 3.5(e) and 3.5(f) of the Import Licensing Agreement, because Turkey does not specify a timeframe within which import licence applications that are submitted will be approved or rejected and does not provide applicants with the reasons for rejection.
(b) That Turkey's alleged requirement that importers must purchase domestic rice is inconsistent with:
(i) Article III:4 of the GATT 1994, because Turkey accords imported rice less favourable treatment than that accorded to domestic rice, with respect to a measure that affects its internal sale, offering for sale, purchase, transportation, distribution or use;
(ii) Article XI:1 of the GATT 1994, because it is a restriction on imports other than in the form of duties, taxes, or other charges;
(iii) Article 2.1 and paragraph 1(a) of Annex 1 (sic) of the TRIMs Agreement; and
(iv) Article 4.2 of the Agreement on Agriculture, because it is a measure of the kind that have been required to be converted into ordinary customs duties and which Members may not maintain or resort to.
(c) That Turkey's administration of tariff-rate quotas (TRQs) for reduced tariff duty imports of rice is inconsistent with Article 3.5(h) of the Import Licensing Agreement, because Turkey administers its TRQs in such a way as to discourage the full utilization of quotas.
(d) That Turkey's alleged requirement that importers must purchase domestic rice, in conjunction with its alleged denial or failure to grant licences to import rice at or below the bound rate of duty, is inconsistent with:
(i) Article XI:1 of the GATT 1994, because it is a restriction on imports other than in the form of duties, taxes, or other charges;
(ii) Article 4.2 of the Agreement on Agriculture, because it is a measure of the kind that have been required to be converted into ordinary customs duties and which Members may not maintain or resort to; and
(iii) Article 1.6 of the Import Licensing Agreement, because applicants have to approach more than one administrative body in connection with their applications.247
(e) That Turkey's administration of its import regime for rice is inconsistent with:
(i) Article 3.5(a) of the Import Licensing Agreement, because Turkey has failed to provide, upon the request of the United States, all relevant information concerning the administration of its import licensing regime and the import licences which have been granted over a recent period; and
(ii) Articles 5.1, 5.2(a), (b), (c), (d), (e), (g) and (h), 5.3 and 5.4 of the Import Licensing Agreement, because Turkey has failed to notify its import licensing regime for rice.
(a) Throughout the period covered by this dispute, over-quota imports have taken place and Certificates of Control have been issued;248
(b) Certificates of Control are not import licences;249
(c) The tariff-rate quotas (TRQs) regime for reduced-tariff duty imports of rice is no longer in force and the Panel should therefore refrain from making findings on those measures or, if it decided to make these findings, it should abstain from making any recommendation to the Dispute Settlement Body;250
(d) While it was in force, the TRQs regime for reduced-tariff duty imports of rice "was administered on the basis of automatic import licensing procedures and certain legal requirements which were applied in a non-discriminatory, predictable and transparent fashion"; and251
(e) The United States has not made a prima facie case to support its own claims and that Turkey's relevant laws, regulations and procedures, both in relation to MFN and to TRQ rice imports, are not inconsistent with Articles III:4, X:1, X:2, and XI:1 of the GATT 1994; Article 4.2 of the Agreement on Agriculture; Articles 1.4(a) and (b), 3.5(a), (e), (f), and (h), 5.1, 5.2(a), (b), (c), (d), (e), (g), and (h), 5.3, and 5.4 of the Agreement on Import Licensing Procedures; nor with Article 2.1 and paragraph 1(a) of Annex 1 of the Agreement on Trade-Related Investment Measures.252
"[A] panel's recommendations and rulings 'shall be aimed at achieving a satisfactory settlement of the matter' [and that] 'the aim of the dispute settlement mechanism is to secure a positive resolution to a dispute'."
"[I]n Chile – Price Bands, a dispute with a closely analogous situation involving the same provision at issue (Article 4.2), the panel made findings that the measure at issue constituted both a variable import levy and a system of minimum import prices within the meaning of footnote 1 of Article 4.2 of the Agreement on Agriculture. The Appellate Body agreed with this approach and upheld the panel's findings."
