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Lawyers, other representatives, expert(s), tribunal’s secretary

Report of the Panel

I. INTRODUCTION

A. COMPLAINT OF CANADA

1.1.
On 19 May 2000, Canada requested consultations with the United States pursuant to Article 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes ("the DSU"), Article XXII of the General Agreement on Tariffs and Trade 1994 and Article 30 of the Agreement on Subsidies and Countervailing Measures ("the SCM Agreement"), concerning US measures that treat a restraint on exports of a product as a subsidy to other products made using or incorporating the restricted product if the domestic price of the restricted product is affected by the restraint1.
1.2.
On 15 June 2000, Canada and the United States held the requested consultations with a view to reaching a mutually satisfactory resolution of the matter, but the consultations failed to settle the dispute.
1.3.
On 24 July 2000, Canada requested the establishment of a panel to examine the matter2.

B. ESTABLISHMENT AND COMPOSITION OF THE PANEL

1.4.
At its meeting of 11 September 2000, the Dispute Settlement Body ("the DSB") established a Panel pursuant to the request made by Canada in document WT/DS194/2.3
1.5.
At that meeting, the parties to the dispute also agreed that the Panel should have standard terms of reference as follows:

"To examine, in the light of the relevant provisions of the covered agreements cited by Canada in document WT/DS194/2, the matter referred to the DSB by Canada 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."

1.6.
On 23 October 2000, the parties agreed to the following composition of the Panel:

Chairman: Mr. Michael Cartland

Members: Mr. Scott Gallacher

Mr. Richard Plender

1.8.
Australia, the European Communities, and India have reserved their rights to participate in the panel proceedings as third parties4.

C. PANEL PROCEEDINGS

1.9.
The Panel met with the parties on 18 January 2001 and on 21 February 2001. The Panel met with third parties on 18 January 2001.
1.10.
On 27 April 2001, the Panel provided its interim report to the parties. See Section VII, infra.

II. FACTUAL ASPECTS

A. SECTION 771(5) OF THE TARIFF ACT OF 1930 AS AMENDED BY THE URUGUAY ROUND AGREEMENTS ACT

B. THE STATEMENT OF ADMINISTRATIVE ACTION

C. THE "PREAMBLE" TO THE US COUNTERVAILING DUTY REGULATIONS

D. "PRACTICE" OF THE US DEPARTMENT OF COMMERCE

2.12.
The United States disagrees that any post-WTO US "practice" exists in respect of the treatment of export restraints in countervailing duty investigations. The United States states, and Canada does not dispute, that there has been no post-WTO case in which the DOC has found an export restraint to be a subsidy. The United States argues that as a matter of US law, case precedent is not binding on Commerce. Concerning Canada's argument that "practice" is an institutional commitment to follow declared interpretations and methodologies, the United States denies that such a purported commitment exists, and further states that even if such a commitment existed, it would not be binding on Commerce as a matter of US law.
2.13.
Thus, the parties disagree over both the existence and the legal significance of what Canada refers to as US "practice".

III. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS

A. CANADA

3.1.
Canada submits that the US "measures" at issue are inconsistent with the SCM Agreement and the WTO Agreement. According to Canada, these "measures" commit the United States to treat an export restraint as meeting the definition of "financial contribution" under Article 1.1 of the SCM Agreement if, in the view of the US investigating authorities, the export restraint has the effect of increasing the supply of the restricted good. Therefore, if the downstream product incorporating the restrained input product is subject to a US countervailing duty investigation, according to Canada the United States would consider that the definitional requirement of financial contribution is satisfied (and, if the export restraint lowers the price of the restrained good, that the definitional requirement of "benefit" is satisfied). Canada argues that such treatment of export restraints as financial contributions violates the SCM Agreement and, for the same reasons, Canada alleges, the US law also violates the WTO Agreement and the SCM Agreement.
3.2.
As discussed in the preceding section, the US "measures" that Canada challenges, because it considers that they require this treatment of export restraints, are:

(i) Section 771(5) of the Tariff Act of 193011("Tariff Act"), as amended by the Uruguay Round Agreements Act, which is the provision of US countervailing duty law that defines the term "countervailable subsidy";

(ii) portions of the Statement of Administrative Action12 accompanying the URAA interpreting Section 771(5) with respect to export restraints;

(iii) portions of the US Department of Commerce Regulations13 (in particular the "Preamble" thereto) interpreting and implementing Section 771(5) and the SAA with respect to export restraints; and

(iv) the ongoing practice of the DOC of treating an export restraint as a "financial contribution" within the meaning of Article 1.1 of the SCM Agreement.

3.3.
Canada indicates that the definition of "subsidy" in Article 1.1 of the SCM Agreement requires that there be a "financial contribution" (or income or price support) that confers a "benefit". In the view of Canada, the measures at issue, taken together:

(i) are inconsistent with Article 1.1 of the SCM Agreement and, because they require the imposition of countervailing duties against practices that are not subsidies within the meaning of Article 1.1, are inconsistent with Article 10 (as well as Articles 11, 17, and 19, as they relate to the requirements of Article 10) and 32.1 of the SCM Agreement; and

(ii) for the same reasons, also violate obligations of the United States under both Article XVI:4 of the WTO Agreement and Article 32.5 of the SCM Agreement to ensure conformity of its laws, regulations, and administrative procedures with its obligations under the WTO agreements.

3.4.
Canada therefore requests that the Panel make the following recommendation to the DSB:

- That the United States bring its "measures" into conformity with the SCM Agreement and the WTO Agreement, including by ceasing to treat export restraints as "financial contributions".

B. UNITED STATES

3.5.
The United States requests that the Panel find:

(i) that none of the measures identified by Canada (either in its request for a panel or in its First Written Submission) are inconsistent with Articles 1.1, 10, 11, 17, 19, or 32.1 of the SCM Agreement; and

(ii) that the United States has not failed to ensure that its laws, regulations, and administrative procedures are in conformity with its obligations under Article 32.5 of the SCM Agreement and Article XVI:4 of the WTO Agreement.

IV. REQUEST OF THE UNITED STATES FOR PRELIMINARY RULINGS14

A. REQUEST OF THE UNITED STATES

4.1.
The United States, in a Request for Preliminary Rulings submitted after Canada's first written submission and before the US first written submission, requests the Panel to dismiss Canada's complaint by making preliminary rulings as follows:(a) That, as neither Section 771(5), the SAA, the Preamble, nor any DOC "practice" requires US authorities to treat export restraints as subsidies, these alleged measures, as such, do not violate US obligations under any of the provisions cited by Canada in its request for a panel;

(b) That US "practice" – whether past, present, or future – does not constitute a measure properly before this Panel;

(c) That, because Canada did not include US "practice" under Section 771(5) in its request for consultations, the parties did not actually consult on US "practice", and Canada's panel request fails to adequately identify the US "practice" in question, Canada's claims regarding US "practice" fail to conform to Articles 4.7 and 6.2 of the DSU, and are not properly before this Panel; and

(d) That, because Canada's panel request did not identify the SAA or the Preamble as measures, and because, in any event, neither the SAA nor the Preamble is a measure, Canada's inclusion of the SAA and the Preamble as separate measures in its First Written Submission fails to conform to Article 6.2 of the DSU, and Canada's claims regarding the SAA and the Preamble are not within the Panel's terms of reference.

4.2.
In support of this request, the United States makes the following arguments.

1. Introduction

4.3.
In the view of the United States, Canada is asking the Panel to rule in the abstract that never, under any set of circumstances present or future, can an export restraint be regarded as a subsidy program – or even a part of a subsidy program – for purposes of the SCM Agreement. Such a ruling would step beyond the bounds of any existing dispute, and thereby usurp the "exclusive authority" of the Ministerial Conference or the General Council to authoritatively interpret Article 1.
4.4.
The United States raises what it views as four different, threshold issues related to its request for preliminary rulings. First, none of the "measures" Canada has identified mandate that US authorities treat export restraints as "subsidies", as Canada alleged in its request for a panel, or as "financial contributions." Thus, under the mandatory/discretionary doctrine, none of these "measures" violates US WTO obligations.
4.5.
Second, there simply is no DOC "practice" of treating export restraints as subsidies under current US law. Even if such a "practice" existed, it could not be regarded as a measure.
4.6.
Third, because Canada's request for a panel did not identify the SAA or the Preamble as distinct measures subject to dispute, they are not within the Panel's terms of reference. Moreover, because neither the SAA nor the Preamble has any legal effect independent of the statute or regulations, neither document constitutes a measure susceptible to dispute resolution.
4.7.
Fourth, "practice" was not included in Canada's consultation request, and the United States and Canada did not actually consult on any alleged "practice". Moreover, at least until its First Written Submission, Canada failed to identify any particular "practice" about which it complained, and the "practice" it has now identified is not the sort of measure it originally described. Thus, Canada's claims regarding "practice" are not properly before the Panel.
4.8.
The United States argues that Canada's request that this Panel rule on discretionary measures, and its insistence that the Panel force the United States to comply with a ruling regarding future United States actions or "practice" – actions that may never occur – raise serious institutional concerns regarding the fundamental structure of the WTO, as well as proper judicial method. If the Panel were to rule that future measures, if they should ever be adopted, also violate US WTO obligations, the Panel would be adopting a binding prospective interpretation of the SCM Agreement and stepping well beyond the boundaries of any existing dispute.
4.9.
For the United States, the procedural defects in Canada's request for a panel mean that Canada's claims of WTO violations must fail, even if one were to assume that its interpretation of the SCM Agreement were correct, which it clearly is not. At a minimum, the flaws in Canada's pleadings indicate that the Panel must examine its claims with unusual care, and avoid overstepping its authority.

2. Factual Background

4.10.
The United States asserts that with respect to Section 771(5), Canada does not identify any way that Section 771(5) itself fails to conform to US WTO obligations or needs to be amended. Further, according to the United States, the SAA, which is a type of legislative history, does not require the DOC to treat such measures as countervailable subsidies. The SAA permits the DOC to treat an export restraint as a subsidy when justified by the terms of the statute (and the SCM Agreement), but only if the DOC determines that doing so would satisfy the requirements of the new subsidy definition. With respect to the Preamble, the United States argues that the passages that Canada cites indicate that the DOC simply was of the view that Section 771(5)(B)(iii) of the Tariff Actdid not preclude the DOC from treating export restraints as subsidies in appropriate circumstances. The DOC never stated that Section 771(5)(B)(iii) mandated that the DOC treat export restraints as subsidies. Moreover, the DOC did not promulgate a regulation on "indirect subsidies" in general, or export restraints in particular, and the DOC's statements were made in the context of explaining why it was not promulgating a regulation regarding "indirect subsidies". With respect to practice, the United States argues that Live Cattle is the only US countervailing duty ("CVD") investigation since the implementation of the URAA even to consider whether something which arguably could be categorized as similar to an export restraint programme might constitute a countervailable subsidy, and the DOC found no subsidy. According to the United States, the other two cases cited by Canada involved both a different type of financial contribution than any export restraint case (loans vs. goods) and a different type of government action (government direction of credit vs. government restrictions on exports).

3. Legal Argument

(a) Assuming for Purposes of Argument that Canada's Interpretation of Article 1 of the SCM Agreement Is Correct, Section 771(5) Does Not Violate US WTO Obligations Because Section 771(5) Does Not Mandate that the DOC Treat Export Restraints as Subsidies

4.11.
The United States notes that the Appellate Body has explained, "the concept of mandatory as distinguished from discretionary legislation was developed by a number of GATT panels as a threshold consideration in determining when legislation as such – rather than a specific application of that legislation – was inconsistent with a Contracting Party's GATT 1947 obligations".15 This doctrine has continued under the WTO system, as panels and the Appellate Body have continued to apply the mandatory/discretionary distinction in considering whether a Member's legislation is WTO-inconsistent. For example, in Canada Aircraft, the panel applied the mandatory/discretionary distinction in rejecting several Brazilian claims of prohibited subsidies under the SCM Agreement. Similarly, the panel in US 301 applied the mandatory/discretionary distinction, stating that its decision "does not imply a reversal of the classical test in the pre-existing jurisprudence that only legislation mandating a WTO inconsistency or precluding WTO consistency, could, as such, violate WTO provisions. Indeed that is the very test we shall apply in our analysis." The United States notes that most recently, in the 1916 Act case, the Appellate Body set forth the traditional formulation of the mandatory/discretionary doctrine. The Appellate Body engaged in a lengthy discussion of the doctrine and its correct application, ultimately finding that the panel had applied the doctrine correctly.
4.12.
According to the United States, the text of Section 771(5) requires the DOC to treat export restraints as subsidies only if they might meet all of the statute's requirements, which are in effect the same as those of the SCM Agreement. Therefore, even assuming (wrongly) for purposes of argument that Article 1.1 of the SCM Agreement precludes ever treating an export restraint as a subsidy, nothing in the text of Section 771(5) mandates that the DOC treat an export restraint as a subsidy. This conclusion does not change if one interprets Section 771(5)(B)(iii) in light of the SAA. Although the SAA is an authoritative expression by the United States concerning the interpretation of the URAA, pages 925-926 of the SAA state merely that the DOC may impose countervailing duties regarding export restraints only if such restraints meet all of the requirements for countervailability under the statute and the SCM Agreement.
4.13.
Turning to the Preamble, the United States asserts that nothing in the Preamble requires the DOC to treat export restraints as subsidies. At most, the Preamble expresses the DOC's view that Section 771(5)(B)(iii) "would permit" it to treat export restraints as subsidies. Even if the Preamble stated that Section 771(5)(B)(iii) required the DOC to treat export restraints as subsidies, such a statement would not be binding upon the DOC as a matter of US law. Moreover, the DOC did not promulgate a regulation on the topic of indirect subsidies in general, or export restraints in particular. Thus, the Preamble cannot even be used as an interpretive tool, because there is no regulation to interpret. At most, that United States argues, the Preamble is a non-binding statement by the DOC regarding its views at the time concerning the scope of Section 771(5)(B)(iii).
4.14.
With respect to Canada's claims concerning US "practice", the United States maintains that no DOC determination has ever found that any export restraint meets the standard of Section 771(5)(B)(iii); but even if one had, this would not mandate that the DOC interpret the statute in this fashion. It is a well-established principle of US administrative law that an administrative agency, such as the DOC, is not obliged to follow its own precedents, provided that it explains why it departs from them. Thus, even if the DOC had made a determination under Section 771(5) in a prior CVD proceeding that an export restraint constituted a subsidy (which it has not), the DOC would not be bound by that determination in a future CVD proceeding involving an export restraint. The key consideration under US law is that DOC determinations be consistent with the statute and the regulations.
4.15.
Moreover, the United States asserts, written submissions made by Canada in the course of the DOC's rulemaking proceeding demonstrate that Canada has agreed with the above assessment. Canada has stated that Section 771(5) of the Tariff Act "adopts a definition of 'subsidy' that is substantively the same as that of the [SCM] Agreement", and that the DOC "can easily, and should, interpret the URAA consistent with US GATT obligations, which require that regulatory measures be excluded from the definition of subsidy." (emphasis added). Canada also has stated that it "appreciate[d] that the Department may wish to preserve its flexibility and discretion with respect to the application of the concepts of 'indirect subsidies'... and has decided therefore not to propose regulations addressing these issues at this time". (emphasis added).
4.16.
In other words, according to the United States, until it decided to commence this dispute Canada was of the view that Section 771(5) did not require the DOC to treat export restraints as subsidies. Similarly, until it decided to commence this dispute, Canada was of the view that by declining to promulgate a regulation on the topic, the DOC had preserved "its flexibility and discretion" with respect to the treatment of export restraints. Now, the United States argues, Canada is suddenly claiming that in its rulemaking proceeding the DOC somehow bound itself to treat export restraints as subsidies. For the United States, not only do Canada's prior statements to the DOC constitute an admission against interest for purposes of this dispute, but Canada's drastic reversal of positions speaks volumes about the strength (and purposes) of its case.

