|Short Title||Full Case Title and Citation|
|Brazil – Aircraft (Article 22.6 – Brazil)||Decision by the Arbitrators, Brazil – Export Financing Programme for Aircraft – Recourse to Arbitration by Brazil under Article 22.6 of the DSU and Article 411 of the SCM Agreement, WT/DS46/ARB, 28 August 2000|
|Canada – Aircraft Credits and Guarantees (Article 22.6 – Canada)||Decision by the Arbitrator, Canada – Export Credits and Loan Guarantees for Regional Aircraft – Recourse to Arbitration by Canada under Article 22.6 of the DSU and Article 411 of the SCM Agreement, WT/DS222/ARB, 17 February 2003|
|EC – Bananas III (Ecuador) (Article 22.6 – EC)||Decision by the Arbitrators, European Communities – Regime for the Importation, Sale and Distribution of Bananas – Recourse to Arbitration by the European Communities under Article 22.6 of the DSU, WT/DS27/ARB/ECU, 24 March 2000, DSR 2000:V, 2243|
|EC – Bananas III (US) (Article 22.6 – EC)||Decision by the Arbitrators, European Communities – Regime for the Importation, Sale and Distribution of Bananas – Recourse to Arbitration by the European Communities under Article 22.6 of the DSU, WT/DS27/ARB, 9 April 1999, DSR 1999:II, 725|
|EC – Hormones (US) (Article 22.6 – EC)||Decision by the Arbitrators, European Communities – Measures Concerning Meat and Meat Products (Hormones) – Original Complaint by the United States – Recourse to Arbitration by the European Communities under Article 22.6 of the DSU, WT/DS26/ARB, 12 July 1999, DSR 1999:III, 1105|
|EC – Hormones (Canada) (Article 22.6 – EC)||Decision by the Arbitrators, European Communities – Measures Concerning Meat and Meat Products (Hormones) – Original Complaint by Canada – Recourse to Arbitration by the European Communities under Article 22.6 of the DSU, WT/DS48/ARB, 12 July 1999, DSR 1999:III, 1135|
|US – 1916 Act||Appellate Body Report, United States – Anti-Dumping Act of 1916, WT/DS136/AB/R, WT/DS162/AB/R, adopted 26 September 2000, DSR 2000:X, 4793|
|US – 1916 Act (EC)||Panel Report, United States – Anti-Dumping Act of 1916 – Complaint by the European Communities, WT/DS136/R and Corr.1, adopted 26 September 2000, as upheld by the Appellate Body Report, WT/DS136/AB/R, WT/DS162/AB/R, DSR 2000:X, 4593|
|US – 1916 Act (Japan)||Panel Report, United States – Anti-Dumping Act of 1916 – Complaint by Japan, WT/DS162/R and Add.1, adopted 26 September 2000, as upheld by the Appellate Body Report, WT/DS136/AB/R, WT/DS162/AB/R, DSR 2000:X, 4831|
|US – FSC (Article 22.6 – US)||Decision by the Arbitrator, United States – Tax Treatment for "Foreign Sales Corporations" – Recourse to Arbitration by the United States under Article 22.6 of the DSU and Article 411 of the SCM Agreement, WT/DS108/ARB, 30 August 2002|
|US – Section 110(5) Copyright Act (Article 25.3)||Award of the Arbitrators, United States – Section 110(5) of the US Copyright Act – Recourse to Arbitration under , WT/DS160/ARB25/1, 9 November 2001, DSR 2001:II, 667|
|US – Section 301 Trade Act||Panel Report, United States – Sections 301-310 of the Trade Act of 1974, WT/DS152/R, adopted 27 January 2000, DSR 2000:II, 815|
Chairman: Mr Dimitrij Grčar
Members: Mr Brendan McGivern
Mr Eugeniusz Piontek
· In Part II, we set out the relevant factual background to these proceedings. We describe briefly both the Anti-Dumping Act of 1916, and the request by the European Communities to suspend obligations.
· In Part III, we examine three preliminary issues: (i) the burden of proof; (ii) whether the European Communities was required to specify which obligations it seeks authorization to suspend; and (iii) the "blocking regulation" recently adopted by the Council of the European Union.7
· In Part IV, we describe the role and jurisdiction of the Arbitrators under Article 22 of the DSU.
· In Part V, we set out the parameters for the determination of the level of nullification or impairment.