"[T]he discretion to determine the claims it must address in order to resolve the dispute between the parties -- provided that those claims are within that panel's terms of reference."253
"In order to assess whether the United States has met its initial burden, the Panel will accordingly consider if the evidence on the record, as submitted by both parties, is sufficient to raise a preliminary presumption that Turkey has engaged in the denial, or failure to grant, licences to import rice outside of the tariff rate quota. Only if the evidence on the record supported such a presumption, would the burden then be shifted unto Turkey to adequately rebut it. If the United States were successful in raising that preliminary presumption, and Turkey failed to rebut it, the Panel would then consider whether the facts so demonstrated can be qualified as constituting a border measure of the kind which has been required to be converted into ordinary customs duties by the Agreement on Agriculture."
"In order to assess whether the United States has met its initial burden, the Panel will accordingly consider if the United States has provided evidence and argumentation on the record, sufficient to establish that Turkey has engaged in the denial, or failure to grant, licences to import rice outside of the tariff rate quota. Only if the United States has provided evidence and argumentation on the record sufficient to make out a prima facie case, would the burden then be shifted onto Turkey to adequately rebut the U.S. allegations. If the United States were successful in establishing its prima facie case, and Turkey failed to rebut it, the Panel would then consider whether the United States has established that the facts so demonstrated can be qualified as constituting a border measure of the kind which has been required to be converted into ordinary customs duties by the Agreement on Agriculture."
"[A]void any possible mis-interpretation of the current text as partially relieving the complainant of its burden of making out a prima facie case by placing some of that burden on the respondent. The burden of making out a prima facie case by making argumentation and providing evidence on the record lies solely with the complaining party – in this case, the United States. Once the complainant has made out a prima facie case, a burden which the United States has met, it falls to the responding party to rebut that prima facie case with evidence and arguments of its own."
"[W]e are of the view that, in this case, the initial burden of proof rests upon the United States, as a complainant, to establish its prima faciecase that the challenged conduct, first, has existed, and then, that it is inconsistent with the invoked provision of the WTO covered agreements, i.e., Article 4.2 of the Agreement on Agriculture. If the United States meets this test, the burden would then be on Turkey to rebut the said claim."
"[T]hese references to a 'rule of collaboration' [should] be deleted, as they are not necessary to resolve the matter, and could be read as going beyond the requirements of the DSU, which does not provide for such a rule."
"A Member should respond promptly and fully to any request by a panel for such information as the panel considers necessary and appropriate."
"[W]hile paragraphs 7 and 8 of Annex V of the Agreement on Subsidies and Countervailing Measures specifically provide for 'adverse' inferences, no other covered agreement contains such language. Nevertheless, the 'appropriate' inference to be drawn from Turkey's failure to provide evidence in support of its arguments, either on its own or in response to repeated requests by the Panel, is that 'Turkey has failed to rebut the presumption that, from September 2003 and for different periods of time, it has adopted a decision to deny, or fail to grant, Certificates of Control to import rice outside of the tariff rate quota.'"
"[T]hat Turkey 'bring its domestic purchase requirement into conformity with its obligations under Article III:4 of the GATT 1994, if and to the extent that, that measure has not already ceased to exist.'"
"Where a panel or the Appellate Body concludes that a measure is inconsistent with a covered agreement, it shall recommend that the Member concerned [footnote omitted] bring the measure into conformity with that agreement."
"[T]he Panel's decision is supported by the law and is in line with the practice and interpretation of previous panels and of the Appellate Body when dealing with measures that expired in the course of the proceedings."
"Where a panel or the Appellate Body concludes that a measure is inconsistent with a covered agreement, it shall recommend that the Member concerned bring the measure into conformity with that agreement." [Emphasis added, footnotes omitted.]
In Turkey's view, the wording and the use of the present tense in the provision indicate that recommendations are due when a measure is inconsistent with a covered agreement and not when it was inconsistent in the past.
"[T]here is no requirement for this Panel to issue recommendations to bring into conformity measures which have expired in the course of the proceedings. [I]t would be more correct to state that recommendations are not required in those cases."
"[It had] decided to accept as third parties all Members that have so far expressed that interest, including Pakistan... [and f]urther details regarding the Panel's decision on the matter [would] be included in full in the Panel's Report."262
"1. The interests of the parties to a dispute and those of other Members under a covered agreement at issue in the dispute shall be fully taken into account during the panel process.
2. Any Member having a substantial interest in a matter before a panel and having notified its interest to the DSB (referred to in this Understanding as a 'third party') shall have an opportunity to be heard by the panel and to make written submissions to the panel. These submissions shall also be given to the parties to the dispute and shall be reflected in the panel report."