(b) Canada's Claims Concerning "US Practice" Under Section 771(5) Should be Dismissed

4.17.
The United States asserts that what Canada refers to as "practice" consists of nothing more than individual applications of the US CVD law. While these applications themselves might individually constitute measures, they do not, through numbers, mutate into a separate and distinct "measure" that can be called "practice." Rather, Canada's alleged "practice" simply consists of specific determinations in specific CVD proceedings (or in some cases only "thoughts" expressed in specific CVD proceedings) that are not within the Panel's terms of reference and that Canada says it is not challenging. In the view of the United States, the sort of "practice" alleged by Canada does not constitute a measure within the meaning of the DSU.
4.18.
However, even if "practice" could be considered as a measure, the United States argues that Canada's claims regarding US "practice" still would not be properly before this Panel. Because Canada did not identify US "practice" in its consultation request, the United States and Canada did not actually consult with respect to US "practice", and Canada's panel request did not adequately identify US "practice", Canada's claims fail to conform to Articles 4.7 and 6.2 of the DSU and must be rejected for that reason. Moreover, to the extent that Canada's First Written Submission finally identifies the three types of "practice" about which it is complaining, none of the three types can violate US WTO obligations: (1) pre-WTO CVD determinations cannot violate the WTO or SCM Agreements; (2) there is no existing US "practice" of treating export restraints as subsidies that violates the WTO or SCM Agreements; and (3) hypothetical future US practice under Section 771(5) is not properly before the Panel because it is not a measure, and because only the Ministerial Conference and the General Council have the power to issue authoritative interpretations of the SCM Agreement.
4.19.
Nor, according to the United States, would rulings on possible future practice be wise. As previously noted by the panel in European Communities – Audio Tapes, para. 365, "[I]t would [not] be appropriate to reach findings on a 'practice' in abstracto when it had determined that the actions taken in a particular investigation were not inconsistent with the Agreement and that the 'practice' was not pursuant to mandatory legislation." More fundamentally, the "future practice" of a Member simply cannot be regarded as a "measure" subject to dispute settlement, because it is purely speculative. For that reason, the DSU applies only to measures "taken", not to measures "that may possibly be taken in the future".
4.20.
For the United States, an additional reason why Canada's claims regarding DOC "practice" are not properly before the Panel is that those claims were not made in conformity with Articles 4.7 and 6.2 of the DSU. In its request for consultations, Canada identified the SAA and the Preamble as the challenged measures, effectively alleging that these measures, as such, violated various US WTO obligations. Canada did not allege that any actual application of these measures in a specific US CVD proceeding violated US WTO obligations. Likewise, at the consultations which took place on 15 June 2000, the parties did not discuss any actual application of the SAA, the Preamble, or Section 771(5) in a particular US CVD proceeding.
4.21.
Nonetheless, the United States argues, in its panel request Canada for the first time in this dispute raised US practice under Section 771(5) as a challenged measure. In the view of the United States, Articles 4.7 and 6.2 of the DSU preclude Canada from challenging a measure which was neither identified in its consultation request nor the subject of consultations.
4.22.
The United States recalls that in Brazil - Aircraft, the Appellate Body was faced with a situation where Brazil sought to dismiss Canada's complaint because the regulatory instruments identified in Canada's consultation request – and on which Canada and Brazil consulted – were no longer in effect by the time the panel was established. This was due to the fact that the regulatory instruments in question had a short lifespan, and were constantly expiring and being re-enacted under a new name.
4.23.
According to the United States, the Appellate Body rejected Brazil's argument on the basis that the regulatory instruments that came into affect after consultations were held did not change the essence of the export subsidies complained about by Canada. In so doing, however, the Appellate Body reaffirmed the important role that consultations play in the dispute settlement process. According to the Appellate Body, "Articles 4 and 6 of the DSU... set forth a process by which a complaining party must request consultations, and consultations must be held, before a matter may be referred to the DSB for the establishment of a panel." (emphasis added). The Appellate Body found that Articles 4 and 6 of the DSU do not "require a precise and exact identity between the specific measures that were the subject of consultations and the specific measures identified in the request for the establishment of a panel." (emphasis in original). Implicit in this statement, however, is the notion that there must be some identity between the subject of the consultations and the specific measures identified in the panel request. If there is not, then the panel request is defective as a matter of law.
4.24.
With respect to Section 771(5), the United States does not object to its inclusion in Canada's panel request, even though it was not identified in Canada's consultation request. In the consultation request and at the consultations, Canada made clear its intent to challenge US law, as such. The consultations clarified which measure Canada had to identify if it was to properly make such a challenge.
4.25.
However, the United States indicates, at no time during the consultations phase did Canada indicate that it intended to challenge US law, as applied. In the view of the United States, there is no identity between a law, as such, and a law, as applied. For that reason, the Panel should find that Canada has failed to comply with Articles 4.7 and 6.2 of the DSU, and should dismiss Canada's claims with respect to US practice under Section 771(5).
4.26.
For the United States, Canada's panel request also fails to meet the requirements of Article 6.2 of the DSU, because the request fails to "identify the specific measures at issue...." Specifically, by simply making a vague reference to "US practice thereunder" – "thereunder" being a reference to Section 771(5) – Canada has failed to adequately identify the particular applications of Section 771(5) about which it is complaining.
4.27.
The United States argues that not until its First Written Submission did Canada describe any examples of US practice that it wished to make the subject of this action (although it could easily have done so in consultations), and even now it is by no means clear exactly what Canada considers to be "practice" or whether it has other as-yet-unmentioned "practice" in mind. The United States asserts that it has been prejudiced by these failures, and these failures make the requisite consultation process an empty one (thereby undermining the overall dispute settlement process).
4.28.
Finally, the United States emphasizes that subsequent to the entry into force of the WTO Agreement, the DOC has never had any practice that "treats a restraint on exports of a product as a subsidy to producers of other products". Live Cattle from Canada cannot be a "measure[] that treat[s] a restraint on exports of a product as a subsidy" of the sort alleged in Canada's requests either for a consultation or for a panel, because in that case the DOC found that the Canadian measure at issue was not a subsidy because it did not provide a benefit. Nor did the DOC make a finding that any export restraint constituted a "financial contribution", the sort of measure addressed in Canada's First Written Submission.
4.29.
Moreover, in the view of the United States, the two Korean steel cases cited by Canada involved measures (government direction of credit) that are completely different from an export restraint. Accordingly, none of the examples of "practice" Canada has identified even in its First Written Submission constitute the sort of measures it has said that it challenges.
4.30.
For the United States, Canada's vague and amorphous request for a panel to address actions that have not yet been and may never be taken emphasizes the problems associated with trying to address practice purely in the abstract. Canada's consistent failure to identify the precise "measures" and "practice" it wishes to place at issue highlights the fact that its real complaint involves a measure – US imposition of countervailing duties on Canadian lumber imports – that does not exist. The United States acknowledges that it is certainly possible that the DOC will one day find that some type of export restriction program in Canada or its provinces amounts to entrusting or directing, either alone or in combination with other restrictions, a private "body" to sell an input good to a particular producer or producers, and meets the other requirements for a countervailable subsidy, but states that it is also possible that the DOC will not make such a finding if and when it is faced with the issue. Yet for both practical and juridical reasons, in the opinion of the United States the Panel would be ill-advised to speculate on either what types of restrictions might exist or how the DOC would treat them. Accordingly, the Panel should decline to rule on Canada's complaint and dismiss it.

(c) The Panel Should Dismiss Canada's Claims Concerning the SAA and the Preamble Because Neither Document Was Identified as a Measure in Canada's Panel Request and Because Neither Document Constitutes a "Measure" Within the Meaning of Article 6.2 of the DSU

4.31.
The United States notes that in its panel request, Canada identified the challenged measures as: (1) Section 771(5) (as interpreted by the SAA and the Preamble), and (2) US practice thereunder. If Canada had intended to challenge the SAA and the Preamble as separate measures, the "as interpreted by" phrase would have been unnecessary.
4.32.
However, the United States continues, in its First Written Submission, Canada expanded its case to include the SAA and the Preamble as separate "measures". According to the United States, Canada cannot do so, because it is well-established that a Panel's terms of reference are fixed by the panel request, and a complainant cannot add new measures thereafter.
4.33.
For the United States, Canada's behaviour is particularly egregious in light of the fact that at the first DSB meeting to consider Canada's panel request, the United States indicated that it interpreted the request as involving two measures – Section 771(5) and US practice thereunder. Canada never took issue with this interpretation. Indeed, at the second DSB meeting, the only point on which Canada took issue with the United States concerned the US objection to Canada's inclusion of "practice" in its panel request.
4.34.
Finally, the United States argues, even if Canada's panel request could be construed as having separately identified the SAA and the Preamble as things it wished to challenge, those documents do not constitute measures within the meaning of Article 6.2 of the DSU. According to the United States, neither document, in itself, has any independent legal effect under US law, and neither document authorizes nor requires any action by the US Government. In the view of the United States, documents of this nature cannot constitute a measure within the meaning of Article 6.2.

B. RESPONSE OF CANADA

4.35.
Canada considers that each of the US requests for preliminary rulings is unfounded and consequently requests that the Panel deny the preliminary rulings sought by the United States. Canada argues that, in an effort to substantiate its request, the United States mischaracterizes Canada's claim and the nature and effect of the measures under US law, as well as the relevance of the WTO case law cited by the United States in the context of a request for a preliminary ruling.

1. The Matter Raised By Canada's Panel Request Is Properly Before This Panel

4.36.
Canada notes that in the US Request for Preliminary Rulings ("the US Request"), the United States has challenged in a variety of ways whether the matter raised by Canada's panel request is properly before this Panel and reflects an actual dispute. Canada submits that its Panel Request sets out both specific measures and legal claims, well within the requirements established by the Appellate Body in Guatemala – Anti-Dumping Investigation Regarding Portland Cement From Mexico,16 that reflect the real controversy that exists between Canada and the United States with respect to the treatment of export restraints under US countervailing duty law.
4.37.
Canada recalls that in Guatemala – Cement, the Appellate Body concluded that the "matter" referred to the DSB consists of two elements: the specific measures at issue and the legal basis of the complaint (or the claims). According to Canada, its panel request sets out four measures as constituting the relevant aspects of US countervailing duty law that, when taken together, are inconsistent with the provisions of the SCM Agreement and the WTO Agreement identified by Canada. For Canada, these government actions all clearly satisfy the standard for a "measure" set out in Guatemala – Cement.
4.38.
Canada asserts that its legal claims also are set out in its panel request and that these claims, which echo Canada's request for consultations, unquestionably put the United States on notice, and have done so since the very beginning of this dispute, that Canada is of the view that the treatment of export restraints under US countervailing duty law is inconsistent with the various identified provisions of the SCM Agreement and WTO Agreement.
4.39.
Canada argues that the United States attempts to isolate the constituent parts of US countervailing duty law into separate pieces in order to claim that each, by itself, is meaningless. In particular, the United States, while not objecting to Section 771(5) of the Tariff Act of 1930 as a "measure", claims that it is the only measure, and that whether the statutory language of Section 771(5) itself mandates the treatment of export restraints as subsidies is dispositive of this proceeding. It also claims that the SAA and Preamble have no "legal effect independent from the statute or regulations",17 and that there is no US "practice" with respect to export restraints.
4.40.
For Canada, the US characterization of the basis for Canada's complaint and its attempt at parsing the measures so as render each measure meaningless in its own right is not supported by WTO jurisprudence. As Canada discusses in its First Written Submission (see infra), the Panel in United States – Sections 301 – 310 of the Trade Act of 1974 noted that a national law may be "multi-layered," including statutory and other institutional and administrative elements that are "often inseparable and should not be read independently from each other when evaluating the overall conformity of the law with WTO obligations."
4.41.
Canada notes that the United States also argues that in WTO dispute settlement, the meaning of municipal law is a question of fact to be proven, and consists not only of the provisions themselves, but also the domestic legal principles governing their interpretation. The United States then suggests that a Member's views on the meaning of its own law is ordinarily worthy of some deference. Canada notes, however, that a Panel has an independent obligation to assess municipal law to determine whether the Member is in compliance with its WTO obligations. Canada notes that the law is well established in this regard, and points to the Appellate Body Report in India – Patent Protection for Pharmaceutical and Agricultural Chemical Products.
4.42.
Canada notes that according to the United States, Section 771(5) largely tracks the language of Article 1.1(a)(1)(iv) of the SCM Agreement, and thus is not a violation of that Article. Moreover, the United States suggests that under US principles of statutory construction, Section 771(5) cannot be interpreted in a fashion that would violate Article 1.1(a)(1)(iv) of the Agreement, because under "the Charming Betsy doctrine", an ambiguous US statute is to be "construed, where possible, to be consistent with international obligations of the United States".
4.43.
Canada agrees that the language of Section 771(5) could have been interpreted consistently with the definition of "subsidy" in Article 1.1 of the SCM Agreement, as Canada noted in its comments submitted to the DOC during its rulemaking proceeding in 1995. For Canada, however, this is not the question at issue. Rather, as the Appellate Body has noted (United States – 1916 Act), the issue is not how a statute theoretically might be interpreted, but how it is interpreted in light of both statutory and non-statutory elements.
4.44.
As to its contention about the Charming Betsy, Canada argues, the United States omits to note other US judicial doctrines that render the Charming Betsy doctrine meaningless in this context. In this case, the United States has made plain in its submissions to the Panel that it interprets Article 1.1 of the SCM Agreement to permit it to countervail export restraints, and the Charming Betsy doctrine consequently will not lead it to adopt a different interpretation of its obligations.
4.45.
In Canada's view, the United States also mischaracterizes the role and significance of the SAA. While conceding that by the terms of the statute the SAA is "an authoritative expression by the United States concerning the interpretation of the URAA", the US Request asserts that the SAA is merely "a type of legislative history". For Canada, this US argument is inherently contradictory and belied by both US court decisions and the treatment of the SAA by the United States itself.
4.46.
First, Canada states, the SAA is not legislative history in any ordinary sense, for the reasons that it was required by statute, agreed between the US Administration and the US Congress in advance, submitted by the US President to the US Congress with the proposed URAA legislation, and approved by the Congress. The SAA has a function and significance in US law beyond that of ordinary legislative history.
4.47.
Second, Canada argues, the very existence of the SAA and the declaration in the statute that it is an "authoritative expression by the United States concerning the interpretation and application of the Uruguay Round Agreements…" makes plain that the scope and meaning of the statute are to be determined by the SAA. This fact that has been repeatedly recognized by US courts.
4.48.
Finally, Canada notes, the US attempt to downplay the significance of the SAA, treating it as merely "encouraging" certain interpretations is completely contradictory to its position and assurances set out in United States – Section 301. In that case, the United States declared that "[t]he SAA must, by law, be treated as the authoritative expression concerning the interpretation of the statute in any judicial proceeding." On this basis, Canada states, the Panel found in favour of the United States.
4.49.
As regards the effect of the Preamble, Canada asserts that the US Request acknowledges that the DOC's statements concerning export restraints in its Notice of Final Rule "would have been binding" on the DOC if they had been made in a "regulation", but then claims that inclusion of those statements in the Preamble makes them "[a]t most … a non-binding statement by the DOC regarding its views at the time." The United States adds that it is not bound by the Preamble.
4.50.
For Canada, the claim that a Preamble to Regulations has lesser legal status ignores the administrative framework under which US agencies promulgate regulations. The DOC regulations are issued in accordance with the Administrative Procedure Act (the APA), which requires that an agency incorporate a preamble in rules that they issue. Thus, the purported distinction between the Preamble and the remainder of the regulation that is urged by the United States is without basis. Moreover, Canada asserts, numerous US courts have recognized the Preamble as part and parcel of a regulation, and thus binding.
4.51.
Canada finds equally invalid the US argument that the Preamble's provisions on export restraints are not binding because the Preamble is the only portion of the regulation that addresses the issue. First, this argument suggests that Commerce engaged in a meaningless exercise when it drafted its position on export restraints in the Preamble. Second, numerous US courts have treated a preamble as a binding agency pronouncement, even where the preamble is the only portion of the regulation that addresses the issue. In fact, according to Canada, the United States has done so in submissions to WTO panels. In United States – Standards for Reformulated and Conventional Gasoline, the United States justified certain EPA rules as being compatible with its WTO obligation by reference to the Preamble, including to provisions in the Preamble that contained obligations not found in other parts of the regulation.
4.52.
Finally, Canada argues, there also is no validity to the assertion that Commerce itself has never recognized the binding nature of the Preamble. To the contrary, in its countervailing duty determinations, Commerce uniformly treats the Preamble to the countervailing duty regulations as an integral part of Commerce's regulations and equivalent in legal authority to other sections of the regulations. Indeed, Canada states, Commerce commonly refers to the regulatory language included in the Preamble as simply "the regulations" and relies on the Preamble as legal authority for its interpretations. This was made evident in the Korean Steelcases.
4.53.
Canada notes the United States argument that its practice of treating export restraints as "financial contributions" is not appropriately a "measure". Canada asserts that the United States claims that because pre-WTO determinations cannot violate WTO obligations they are irrelevant to "practice" and "there is no existing US 'practice' of treating export restraints as subsidies that violates the WTO or SCM Agreements"; and that Canada is seeking a ruling on a "hypothetical future US practice". The United States is wrong on both counts.
4.54.
For Canada it is clear that there is an existing US administrative practice of treating export restraints as meeting the "financial contribution" requirement of Article 1.1(a)(1)(iv) of the SCM Agreement, which is defined, in large part, by the United States' statements in the SAA regarding its pre-WTO practice of countervailing export restraints. While Canada agrees that this pre-WTO practice should have become irrelevant after the SCM Agreement came into force, the SAA expressly provides that US practice in those cases is to continue under the SCM Agreement and the revised US countervailing duty law.
4.55.
Canada asserts that this reliance on pre-WTO cases including Leather and Lumber to describe its continuing practice of treating export restraints as financial contributions is repeatedly confirmed in the Regulations. There can, therefore, be no doubt that Commerce's pre-WTO practice is its post-WTO practice.
4.56.
In Canada's view, the US attempt to dismiss its post-WTO practice as irrelevant is equally invalid. The Korean Stainless Steel cases discussed by Canada confirm the Commerce Department's absolute adherence to the view that the "clear and unambiguous language of the SAA is that Congress intended the specific types of indirect subsidies found to be countervailable" in past cases, including Softwood Lumber, "to continue to be covered by the [Tariff Act of 1930], as amended by the URAA." For Canada, those cases also confirm the Commerce Department's view that its Regulations, like the SAA, foreclose any discretionary consideration of "financial contribution" in the case of "indirect subsidies".
4.57.
Nor, argues Canada, can the United States escape an "existing practice" by claiming that its discussion of financial contribution in Live Cattle was "at most dicta". Canada acknowledges that in LiveCattle, Commerce did not find the Canadian Wheat Board's "control" of exports to be a countervailable subsidy because it found no benefit. But, Canada asserts, Commerce's initiation of the case, based only on allegations of an export restraint and a price effect, like its pronouncements on "financial contribution" and "private body" in its final determination, are manifestations of its continuing practice of considering an export restraint to be a "financial contribution." In short, the determination made clear that Commerce did not countervail the alleged export restraint not because it did not view an export restraint as a financial contribution but rather only because it did not find a benefit.
4.58.
More fundamentally for Canada, the "practice" at issue is not individual determinations in countervailing duty cases as the United States suggests. Canada contends that it does not seek a ruling overturning the determinations in particular past cases. Rather, as is recognised under WTO jurisprudence, references to specific cases is an acceptable means of establishing an interpretation under domestic law. Canada's challenge to US practice is particularly crucial to US compliance with a DSB ruling if Canada prevails in this dispute. Canada believes that there is ample evidence from other WTO proceedings that the United States may take the position that a change in administrative practice is not a necessary element of compliance, even where Panel and Appellate Body reports have plainly found the existing practice to be in violation of WTO agreements It is in this light that Canada challenges US practice with respect to export restraints, and seeks relief that expressly addresses US practice.