· In Part VI, we apply these parameters to the specific facts of this case.
· In Part VII, we summarize our principal findings and conclusions.
· In Part VIII, we provide the award and decision of the Arbitrators.
· In Part IX, we offer some concluding observations.
"It shall be unlawful for any person importing or assisting in importing any articles from any foreign country into the United States, commonly and systematically to import, sell or cause to be imported or sold such articles within the United States at a price substantially less than the actual market value or wholesale price of such articles, at the time of exportation to the United States, in the principal markets of the country of their production, or of other foreign countries to which they are commonly exported after adding to such market value or wholesale price, freight, duty, and other charges and expenses necessarily incident to the importation and sale thereof in the United States: Provided, That such act or acts be done with the intent of destroying or injuring an industry in the United States, or of preventing the establishment of an industry in the United States, or of restraining or monopolizing any part of trade and commerce in such articles in the United States.
Any person who violates or combines or conspires with any other person to violate this section is guilty of a misdemeanour, and, on conviction thereof, shall be punished by a fine not exceeding $5,000, or imprisonment not exceeding one year, or both, in the discretion of the court.
Any person injured in his business or property by reason of any violation of, or combination or conspiracy to violate, this section, may sue therefor in the district court of the United States for the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages sustained, and the cost of the suit, including a reasonable attorney's fee."10
"(d) by not providing exclusively for the injury test provided for in Article VI, the 1916 Act violates Article VI:1 of the GATT 1994;
(e) by providing for the imposition of treble damages, fines or imprisonment, instead of anti-dumping duties, the 1916 Act violates Article VI:2 of the GATT 1994;
(f) by not providing for a number of procedural requirements found in the Anti-Dumping Agreement, the 1916 Act violates Articles 1, 4, and 5.5 of the Anti-Dumping Agreement;
(g) by violating Articles VI:1 and VI:2 of the GATT 1994, the 1916 Act violates Article XVI:4 of the Agreement Establishing the WTO;
(h) since violations have been established that have not been rebutted by the United States, the United States nullifies or impairs benefits accruing to the European Communities under the WTO Agreement."11
"As a result of the United States' failure to bring its 1916 Act into conformity with the WTO Agreements, or otherwise to comply with the recommendations and rulings of the Dispute Settlement Body in this matter, a number of companies are currently facing judicial proceedings brought in the United States on the basis of the 1916 Act. Moreover, all companies which export to the United States are facing the threat of legal action on the basis of this WTO-incompatible legislation."13
"[T]he European Communities will request authorization from the Dispute Settlement Body to suspend the application of the obligations under GATT 1994 and the Anti‑Dumping Agreement in order to adopt an equivalent regulation to the 1916 Act against imports from the United States. This regulation would allow the European Communities to impose on United States companies found to dump their products in the European Communities additional duties corresponding, over the five year projected life of the measures, to three times the amount of the damage suffered by companies in the European Communities when certain specific intents analogous to those required under the 1916 Act are established. This regulation would also mirror other procedural aspects of the United States' measure which have been found to be inconsistent with the WTO obligations of the United States in cases where sufficient evidence of specific intent is present. The investigation would be conducted by the authorities of the European Communities responsible for the application of its anti-dumping legislation as part of the anti-dumping investigation rather than by the courts and the additional duties would not be paid to the complainants."14
"The EC legislation would be based on the equivalent requirements as under the 1916 Act. In particular, the application of special duties would be contingent upon
Ø the finding of dumping by a US company;
Ø damage to the complaining EC company or companies;
Ø the intention to destroy or injure an industry in the European Communities, or to prevent the establishment of an industry in the European Communities, or to restrain or monopolise any part of trade and commerce in such products in the European Communities;
However, the EC legislation would differ from the 1916 Act in various regards, in particular, it would
Ø not provide for the imposition of fines or for imprisonment;
Ø not provide that the special duties are imposed by the courts but by the EC authorities responsible for the application of the anti-dumping legislation;
Ø not provide that the monies collected are paid to the complainants;
Ø not violate procedural requirements of the Anti-Dumping Agreement such as the presentation of evidence by the complainant."16
"WTO Members, as sovereign entities, can be presumed to act in conformity with their WTO obligations. A party claiming that a Member has acted inconsistently with WTO rules bears the burden of proving that inconsistency. The act at issue here is the US proposal to suspend concessions. The WTO rule in question is Article 22.4 prescribing that the level of suspension be equivalent to the level of nullification and impairment. The EC challenges the conformity of the US proposal with the said WTO rule. It is thus for the EC to prove that the US proposal is inconsistent with Article 22.4. Following well-established WTO jurisprudence, this means that it is for the EC to submit arguments and evidence sufficient to establish a prima facie case or presumption that the level of suspension proposed by the US is not equivalent to the level of nullification and impairment caused by the EC hormone ban. Once the EC has done so, however, it is for the US to submit arguments and evidence sufficient to rebut that presumption. Should all arguments and evidence remain in equipoise, the EC, as the party bearing the original burden of proof, would lose.