"Delegations in a position to do so, should indicate their intention to participate as a third party in a panel proceeding at the Council session which establishes the panel. Others who wish to indicate a third party interest should do so within the next ten days."263
"[T]he Appellate Body's decision in EC – Hormones... stated that 'the DSU leaves panels a margin of discretion to deal, always in accordance with due process, with specific situations that may arise in a particular case and that are not explicitly regulated.'265"266
"(a) the selection and composition of the Panel did not appear to have been adversely affected; and
(b) the Panel process had not been hampered."267
"[T]o assist the DSB in discharging its responsibilities under this Understanding and the covered agreements. Accordingly, a panel should make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements, and make such other findings as will assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements..."
"[W]e find it difficult... to see how any system of judicial settlement could work if it incorporated the proposition that the mere assertion of a claim might amount to proof. It is, thus, hardly surprising that various international tribunals, including the International Court of Justice, have generally and consistently accepted and applied the rule that the party who asserts a fact, whether the claimant or the respondent, is responsible for providing proof thereof.273 Also, it is a generally-accepted canon of evidence in civil law, common law and, in fact, most jurisdictions, that the burden of proof rests upon the party, whether complaining or defending, who asserts the affirmative of a particular claim or defence. If that party adduces evidence sufficient to raise a presumption that what is claimed is true, the burden then shifts to the other party, who will fail unless it adduces sufficient evidence to rebut the presumption.274"275
"[W]e have consistently held that, as a general matter, the burden of proof rests upon the complaining Member. That Member must make out a prima facie case by presenting sufficient evidence to raise a presumption in favour of its claim. If the complaining Member succeeds, the responding Member may then seek to rebut this presumption. Therefore, under the usual allocation of the burden of proof, a responding Member's measure will be treated as WTO-consistent, until sufficient evidence is presented to prove the contrary. We will not readily find that the usual rules on burden of proof do not apply, as they reflect a 'canon of evidence' accepted and applied in international proceedings."277
"[D]o not imply that the complaining party is responsible for providing proof of all facts raised in relation to the issue of determining whether a measure is consistent with a given provision of a covered agreement. In other words, although the complaining party bears the burden of proving its case, the responding party must prove the case it seeks to make in response."278
"Another incidental rule to the burden of proof is the requirement for collaboration of the parties in the presentation of the facts and evidence to the panel and especially the role of the respondent in that process. It is often said that the idea of peaceful settlement of disputes before international tribunals is largely based on the premise of co-operation of the litigating parties. In this context the most important result of the rule of collaboration appears to be that the adversary is obligated to provide the tribunal with relevant documents which are in its sole possession. This obligation does not arise until the claimant has done its best to secure evidence and has actually produced some prima facie evidence in support of its case."279
"Where a party refuses to provide information requested by a panel under Article 13.1 of the DSU, that refusal will be one of the relevant facts of record, and indeed an important fact, to be taken into account in determining the appropriate inference to be drawn."282
"[T]he importation of certain agricultural products is subject to [the] approval [of the Turkish Ministry of Agriculture and Rural Affairs (MARA)]... MARA determines the 'fitness and compatibility' of certain products with respect to human health and safety and other concerns. Rice is listed in [the legislation], which means that rice importers must present a [so-called] Certificate of Control from MARA to Turkish Customs as a condition upon importation."284
"In order to facilitate the process of customs clearance, traders must submit at importation a document, known as Certificate of Control, which contains all the information required for customs purposes. This document must be approved by the Ministry of Agriculture and Rural Affairs."288
"Contrary to what is erroneously claimed by the United States, Certificates of Control have been systematically and regularly approved on a non-discriminatory basis since the entering into force of 'The Regime for Technical Regulations and Standardization for Foreign Trade' in 1996... This has been the case both for rice imports occurring at the 'over-quota' MFN or applied rate level and... within the 'in-quota' volumes established each year since 2004."295
"Individual instances of administrative delay, rejection, or even domestic litigation in relation to the approval (or non approval) of a particular application for a specific Certificate of Control, cannot be used to claim or imply that Turkey adopted and/or applied this instrument as an intentional barrier to trade."296
"'[T]he matter referred to the DSB' for the purposes of Article 7 of the DSU... must be the 'matter' identified in the request for the establishment of a panel under Article 6.2 of the DSU. That provision requires the complaining Member, in a panel request, to 'identify the specific measures at issue and provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly'... The 'matter referred to the DSB', therefore, consists of two elements: the specific measures at issue and the legal basis of the complaint (or the claims)."308
"No prohibitions or restrictions other than duties, taxes or other charges, whether made effective through quotas, import or export licences or other measures, shall be instituted or maintained by any contracting party on the importation of any product of the territory of any other contracting party or on the exportation or sale for export of any product destined for the territory of any other contracting party."