2. The Mandatory/Discretionary Distinction Is Not A "Procedural Matter" Going to The Jurisdiction Of This Panel

4.59.
Canada states that the United States claims that neither Section 771(5), the SAA, the Preamble, nor any DOC "practice" requires US authorities to treat export restraints as subsidies, and on this basis, that the alleged measures, as such, do not violate US obligations under any of the provisions cited by Canada in its request for a panel. For Canada, however, this argument is based on a mischaracterization of Canada's complaint. Canada does not contend that the US measures require the United States to treat export restraints as subsidies. Rather, Canada's position is that the measures require the United States to determine that an export restraint satisfies the "financial contribution" element of the definition of 'subsidy" and therefore that an export restraint is countervailable if Commerce finds that it confers a "benefit". In Canada's view, this is inconsistent with the definition of Article 1.1 of the SCM Agreement because an export restraint does not come within any of the government actions set out in Article 1.1, including, in particular, the requirements of subparagraph 1.1(a)(1)(iv) of the Agreement.
4.60.
Canada notes that in support of the US argument that the measures at issue are not properly before this Panel because they are not "mandatory", the United States cites various GATT and WTO jurisprudence. This review culminates in a US claim that Canada's complaint should be dismissed as a procedural matter on this basis. However, Canada argues, because this issue does not go to a procedural matter, it is not properly the subject of a preliminary ruling.
4.61.
More importantly for Canada, these cases are not relevant to this Panel's jurisdiction to hear the "matter" brought before it by Canada. Under the GATT cases cited by the United States, the mandatory or discretionary nature of a measure is an issue that addresses whether a measure as such violates the GATT provisions invoked, not whether a panel has jurisdiction to hear a particular matter. In Canada's view, this was made clear by the Appellate Body in United States – Anti-Dumping Act of 1916.
4.62.
Canada further states that in a variation on that US argument, the United States asserts that Canada is seeking an advisory opinion under the SCM Agreement and in doing so is asking the Panel to usurp the authority of the Ministerial Conference and General Council under Article IX:2 of the WTO Agreement. For Canada, in advancing these arguments the United States relies on dicta regarding "judicial economy". Canada points out that this dicta addresses whether a panel should decline to address certain issues that are not necessary to resolve the issue before it, not whether the dispute should have been considered originally.
4.63.
Canada asks the Panel to find that the measures at issue violate existing provisions in the SCM and WTO Agreements in that they require the United States to treat an export restraint as a "financial contribution". If export restraints do not come within the scope of the definition of "financial contribution" in the SCM Agreement, then the treatment of export restraints under US countervailing duty law is necessarily inconsistent with both the SCM Agreement and the WTO Agreement. Canada contends that it is entitled to a determination of this issue so that benefits accruing to it under these Agreements are not, and cannot, be impaired by the application of a WTO inconsistent approach. As such this dispute is properly before this Panel.
4.64.
Canada recalls that at paragraphs 58-69 of the US Request, the United States refers to a number of GATT and WTO cases in which a panel declined to find a measure as such to be inconsistent with GATT or WTO rules because the country maintaining the measure was able to establish that, even though the measure could be applied inconsistently with international obligations, the measure did not mandate a violation.
4.65.
Canada argues, however, that the United States neglects to mention that in all of these cases, either the panel first made a finding as to the obligations in question, or there was essentially no dispute about those obligations. Put differently, where there was a dispute as to the nature of the obligation at issue, panels first determined the meaning of the obligation before considering whether the measure violated that obligation. In Canada's view, none of these cases supports the US Request.18
4.66.
Canada notes that in this dispute, the United States and Canada vigorously dispute the requirements of the WTO rules invoked by Canada. The United States openly acknowledges that it does not agree with Canada's interpretation, and the US measures and the US submissions make it quite clear that under US countervailing duty law, an export restraint is considered to be a "financial contribution." In Canada's view, these differences can be addressed only after a full hearing of the substance of Canada's case before this Panel.
4.67.
For Canada, not only is the United States incorrect in its efforts to rely upon the mandatory/discretionary distinction in requesting a preliminary ruling, it also has mischaracterized the "mandatory" nature of the SAA and Preamble. In response to Canada's description of how the SAA requires the United States to treat export restraints as "financial contributions", the United States focuses on the proviso in the SAA that states that the types of indirect subsidies identified in the SAA will continue to be countervailable "provided that" Commerce is satisfied that the standard of Section 771(5)(B)(iii) has been met. Canada asserts that the proviso must, however, be read in context and that the context curtails any Commerce discretion.
4.68.
Canada notes that the proviso is preceded by three paragraphs containing key directives on the interpretation of Section 771(5)(B)(iii). The first paragraph of the SAA passage on "indirect subsidies" declares that the "entrusts or directs" language of 771(5)(B)(iii) "shall be interpreted broadly" to "continue [the Administration's] policy of not permitting the indirect provision of a subsidy to become a loophole" in countervailing duty enforcement.19 The second paragraph recites pre-WTO Commerce practice, specifically including the countervailing of export restraints in Leather and Lumber, and concludes that Commerce found a countervailable subsidy "where the government took or imposed (through statutory, regulatory, or administrative action) a formal, enforceable measure which directly led to a discernible benefit … .".
4.69.
Canada continues that the third, and crucial, paragraph, by characterizing the export restraints of Leather and Lumber as "cases where the government acts through a private party", declares that those export restraints meet the entrusts or directs standard of 771(5)(B)(iii), and states that in such cases, the amended law is to be "administered on a case-by-case basis consistent with" the pre-WTO practice described in the preceding paragraph. In Canada's view removing any remaining doubt about the interpretation of Section 771(5)(B)(iii) is the statement in this paragraph of the SAA of the "Administration's view that Article 1.1(a)(1)(iv) of the Subsidies Agreement and Section 771(5)(B)(iii) encompass indirect subsidy practices like those which Commerce has countervailed in the past, and that these types of indirect subsidies will continue to be countervailable… (emphasis added). Canada asserts that therefore the SAA gives Commerce explicit direction as to the determination it should make under the proviso with regard to export restraints.
4.70.
In a similar vein, Canada argues, the US Request asserts that the Preamble does not require Commerce "to treat export restraints as subsidies"20 (thus once again misstating the issue as "subsidy" rather than "financial contribution"), but essentially limits its argument to claiming that "at most, the Preamble expresses the DOC's view that Section 771(5)(B)(iii) 'would permit' it to treat export restraints as subsidies."21 As in the case of the SAA, when viewed in context, the "would permit" language does not mean what the United States suggests, in Canada's view. The language comes at the end of a paragraph that confirms that "if the Department were to investigate situations and facts similar to those examined in Lumber and Leather in the future, the new statute would permit the Department to reach the same result."22 Canada states that US countervailing duty law itself is mandatory in the sense that when Commerce finds a financial contribution, benefit, and specificity, it must find a countervailable subsidy. Because, according to Canada, the SAA and Preamble have already determined that an export restraint meets the financial contribution requirement, the scope of any discretion under the "would permit" language is limited to Commerce's analysis of benefit and specificity.

3. The Sufficiency Of The Consultations On US Practice

4.71.
Canada recalls that the United States submits that Canada's "claims" regarding US practice are not properly before the Panel based on allegations that: (1) Canada did not include US practice as a "measure" in its request for consultations; (2) the parties did not actually consult on US practice; and (3) Canada's Panel Request fails to adequately identify the "US 'practice' in question."
4.72.
Canada states that the United States attempts to support its position by quoting selectively from the Appellate Body report in Brazil – Export Financing Programme for Aircraft as standing for the principle that without identity between the subject of the consultations and the specific measures identified in the panel request, the panel request is defective as a matter of law".23 Notwithstanding the erroneous assertion by the US as to absence of identity between the subject of the consultations and the specific measures identified in the panel request, Canada finds it instructive to set out more fully what the Appellate Body actually said in the report relied on by the United States:

"We do not believe, however, that Articles 4 and 6 of the DSU … require a precise and exact identity between the specific measures that were the subject of consultations and the specific measures identified in the request for the establishment of a panel.…As stated by the Panel, "[o]ne purpose of consultations … is to 'clarify the facts of the situation', and it can be expected that information obtained during the course of consultations may enable the complainant to focus the scope of the matter with respect to which it seeks establishment of a panel."

4.73.
Canada states that apart from not requiring a precise and exact identity between the specific measures that were the subject of consultations and the specific measures identified in the request for the establishment of a panel, panels have also been directed to look to whether the "essence" of the matters consulted on are the same as the measures identified in a panel request. In Canada's view, there can be no doubt that this is the case in the present case.
4.74.
Turning to what occurred during consultations, prior to the meeting on 15 June 2000, Canada indicates that it notified the United States that among other things to be dealt with at the meeting:

"We also will wish to inquire as to the sources of United States … practice, if any, that are relevant to the Department of Commerce's treatment of an alleged export restraint under U.S. countervailing duty law in addition to the Uruguay Round Agreements Act (URAA), the Statement of Administrative Action accompanying the URAA and the Department of Commerce's (DOC) Explanation of its Final Rule."24 (emphasis added)

4.75.
According to Canada, this question was repeated at the consultations. Thus the United States was well aware that Canada was concerned about US practice regarding the treatment of export restraints. Moreover Canada states, the pre-WTO Commerce determinations identified by Canada at the DSB meeting of September 11, 2000 are, as discussed above, plainly relevant to post-WTO practice, given that the SAA and Preamble expressly give those cases continuing relevance.
4.76.
Canada further submits that it is not challenging specific applications of Commerce's practice, but rather the practice itself. In Canada's view, the United States was in no way "prevented … from knowing the legal basis of the complaint,"25 given that from the beginning of this dispute Canada has never deviated from taking issue with the treatment of export restraints under US countervailing duty law.

4. The Sufficiency Of Canada's Panel Request

4.77.
Canada notes the US argument that with respect to the SAA and Preamble, Canada's Panel Request is deficient because (1) the SAA and Preamble are not identified as "measures" and (2) neither is a "measure." Canada asserts that it has already demonstrated above that the SAA and Preamble are "measures".
4.78.
Canada states in addition that contrary to the position of the United States, the sentence in Canada's Panel Request identifying the measures at issue sets out four measures, not two. Canada states that this is clear in Canada's First Written Submission, when after repeating the relevant sentence from the Panel Request in paragraph 3, it breaks out the four measures in paragraph 13 as part of explaining how Canada's description of these measures will occur in the submission. The four measures are easily identified in this paragraph.
4.79.
Canada maintains that the manner in which it has set out the measures in this case is almost identical to the manner in which the measures in EC -Bananas were set out. In that case, the Appellate Body considered it sufficient identification of the measures to reference the "regime for the importation, sale and distribution of bananas established by Regulation 404/93 (O.J. L 47 of 25 February 1993, p. 1), and subsequent EC legislation, regulations and administrative measures, including those reflecting the provisions of the Framework Agreement on bananas, which implement, supplement and amend that regime".26
4.80.
Canada maintains that it has gone even further in this case in notifying, through its Panel Request, the specific measures with which it takes issue, which Request Canada has already shown to meet the requirements of Article 6.2 of the DSU. Further, it is clear to Canada from both the US Request and the US First Written Submission that the United States has not been prejudiced, because it has been able to respond fully to Canada's claims. In addition, Canada argues that its Panel Request clearly satisfies the standard set out in Korea – Definitive Safeguard Measure on Imports of Certain Dairy Products.27

5. Conclusion

4.81.
For the foregoing reasons, Canada requests this Panel to reject the efforts of the United States in the US Request to distract this Panel from its true task: resolving the dispute between Canada and the United States regarding the treatment of export restraints under US countervailing duty law. Therefore, Canada requests that this Panel find that the claims made in the US Request are without foundation.

V. MAIN ARGUMENTS OF THE PARTIES

5.1.
The main arguments, presented by the parties in their written submissions and oral statements, are summarized below. Summaries of the parties' written answers to written questions are attached at Annex A.

A. FIRST WRITTEN SUBMISSION OF CANADA

1. Introduction

5.2.
Canada states that at issue in this dispute is the treatment of export restraints under US countervailing duty law, which, in Canada's view, places the United States in violation of its obligations under the Agreement on Subsidies and Countervailing Measures (the SCM Agreement) and the Marrakesh Agreement Establishing the World Trade Organisation (the WTO Agreement).
5.3.
According to Canada, under US countervailing duty law, a government regulatory action that limits exports of a good (an export restraint) is considered to be a "financial contribution" within the meaning of Article 1.1 (a)(1) of the SCM Agreement. US law therefore treats an export restraint as a "subsidy" if, in the view of US investigating authorities, the export restraint has the effect of lowering the domestic price of the restricted good to downstream users of that good. If those downstream users of the restrained input product are subject to a US countervailing duty investigation, the alleged "subsidy" is countervailable.
5.4.
For Canada, this is inconsistent with Article 1.1 of the SCM Agreement. The definition of "subsidy" in Article 1.1 requires that there be a "financial contribution" (or an income or price support) that confers a "benefit". The "financial contribution" element of the Agreement's definition of "subsidy" is exhaustively defined in Article 1.1(a)(1) to encompass only particular government actions – the direct transfer of funds, the foregoing of government revenue, or the provision of goods or services or purchase of goods – that transfer financial resources from a government, or at the direction of a government, to a privateproducer. In Canada's view, an export restraint does not fall within any of these categories.
5.5.
More specifically, and contrary to US law, Canada argues, an export restraint does not fall under Article 1.1(a)(1)(iv) of the Agreement. An export restraint does not "entrust or direct" a "private body" to "carry out the provision of goods" and does not meet the other requirements of Article 1.1(a)(1)(iv).
5.6.
Canada asserts that the US measures that require this treatment of export restraints are Section 771(5) of the Tariff Act of 1930,28 as amended by the Uruguay Round Agreements Act, portions of the Statement of Administrative Action29 accompanying the URAA interpreting Section 771(5) with respect to export restraints, portions of the Preamble to the US Department of Commerce Final Countervailing Duty Regulations30 interpreting and implementing Section 771(5) and the SAA with respect to export restraints, and Commerce's ongoing practice thereunder.
5.7.
For Canada, in addition to being inconsistent with Article 1.1 of the SCM Agreement, these measures are inconsistent with Article 10 (as well as Articles 11, 17 and 19, as they relate to the requirements of Article 10) and 32.1 of the SCM Agreement, because they require the imposition of countervailing duties against practices that are not subsidies within the meaning of Article 1.1. For the same reason, the measures violate obligations of the United States under both Article XVI:4 of the WTO Agreement and Article 32.5 of the SCM Agreement to ensure conformity of its laws, regulations and administrative procedures with its obligations under the WTO Agreements.