The same rules apply where the existence of a specific fact is alleged …. It is for the party alleging the fact to prove its existence.
The duty that rests on all parties to produce evidence and to collaborate in presenting evidence to the arbitrators – an issue to be distinguished from the question of who bears the burden of proof – is crucial in Article 22 arbitration proceedings. The EC is required to submit evidence showing that the proposal is not equivalent. However, at the same time and as soon as it can, the US is required to come forward with evidence explaining how it arrived at its proposal and showing why its proposal is equivalent to the trade impairment it has suffered…"18
"The EC has asked the DSB to issue it a blank check. It asks for the authority to suspend concessions or other obligations, but it fails to identify the particular concessions or other obligations it intends to suspend. In previous cases, the complaining party has identified the obligations it wishes to suspend with specificity–and for good reason: it is difficult for the DSB to authorize the suspension of concessions or other obligations without knowing what concessions or other obligations would be suspended. In addition, a description of the particular obligations the complaining party seeks to suspend facilitates the arbitrator's work in determining, in accordance with Article 22.7 of the DSU, whether the level of suspension is equivalent to the level of nullification or impairment."21
"… does not consider that, because it requested to suspend 'other obligations' it would be required to provide information on which specific obligations under the GATT 1994 and the Anti-Dumping Agreement it proposes to suspend. By specifying in detail the features of its proposed mirror legislation, the European Communities has in fact [provided] a more precise indication of the retaliatory measure than would a detailed listing of paragraph numbers.
Moreover, the European Communities did clearly limit its suspension request to the 'relevant' provisions under GATT and the Anti-Dumping Agreement in order to adopt the envisaged mirror legislation. Thus, the European Communities never intended to request authorisation to suspend any obligations under the GATT 1994 and the Anti‑Dumping Agreement."22
"The more precise a request for suspension is in terms of product coverage, type and degree of suspension, etc. …, the better. Such precision can only be encouraged in pursuit of the DSU objectives of 'providing security and predictability to the multilateral trading system' (Article 3.2) and seeking prompt and positive solutions to disputes (Articles 3.3 and 3.7). It would also be welcome in light of the statement in Article 3.10 that 'all Members will engage in [DSU] procedures in good faith in an effort to resolve the dispute'."27
"If the Member concerned fails to bring the measure found to be inconsistent with a covered agreement into compliance therewith or otherwise comply with the recommendations and rulings within the reasonable period of time determined pursuant to paragraph 3 of Article 21, such Member shall, if so requested, and no later than the expiry of the reasonable period of time, enter into negotiations with any party having invoked the dispute settlement procedures, with a view to developing mutually acceptable compensation. If no satisfactory compensation has been agreed within 20 days after the date of expiry of the reasonable period of time, any party having invoked the dispute settlement procedures may request authorization from the DSB to suspend the application to the Member concerned of concessions or other obligations under the covered agreements."