"Members shall not maintain, resort to, or revert to any measures of the kind which have been required to be converted into ordinary customs duties1, except as otherwise provided for in Article 5 and Annex 5.
1 These measures include quantitative import restrictions, variable import levies, minimum import prices, discretionary import licensing, non-tariff measures maintained through state-trading enterprises, voluntary export restraints, and similar border measures other than ordinary customs duties, whether or not the measures are maintained under country-specific derogations from the provisions of GATT 1947, but not measures maintained under balance-of-payments provisions or under other general, non-agriculture-specific provisions of GATT 1994 or of the other Multilateral Trade Agreements in Annex 1A to the WTO Agreement."
"(a) The rules and all information concerning procedures for the submission of applications, including the eligibility of persons, firms and institutions to make such applications, the administrative body(ies) to be approached, and the lists of products subject to the licensing requirement shall be published, in the sources notified to the Committee on Import Licensing provided for in Article 4 (referred to in this Agreement as "the Committee"), in such a manner as to enable governments313 and traders to become acquainted with them. Such publication shall take place, whenever practicable, 21 days prior to the effective date of the requirement but in all events not later than such effective date. Any exception, derogations or changes in or from the rules concerning licensing procedures or the list of products subject to import licensing shall also be published in the same manner and within the same time periods as specified above. Copies of these publications shall also be made available to the Secretariat.
(b) Members which wish to make comments in writing shall be provided the opportunity to discuss these comments upon request. The concerned Member shall give due consideration to these comments and results of discussion."
"(e) any person, firm or institution which fulfils the legal and administrative requirements of the importing Member shall be equally eligible to apply and to be considered for a licence. If the licence application is not approved, the applicant shall, on request, be given the reason therefor and shall have a right of appeal or review in accordance with the domestic legislation or procedures of the importing Member;
(f) the period for processing applications shall, except when not possible for reasons outside the control of the Member, not be longer than 30 days if applications are considered as and when received, i.e. on a first-come first-served basis, and no longer than 60 days if all applications are considered simultaneously. In the latter case, the period for processing applications shall be considered to begin on the day following the closing date of the announced application period".
"1. Laws, regulations, judicial decisions and administrative rulings of general application, made effective by any contracting party, pertaining to the classification or the valuation of products for customs purposes, or to rates of duty, taxes or other charges, or to requirements, restrictions or prohibitions on imports or exports or on the transfer of payments therefor, or affecting their sale, distribution, transportation, insurance, warehousing inspection, exhibition, processing, mixing or other use, shall be published promptly in such a manner as to enable governments and traders to become acquainted with them. Agreements affecting international trade policy which are in force between the government or a governmental agency of any contracting party and the government or governmental agency of any other contracting party shall also be published. The provisions of this paragraph shall not require any contracting party to disclose confidential information which would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of particular enterprises, public or private.
2. No measure of general application taken by any contracting party effecting an advance in a rate of duty or other charge on imports under an established and uniform practice, or imposing a new or more burdensome requirement, restriction or prohibition on imports, or on the transfer of payments therefor, shall be enforced before such measure has been officially published."