2. Pre- And Post-WTO US Countervailing Duty Law And The US Measures

5.8.
Canada notes that the imposition of countervailing duties by the United States is governed by the US countervailing duty statute, contained in Subtitle A of Title VII of the Tariff Act of 1930, ("the Act") as amended from time to time. Section 701 of the Act sets forth the basic requirement that if the administering authority determines that a countervailable subsidy is being provided to merchandise under investigation, and the US International Trade Commission finds that a domestic industry is materially injured by reason of imports of that merchandise, there "shall be imposed upon such merchandise a countervailing duty …." Thus, Canada states, the imposition of a duty is mandatory if the subsidy and injury elements of the statute are satisfied.
5.9.
Canada further notes that the definition of "countervailable subsidy" appears in Section 771(5) of the Act. Under pre-WTO US law, there was no definition of "subsidy" as such, but rather an illustrative list of subsidies. More generally, although some form of "government action" was usually the predicate, a subsidy was defined as a "countervailable benefit" that was specific to particular enterprises or industries.
5.10.
Canada argues that until the 1990's, Commerce recognised that to countervail border measures would lead to absurd results by bringing many legitimate government practices within the ambit of the countervailing duty law, and consistently determined that border measures (including export restraints) were not countervailable subsidies under US law.31 Canada states that Commerce departed radically from this position in two countervailing duty cases in the early 1990's, Leather from Argentina32 (Leather) and Certain Softwood Lumber Products from Canada33 (Lumber). According to Canada, Commerce concluded that the hide embargo in Leather and log export restraints in Lumber were countervailable domestic subsidies because they had a "direct and discernible effect" on domestic prices that benefited downstream producers. Commerce expressly did not consider the restraint in either case to be a "provision of goods,"34 and in Lumber, rejected respondents' argument that the export restraints were not countervailable because they involved no "financial contribution" on the ground that neither the pre-WTO Subsidies Code nor US law required a "financial contribution" for a subsidy to exist.
5.11.
Accordingly, Canada states, the advent of the definition of subsidy in the SCM Agreement, requiring a "financial contribution" and the consequent conferral of a "benefit" necessarily required amendment of the US countervailing duty law. The United States undertook to implement the definition of subsidy in the URAA by amending Section 771(5) of the Act. For Canada, although that section, as amended, does not specifically address export restraints, it is the statutory underpinning for the other measures that taken together with the statute commit the United States to treat export restraints as "financial contributions".35
5.12.
Canada states that the SAA accompanying the URAA sets forth the authoritative interpretation of the URAA and the US Administration's obligations in implementing it.36 Nearly all of the SAA provisions on "financial contribution" focus on what the SAA refers to as "indirect subsidies" and the Administration's intention that Section 771(5)(B)(iii) – where a government "entrusts or directs a private entity to make a financial contribution" – be broadly interpreted to encompass practices like those Commerce countervailed under the pre-WTO countervailing duty law. In particular, according to Canada, the SAA directs Commerce to continue to find the circumstances of Leather and Lumber countervailable. It is therefore an express and controlling direction to Commerce to apply Section 771(5) to achieve the same result, with regard to export restraints, as under pre-WTO Commerce practice.37
5.13.
Canada notes that Commerce issued the Regulations implementing the URAA's amendments to US countervailing duty law in 1998, and argues that the Regulations elaborate on the SAA's interpretation that an export restraint satisfies the standards of the "entrusts or directs" provision in Article 1.1(a)(1)(iv) of the SCM Agreement and Section 771(5)(B)(iii) of the statute. First, they confirm that the post-URAA "standard for finding an indirect subsidy" is unchanged from pre-WTO practice. Second, they interpret the "entrusts or directs" standard as being met where a government "causes" a private person (or group of unaffiliated private persons) to provide a benefit. Finally, they declare export restraints to constitute a government's entrustment or direction to a private entity to provide goods – hence a "financial contribution" – that is countervailable if it "leads" to lower domestic prices for the restrained good. For Canada, the Regulations thus make clear that Commerce will find the entrusts or directs standard under Section 771(5)(B)(iii) to be met, and therefore will find an export restraint to be a countervailable subsidy, where Commerce concludes that the producers of the restrained product are providing it to downstream users for what Commerce views as "less than adequate remuneration", i.e. whenever Commerce finds that a "benefit" has been conferred.38
5.14.
Canada asserts that like the SAA and the Regulations, US practice pursuant to those measures treats an export restraint as meeting the standard of Section 771(5)(B)(iii) of the Act, as a matter of US law.39

3. Legal Argument

(a) To Be A Countervailable Subsidy, A Practice Must Satisfy The Definition Of "Financial Contribution"

5.15.
Canada notes that under the SCM Agreement countervailing duties may only be imposed against "subsidies".40 For Canada, the US measures are inconsistent with US obligations under the SCM Agreement because export restraints are not "subsidies" within the meaning of Article 1.1 of the Agreement.
5.16.
Canada states that the definition of "subsidy" in Article 1.1 applies by its own terms for all purposes under the SCM Agreement. It thus applies in determining whether a countervailing duty may be imposed under Article 10 of the Agreement, whether the evidence is adequate for initiating a countervailing duty investigation under Article 11, and whether a provisional or final countervailing duty may be imposed under Articles 17 or 19. Further, Article 32.1 of the Agreement provides that "[n]o specific action against a subsidy of another Member can be taken except in accordance with the provisions of GATT 1994, as interpreted by this Agreement" (emphasis added). Hence to be countervailable a practice must satisfy the definition of "subsidy" in Article 1.1. No provision of the WTO Agreements permits imposition of countervailing duties in circumstances or against practices that do not meet the definition of "subsidy" in the SCM Agreement.
5.17.
Canada asserts that the definition of subsidy in Article 1 of the SCM Agreement has two discrete elements: (1) that there be "a financial contribution by a government or any public body"; and (2) that "a benefit is thereby conferred". As the Appellate Body declared in Brazil – Export Financing Programme for Aircraft, "financial contribution" and its conferral of a benefit are"separate legalelements in Article 1.1 … which together determine whether a subsidy exists"41 [emphasis in the original]. Moreover, for Canada, the terms of the Agreement make clear that the nature of the government action is conclusive as to whether there is a "financial contribution" under Article 1.1(a)(1). If a government has not acted in a manner enumerated in Article 1.1(a)(1), then a "financial contribution" does not exist and there can be no "subsidy".
5.18.
That particular kinds of government actions are prerequisites to the existence of a "subsidy" is confirmed for Canada by the negotiating history of the SCM Agreement. According to Canada, the United States proposed defining the term "subsidy" as any government action that confers a benefit, thus avoiding the need to show a financial contribution.42 That US proposal, however, which reflected pre-WTO US law by focusing solely on the existence of a "benefit" and placing no limitation on the nature of the government action required, was rejected, in favour of the language of Article 1.1(a)(1). Canada asserts that the US position that the SCM Agreement changed nothing from pre-WTO US law is therefore untenable.
5.19.
Moreover, Canada argues, the definition of "financial contribution" in Article 1.1(a)(1) is exclusive and exhaustive as demonstrated by the ordinary meaning of the terms in their context and confirmed by the negotiating history. The list of types of "financial contributions" in subparagraphs (i) to (iv) of Article 1.1(a)(1) is introduced by "i.e. where," meaning "that is." This restricting term makes clear that the list is exhaustive, not illustrative. By contrast, Canada states, where the SCM Agreement negotiators intended a list to be illustrative, they used expressions such as "e.g." instead. Successive, drafts of the Agreement text confirm this, showing an early shift from illustrative ("such as where") language to the definitive "i.e. where" that appears in the final text.43

(b) The Treatment Of Export Restraints As An "Indirect Subsidy" Is Inconsistent With The Express Terms Of The SCM Agreement

5.20.
Canada notes that Article 1.1(a)(1) of the SCM Agreement sets out four categories of government action that can constitute a "financial contribution." The first three are where a government or public body (i) makes a direct or potential direct transfer of funds, such as grants, loans, or loan guarantees; (ii) foregoes or does not collect government revenue otherwise due, such as tax credits; and (iii) provides goods or services (other than general infrastructure) or purchases goods. Notably, Canada states, each of these types of government action involves a transfer of economic (i.e. financial) resources from a government to producers of goods or services. Canada argues that an export restraint, by contrast, does not constitute such a transfer of financial resources by a government and does not fall within any of these three categories. It is not a direct transfer of funds, the foregoing of government revenue, or a provision of goods.
5.21.
Canada states that the fourth category, in Article 1.1(a)(1)(iv), provides for an indirect financial contribution. In Canada's view, to meet the terms of that provision, five elements must be satisfied: (a) a government must entrust or direct; (b) a private body; (c) to carry out one or more of the types of functions listed in subparagraphs (i) through (iii); (d) which would normally be vested in a government; and (e) the practice must, in no real sense, differ from practices normally followed by governments. For a practice to qualify under Article 1.1(a)(iv), it must satisfy each of these elements. For Canada, however, an export restraint satisfies none of them. The United States' assertion that an export restraint falls within Article 1.1(a)(1)(iv) as a government entrustment or direction to a private body to provide goods to domestic users of the restrained product is therefore profoundly mistaken.
5.22.
First, Canada argues, an export restraint does not "entrust or direct" anyone to do anything affirmative. In their plain meaning, the words "entrusts or directs" connote an affirmative action to order or commission someone to do something. The New Shorter Oxford English Dictionary defines the term "entrust" as meaning to "invest with a trust; give (a person, etc.) the responsibility for a task …".44 "Entrust" thus carries a strong connotation of agency. The ordinary meaning of the term "direct" is "to give authoritative instructions to; to ordain, order or appoint (a person) to do (a thing) to be done; order the performance of".45
5.23.
For Canada, these meanings are reinforced by the terms that immediately follow "entrusts or directs", namely "to carry out". The ordinary meaning of "to carry out" is to "conduct to completion, put into practice"46 or "to put into execution".47 When read together, "entrusts or directs … to carry out" suggests the communication of a duty or instruction that is to be discharged or executed. According to Canada, an export restraint does not commission or charge or authoritatively instruct producers of the restrained good to do anything; rather it limits their ability to export.
5.24.
Second, Canada asserts, an export restraint does not entrust or direct a "private body" (or, as used in US law but with the same meaning, a "private entity") because the universe of private producers of a good are not a "private body".
5.25.
Rather, the ordinary meaning of "body' is "a group of persons or things: … a group of individuals organised for some purpose …."48 The term "private body" thus connotes for Canada an organised private group or collective entity that has a separate and independent existence." Put differently, the fact that individuals may be described by a common characteristic – e.g. gold miners, persons under 21, farmers or doctors – does not transform the universe of such individuals into a "private body". Consequently, under the plain language of Article 1.1(a)(1)(iv), as unorganised individual producers, the hide producers and loggers of Leather and Lumber were not "private bodies" in Canada's view.
5.26.
Third, Canada argues, an export restraint does not entrust or direct a private body to "carry out the provision of goods", but rather by definition limits the ability to export. It involves no transfer of financial resources by a government to producers of goods. Indeed, as noted above, Commerce itself expressly did not consider the export restraints in Leather or Lumber to constitute the provision of goods.49 Producers of a good supply that good in the domestic market to the extent they wish to do so, and whether or not there is an export restraint.
5.27.
For Canada, under the United States' interpretation, a vast array of government regulatory measures that do not meet the requirements of Article 1 of the SCM Agreement and were never meant to be covered by it would become subject to the Agreement. If an export restraint is considered to be the provision of a good because it might result in greater domestic availability of a product, then any measure that might induce or encourage domestic producers to increase the supply of a product would have to be considered to be the provision of a good, and hence a financial contribution. In Canada's view, this reflects an unthinkable expansion of the definition of "subsidy" in the SCM Agreement that would undermine the bargain reached by the negotiators during the Uruguay Round and eliminate the security and predictability that was achieved with the successful negotiation of the Agreement.
5.28.
Canada states that the fourth and fifth elements of Article 1.1(a)(1)(iv) require that the "function" in subparagraphs (i) through (iii) that a government "entrusts or directs a private body to carry out" be one that "would normally be vested in the government", and that "the practice, in no real sense, differs from practices normally followed by governments". Canada argues that these elements are legal prerequisites to a financial contribution within Article 1.1(a)(1)(iv) that are, by definition, not met if, as in the case of export restraints, no function enumerated in subparagraphs (i) through (iii) is involved. But as significantly for Canada, these elements add important context demonstrating that Article 1.1(a)(1)(iv) is not a catch-all for governmental regulatory actions that in some sense may result in economic benefits. Rather, it is intended to ensure that a government cannot avoid otherwise applicable subsidies disciplines by entrusting or directing a private surrogate to make one of the types of financial contribution delineated in Article 1.1(a)(i), (ii) or (iii) that the government normally would have made directly. In Canada's view, an export restraint is plainly not a measure of that kind.
5.29.
Finally, Canada maintains, the negotiating history confirms that export restraints are not within the definition of subsidy in the SCM Agreement. During the Uruguay Round negotiations, the United States itself recognised that the definition of "subsidy" that became Article 1.1(a) of the SCM Agreement did not encompass export restraints. This is evident from US proposals tabled in the Subsidies Negotiating Group, in which the United States sought disciplines on so-called "industrial targeting" practices, including export restraints, in addition to subsidies defined in Article 1.1.
5.30.
Canada further states that in its proposals, the United States considered an export restraint to be a targeting "policy tool", and considered such "policy tools" to be separate and distinct from a "subsidy". Thus, in Canada's view, the United States plainly understood that an export restraint fell outside the ambit of the definition of subsidy, and effectively acknowledged this in the Negotiating Group.50 Moreover, these US efforts to bring export restraints within the coverage of the SCM Agreement failed, as was widely recognised by private US interests in their assessments of the Uruguay Round negotiations.51
5.31.
Canada argues that although the United States clearly failed in its attempt to have the language of the SCM Agreement accommodate previous US law, the United States nevertheless declined to alter the treatment accorded to export restraints under US law when purporting to implement the new obligations of the Uruguay Round. While the United States amended the statutory language of its countervailing duty law, it used the device of the SAA and the Regulations to assure that the statutory language would be interpreted and implemented according to pre-WTO US law, and contrary to the requirements of the SCM Agreement.

(c) The US Measures Also Violate The United States' Obligation To Bring Its Law Into Conformity With The WTO Agreements

5.32.
Canada argues that for the samereasons as discussed above, the treatment of export restraints under US law is also inconsistent with the United States' obligations under Article XVI:4 of the WTO Agreement and Article 32.5 of the SCM Agreement.
5.33.
By their terms, Canada states, the obligations set out in these Articles are unqualified. They reflect the fact that a law, regulation or administrative procedure that violates a WTO obligation creates uncertainty and adversely effects the competitive opportunities for goods or services of other Members. The fact that US law provides for the application of countervailing duties to practices that are not subsidies within the meaning of Article 1.1 of the SCM Agreement means that the United States has failed to ensure the conformity of its laws, regulations and administrative procedures with its obligations under the SCM Agreement. Thus the United States should also be found in violation of its obligations under Articles XVI:4 of the WTO Agreement and Article 32.5 of the SCM Agreement.

B. FIRST WRITTEN SUBMISSION OF THE UNITED STATES

1. Introduction

5.34.
In the view of the United States, for the Panel to find in Canada's favor, the Panel must conclude that there is no imaginable set of circumstances in which an export restraint could operate as a subsidy. The United States considers that Canada presents little, if any, description of particular export restraints that exist in the real world. It is possible, in the US view, for an export restraint to meet all of the definitional elements of an indirect subsidy set forth in Article 1.1(a)(1)(iv). Therefore, Canada's extraordinary request for an authoritative interpretation by the Panel of the SCM Agreement must fail as a matter of substance.

2. Legal Argument

(a) Canada Bears the Burden of Proof

5.35.
The United States argues that in this case, the burden of proof faced by Canada is formidable. Canada has taken upon itself the burden of proving the negative; that there is not and never will be an export restraint that could be regarded as a subsidy under Article 1.1. Canada has attempted to surmount this difficult burden of proof by virtually avoiding discussion of any actual export restraint measures that may exist in the world today, effectively asking the Panel to make an authoritative interpretation in the absence of any facts.

(b) The SCM Agreement Does Not Preclude Treating an Export Restraint as a Subsidy

(i) As an Economic Matter, Export Restraints Are Recognized as Subsidies

5.36.
The United States maintains that there is no question that economically, and in the vernacular, export restraints are regarded as subsidies. In discussing an export restraint imposed by Indonesia, the WTO Secretariat explained: "Restricting exports of the primary resource encourages downstream processing by providing, in effect, an input subsidy to processors." This view is widely shared among other international institutions. Numerous academic and policy studies also agree with this view. The United States notes that Canada argues that notwithstanding this general view, export restraints can never technically qualify as subsidies under Article 1.1 of the SCM Agreement.