"When the situation described in paragraph 2 occurs, the DSB, upon request, shall grant authorization to suspend concessions or other obligations within 30 days of the expiry of the reasonable period of time unless the DSB decides by consensus to reject the request. However, if the Member concerned objects to the level of suspension proposed…the matter shall be referred to arbitration. Such arbitration shall be carried out by the original panel, if members are available, or by an arbitrator appointed by the Director-General and shall be completed within 60 days after the date of expiry of the reasonable period of time. Concessions or other obligations shall not be suspended during the course of the arbitration." [footnote omitted]
"The arbitrator acting pursuant to paragraph 6 shall not examine the nature of the concessions or other obligations to be suspended but shall determine whether the level of such suspension is equivalent to the level of nullification or impairment. The arbitrator may also determine if the proposed suspension of concessions or other obligations is allowed under the covered agreement….The parties shall accept the arbitrator's decision as final and the parties concerned shall not seek a second arbitration. The DSB shall be informed promptly of the decision of the arbitrator and shall upon request, grant authorization to suspend concessions or other obligations where the request is consistent with the decision of the arbitrator, unless the DSB decides by consensus to reject the request." [footnote omitted]
"There is … a difference between our task here and the task given to a panel. In the event we decide that the US proposal is not WTO consistent, i.e. that the suggested amount is too high, we should not end our examination the way panels do, namely by requesting the DSB to recommend that the measure be brought into conformity with WTO obligations. Following the approach of the arbitrators in the Bananas case – where the proposed amount of US$ 520 million was reduced to US$ 191.4 million -- we would be called upon to go further. In pursuit of the basic DSU objectives of prompt and positive settlement of disputes, we would have to estimate the level of suspension we consider to be equivalent to the impairment suffered. This is the essential task and responsibility conferred on the arbitrators in order to settle the dispute. In our view, such approach is implicitly called for in Article 22.7… "33
"[W]e note that, if we were to find the proposed amount…not to be equivalent, we would have to estimate the level of suspension we consider to be equivalent to the nullification or impairment suffered by Ecuador. This approach is consistent with Article 22.7 of the DSU which emphasizes the finality of the arbitrators' decision….
We recall that this approach was followed in the US/EC arbitration proceeding in EC – Bananas III and the arbitration proceedings in EC – Hormones, where the arbitrators did not consider the proposed amount of suspension as equivalent to the nullification or impairment suffered and recalculated that amount in order to be able to render a final decision."34
"[W]e note that prior Arbitrators that have rejected proposed levels of countermeasures (or suspensions of concessions) have always proceeded to set levels consistent with the relevant agreements."35
· certain general considerations applicable to the determination of the level of nullification or impairment;
· the concept of "equivalence" under DSU Article 22;
· the "level" of suspension of obligations requested by the European Communities; and
· the "level" of nullification or impairment sustained by the European Communities as a result of the 1916 Act.
"Compensation and the suspension of concessions or other obligations are temporary measures available in the event that the recommendations and rulings are not implemented within a reasonable period of time. However, neither compensation nor the suspension of concessions or other obligations is preferred to full implementation of a recommendation to bring a measure into conformity with the covered agreements."
"[T]he authorization to suspend concessions or other obligations is a temporary measure pending full implementation by the Member concerned. We agree with the United States that this temporary nature indicates that it is the purpose of countermeasures to induce compliance. But this purpose does not mean that the DSB should grant authorization to suspend concessions beyond what is equivalent to the level of nullification or impairment. In our view, there is nothing in Article 22.1 of the DSU, let alone in paragraphs 4 and 7 of Article 22, that could be read as a justification for counter-measures of a punitive nature."39
"Article 22.4 of the DSU merely prescribes that the level on one side should not exceed the level of the other side. Thus, if both "levels" are defined in the same vein, i.e. in qualitative terms, Article 22.4 of the DSU is, in principle, fully respected."42
"What matters under Articles 22.4 and 22.7 is the overall trade effect of the 1916 Act and the EC's proposed measure. The EC has not identified its suspension in a way that sets a 'level' and in a way that allows the Arbitrator to determine whether the EC's proposal will have an equivalent trade effect to the 1916 Act. This determination necessarily involves a quantitative analysis, as the terms 'level' and 'equivalent' make clear."45
"What we do have to determine…is whether the overall proposed level of suspension is equivalent to the level of nullification and impairment. This involves a quantitative - not a qualitative ‑ assessment of the proposed suspension. As noted by the arbitrators in the Bananas case, '[i]t is impossible to ensure correspondence or identity between two levels if one of the two is not clearly defined'. Therefore, as a prerequisite for ensuring equivalence between the two levels, we have to be able to determine, not only the "level of the nullification and impairment", but also the 'level of the suspension of concessions or other obligations'. To give effect to the obligation of equivalence in Article 22.4, the Member requesting suspension thus has to identify the level of suspension of concessions it proposes in a way that allows us to determine equivalence."46
"The drafters [of Article 22.4] have explicitly set a quantitative benchmark to the level of suspension of concessions or other obligations that might be authorized. This is similarly reflected in Article 22.7, which defines the arbitrators' mandate in such proceedings ….