"As a matter of fact, none of the provisions of the Licensing Agreement concerns import licensing rules, per se. As is made clear by the title of the Licensing Agreement, it concerns import licensing procedures. The preamble of the Licensing Agreement indicates clearly that this agreement relates to import licensing procedures and their administration, not to import licensing rules. Article 1.1 of the Licensing Agreement defines its scope as the administrative procedures used for the operation of import licensing regimes."315
"It is arguable that the Agreement on Import Licensing relates more specifically to the matter before this Panel than the GATT and the Agreement on Agriculture. Therefore in accordance with the Appellate Body report in EC – Bananas316 the EC invites the Panel to consider whether the alleged violations of the Agreement on Import Licensing should be considered first before the alleged violations of Article 4.2. of the Agreement on Agriculture and the GATT."317
"Other panels have found, in similar circumstances, that where a measure with respect to agricultural products318 is inconsistent with Article XI:1 of the GATT 1994, it is necessarily inconsistent with Article 4.2 of the Agriculture Agreement, which provides in footnote 1 that, inter alia, 'quantitative import restrictions' and 'discretionary import licensing' are measures that Members may not maintain, resort to, or revert to.319"320
"[A]part from the footnote in Article 4.2 of the Agreement on Agriculture in which reference is made to quantitative import restrictions, no automatic link has been made in the text of these provisions. The EC therefore considers that caution should be exercised in concluding that the violation of Article XI:1 of the GATT would necessarily and in all circumstances lead to the violation of Article 4.2. of the Agreement on Agriculture."323
"It is arguable that the Agreement on Agriculture should be considered more specific in relation to the GATT in a situation where the import of a particular agricultural product is at stake. Consequently, in accordance with the Appellate Body report in EC – Bananas324 it is arguable that the alleged violation of Article 4.2 of the Agreement on Agriculture should be considered first before the alleged violations of the GATT."325
"[F]or the United States to demonstrate successfully that Turkey is in breach of Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement on Agriculture, the United States is not required to show that no Control Certificates were granted at the MFN rate. The United States has demonstrated that Turkey is restricting at least some trade in rice, and that is sufficient to demonstrate a breach of Article XI:1... Even if Turkey's data had demonstrated that the Letters of Acceptance were not enforced at all, that would not change the conclusion that the Letters breach Article XI:1... [E]ven were the Panel to conclude that the Letters were not enforced at all, the Panel should still find, in line with findings of past panels with respect to non-enforced mandatory measures, that Turkey's restrictions on MFN trade in rice are inconsistent with Article XI:1... Lastly, Turkey's failure to issue Control Certificates for the import of rice at the over-quota rates of duty breaches both Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement on Agriculture because it constitutes discretionary import licensing.... [I]t is certainly clear that Turkey believes it has the discretion not to grant Control Certificates if it wants to, and the United States has provided documentary evidence highlighting instances where Turkey has denied or failed to grant such Certificates."330
"[As] the Certificates of Control are not import licenses within the meaning of the Agreement on Import Licensing Procedures... there is clearly no 'denial' of Certificates of Control, and... there is no de jure or de facto import prohibition or restriction within the meaning of GATT Article XI:1... [, therefore] there cannot be 'discretionary import licensing' and/or 'quantitative import restrictions' within the meaning of Article 4.2 of the Agreement on Agriculture and footnote 1 thereof."331
"Members shall not maintain, resort to, or revert to any measures of the kind which have been required to be converted into ordinary customs duties1, except as otherwise provided for in Article 5 and Annex 5.
1 These measures include quantitative import restrictions, variable import levies, minimum import prices, discretionary import licensing, non-tariff measures maintained through state-trading enterprises, voluntary export restraints, and similar border measures other than ordinary customs duties, whether or not the measures are maintained under country-specific derogations from the provisions of GATT 1947, but not measures maintained under balance-of-payments provisions or under other general, non-agriculture-specific provisions of GATT 1994 or of the other Multilateral Trade Agreements in Annex 1A to the WTO Agreement."
"[W]e turn now to Article 4, which is the main provision of Part III of the Agreement on Agriculture. As its title indicates, Article 4 deals with 'Market Access'.333 During the course of the Uruguay Round, negotiators identified certain border measures which have in common that they restrict the volume or distort the price of imports of agricultural products. The negotiators decided that these border measures should be converted into ordinary customs duties, with a view to ensuring enhanced market access for such imports. Thus, they envisioned that ordinary customs duties would, in principle, become the only form of border protection. As ordinary customs duties are more transparent and more easily quantifiable than non-tariff barriers, they are also more easily compared between trading partners, and thus the maximum amount of such duties can be more easily reduced in future multilateral trade negotiations. The Uruguay Round negotiators agreed that market access would be improved—both in the short term and in the long term—through bindings and reductions of tariffs and minimum access requirements, which were to be recorded in Members' Schedules.