(ii) Ruling Out the Possibility that Export Restraints Could Constitute Subsidies Would Be Inconsistent with the Object and Purpose of the SCM Agreement

5.37.
The United States asserts that the elements of Article 31(1) of the Vienna Convention on the Law of Treaties constitute "one holistic rule of interpretation rather than a sequence of separate tests to be applied in a hierarchical order."52 A recent panel described the object and purpose of the SCM Agreement as follows: "In our view, the object and purpose of the SCM Agreement is to impose multilateral disciplines on subsidies which distort international trade." For the United States, this view is consistent with the generally held view of subsidies as distortions of international trade.
5.38.
The United States asserts that this purpose is borne out by the text of the SCM Agreement itself. Indirect subsidies are encompassed by Article 1.1(a)(1)(iv). While these measures do not necessarily entail a cost to government, they are certainly "forms of government intervention [that] distort international trade." If cost to government were a required element, the United States argues, subparagraph (iv) would be meaningless.53
5.39.
For the United States, the ordinary meaning of subparagraph (iv) indicates that indirect subsidies are potentially actionable. There is no rational way for Canada to argue that indirect subsidies are actionable in appropriate circumstances, but that a particular type of indirect subsidy – export restraints – never can be. If the Panel were to declare that, regardless of the facts, this particular category of indirect subsidies is beyond the purview of the SCM Agreement, in the view of the United States the object and purpose of the SCM Agreement would be undermined by making circumvention of obligations by Members too easy. The Appellate Body previously has warned that this is an outcome to be avoided.54

(iii) The Text and Context of Article 1.1 Indicate that an Export Restraint Can Constitute an Indirect Subsidy Within the Meaning of Subparagraph (iv)

Canada's Narrow Approach to the Interpretation of Article 1.1 Is Wrong

5.40.
According to the United States, neither the text of Article 1.1 in general nor subparagraph (iv) in particular expressly excludes export restraints from the definition of "subsidy,"55 and Article 1.1 and subparagraph (iv) should be given an expansive reading.56 Canada, however, argues for a narrow interpretation of Article 1.1. Canada relies primarily upon the use of the phrase "i.e., where" to introduce the list of types of financial contributions in Article 1.1(a)(1).
5.41.
The United States agrees that "i.e." is generally a limiting term. However, the phrase "i.e., where" is found in the chapeau of Article 1.1(a)(1). To the extent that the phrase is limiting, in the view of the United States it merely limits the categories of "financial contributions" to four. The phrase is not found within subparagraph (iv) itself. For the United States, while the phrase "i.e., where" establishes that the universe of subsidies is finite, it does not establish whether that finite universe is large or small.
5.42.
According to the United States, the text of subparagraph (iv) suggests a universe that is not as confined as the one hypothesized by Canada. Subparagraph (iv) states that a financial contribution exists where: "a government... entrusts or directs a private body to carry out one or more of the type of functions illustrated in (i) to (iii) above" (emphasis added). In the US view, the word "type" means "the general form, structure or character distinguishing a particular group or class of things." Thus, the inclusion of the word "type" suggests that functions of the same general form, structure, or character as those illustrated in subparagraphs (i) through (iii) would likewise constitute the indirect provision of a financial contribution. Thus, the United States argues, the definition of an indirect financial contribution in subparagraph (iv) is not as limited as Canada would have the Panel believe.
5.43.
In the US view, one of Canada's own arguments supports this conclusion. Canada contends that where the drafters intended a list to be illustrative, they used other terms - "e.g." or "such as". Canada refers to other subparagraphs of Article 1.1(a)(1). To the United States, this indicates that Canada recognizes that the phrase "i.e., where" in the introductory part of Article 1.1(a)(1) does not limit the subparagraphs of Article 1.1(a)(1) to only the items listed in those subparagraphs where the subparagraphs themselves contain language that is expansive rather than exhaustive. Because subparagraph (iv) likewise contains language that is expansive rather than limiting, the United States argues that subparagraph (iv) must be interpreted broadly.57

The Text of Subparagraph (iv) Supports the Proposition That an Export Restraint Could Constitute a Subsidy

5.44.
The United States notes that under Article 1.1(a)(1)(iv), five elements are required for an indirect subsidy. An export restraint is capable of satisfying each of these elements.
5.45.
The United States argues that with respect to "entrusts or directs", "entrust" is defined in relevant part as "invest with a trust; give (a person, etc.) responsibility for a task." Thus, if a government gives a "private body" responsibility to carry out what might otherwise be a governmental subsidy function of the type listed in subparagraphs (i)-(iii) of Article 1.1(a)(1), there would be a financial contribution within the meaning of Article 1.1(a)(1).
5.46.
In the view of the United States, definitions of the word "directs" include "cause to move in or take a specified direction; turn towards a specified destination or target" or "to give authoritative instructions to; to ordain, order (a person) to do (a thing) to be done; order the performance of." Additional definitions of "directs" include "to regulate the course of", and "to cause (something or someone) to move on a particular course; to guide (something or someone); to govern; to instruct (something or someone) with authority".
5.47.
The United States asserts that it cannot be said that no export restraint is capable of satisfying any of these definitions. At a minimum, an export restraint easily can be said to "regulate the activities of" or "cause" a private body to carry out one of the enumerated functions of subparagraph (iv), and thus provide a financial contribution.
5.48.
For example, the United States argues, assume that in order to promote the production and export of more value-added products, the government of Shangri-La decides to support its pineapple juice industry. It begins to purchase all the pineapples from its growers and to re-sell those pineapples to its pineapple juice industry at less than the government's purchase price. For the United States, it is clear that a subsidy exists in such a case because the government has provided a financial contribution to the pineapple juice industry by providing it with a good (pineapples) for less than adequate remuneration.
5.49.
Now further assume, argues the United States, that instead of purchasing the pineapples itself, the government has sufficient control over the pineapple growers so that it can direct them to sell their pineapples to the domestic pineapple juice industry. Here, it is the pineapple growers, and not the government, that provides the good within the meaning of subparagraph (iii). Such a situation is, in the US view, exactly the type of situation to which Article 1.1(a)(1)(iv) is addressed. If the goods are provided for less than adequate remuneration, a subsidy exists.
5.50.
However, the United States asserts, the direction by the government of Shangri-La to the pineapple growers to sell their pineapples to the domestic pineapple juice industry could be effectuated through a variety of means. The government of Shangri-La could decree that growers sell only to the domestic juice industry. According to the United States, the exact same result could be achieved if, in the normal course, there were large volumes of pineapple exports and the government of Shangri-La put a stop to such activity by prohibiting the export of pineapples. According to the United States, the government, by directing the growers not to export, would be forcing them to sell the pineapples they otherwise would have exported to the domestic users of pineapples.
5.51.
According to the United States, if an increased supply of the product in the domestic market causes the price for that product to be lowered, that is the same result as if the government had ordered the growers to sell for less than market price. Thus, ordering the hypothetical pineapple growers not to export can be the functional equivalent of ordering the growers to sell their products to the juice industry for less than adequate remuneration. In the US view, both types of functions fall squarely within subparagraph (iv).58
5.52.
The United States notes that Canada argues that an export restraint does not constitute a direction to provide goods because an "export restraint does not commission or charge or authoritatively instruct producers of the restrained good to do anything; rather, it limits their ability to export." The United States further notes that the Panel is not restricted to the definitions chosen by Canada.59
5.53.
For the United States, Canada's distinction between a prohibitive restriction and an affirmative obligation is simply an elevation of form over substance. The two are functionally equivalent – where a producer is faced with two options, a prohibition on one option is an affirmative direction to perform the other. The United States maintains that an export ban clearly directs producers not to export, thereby directing them to seek the only other purchasers available to them for the sale of their goods.
5.54.
The United States continues that with respect to "private body", neither the word nor the concept of an "organized" body is contained in the SCM Agreement (regardless of what language version is reviewed), nor should that term be read into the Agreement.60
5.55.
For the United States, the word "body" has multiple meanings. For example, "body" may refer to the singular, e.g., "an individual, a person," or the plural, e.g., "an aggregate of individuals." The United States notes that even Canada offers the alternate definition of "a group of persons or things." Thus, in the case of an export restraint, a government may be viewed as directing each individual producer or producers as a group not to export, or to export only under certain limited conditions.
5.56.
For the United States, Canada's argument that "a common characteristic, – e.g., gold miners, persons under 21, farmers or doctors – does not transform the universe of such individuals into a 'private body'" is obviously mistaken. The very dictionary upon which Canada itself relies states that a "body" is defined to include: "an assemblage of units characterized by some common attribute and thus regarded as a whole; a collective mass (of persons or of things)."
5.57.
The United States argues that under Canada's view, an association of steel producers would constitute a private body (presumably, because it is "organized"), but the individual steel producers belonging to the association would not, despite the fact that each individual steel producer is itself a corporate body. Consistent with the text and object and purpose of the SCM Agreement, the United States maintains, no rational distinction can be drawn between the association and its corporate members. Nor is there a difference between banks and credit unions (which Canada concedes are private bodies) and any other supplier of a good or service.
5.58.
According to the United States, as long as there is some entity that could constitute a private body even under Canada's narrow definition (e.g., an organized association of producers) that could be entrusted or directed by virtue of an export restraint to provide a good or service, the "private body" element of subparagraph (iv) must be regarded as capable of being satisfied by an export restraint.
5.59.
The United States notes that the third element of subparagraph (iv) refers back to the previous three subparagraphs, by stating that the private body must be entrusted or directed "to carry out one or more of the type of functions illustrated in (i) to (iii) above." The United States states that the ordinary meaning of "carry out" is to "perform, conduct to completion, put into practice." Thus, in the case of an export restraint, if a "private body" performs the function entrusted or directed to it by the government, this element is satisfied.
5.60.
For the United States, conceptually, an export restraint qualifies under subparagraph (iii) of Article 1.1(a)(1) regarding the provision of goods or services. In the case of an export restraint, the United States argues, the government would be directing a private body (producers of a good) to provide the restricted good to the domestic industry that uses the good by restricting the producers' ability to sell elsewhere.
5.61.
The United States notes that Canada argues that each type of government action in subparagraphs (i)-(iii) "involves a transfer of economic (i.e., financial) resources from a government to producers of goods or services" and that an export restraint is not such a transfer of financial resources. For the United States, this argument is simply another iteration of Canada's long-held (and rejected) position that a subsidy (whether direct or indirect) can exist only where there is some net cost to the government.
5.62.
The United States further notes that Canada also argues that the "producers of a good supply that good in the domestic market to the extent they wish to do so, and whether or not there is an export restraint." For the United States, this is simply not true. While producers of a good will certainly continue to supply goods to the domestic market where an export restraint is in place (because they have no other choice), they are not supplying the domestic market "to the extent they wish to do so."
5.63.
The United States recalls that the final element of subparagraph (iv) requires that the function at issue "would normally be vested in the government and the practice, in no real sense, differs from practices normally followed by governments." In the US view, Canada offers no explanation at all as to why an export restraint never could be capable of satisfying this element. Instead, Canada merely falls back on its erroneous arguments relating to the first three elements, and asserts (incorrectly) that because an export restraint never could satisfy all of the first three elements, the last element necessarily is not satisfied.
5.64.
The United States maintains that putting aside Canada's failure to argue the point, the text does not elaborate on this element. However, for the United States, a report of a GATT panel is instructive as to the likely intended meaning of these phrases, referring specifically to the government "functions of taxation and subsidization." The United States argues that Canada acknowledges that whether a practice differs, in any real sense, from practices normally followed by governments depends on the circumstances relating to the government and the financial contribution in question.
5.65.
For the United States, the important point is that where a government is involved in the provision of a good or service and, instead of providing that good or service directly, it entrusts or directs a private body to provide the good or service to domestic purchasers, by way of an export restraint or otherwise, there could be a financial contribution within the meaning of subparagraph (iv). More importantly, the United States argues, it is clear that subparagraph (iv) refers to functions "normally" performed by governments in the context of providing a subsidy; any other meaning would leave subparagraph (iv) utterly empty.
5.66.
Finally, in the view of the United States, an export restraint is capable of providing a benefit. The United States asserts that whether a particular export restraint confers a benefit is a factual question that can only be determined on a case-by-case basis, applying the standard set forth in Article 14(d) of the SCM Agreement regarding the provision of goods or services. Although, the United States argues, Canada appears to concede the possibility that an export restraint can confer a benefit, it nonetheless argues that "if an export restraint is considered to be the provision of a good because it might result in greater domestic availability of a product, then any measure that might induce or encourage domestic producers to increase the supply of a product would have to be considered the provision of a good, and hence a financial contribution." With respect to this "slippery slope" argument, the United States indicates, the simple answer is that as a factual matter, it is unlikely that all such measures could be found to confer a financial contribution, within the meaning of subparagraph (iv), that results in a benefit, within the meaning of Article 1.1(b). Indeed, the United States notes, in Live Cattle from Canada, the DOC determined that the measure in question did not confer a benefit, and, thus, did not constitute a subsidy.
5.67.
In addition, the United States recalls, only those government measures that are specific within the meaning of Article 1.2 of the SCM Agreement are actionable. Thus, for the United States, it is clear that not all government measures that increase the supply of a product would constitute countervailable subsidies. Indeed, history has shown that there have been very few CVD investigations, if any, that have involved general government "regulatory" regimes. In the US view, the absence of such cases undermines Canada's plea for a narrow definition of subparagraph (iv) based on an alleged flood of litigation.

The Context of Subparagraph (iv) Supports the Proposition that an Export Restraint Can Constitute a Subsidy

5.68.
The United States argues that indirect subsidies also are covered by item (d) of the Illustrative List of Export Subsidies, and that item (d) is highly pertinent to the interpretation of Article 1.1, because each type of subsidy described in the Illustrative List must satisfy the requirements of Article 1.1. Thus, for the United States, the language of subparagraph (iv) must be sufficiently broad so as to encompass "government-mandated schemes" under item (d). At a minimum, the United States argues, it is not hard to think of export restraints as a "government-mandated scheme" designed to benefit users of the restricted product.
5.69.
In Canada - Dairy, the United States asserts, the panel considered item (d) for purposes of deciding whether Canada's dual-pricing scheme could constitute an export subsidy not listed in Article 9.1 of the Agreement on Agriculture. The panel concluded that the scheme was a "government-mandated scheme" of the type described in item (d). According to the panel:

[I]n the event milk were not directly provided by Canada's governments or their agencies under Classes 5(d) and (e), in our view, it is at least indirectly provided through government-mandated schemes. For there to be such schemes we do not consider it necessary, as argued by Canada, that the federal or provincial governments specifically direct a certain outcome or course of action to be achieved or taken by the CDC, the provincial marketing boards or the CMSMC. (emphasis added).

5.70.
For the United States, this finding by the panel is highly relevant to this case, because Canada has argued that an export restraint can never constitute a subsidy because "[a]n export restraint does not commission or charge or authoritatively instruct producers of the restrained good to do anything...." However, in the US view, the Canada - Dairy panel flatly rejected such a standard, finding instead that in order for an indirect subsidy to exist, it is not necessary that "governments specifically direct a certain outcome or course of action to be achieved or taken...."

(iv) Nothing in the Negotiating History of the SCM Agreement Precludes the Possibility that an Export Restraint Could Constitute a Subsidy

5.71.
The United States maintains that Canada has brought up the negotiating history of the SCM Agreement in a vain attempt to overcome the conclusion to which the text, context, and object and purpose inexorably lead. For the United States, nothing in the negotiating history establishes that export restraints can never constitute subsidies.
5.72.
The United States recalls that Canada asserts that during the Uruguay Round negotiations, "the United States itself recognised that the SCM Agreement definition of subsidy... did not encompass export restraints." According to Canada, this is evident from US proposals relating to industrial targeting practices.61
5.73.
According to the United States, the negotiating history reveals that, while the United States would have preferred that the SCM Agreement explicitly address "industrial targeting," the United States did not ever take the position that the term "subsidy" could never encompass export restraints. More importantly for the United States, the results of the negotiations reveal no explicit "carve out" or exception for export restraints.
5.74.
The United States recalls that in order to facilitate work, the Secretariat prepared a list of problems that had arisen in the operation of the relevant GATT 1947 agreements. The Secretariat noted that the Group of Experts on the Calculation of the Amount of a Subsidy had been discussing criteria to determine when certain practices might constitute countervailable subsidies and how the amount of the subsidy should be measured. The Secretariat listed four types of subsidies discussed by the Group – one of which was "export restrictions." Clearly, the United States argues, someone in the Group of Experts thought that export restrictions were capable of constituting subsidies.
5.75.
The United States recalls that in March 1987, it tabled its first proposal on Subsidies and Countervailing Measures, the relevant portion consisting of two paragraphs, the first of which reads:

Industry targeting consists of a government plan or scheme of coordinated measures to assist specific export-oriented industries. While some targeting measures are clearly covered by subsidies disciplines, the application of the Code to other measures is unclear. As a result, there has been extensive debate in the Subsidies Code Committee over whether government "targeting" practices fall within the internationally-accepted definition of a subsidy. To date, however, there has been no agreement as to whether industrial policy-type measures that result in the indirect channelling of resources to a specific industry or sector constitute countervailable subsidies or should be addressed under some other provision of GATT. (emphasis added).

According to the United States, this paragraph sets out the common understanding that there was no agreement as to whether government targeting practices constituted countervailable subsidies, as well as the US position that certain components of "targeting" were already covered by subsidies disciplines.

5.76.
The United States recalls that the second paragraph of its March 1987 proposal reads as follows:

The United States believes that the Uruguay Round negotiations should clarify what remedies are available for the trade distortions and economic damage associated with targeting and other industrial policy measures that affect trade. The United States is concerned that the international trade rules do not adequately address the trade damage that can result from industrial targeting programs.

5.77.
In the view of the United States, Canada is asking the Panel to selectively read this paragraph to mean that the United States conceded that export restraints are not encompassed under the definition of subsidy. However, in the view of the United States, the full text of the US statement does not support Canada's interpretation. Rather, the United States' desire to clarify that targeting and certain other industrial policy measures are subject to international trading rules and disciplines simply reflects the fact that there was no agreement on this issue. Other documents quoted by Canada prove this point, according to the United States.
5.78.
The United States asserts that Canada reproduces three quotations from the Secretariat's Notes on the June 1990 meeting as alleged proof that the United States "plainly understood that an export restraint fell outside the ambit of the definition of subsidy." The United States argues that the most relevant quotation, however, states as follows:

[The United States ] found that among the policies most frequently used were the following: protection of the home market, promotion or toleration of cartels, discriminatory or preferential government procurement practices, direction of capital (government to private) to certain enterprises, export restrictions, and manipulation of the user market to reduce the risk associated with product development and commercialization.