As we have already noted in our analysis of the text of Article 4.10 of the SCM Agreement above, there is, by contrast, no such indication of an explicit quantitative benchmark in that provision …."47
· If the suspension of obligations were applied in such a manner that it were equal to or below the level of nullification or impairment sustained by the European Communities, then the suspension would, in principle, be consistent with DSU Article 22.4.48
· If the suspension of obligations were applied in such a manner that it exceeded the level of nullification or impairment sustained by the European Communities, then the suspension would be punitive, and would not be consistent with DSU Article 22.4.
"[O]ur task of estimating nullification and impairment is very different from that of a panel examining the WTO conformity of certain measures. Once a panel has found a WTO inconsistency, it can presume – pursuant to Article 3.8 of the DSU – that the inconsistency has caused nullification and impairment. On that ground the panel can give redress to the winning party under Article XXIII of GATT 1994 or corresponding provisions in other WTO agreements. What normally counts for a panel is competitive opportunities and breaches of WTO rules, not actual trade flows. A panel does not normally need to further assess the nullification and impairment caused; it can presume its existence. We, in contrast, have to go one step further….What we have to do is to estimate the nullification and impairment caused by it (and presumed to exist pursuant to Article 3.8 of the DSU). To do so in the present case, we have to focus on trade flows. We must estimate trade foregone due to the ban's continuing existence beyond [the expiration of the reasonable period of time on] 13 May 1999."50
"[F]or purposes of these arbitration proceedings, the relevant benefits are those which are economic in nature. This is consistent with previous decisions of arbitrators acting under Article 22.6 of the DSU."53
"[T]he Arbitrators urge Canada to make sure that, if it decides to proceed with the suspension of certain of its obligations vis-à-vis Brazil…other than the 100 per cent surtax, this will be done in such a way that the maximum amount of countermeasures…will be respected."55
· Member X exports $10 billion dollars worth of goods to Member Y. Member Y decides to impose a 10% ad valorem tax on all imported goods from Member X. The total economic or trade impact of such a measure (assuming that exports continued as before, and the tax was paid) would be $1 billion.
· Member Y's 10% ad valorem tax is found to be WTO-inconsistent. Following the expiration of the reasonable period of time, Member X seeks to adopt a "qualitatively equivalent" measure by imposing a 10% ad valorem tax on all imports from Member Y.
· Member Y exports $100 billion dollars worth of goods to Member X. The total economic or trade impact of this "qualitatively equivalent" measure, the 10% ad valorem tax on all imported goods from Member Y, would be $10 billion.
"Arbitrators are explicitly prohibited from 'examin[ing] the nature of the concessions or other obligations to be suspended' (other than under Articles 22.3 and 22.5).
On these grounds, we cannot require that the US further specify the nature of the proposed suspension. As agreed by all parties involved in this dispute, in case a proposal for suspension were to target, for example, only biscuits with a 100 per cent tariff ad valorem, it would not be for the arbitrators to decide that, for example, cheese and not biscuits should be targeted; that a 150 per cent tariff should be imposed instead of a 100 per cent tariff; or that tariff increases should be levied on a product weight basis, not ad valorem. All of these are qualitative aspects of the proposed suspension touching upon the "nature" of concessions to be withdrawn. They fall outside the arbitrators' jurisdiction."60
"The failure to bring the 1916 Act into conformity at the end of the reasonable period of time has not nullified or impaired any benefits to the EC under the GATT or AD Agreement. The starting point is the situation as it existed at the end of the reasonable period of time, when this arbitration was initiated and its terms of reference fixed. No order was in place against EC products and no EC trade was being affected. Had the 1916 Act been brought into compliance as of that date, it would not have resulted in any increased trade for the EC. Accordingly, the level of nullification or impairment being suffered by the EC was zero."61
"The European Communities would recall the Panel findings in US – 1916 Act (EC) whereby
(…) as the United States has adduced no evidence to the contrary, we conclude that the 1916 Act nullifies and impairs benefits accruing to the European Communities under the WTO Agreement.