Thus, Article 4 of the Agreement on Agriculture is appropriately viewed as the legal vehicle for requiring the conversion into ordinary customs duties of certain market access barriers affecting imports of agricultural products …"334
(a) photocopies of rejected applications for Certificates of Control for the importation of rice filed by importing companies in Turkey341;
(b) photocopies of motions presented in Turkish administrative courts against the Government's rejection of the authorization to import rice342;
(c) photocopies of documents related to procedures before Turkish administrative courts, which refer to additional instances of rejection of applications for Certificates of Control for the importation of rice343;
(d) photocopies of documents containing arguments presented by the counsel for MARA before Turkish administrative courts, justifying the rejection of Certificates of Control for the importation of rice344;
(e) photocopies of internal documents from MARA, in which MARA's General Directorate of Protection and Control recommended temporary suspensions of the granting of Certificates of Control for the importation of rice to the Minister of Agriculture and Rural Affairs, which the Minister apparently approved345;
(f) photocopy of a letter from the General Directorate of the TMO to MARA's General Directorate of Protection and Control, recommending the temporary suspension of the granting of Certificates of Control for the importation of rice346;
(g) photocopy of a letter from the Minister of State of Turkey to the United States Trade Representative, informing that Certificates of Control for the importation of rice would be issued as of 1 April 2006.347
"[W]ere internal communications aimed at developing policies. These administrative communications never resulted in the adoption of laws or regulations. They were never used to systematically deny the approval of applications for Certificates of Control. And even if, hypothetically, they had been used to limit the approval of Certificates of Control, which Turkey vehemently denies, this is not evidence that there was a measure prohibiting or restricting imports …. The record shows that, despite the 'Letters of Acceptance', Certificates of Control were approved."354
"[I]ndividual instances of non-approval by MARA of particular rice importers' applications must be seen as a natural component of the interaction between any WTO Member's administration and its business community and cannot be generalized into a 'denial of Certificates of Control to import rice', particularly when the trade statistics clearly indicate otherwise."355
"The reasons for rejection of individual importers' applications have always been provided and, in general terms, were most often due to missing or wrong information supplied by the importers such as the introduction of the wrong customs code classification, the lack of indication of the chosen customs points of entry, or the wrong origin information."357
"[I]ndividual instances of domestic litigation [which] must be objectively seen as a natural component of the interaction between any WTO Member's administration and its business community and cannot be used to prove an instance of systematic trade restriction, let alone a trade prohibition (i.e., the 'blanket denial')."358
"The diplomatic Letter … was designed to reassure the United States that, with the phasing-out of the TRQ, traders would likely resume trading on MFN terms. It was not an implicit confirmation of any systematic denial of the approval of Certificates of Control."361
"The United States has not shown that there was a systematic rejection of requests for approval. They have given evidence in relation to five individual cases which have resulted in domestic litigation. This represents 0.2% of the approved Certificates of Control."362
"Contrary to what is erroneously claimed by the United States, Certificates of Control have been systematically and regularly approved on a non-discriminatory basis since the entering into force of 'The Regime for Technical Regulations and Standardization for Foreign Trade' in 1996 (as promulgated in the Official Gazette dated 1 February 1996 and numbered 22541bis). This has been the case both for rice imports occurring at the 'over-quota' MFN or applied rate level and, most importantly for purposes of the allegations by the United States, within the 'in-quota' volumes established each year since 2004. In particular, from 2003 to date, Turkey has approved a total of 2,223 Certificates of Control, allowing a total importation of 2,264,857 tonnes of foreign rice (paddy, brown and milled). Of the aforementioned quantity, 497,469 tonnes of rice equivalent have been allocated under the TRQ system since January 2004."364
"There is no such document that Turkey is in the position to circulate given the privileged nature of the communications internal to the Administration and the confidential nature of the information contained therein."376
"With respect to the actual Certificates of Control, Turkey understands that the documents provided to the Panel would have to be made available also to the United States. Given the strict confidentiality requirements provided by Turkish law … and the well-established communications and information-exchanges between the United States and a number of Turkish rice traders, the Turkish officials involved in this Panel proceeding do not feel comfortable in risking information leaks and possible criminal accusations of violation of Turkish law on confidentiality…
Turkey is not in a position to provide copies of the actual Certificates of Control for circulation. Exceptionally, Turkey would be willing to provide 'blacked-out' copies of the 56 'relevant' Certificates of Control only to the Panel and after a clear understanding with the Panel and between the parties to this dispute that these documents would not be made available to the United States nor to any other entity beside the Panel and the WTO Secretariat."392
"[B]etween 2003 and September 2006, a total of 2,324 applications for approval were put forward and resulted in the approval of 2,223 Certificates of Control. Only 102 applications (equal to a mere 4.38%) were rejected for 'non-compliance with the requirements set forth in the relevant legislation'.398 Turkey believes that a rejection rate of less than 5% cannot be quantified or qualified into a de facto import 'restriction'."