5.79.
The United States notes that Canada argues that the inclusion of "export restrictions" in this discussion of "industrial targeting" makes it "plain" that export restraints were not regarded as subsidies. In fact, the United States asserts, it made clear that some of the actions encompassed by industrial targeting were, standing alone, subsidies. Indeed, the United States argues, the document Canada quotes includes in the list of possible elements of "industrial targeting" "discriminatory or preferential government procurement practices" (e.g., the purchase of goods by a government for more than adequate remuneration) and the "direction of capital (government or private) to certain enterprises." Clearly for the United States, like export restraints, these can be actionable subsidies under Article 1.1, even though the United States categorized them as possible elements of "industrial targeting."
5.80.
In the US view, Canada also misrepresents positions taken in litigation during the pendency of the Uruguay Round. Using partial quotations from DOC CVD determinations made at the time, according to the United States, Canada asserts that the United States conceded that export restraints cannot constitute a financial contribution. In the view of the United States, these determinations obviously do not constitute part of the negotiating history of the SCM Agreement, and are therefore irrelevant. However, the United States asserts, Canada's misrepresentations are so blatant that they require clarification.
5.81.
The United States asserts that in the Softwood Lumber case, Canada argued that an export restraint did not constitute a subsidy because an export restraint did not constitute a financial contribution, in the sense of a transfer of resources from the government to the recipient. According to the United States, it was clear that the dicta Canada has cited was based on Canada's characterization of the meaning of "financial contribution." Consistent with its Uruguay Round negotiating position at the time, Canada equated a "financial contribution" with a cost to the government. This becomes clear, the United States argues, when one considers the full quotation from the DOC determination, which Canada quotes only partially.
5.82.
In a final attempt to bolster its argument, the United States asserts, Canada cites statements by US industries concerning the results of the Uruguay Round negotiations. Notwithstanding the fact that many of these parties expressed concern only that export restraints "might" cease to be countervailable, in the view of the United States, US industries' assessments cannot be considered part of the negotiating history. Moreover, even if certain US industries (erroneously) thought that the Article 1.1 definition might preclude treating export restraints as subsidies, other US industries clearly did not take that view.
5.83.
Thus, for the United States the only thing the negotiating history demonstrates is that the United States unsuccessfully sought to include language on targeting practices in the SCM Agreement. However, at no time did the United States concede that export restraints could never constitute subsidies standing alone, and the SCM Agreement contains no explicit exception for export restraints; i.e., no indication that export restraints can never, under any circumstances, constitute a subsidy. Yet, the United States argues, that is what Canada would have the Panel conclude, and the Panel should decline to do so.

3. Conclusion

5.84.
In the view of the United States, Canada fails to demonstrate that never, under any set of circumstances, can an export restraint constitute a subsidy under Article 1.1 of the SCM Agreement. The United States asserts that to the contrary, the United States has demonstrated that on the basis of standard principles of treaty interpretation, subparagraph (iv) of Article 1.1(a)(1) – the provision cited by Canada – can accommodate export restraints. As a result, the United States argues, Canada has failed to satisfy its burden of proof.

C. FIRST ORAL STATEMENT OF CANADA

1. The US Request For Preliminary Rulings

5.85.
Canada refers to its Response to the US Request (See Section IV.B, infra).

2. The Definition Of "Subsidy" In The SCM Agreement

5.86.
Canada argues that in its first written submission, the United States misinterprets the SCM Agreement definition of "subsidy" in several respects, beginning with assertions about economics and a flawed version of the object and purpose of the SCM Agreement. According to Canada, while the United States purports to apply the requirements of the Vienna Convention, its approach seeks to bend the ordinary meaning of the words in order to enable the United States to continue to act against practices that might confer a benefit.
5.87.
Canada states that as the Appellate Body made clear in Canada – Aircraft, however, the interpretative task begins with "examining the ordinary meaning of the text". Canada agrees, and begins with the text of Article 1.1(a)(1).
5.88.
Canada asserts that the United States agrees with it that Article 1.1 of the SCM Agreement defines the universe of what constitutes a "subsidy." Thus, Canada states, both countries concur that the existence of a "subsidy" within the meaning of Article 1.1 of the SCM Agreement is a prerequisite to the imposition of countervailing measures. Where Canada and the United States differ, according to Canada, is the extent of the "universe" of government actions encompassed within the definition of "financial contribution" in Article 1.1(a)(1) of the Agreement.
5.89.
Canada states that in keeping with the approach to treaty interpretation set forth in the Vienna Convention it believes that a government regulatory measure that restrains exports is not within the ordinary meaning of the terms of Article 1.1 (a)(1)(iv). In restraining exports, Canada states, a government does not "entrust or direct" a "private body" to make a financial contribution enumerated in subparagraphs (i) through (iii), or meet the other requirements of subparagraph (iv). Each of these failings is sufficient to render the US measures inconsistent with the SCM and WTO Agreements.
5.90.
Regarding the "entrusts or directs" element, Canada notes that the United States concentrates its arguments on the concept of "directs" rather than "entrusts", thus apparently recognizing that a restraint on a producer's ability to export cannot be seen as investing a producer with a trust or responsibility to carry out a governmental function.
5.91.
Remarkably to Canada, however, the United States claims that the term "directs" means "causes". Not only do these words commonly mean very different things, Canada counters, but "causes" is taken completely out of context from dictionary definitions offered by the United States and an export restraint plainly does not meet those definitions. For example, if "direct" is defined to mean "cause to take a specified direction", an export restraint would not qualify as a "direction" under Article 1.1(a)(1)(iv), because the "specified direction" would need to be "to carry out one or more of the type of functions illustrated in [subparagraphs] (i) to (iii)." Yet Canada maintains, the "specified direction" in the case of an export restraint is not to provide goods, but rather is "to not export." The same is true if "directs" is defined as "to cause (something or someone) to move on a particular course". In the case of an export restraint, the "particular course" is " to not export", Canada states; it is not to make a financial contribution by providing goods.
5.92.
In short, Canada argues, the ordinary meaning of "directs" is to "give authoritative instructions to" or "order a person to do a thing", and even the dictionary definitions supplied by the United States cannot be stretched to transform the plain meaning of "directs" into "causes". Canada argues that the drafters were obviously familiar with the concept of causation, and that it must be assumed that if they had contemplated using that concept in subparagraph (iv) of the definition of "financial contribution", they would have used that word.
5.93.
For Canada, the US approach would lead to absurd and unpredictable results, and would expand the SCM Agreement definition of "subsidy" beyond recognition by subjecting the exercise of regulatory authority by governments to countervailing measures. For example, considering the situation where a government restricts imports of steel, or increases its steel tariffs within its WTO tariff bindings, under the US approach if this led to an increase in domestic steel prices, the government would have "caused" private parties (steel purchasers) to provide funds to steel producers that otherwise would not have been provided, and therefore would have provided a financial contribution. But according to Canada this was clearly not intended.
5.94.
In Canada's view, the US approach to the term "private body" is similarly aimed at diminishing, rather than giving effect to, the ordinary meaning of the terms of the treaty, and for that reason is equally flawed. The United States insists that "private body" can mean, among other things, a vast number of unassociated individual persons, in effect asserting, for example, that "all persons under 21" can be a "private body", but doing so by reference to dictionary definitions that refer to "an assemblage" or a "collective". Canada argues that the United States offers no suggestion why the drafters used the term "private body" if, as the US urges, they meant "private person or persons". Finally, according to Canada, the US approach does not articulate any principle that would distinguish between private actors in terms of which situations involve a "body" and which do not. Thus, taken together with the US interpretation of "direct" to mean "cause", the US view would in Canada's view mean that any government action that affects the marketplace (that is, individual buyers and sellers) would "entrust or direct a private body." Had that been the drafters' intent, Canada maintains, they could surely have so stated.
5.95.
Canada notes that the third element of Article 1.1(a)(1)(iv) is that what a private body must be directed or entrusted to do is to carry out a financial contribution within subparagraphs (i) through (iii). Canada states that an export restraint limits a producer's ability to export, and does not "entrust or direct" a producer to "provide goods" as the United States contends. Indeed, the US argument to the contrary is not based on the treaty terms at all in Canada's view, but rather is simply an assertion that an export restraint is "conceptually" the same thing as a provision of goods. For Canada, even if this were true, Article 1.1(a)(1)(iii) does not say "…the provision of goods or anything conceptually similar." Rather the text identifies the provision of goods as the relevant function in subparagraph (iii).
5.96.
For Canada, the US argument that government actions are countervailable where they are the so-called "functional equivalent" of financial contributions listed in (i) through (iii) is similarly flawed. "Functional equivalence" and "conceptual similarity" are unbounded concepts that eliminate the textual limitations imposed in Article 1.1(a)(1) and introduce a level of subjectivity and hence uncertainty into the definition of financial contribution that the drafters could not possibly have intended.
5.97.
Finally, Canada states, the fourth and fifth elements of Article 1.1(a)(1)(iv) confirm that the expansive interpretation that the United States urges for that provision is not warranted by the text. In Canada's view, those elements make clear that subparagraph (iv) does not open the definition of subsidy to encompass government regulatory actions that are not financial contributions within subparagraphs (i) through (iii), but rather is designed to ensure that a government cannot escape subsidy disciplines by entrusting or directing a private body to make a financial contribution that the government normally would have made directly.
5.98.
For Canada, the US hypothetical example of pineapples in Shangri-La is a telling illustration of why an export restraint does not come within the text of Article 1.1(a)(1)(iv). Under the ordinary meaning of the words "entrust or direct", the hypothetical export restraint does not in Canada's view "entrust or direct" a private body to provide pineapples to the juice industry, it simply prevents the exportation of those pineapples. Moreover, Canada maintains, the producers, who already "provide pineapples" without government direction, may choose to continue to do so to the same extent, or make other economic choices. Similarly, in the example, pineapple producers do not act as a collective, but make individual and probably varying decisions. Finally, Canada argues, the US claim that an export restraint on pineapples is the "functional equivalent" of ordering the growers to sell to the juice industry at "less than adequate remuneration" is nothing less than a claim that if there is a price effect, an export restraint may be presumed to be a financial contribution.
5.99.
Put differently, Canada states, this is an assertion that a benefit can "confer" a financial contribution. However, as the Appellate Body explained in Canada – Aircraft, a financial contribution must cause or lead to the benefit that is conferred, and not the reverse. A benefit cannot cause or lead to a financial contribution.
5.100.
For Canada, its view of the text of the subsidy definition is borne out by the object and purpose of the SCM Agreement. Canada notes the Appellate Body statement in United States – Import Prohibition of Certain Shrimp and Shrimp Products: "It is in the words constituting [a] provision, read in their context, that the object and purpose of the states parties to the treaty must first be sought." As such, Canada argues, the United States has not only mischaracterized the object and purpose of the SCM Agreement, it has also deprived the text of Article 1.1 of its true meaning by beginning and basing its entire analysis on such a view.
5.101.
In Canada's view, while one of the purposes of the SCM Agreement is to discipline certain forms of government action that may distort international trade, this is not the only object and purpose of the Agreement. Another purpose of the Agreement is to discipline the use of countervailing duty measures, hence its title "Agreement on Subsidies and Countervailing Measures". While discipline in regard to both of these "purposes" has now been achieved through the Agreement, Canada maintains, the fundamental question under the Agreement remains: "What forms of government action are subject to these disciplines?"
5.102.
Canada notes that the United States' first written submission begins with an excerpt from the "Statement Made by the Delegation of Canada at the Meeting Held on 28-29 June 1988." Canada asserts that the United States has, however, quoted only selectively from Canada's statement, and that when considered in the context of the full statement, which is found in a section entitled "Parameters for the scope and application of countervail"62, it is clear that Canada is speaking to the question of why, in Canada's view, disciplines on countervail were needed in the SCM Agreement.
5.103.
With this in mind, Canada agrees that the SCM Agreement disciplines the use of trade-distorting subsidies. However, Canada maintains, the Agreement does so by defining the concept of a subsidy, by specifying what kinds of subsidies are prohibited, actionable, or non-actionable and by setting out the rules on how countervailing measures are to be applied against actionable subsidies. Accordingly, it is clear that the Agreement not only creates disciplines on the use of subsidies, but also creates disciplines on when countervailing measures may be imposed. This balance was an integral part of arriving at the negotiated result.
5.104.
Finally, Canada argues, the United States claims that the Canadian interpretation of Article 1.1 of the SCM Agreement would "make circumvention of obligations by Members too easy." Yet for Canada, whether an export restraint constitutes circumvention of the SCM Agreement turns on whether export restraints are covered by the SCM Agreement. If they are not covered, then maintaining an export restraint would not constitute circumvention. Therefore in Canada's view, the US argument is circular because it assumes the conclusion it desires to prove.

3. The United States' Arguments Regarding the "Economics" of Export Restraints are Misplaced

5.105.
Canada notes that the United States first asserts that there is "no question that economically, and in the vernacular, export restraints are regarded as subsidies" because they can have price effects. Such an assertion in Canada's view assumes that a potential economic effect determines whether there is a financial contribution under Article 1.1(a)(1). For Canada, whatever the United States may think a subsidy is in the "vernacular" is not relevant to the meaning of the definition of subsidy in the SCM Agreement, and none of the sources relied on by the United States addresses whether an export restraint comes within the meaning of the text of Article 1.1 of the SCM Agreement.
5.106.
More specifically, Canada argues, the United States alleges that when faced with an export restraint, a domestic producer has only one economic choice and that is to sell the restrained good to domestic purchasers of that good. From an economic perspective, in Canada's view, this is simply incorrect. It does not inevitably follow that an export restraint will force a domestic producer of the restrained good to sell into the domestic market. Furthermore, as Commerce itself recognized in Anhydrous and Aqua Ammonia from Mexico, it does not necessarily follow that a reduction in the price of the restrained good, if any, in the domestic market for that good after the imposition of an export restraint, will be caused by that export restraint63.
5.107.
In the view of Canada this same mistaken approach to economics underlies the points that the United States tries to make through its hypothetical discussion of the pineapple industry in Shangri-La that is prohibited from exporting. As presented by the United States, a pineapple grower in Shangri-La would have no choice but to sell pineapples to the domestic pineapple juice industry, which for Canada is simply not true. Pineapple growers could make a number of different choices in response to a restraint on the export of pineapples. Growers might switch to growing another fruit or other crop that the land is suited to. They could choose to become integrated producers and produce pineapple juice products with their own and/or others' production or they could supply pineapples to other end users or make other choices. While Canada acknowledges that an export restraint limits a domestic producer's ability to export the restrained good, it maintains that it is not true that an export restraint "requires" or "forces" a producer of the restrained good to sell it to particular users of that good at lower prices. As such it does not "entrust or direct" these producers.
5.108.
Thus, in Canada's view, the United States is wrong in asserting that an export restraint is the "functional equivalent" of ordering producers of a restrained good to sell the restrained good to domestic users of that good. For Canada, this does not necessarily follow either economically, or from a textual analysis of the wording of Article 1.1(a)(1)(iv) of the SCM Agreement. As such, the efforts of the United States to broaden the plain meaning of Article 1.1(a)(1)(iv) of the Agreement beyond any reasonable interpretation of those words must in Canada's opinion fail.