The US allegations that the European Communities has suffered no nullification or impairment are thus squarely in contradiction to the Panel's conclusions as confirmed by the Appellate Body. Instead of rearguing the 1916 Act Panel and Appellate Body proceedings, the European Communities would recommend the United States to respect Article 17.14 of the DSU, whereby "an Appellate Body report shall be adopted by the DSB and unconditionally accepted by the parties to the dispute (…)" (emphasis added).62
"The presumption of nullification or impairment in the case of an infringement of a GATT provision as set forth by Article 3.8 of the DSU cannot in and of itself be taken simultaneously as evidence proving a particular level of nullification or impairment allegedly suffered by a Member requesting authorization to suspend concessions under Article 22 of the DSU at a much later stage of the WTO dispute settlement system. The review of the level of nullification or impairment by Arbitrators from the objective benchmark foreseen by Article 22 of the DSU is a separate process that is independent from the finding of infringements of WTO rules by a panel or the Appellate Body….However, a Member's legal interest in compliance by other Members does not, in our view, automatically imply that it is entitled to obtain authorization to suspend concessions under Article 22 of the DSU."63
"The question we thus have to answer here is: what would annual prospective US exports of hormone-treated beef and beef products to the EC be if the EC had withdrawn the ban on 13 May 1999? An answer to this question, like any question about future events, can only be a reasoned estimate. It is necessarily based on certain assumptions. In making those estimates and assumptions, we need to guard against claims of lost opportunities where the causal link with the inconsistent hormone ban is less than apparent, i.e. where exports are allegedly foregone not because of the ban but due to other circumstances."65
"Arguably the most damaging effect of the 1916 Act is its 'chilling effect' on the commercial behaviour of European companies and its potential use as a means of intimidation of European companies that are either already active on the US market or which consider entering the market."68
"[I]n a treaty the benefits of which depend in part on the activity of individual operators the legislation itself may be construed as a breach, since the mere existence of legislation could have an appreciable "chilling effect" on the economic activities of individuals."70
"Any attempt to quantify the 'chilling effect' must necessarily fail. However, the deterrent effect is an important qualitative element for the determination of the level of the nullification and impairment the EC is suffering by the existence of the 1916 Act. Concerned companies have confirmed that the existence of the 1916 Act has impaired their equal opportunities on the US market."72
"With respect to this particular dispute, the 1916 Act does not have a 'deterrent' or 'chilling effect' on imports from the EC, nor has the EC provided any evidence to establish that it has.
No previous arbitration has included any calculation of a 'deterrent or chilling effect' from WTO-inconsistent measures. The European Communities is asking the Arbitrator in this proceeding to take the unprecedented step of introducing the concept of a chilling effect and making a finding of a level of nullification or impairment based on this speculative concept. The European Communities has not pointed to any basis in the text of the DSU for such an approach."73
"[T]he findings of the Panel do not extend beyond the particular instance where the application of those programmes was found to be illegal. It is likely that an identical application of those programmes would, in identical circumstances, lead to an identical ruling. However, as long as this is not a matter that was before the Panel and it did not lead to recommendations of the DSB, we are not, as Arbitrator under Article 22.6 of the DSU and Article 4.10 of the SCM Agreement, allowed to address it."88
"In the present case, the measures found to be illegal were the granting of subsidies to a number of transactions. The Panel Report clearly ruled that the…programmes 'as such' did not constitute prohibited export subsidies contrary to Article 3.1(a) of the SCM Agreement. The DSB recommendations and rulings clearly cannot be interpreted as extending the right to take countermeasures to the maintaining of those programmes 'as such'."89
· the right of the European Communities to apply its qualitative suspension in response to the WTO-inconsistent US Anti-Dumping Act of 1916; and
· the right of the United States to ensure that the European Communities applies its suspension only up to the level of nullification or impairment the European Communities has sustained as a result of the 1916 Act.
(a) the cumulative monetary value of any amounts payable by EC entities pursuant to final court judgments for claims under the 1916 Act; and
(b) the cumulative monetary value of any amounts payable by EC entities pursuant to the settlement of claims under the 1916 Act.
"We received confirmation from the US that the actual level of suspension once implemented will be equivalent to the level of nullification and impairment we have found. All we can do at this stage is to encourage the US to stand by this confirmation and to abide by Article 22.4 of the DSU. In the event of a future dispute on this issue, we note that the EC could start normal – or arguably even expedited – DSU procedures challenging the consistency of the level of US suspension with Article 22.4."90
"[T]he suspension of concessions or other obligations shall be temporary and shall only be applied until such time as the measure found to be inconsistent with a covered agreement has been removed, or the Member that must implement recommendations or rulings provides a solution to the nullification or impairment of benefits …."
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