"According to Article 13 of the Turkish Statistical Law, the confidential data acquired, processed and kept for official statistics cannot be passed-on to any administrative, judicial or military office, authority or person, and cannot be utilized except for statistical purposes or be utilized as a tool for proof. Public officials or other authorities that gather the information have to abide by this rule. Article 53 of the same law provides that public officials violating the prohibitions embodied in Article 13 will be punished in accordance with Article 258 of the Turkish Criminal Code No. 5237."403
"1. There shall be no ex parte communications with the panel or Appellate Body concerning matters under consideration by the panel or Appellate Body."
"In the interest of full transparency, the presentations, rebuttals and statements referred to in paragraphs 5 to 9 of these working procedures [i.e., oral statements made by the parties and third parties during the substantive meetings with the Panel, and parties' and third parties' responses to questions posed by the Panel and the parties during the substantive meetings with the Panel] shall be made in the presence of the parties. Moreover, each party's written submissions, including any comments on the descriptive part of the report, responses to questions put by the Panel and comments on responses made by other parties, shall be made available to the other party."
"[A]s the United States noted during that meeting, it is not uncommon for WTO panels to adopt procedures for the protection of confidential information submitted by a party. Such procedures, which ensure that only the panelists, the WTO Secretariat, and designated representatives of the other party have access to such information, have generally worked well in the past and could have been employed in this dispute if Turkey had concerns."408
"Footnote 1 [to Article 4.2 of the Agreement on Agriculture] lists six categories of border measures and a residual category of such measures that are included in 'measures of the kind which have been required to be converted into ordinary customs duties' within the meaning of Article 4.2.[Footnote omitted] The list is illustrative, and includes 'quantitative import restrictions, variable import levies, minimum import prices, discretionary import licensing, non-tariff measures maintained through state-trading enterprises, voluntary export restraints, and similar border measures other than ordinary customs duties'. These kinds of measures were identified by the negotiators of the Agreement on Agriculture as measures that had to be converted into ordinary customs duties in order to ensure enhanced market access for imports of agricultural products."414
"The footnote imparts meaning to Article 4.2 by enumerating examples of 'measures of the kind which have been required to be converted', and which Members must not maintain, revert to, or resort to, from the date of the entry into force of the WTO Agreement."416
"The prohibition on the use of quantitative restrictions forms one of the cornerstones of the GATT system. A basic principle of the GATT system is that tariffs are the preferred and acceptable form of protection... The prohibition against quantitative restrictions is a reflection that tariffs are GATT's border protection 'of choice'. Quantitative restrictions impose absolute limits on imports, while tariffs do not. In contrast to MFN tariffs which permit the most efficient competitor to supply imports, quantitative restrictions usually have a trade distorting effect, their allocation can be problematic and their administration may not be transparent.
Notwithstanding this broad prohibition against quantitative restrictions, GATT contracting parties over many years failed to respect completely this obligation. From early in the GATT, in sectors such as agriculture, quantitative restrictions were maintained and even increased to the extent that the need to restrict their use became central to the Uruguay Round negotiations. In the sector of textiles and clothing, quantitative restrictions were maintained under the Multifibre Agreement... Certain contracting parties were even of the view that quantitative restrictions had gradually been tolerated and accepted as negotiable and that Article XI could not be and had never been considered to be, a provision prohibiting such restrictions irrespective of the circumstances specific to each case. This argument was, however, rejected in an adopted panel report EEC – Imports from Hong Kong.417
Participants in the Uruguay Round recognized the overall detrimental effects of non-tariff border restrictions (whether applied to imports or exports) and the need to favour more transparent price-based, i.e. tariff-based, measures; to this end they devised mechanisms to phase-out quantitative restrictions in the sectors of agriculture and textiles and clothing. This recognition is reflected in the GATT 1994 Understanding on Balance-of-Payments Provisions418, the Agreement on Safeguards419, the Agreement on Agriculture where quantitative restrictions were eliminated420 and the Agreement on Textiles and Clothing... where MFA derived restrictions are to be completely eliminated by 2005."421
"Certificates of Control have been systematically and regularly approved on a non-discriminatory basis... both for rice imports occurring at the 'over-quota' MFN or applied rate level and... within the 'in-quota' volumes established each year since 2004."428
"[T]he Certificates of Control are not import licenses within the meaning of the Agreement on Import Licensing Procedures... there is clearly no 'denial' of Certificates of Control, and... there is no de jure or de facto import prohibition or restriction within the meaning of GATT Article XI:1... [t]herefore... there cannot be 'discretionary import licensing' and/or 'quantitative import restrictions' within the meaning of Article 4.2 of the Agreement on Agriculture and footnote 1 thereof".429
"These additional features include a lack of transparency and a lack of predictability in the level of duties that will result from such measures. This lack of transparency and this lack of predictability are liable to restrict the volume of imports... [A]n exporter is less likely to ship to a market if that exporter does not know and cannot reasonably predict what the amount of duties will be.[Footnote omitted] This lack of transparency and predictability will also contribute to distorting the prices of imports by impeding the transmission of international prices to the domestic market."430
"Formal, usu[ally] printed or written, permission from an authority to do something... or to own something...; a document giving such permission; a permit".432
"For the purpose of this Agreement, import licensing is defined as administrative procedures434 used for the operation of import licensing regimes requiring the submission of an application or other documentation (other than that required for customs purposes) to the relevant administrative body as a prior condition for importation into the customs territory of the importing Member."