D. FIRST ORAL STATEMENT OF THE UNITED STATES

5.109.
The United States argues that the WTO does not regulate opinions and WTO dispute settlement does not deal with "thought crimes." Instead, the WTO regulates – and WTO dispute settlement deals with – measures taken. With respect to the subject matter of this dispute, the United States maintains, relevant measures would be either (1) the imposition of countervailing duties in a manner inconsistent with the SCM Agreement, or (2) the enactment of a law, regulation or procedure that mandates domestic authorities to impose countervailing duties in a manner inconsistent with the SCM Agreement. The United States notes that Canada does not allege the former, and asserts that the United States has not done the latter.
5.110.
The United States argues that it is bad enough that Canada seeks to enjoin the DOC from expressing tentative opinions, but to make matters worse, Canada seeks to obtain its injunction by asking the Panel to rule entirely in the abstract that never, under any set of circumstances present or future, can an export restraint constitute a subsidy under Article 1.1 of the SCM Agreement.
5.111.
In the view of the United States, Canada's extraordinary request for an advisory opinion has dangerous implications for the WTO dispute settlement system. The United States indicates that it has no hesitation in addressing the substantive issues raised by Canada, but feels compelled to address the broader systemic issues first.
5.112.
The United States maintains that it is not seeking to deny Canada any of its rights, but that it is simply faced with a situation where the United States has not taken any measures that impair Canada's WTO rights. The United States argues that should it ever take such measures, Canada's right to challenge such actions is fully preserved.
5.113.
In the view of the United States, there is a well-established method by which the Panel can dismiss Canada's attempt to have panels get into the business of regulating Members' opinions and issuing authoritative interpretations. That method is to apply the mandatory/discretionary doctrine.
5.114.
The United States notes that Canada does not dispute the continuing validity of the mandatory/discretionary doctrine or the US interpretation of that doctrine. Instead, the United States argues, Canada advances the factually inaccurate argument that the various documents it has cited require the DOC to treat export restraints as subsidies (or financial contributions). Alternatively, Canada makes the novel argument that even if these documents do not require that the DOC treat export restraints as subsidies (or financial contributions), the Panel cannot make that finding until it first makes a ruling, in the abstract, that an export restraint can never, under any set of circumstances present or future, constitute a subsidy under Article 1.1 of the SCM Agreement. For the United States, Canada is wrong on both counts.
5.115.
With respect to Section 771(5), the United States maintains, Canada has consistently acknowledged that Section 771(5), on its face, does not require the DOC to treat export restraints as subsidies (or financial contributions). Thus, there appears to be agreement that Section 771(5) does not mandate WTO-inconsistent action.
5.116.
Turning to the SAA, the United States argues that Canada alleges that the United States has attempted to misportray that document's status. In the view of the United States this is not the case, as set forth in paragraph 75 of the US Request.
5.117.
The United States asserts that its disagreement with Canada is not with the SAA's status (although the United States does disagree that it is a "measure" in its own right), but rather with what the SAA means. In the view of the United States, the only way one can read the SAA is as a decision by Congress and the Administration to refrain from deciding exactly what types of measures previously falling under the rubric of "indirect subsidies" could be considered as subsidies under the new definition set forth in Section 771(5)(B)(iii) of the Tariff Act and Article 1.1(a)(1)(iv) of the SCM Agreement.
5.118.
As a matter of US law, the United States asserts, the Preamble is at most a non-binding statement by the DOC regarding its views at the time concerning the scope of Section 771(5)(B)(iii). The United States recalls that the DOC did not promulgate a regulation dealing with indirect subsidies in general, or export restraints in particular. While the DOC expressed the view in the Preamble that export restraints might qualify as subsidies in appropriate circumstances, it did not definitively say that they do or otherwise bind itself to that view.
5.119.
The United States notes that Canada cites a handful of cases – none of which involve the DOC's regulations or even the US countervailing duty law – for the proposition that agency statements in preambles to notices of final rules are always binding on the agency. However, for the United States each of these cases is either distinguishable or does not support the proposition for which it is submitted, as demonstrated by US Exhibits 26-29. Of particular significance to the United States is the fact that the Preamble was not included in the Code of Federal Regulations. This is because, the United States maintains, pursuant to the regulations governing the Code of Federal Regulations, the DOC did not intend the Preamble to have legal effect.
5.120.
The United States argues with respect to the DOC Preamble that it was perfectly consistent with notions of transparency and good government for the DOC to express its tentative thinking on the issue of indirect subsidies, and that it would be a perverse result if the Panel were to penalize a Member for demonstrating greater transparency with respect to its thinking.
5.121.
Like tribunals around the world, the United States notes, the DOC in a given case may cite a variety of materials to justify its determination, including such things as prior DOC determinations and law review articles, none of which are binding on the DOC. Thus, the DOC's citation to the Preamble does not, in the view of the United States, confer binding status on the Preamble.
5.122.
In the US view, Canada's definition of "practice" constantly shifts, with Canada now saying that by "practice" it means "an administrative commitment or policy to adhere to a particular legal view and to apply a particular interpretation or methodology." Under any of the definitions used by Canada, the United States maintains, "practice" does not bind the DOC so as to require it to treat export restraints as subsidies (or financial contributions).
5.123.
In the view of the United States, Canada seems to argue that even if the measures it has identified do not individually give rise to a WTO violation, they do when considered together. However, the United States argues, Canada does not explain how this conclusion is justified on the basis of any provision in the DSU or any other WTO agreement.
5.124.
The United States argues that Canada amazingly argues that the Panel should make an authoritative interpretation of Article 1.1 first before dealing with the mandatory/discretionary doctrine. However, in the view of the United States, Canada's discussion of GATT and WTO panel reports on this point does not support its position. In none of the cases discussed does it appear that the respondent requested a preliminary ruling. The United States asserts that there is nothing in the DSU or this Panel's Working Procedures that limits preliminary rulings in the manner suggested by Canada, and that in addition, none of the cited cases expressly holds that a Panel must decide substantive issues first before invoking the mandatory/discretionary doctrine.
5.125.
The United States maintains that there is a fundamental difference between the cases invoked by Canada and this case. In the cases cited by Canada, the panels were asked to opine on discrete measures maintained by the respondent, which is not the case here. In this dispute, according to the United States, the measures really at issue include not only the documents challenged by Canada, but an unidentified number of current and future export restraints. In the US view, the Panel cannot do what Canada asks it to do without opining in the abstract, and without any facts before it, that there never has been and never will be an export restraint capable of satisfying the definition of a subsidy in Article 1.1 of the SCM Agreement.
5.126.
If the Panel finds – as the United States thinks it must – that the measures in question do not require what Canada says they do, for the United States that should be the end of the matter; anything else the Panel might say would be dicta.
5.127.
The United States argues that Canada currently says that "practice" does not consist of individual determinations in particular countervailing duty cases, but instead consists of the DOC's institutional state of mind, which Canada describes as an "administrative commitment or policy." The DOC's state of mind does not constitute a measure "taken" within the meaning of the DSU according to the United States. In addition, the DOC's state of mind could not violate any of the provisions invoked by Canada.
5.128.
For the United States, Article 1.1 is a definitional provision. Thus, strictly speaking, US "practice" – whatever that is defined to be – cannot violate Article 1.1. The United States maintains that Article 10 does not apply here, because Canada says it is not challenging the actual imposition by the United States of countervailing duties under Section 771(5) as the result of a finding that an export restraint is a subsidy, and that Articles 11, 17 and 19 of the SCM Agreement are inapplicable here for the same reason as is Article 10. The United States notes that Canada has not challenged – and the United States has not even taken – "specific action" under Section 771(5) with respect to an export restraint, and the DOC's state of mind cannot constitute "specific action." Therefore, according to the United States, Article 32.5 of the SCM Agreement also is inapplicable.
5.129.
The United States maintains that with respect to Article 32.5, the US statute, regulations, and procedures are fully in conformity with the SCM Agreement. An "administrative commitment or policy" is not within the scope of Article 32.5. In the US view, the same conclusion holds for Article XVI:4 of the WTO Agreement. There can be no breach of Article 32.5 or Article XVI:4 absent a law, regulation or procedure that mandates a violation of some other provision of the SCM Agreement.
5.130.
The United States strongly objects to paragraph 40 of Canada's Response in which, the United States maintains, Canada attempts to portray the United States as having failed to comply with DSB rulings. The United States asserts that in no case has a WTO panel determined that the United States has failed to implement a DSB ruling, and under Article 23 of the DSU, Canada cannot make such a determination unilaterally.
5.131.
According to the United States, Canada essentially asserts that "practice" – however it is defined – should be regarded as a measure taken because one should presume that WTO Members will act in bad faith. The United States notes that the Appellate Body has explained that such a presumption is not allowed.
5.132.
In the view of the United States, for the reasons set forth in the US Request, Canada's claims regarding "practice" should also be dismissed due to Canada's failure to comply with Articles 4.7 and 6.2 of the DSU. Accepting for purposes of argument the equitable doctrine of "prejudice" that the Appellate Body and panels have grafted on to the requirements of the DSU, the United States submits that it has been prejudiced. Moreover, the United States maintains that there is prejudice to it and the WTO dispute settlement system when the notification and consultation requirements are treated in a pro forma way that precludes a thorough and accurate description of what the complainant is challenging.
5.133.
The United States notes, in regard to why the SAA and the Preamble are not measures, that neither document has any independent legal effect under US law.
5.134.
With respect to the question of whether either document is within the Panel's terms of reference, the United States notes that in its Response, Canada does not even attempt to explain how one could possibly read its panel request as encompassing the SAA and the Preamble as independent measures. Moreover, at two DSB meetings, the United States recalls that it expressed its belief that Canada had substituted Section 771(5) for the SAA and the Preamble as the challenged measure, and Canada did not challenge the accuracy of the US assessment.
5.135.
The United States argues that it demonstrated in its first submission that an export restraint is capable of satisfying all of the elements of subparagraph (iv) of Article 1.1(a)(1) of the SCM Agreement. Whether a particular export restraint practice fulfilled all of the elements for a subsidy is something that could only be determined on the basis of a case-specific analysis of actual evidence. Here, in the US view, it is enough to say that Canada has failed to demonstrate that never, under any set of circumstances, could an export restraint practice satisfy all of the elements.
5.136.
The United States maintains that a reading of its first submission demonstrates that the United States has engaged in a thorough textual analysis of subparagraph (iv). However, the object and purpose of the SCM Agreement is relevant to the interpretation of subparagraph (iv), and it is relevant that Canada's interpretation is inconsistent with that object and purpose, as well as with the common understanding of what is and is not a subsidy.
5.137.
The United States argues that it has not said that all government interventions that distort international trade qualify as subsidies. Rather, it has emphasized that any government intervention would have to meet all of the definitional elements of an actionable subsidy.
5.138.
According to the United States, the European Communities' "slippery slope" argument is without merit, because in the examples given, it is difficult to see where there would be a financial contribution. Moreover, in the 10 years since the DOC's determination in Leather from Argentina, the United States argues, the "parade of horribles" has not taken place.
5.139.
At paragraph 90 of Canada's first submission, the United States recalls, Canada states that an export restraint does not qualify as a subsidy because "[i]t involves no transfer of financial resources by a government to producers of goods." Thus, the United States does not agree that it has mischaracterized Canada's position. Rather, Canada is advancing the same net cost to government position that has been repeatedly rejected.
5.140.
Finally, the United States asserts, it has been suggested that export restraints can never constitute subsidies because, even though they may limit a producer's opportunities and can reduce the price the producer charges for an input (as Canada has conceded in this case), they do not force producers to sell their goods domestically to targeted customers at pre-determined prices or in pre-determined quantities. According to this line of argument, the United States notes, there is no government "direction" because the producer's freedom of action is limited, but a pre-determined sale or price is not mandated.
5.141.
For the United States, this argument is fatally flawed for several reasons. First, there is no requirement in the text of subparagraphs (iii) or (iv) of Article 1.1(a)(1) that the price or quantities at which goods are provided to the subsidized party be specified. Second, there is no requirement that the beneficiaries of the subsidy practice at issue must be "targeted customers", although it may well be that a particular export restraint practice could satisfy such a requirement. Third, there is no support for the proposition that in order for a subsidy to exist, the government must determine exactly the scope and extent of the benefit it wishes to confer and the class of beneficiaries at the time of the government action; the Panel in Canada - Dairy rejected this argument. Fourth, it is irrelevant to say that producers who would otherwise export may be able to adapt to modified market conditions, such as by doing something else. With respect to the US hypothetical regarding pineapple growers, the United States believes that it has been conceded that if the government directed pineapple growers to sell at a fixed price or in pre-determined quantities to juice processors, an indirect subsidy would exist. However, in this scenario, the United States maintains, pineapple growers also would be free to leave the pineapple growing business, enter the juice processing business, or engage in a totally different business (for example, growing bananas). The United States fails to see how the theoretical ability to adapt in this scenario would not preclude a finding of an indirect subsidy, but it would preclude such a finding in the scenario where the government direction does not specify precise prices or quantities.
5.142.
Moreover, the United States asserts, there may be circumstances where a producer, faced with an export restraint, has no other option but to sell to the domestic processor, such as where the export restraint applies to a raw material. In other words, there may be situations where engaging in another business is not an option. In the US view, this is a factual question that has to be decided case-by-case on the basis of evidence, rather than speculation.
5.143.
In summary, the United States argues, Canada has failed to carry its burden of proof; Canada has failed to demonstrate that an export restraint can never constitute a subsidy. However, the Panel does not even need to get this far in its analysis according to the United States, because the focus of Canada's challenge is on opinions, not measures. The United States maintains that while it might be tempting to address the substantive, abstract issue posed by Canada, to do so would distort the purpose and role of WTO dispute settlement. Thus, the United States submits that the proper outcome in this case is for the Panel to simply find that none of the measures cited by Canada require the DOC to treat an export restraint as a subsidy (or a financial contribution).

E. SECOND WRITTEN SUBMISSION OF CANADA

1. Introduction

5.144.
Canada notes that its second written submission responds to the first oral statement of the United States. As a preliminary matter, Canada notes that the United States continues to claim that what Canada seeks in this dispute is an "advisory opinion" under the SCM Agreement. Canada disagrees, arguing that what Canada is seeking a ruling against the US measures at issue that treat an export restraint as a "financial contribution." Ultimately, in Canada's view, such a ruling will require resolution of the differences between the United States and Canada as to whether the US measures at issue are inconsistent with the provisions of the SCM and WTO Agreements invoked by Canada. Canada states that the resolution of these differences is of particular concern to it because of the direct impact that the treatment of export restraints under US CVD law has had and continues to have on Canada and Canadian industry. This impact is exemplified, for example, by Canada's request for WTO consultations in Live Cattle and, as was evident from the discussion at the first substantive meeting, by the immediate threat posed to Canadian lumber exports to the United States by threats of a countervailing duty investigation being commenced after the imminent expiry of the Softwood Lumber Agreement.

2. The Role Of The Mandatory/Discretionary Distinction As A Defence In WTO Jurisprudence

5.145.
Canada argues that it has already demonstrated that whether or in what degree a challenged measure is discretionary with respect to an alleged violation of WTO rules is not properly characterized as a procedural or jurisdictional issue. Furthermore, Canada states, it has demonstrated in its Response that the GATT and WTO cases relied on by the United States turn out, on examination, not to depend on whether a measure was wholly or partly mandatory or discretionary in the abstract. Rather, the Panels in those cases, after resolving any controversy as to the requirements of the GATT/WTO rules at issue, found that the defending party had demonstrated adequately that it had sufficient discretion to conform with those rules. Further, in all of these cases it was explicit or implicit that the defending party not only could, but would, use the discretion in question to conform with the proper interpretation of the relevant rules.
5.146.
Canada submits that the United States has continued to claim that the mandatory/discretionary distinction means that the challenged US measures cannot be found inconsistent with the SCM and WTO Agreements, regardless of the proper interpretation of those agreements, based on an argument that errs both in its interpretation of GATT and WTO precedent and in its representation of the legal force of the US measures as a matter of US law. In Canada's view, the US argument concerning the "mandatory/discretionary doctrine" in this dispute can be summarized as follows: (i) the United States considers that the WTO does not permit dispute settlement rulings on the conformity of challenged measures with WTO rules if the measures, as a matter of domestic law, do not "require" or "mandate" the action that is alleged to be inconsistent with WTO rules; and (ii) the United States is of the view that under US law the measures challenged by Canada do not either separately, or as a whole, ever "require" treating an export restraint as a financial contribution. Canada disagrees with the US arguments both under WTO law and under US law.

(a) GATT/WTO Case Law

5.147.
Canada asserts that it is well established that a WTO Member can challenge legislation of another Party, independent of any specific application of that legislation, on grounds that the legislation, as such, is inconsistent with rules of the WTO. The purpose of permitting such challenges is to ensure predictability of conditions for trade by allowing parties to challenge measures that necessarily will result in action inconsistent with GATT/WTO obligations. This is so in Canada's view since such measures can themselves "chill" trade by compelling Members to modify their behaviour in order to comply with a measure which they reasonably anticipate will be applied to their exports. Canada recalls that in United States – Anti-Dumping Act of 1916, the Appellate Body cited with approval statements by the Panel in United States – Superfund thatindicated that GATT 1947 is not only directed at protecting current trade but also at creating the predictability needed to plan future trade and that contracting parties must therefore be able to challenge existing legislation mandating actions at variance with the General Agreement and not wait until such legislation has actually been applied to their trade.
5.148.
Canada states that it has already demonstrated in its previous submissions why the measures challenged by Canada require that export restraints be treated as "financial contributions" under US countervailing duty law and why this treatment is inconsistent with the United States' obligations under the SCM and WTO Agreements. Canada notes that the United States argues that United States – Anti-Dumping Act of 1916 and other cases considering the mandatory/discretionary distinction support the US contention that the Panel cannot find the US measures at issue to be inconsistent with the SCM and WTO Agreements because the measures do not require the treatment of which Canada has complained (and which the United States does not consider to be inconsistent with the obligations in question). In Canada's view, however, the cases cited by the United States do not support this argument.
5.149.
According to Canada, the mandatory/discretionary distinction does not mean that discretion of any type or degree will allow a defending party to successfully avail itself of this defence. In United States – Anti-Dumping Act of 1916, Canada states, the Appellate Body stated that in light of the case law developing and applying the mandatory/discretionary distinction, the discretion enjoyed by the US Justice Department to initiate or not to initiate criminal proceedings "is not discretion of such a nature or of such breadth as to transform the 1916 Act into discretionary legislation …."64 Similarly, in United States – Malt Beverages, the Panel found the discretion not to enforce a law that was inconsistent with the GATT did not make the law as such consistent with the GATT.65
5.150.
Regarding the measures at issue in this dispute, Canada notes that Section 771(5)(B)(iii) does not specifically address export restraints. Section 771(5)(B)(iii) can be considered "discretionary", in the limited sense that Commerce, as the investigating authority, has to determine whether an export restraint, or any other practice subject to a countervailing duty investigation, is a financial contribution. However, Canada states, Section 771(5)(B)(iii) does not exist in isolation. Consistent with the reasoning of the Panel in United States – Section 301, Section 771(5)(B)(iii) is "inseparable" from the SAA, Preamble and US practice and, therefore, cannot be considered in isolation.
5.151.
In each of the cases cited by the United States where a measure was held to be "discretionary", Canada states, the Panel found not only that sufficient discretion existed for the executive to be able to apply the law consistently with its GATT obligations, but also that the defending party both could use that discretion to act in a manner consistent with the GATT rule at issue and either had done so or was in some sense committed to do so.66 Canada asserts that in each of these cases, the Panel satisfied itself, often on the basis of assurances from the defending party as to how it would interpret its legislation, that the executive authority had sufficient discretion under the challenged legislation to avoid any violation of the GATT.
5.152.
Further, Canada argues, the Panel in United States - Section 301 found that a Member could "curtail its discretion" to violate a WTO obligation, by its interpretation of such discretion in the SAA and subsequent actions. For Canada, the converse must follow. A complaining Member must similarly be allowed to challenge whethera Member has "curtailed its discretion" not to violate a WTO commitment. Thus, while Section 771(5)(B)(iii) itself does not mandate inconsistent action in the sense that it can (and properly should) be interpreted and applied consistently with WTO rules, the SAA and the Preamble in Canada's view "curtail the discretion" of executive authority in the context of this dispute such that the legislation will be interpreted and applied in a WTO-inconsistent manner.