"[A]re understood to include technical visas, surveillance systems, minimum price arrangements, and other administrative reviews effected as a prior condition for entry of imports."439
"Footnote 1 also refers to a residual category of 'similarborder measures other than ordinary customs duties', which indicates that the drafters of the Agreement did not seek to identify all 'measures which have been required to be converted' during the Uruguay Round negotiations."442
"Turkey's denial of import licenses outside the TRQ is in breach of Article XI of the GATT 1994 because Turkey prohibits or restricts imports at the over-quota rate through the use of import licenses or other measures."444
"The Letters of Acceptance, which apply to all importers seeking a Certificate of Control from MARA in order to import rice, are Ministerial Decisions taken by the Turkish Minister of Agriculture and are binding under Turkish law... Turkey does not publish the Letters of Acceptance in the Official Gazette. This obscures from importers and other WTO Members that MARA is not issuing Certificates of Control, thereby blocking all imports of rice outside the TRQ regime. Turkey's failure to issue Certificates of Control is inconsistent with Articles X:1 and X:2 of the GATT 1994."447
"Because Turkey does not publish the Letters of Acceptance, it also necessarily breaches Articles 1.4(a) and 1.4(b) of the Import Licensing Agreement."448
"Turkey also has acted inconsistently with Articles 3.5(e) and (f) of the Import Licensing Agreement [because] Turkey has decided not to process Certificate of Control applications within the periods specified in subparagraph (f) [i.e., no more than 30 days, except when not possible for reasons outside the control of the Member, and no longer than 60 days if all applications are considered simultaneously]... Nor has Turkey ever asserted that it is 'not possible for reasons outside [its] control' to process applications within the periods set out in Article 3.5(f)... Further, although Turkey does not approve any license applications, it does not provide the applicant 'the reason therefor' – that is... that Turkey has decided not to approve any license applications."449
"[T]he United States bases its allegations and legal conclusions on the wrong assumption that Certificates of Control are (or function as) import licenses. On the basis of the legal arguments and factual evidence provided, Turkey reaffirms that the Certificates of Control are not import licenses within the meaning of the Agreement on Import Licensing Procedures. Therefore, the claim by the United States that Turkey has acted inconsistently with these obligations of transparency and due-process must be rejected for the inapplicability, in the case at issue, of the Agreement on Import Licensing Procedures."450
"Turkey operate[d] tariff-rate quotas ('TRQs') for rice imports requiring that, in order to import specified quantities of rice at reduced tariff levels, importers... purchase specified quantities of domestic rice, including from the Turkish Grain Board ('TMO'), Turkish producers, or producer associations."451
"[T]here is an obvious inconsistency between the finding of the Panel that '[a specific] Measure is no longer in existence' and the subsequent recommendation of the Panel that the DSB request that the United States bring [that] Measure into conformity with its WTO obligations. The Panel erred in recommending that the DSB request the United States to bring into conformity with its WTO obligations a measure which the Panel has found no longer exists."464
"[A] panel is not necessarily required to make use of its authority to make findings in respect of measures which were no longer in existence on the date of establishment of [the] panel [and] that in determining whether to make findings on a measure no longer in existence on the date of establishment of a panel, panels should notably take account of the object and purpose of the dispute settlement system [which is, p]ursuant to Article 3.7 of the DSU... 'to secure a positive solution to a dispute'."466