(b) The US Measures At Issue

5.153.
For Canada, the sharp contrast between the above cases and the circumstances of this dispute is clear. In this dispute, rather than providing assurance that the United States will not treat export restraints as a financial contribution, the US measures in Canada's view demonstrate that the US executive authority has committed itself to interpret its legislation in a WTO-inconsistent manner. Canada notes that the United States argues that it could interpret its legislation otherwise, but argues that the US measures and statements make clear that it will not, at least in the absence of a decision of the DSB confirming that this is required by US obligations.
5.154.
For Canada, this is not to say that the United States is acting in bad faith. Rather, in this situation, unlike that of the cases on which the United States seeks to rely, it is apparent to Canada that United States believes, wrongly, but in good faith, that its interpretation is not inconsistent with its WTO obligations. The fact that the United States believes its interpretation to be WTO consistent is made clear in the SAA, Preamble and through US practice. In Canada's view, given the importance that GATT/WTO Panels have placed on statements by the United States regarding how it intended to interpret its legislation (especially United States – Superfund, United States – Measures Affecting the Importation, Internal Sale and Use of Tobacco and United States – Section 301), the interpretation set out in the US measures in this dispute, requiring a WTO-inconsistent treatment of export restraints, should be given significant weight. To Canada it demonstrates that Commerce is committed to act in a manner that is inconsistent with the United States' WTO obligations. As a result, Canada argues, the US measures at issue nullify and impair benefits accruing to Canada under the SCM and WTO Agreements.
5.155.
Canada states that in invoking the mandatory/discretionary distinction as a defence in this dispute, the United States claims that the measures at issue provide Commerce with sufficient discretion not to treat export restraints as financial contributions while at the same time asserting that to do so would not be inconsistent with the United States' WTO obligations. However, for Canada, this discretion which the United States argues is provided for in the SAA proviso and the "would permit" language of the Preamble is so curtailed that Commerce's ability to act in a WTO-consistent manner has been effectively foreclosed. In other words, to the extent that there is any element of discretion in these measures, in Canada's view it is not of a nature to allow the United States to invoke the mandatory/discretionary distinction as a defence in this dispute because the SAA has directed how that discretion is to be exercised and the Preamble and US practice reflect this direction.
5.156.
Canada submits that it has demonstrated in its Response that the SAA gives Commerce explicit direction as to the determination it should make under the proviso with regard to export restraints. In Canada's view, if the proviso leaves any discretion to Commerce, it is limited to satisfying itself that an alleged indirect subsidy involves a "formal, enforceable measure." If it does, Canada argues, Commerce must conclude that the standard in Section 771(5)(B)(iii) has been met. Since an export restraint by its nature involves a formal, enforceable measure, and the SAA has so declared, it is Canada's position the SAA mandates Commerce to conclude that in the case of an export restraint, the standard of Section 771(5)(B)(iii) of the statute and Article 1.1(a)(1)(iv) of the SCM Agreement have been satisfied, and to find a countervailable subsidy if Commerce makes a factual finding in an investigation of a "benefit" to the industry subject to investigation.
5.157.
Likewise for Canada the language in the Preamble that the United States claims provides Commerce with sufficient discretion to not treat export restraints as financial contributions, the "would permit" language, fails to provide the United States sufficient discretion to successfully avail itself of the mandatory/discretionary distinction in this case. Because in Canada's view the SAA and Preamble have already determined that an export restraint meets the financial contribution requirement, the scope of any discretion under the "would permit" language is therefore limited to Commerce's analysis of benefit and specificity.
5.158.
For Canada, the extent to which the United States has curtailed its discretion in the context of export restraints is most clearly demonstrated by the passage in which the SAA authoritatively directs Commerce to consider circumstances similar to Leather and Lumber to come within the meaning of Section 771(5)(B)(iii).By demonstrating that in thoseparticular circumstances Commerce must treat an export restraint as a financial contribution, in Canada' view this passageconclusively refutes the US position that, in effect, the Panel must rule in favour of the United States if it concludes that there is any set of circumstances in which an export restraint could ever be a financial contribution. While Canada considers that an export restraint does not constitute a financial contribution, Canada argues that it is well established that a measure is inconsistent with a WTO rule if that measure mandates action inconsistent with the WTO in particular circumstances, even if in other circumstances the action might not be inconsistent with the WTO.67

3. US Contentions That The Preamble Has No Legal Effect Misstate US Administrative Law And The Role Of The Commerce Preamble

5.159.
According to Canada, the various US contentions that the Preamble to the Commerce Department's final countervailing duty regulations reflects merely "tentative opinions" or "at most a non-binding statement by the DOC regarding its views at the time" are inconsistent with US administrative law and misstate the role of the Preamble. Canada notes that, under US law, Commerce must conform to its declared interpretation of the statute in the Preamble absent a "compelling reason for departure".68
5.160.
Canada states that the United States relies in particular on an argument that only a regulation published in the Code of Federal Regulations (CFR) has general applicability and legal effect, and claims that the fact that Commerce's Preamble to its final regulations was not published in the CFR is "a strong indication" that it does not have legal effect. In Canada's view, this is not, however, a rule of US administrative law. Kenneth Culp Davis, a renowned authority on US administrative law, states in his treatise that "courts should not rely on publication, or lack of publication, in the Code of Federal Regulations as evidence that an agency statement is, or is not, a rule." Criticising the decision in American Portland Cement Alliance v. EPA for its reference to CFR publication, Professor Davis notes that the American Portland Cement Alliance court relied on an outdated case and "apparently overlooked" a subsequent opinion in which the court of appeals emphasised that "publication, or lack of publication, in the Code of Federal Regulations is not more than 'a snippet of evidence of agency intent.'"69 Moreover, Canada submits, the US assertion as to the significance of CFR publication is not even supported by the cases on which the United States relies, both of which involved the reviewability of proposed, as opposed to final, regulations. Commerce promulgated its countervailing duty regulations, including the Preamble, as final and effective upon the date of publication in the Federal Register. Although parts of the regulation were later codified and published in the CFR, for Canada that later CFR publication neither diminishes nor adds to the legal authority of the regulations, including the Preamble, as published in the Federal Register.
5.161.
Canada argues that the United States' other primary basis for asking this Panel to dismiss the language of the Preamble is its assertion to this Panel that Commerce did not intend the Preamble to have legal effect. Canada asserts, however, that it has been unable to locate any such prior statement, and it does not comport with the record of Commerce determinations, US court decisions reviewing Commerce determinations, or the US reliance on the Preamble as having legal effect before WTO panels.
5.162.
Canada argues that since 1 January 1995, the Commerce Department has relied on the Preamble to its proposed or final countervailing duty regulations in fully 103 anti-dumping and countervailing duty determinations. In none of these instances, according to Canada, did Commerce intimate that it did not consider the Preamble to have legal effect, or that it was relying on mere "tentative opinions" to determine duties in trade remedy cases. Rather, in all cases, it cited the Preamble as stating the applicable interpretation or rule, and simply proceeded to apply it to affect the legal rights of parties to the proceedings. In some of these cases, Canada states, the Preamble statement relied upon provided critical elaboration of, or described exceptions to the interpretation stated in, an accompanying regulation, while in many of the cases, the declaration on which Commerce relied occurred only in the Preamble. Canada notes that it has set out a number of examples in which, in Canada's view, Commerce has relied solely on the Preamble for its determinations on issues.70
5.163.
For Canada, the most dramatic examples of Commerce application of the Preamble's interpretations and methodologies with conclusive legal effect are in the context of whether a benefit is passed through in an arm's-length privatisation, and in the Live Cattle and Korea Stainless Steel cases. In parallel to its lengthy statements on export restraints, Canada states, the Preamble extensively addresses whether an arm's-length privatization eliminates a benefit from pre-privatization subsidies.71 In that discussion, Commerce declared that it was not promulgating a regulation and emphasized that the statute left it discretion to determine the impact of a change in ownership on a case-by-case basis. According to Canada, Commerce nonetheless declared that it would continue its pre-WTO practice of only examining benefit at the time of bestowal of subsidy, and that its pre-WTO "repayment/reallocation methodology", under which some portion of the benefit of past subsidies is passed through, "achieves th[e] objective" of retaining its discretion to make case-by-case determinations. In other words, Canada states, Commerce decided the key legal issue – that at least some "benefit" survives an arm's-length privatization – by declaring in the Preamble that its pre-WTO methodologies continued to apply, and limited its "discretion" to applying a formula to measure the amount of the benefit. Canada states that Commerce has subsequently applied its pre-WTO methodology in numerous post-WTO privatisation cases.
5.164.
For Canada, the Korean Stainless Steel cases provide another stark example of Commerce application of the Preamble as conclusive of an issue, and in circumstances that make clear just how controlling are the Preamble's references to Argentine Leather and Softwood Lumber. In a portion of the Preamble, Commerce interprets Section 771(5)(D)(iii) of the statute, which implements Article 1.1(a)(1)(iii) of the SCM Agreement and lists as a financial contribution "the provision of goods or services, other than general infrastructure." Canada states that in declaring that roads or bridges may benefit particular industries rather than society as a whole, Commerce cites the pre-WTO Certain Steel Products from Korea case – the same case that is referenced in the indirect subsidies discussion in the SAA and Preamble – in which Commerce had found port facilities at Kwangyang Bay not to constitute "general infrastructure" for purposes of its pre-WTO "specificity" test, and therefore to be countervailable.72 When the issue arose again in the post-WTO Stainless Steel cases, Canada notes, Commerce stated:

"The infrastructure provided at Kwangyang Bay was not provided for the good of the general public;...therefore, it is not "general infrastructure."... Therefore, the infrastructure at Kwangyang Bay is countervailable. Indeed, the "Explanation of the Final Rules" (the Preamble) to the new CVD regulations... specifically cites to the infrastructure provided at Kwangyang Bay in Steel Products From Korea as an example of industrial parks, roads, rail lines, and ports that do not constitute 'general infrastructure,' and which are countervailable.... See CVD Final Rules, 63 FR at 65378-79."73

5.165.
Thus, according to Canada, Commerce, in deciding a significant issue in post-WTO cases, found that the Preamble's interpretation of "general infrastructure", and in particular its citation to a pre-WTO case finding Kwangyang Bay not to be "general infrastructure" was dispositive. In Canada's view, it is difficult to conceive, therefore, how Commerce would not find the Preamble's interpretation concerning export restraints and its citation of Softwood Lumber from Canada equally dispositive in a case posing the same issue.
5.166.
Finally, for Canada, the US contention that the Preamble reflects mere "tentative opinions" is belied by US court cases and the United States' own use of a preamble in WTO dispute settlement proceedings. According to Canada, in US courts, Commerce relies on the Preamble as the legal basis for its determinations and the courts uphold Commerce on that basis.

4. "Practice" Is A Measure, And Fits Within The WTO Concept Of "Mandatory"

5.167.
Canada asserts that as the United States well knows, agency "practice" is an extremely common concept in US law. Commerce routinely and expressly refers to its "practice" in anti-dumping and countervailing duty determinations, giving legal effect to that "practice" as determinative of the interpretations and methodologies it applies, as shown by cases cited by Canada.74 Further, Canada argues, practice is related to precedent, in that an interpretation or methodology will often be developed in a single case or group of cases, and becomes the "practice" followed in subsequent cases. For Canada therefore, practice is not an individual determination in a countervailing duty case (although a determination normally will reflect "practice") but rather is an institutional commitment to follow declared interpretations and methodologies that is reflected in cumulative determinations.
5.168.
Canada states that when Commerce issues countervailing duty and anti-dumping regulations, it sets forth its practice in those regulations, including the Preamble. Commerce practice is often not, however, articulated in regulations. Indeed, until final substantive countervailing duty regulations were issued in 1998, Canada argues, Commerce had never issued final regulations setting forth its substantive interpretations of US law and the methodologies it would apply. Consequently, for much of the last twenty years, the interpretations and methodologies that dictated Commerce determinations in countervailing duty cases were simply a function of Commerce "practice". Thus, Canada submits, although "practice" is reflected in Commerce regulations when those are issued, "practice" is an independent basis for Commerce action that is given legal effect in addition to or in the absence of a statement of that practice in regulations.
5.169.
That practice is independent of regulations is evident to Canada in Commerce's issuance of an Amended Regulation Concerning the Revocation of Anti-dumping and Countervailing Duty Orders in response to the WTO Panel determination on DRAMs from Korea.75 In the preamble to that regulation, Canada notes, Commerce declared that while the WTO decision necessitated a change to a commerce standard, it did not invalidate several aspects of Commerce "practice", which would continue in effect.
5.170.
Moreover, Canada asserts, it is a fundamental principle of US law that an agency may not depart from its practice and precedents except in narrow circumstances, where the change from prior policies and standards is express, deliberate, and adequately explained. In Canada's view those narrow circumstances cannot arise here, where the United States plainly has no intention of departing from a treatment of export restraints that it insists is correct.
5.171.
Canada argues that the "practice" challenged here is the Commerce Department's commitment to adhere to a particular legal view and to apply a particular interpretation or methodology. With respect to the treatment of an export restraint as a financial contribution, in Canada's view it includes pre-WTO practice of Commerce in Leather from Argentina and Softwood Lumber from Canada, because that practice has expressly been incorporated in current US practice through the SAA and Preamble. It further includes post-WTO practice of the Commerce Department, as confirmed in Live Cattle and the Korea Stainless Steel cases, which are cumulative examples evidencing Commerce's commitment to apply the practice stated in the Preamble, notably, to apply "a standard no narrower than the prior US standard for finding an indirect subsidy".
5.172.
In Canada's view, because Commerce has articulated its "practice" with respect to export restraints in the Preamble to final countervailing duty regulations that are in effect, there is currently no substantive distinction between Commerce's treatment of export restraints under the SAA and the Preamble and its treatment of export restraints under its "practice". Moreover, the SAA and Preamble are inconsistent with the United States' obligations under the SCM Agreement, independent of the "practice" Canada is challenging. In that sense, while Canada believes that "practice" is as much a measure susceptible to dispute settlement as any law, regulation or other act of a Member, Canada considers that a finding by this Panel with regard to "practice" is not essential to a finding that the other US measures are inconsistent with WTO obligations.
5.173.
To Canada, however, "practice" is relevant to compliance by the United States with a WTO ruling in Canada's favour. That is, if this Panel finds that the US statute, as interpreted by the SAA, the Preamble, and in US practice, is inconsistent with the SCM Agreement in that it commits the United States to treat an export restraint as a financial contribution, Canada believes that the United States would need to, inter alia, alter its practice by ceasing to treat an export restraint as a financial contribution in initiating and making determinations in countervailing duty cases. Canada states that it has therefore included "practice" as a measure to underscore this point, and seeks a specific recommendation from the Panel that the United States bring its measures into conformity with the SCM Agreement and the WTO Agreement, including by ceasing to treat an export restraint as a financial contribution.

5. Comments On The US Submissions Regarding The SCM Agreement In The US Oral Statement

5.174.
In Canada's view, the central issue in this dispute has been and remains whether the treatment of export restraints under the US measures is inconsistent with the definition of "financial contribution" in Article 1.1(a)(1) of the SCM Agreement, an issue that necessarily depends on interpreting that provision according to the ordinary meaning of its terms in their context and in light of the object and purpose of the Agreement. Canada argues that as it set forth in its first oral statement, the US effort to fit export restraints within the definition of financial contribution represents a deeply flawed attempt to apply these principles of treaty interpretation.
5.175.
Canada asserts that the United States simply redefines the critical term "directs" to mean "causes" in the broadest of senses, a contention which relies on an extrapolation from dictionary meanings taken out of context. Canada states that the word "directs" in Article 1.1(a)(1)(iv) means that a government must give authoritative instructions to the "private body" to carry out a certain action, while the definition selected by the United States – "regulating the course of, or causing something or someone to move on a particular course" - has a quite different meaning. Further, Canada submits, as Canada pointed out in its first oral statement, an export restraint plainly does not meet even the US definition of "directs". More importantly, the word "causes" is simply not found in the text of subparagraph (iv).
5.176.
In addition, Canada notes, the United States argues that whether a particular export restraint fulfilled all of the elements for a "subsidy under Article 1.1" could only be determined on the basis of a case-specific analysis of actual evidence. While to Canada it is true that whether "a benefit is thereby conferred" within Article 1.1(b) would require an evidentiary analysis, "benefit" is not at issue here. Canada submits that if the Panel agrees with it that an export restraint is not a "financial contribution" under Article 1.1(a)(1)(iv), the question of "benefit" would never arise, since no case alleging that an export restraint is a "subsidy" could ever properly be initiated.
5.177.
Canada notes that the United States also claims that there is no "slippery slope" of finding a host of government regulatory measures encompassed under its interpretation of subparagraph (iv). In Canada's view, a simple example may demonstrate its error. In possible reaction to the reduction or elimination of a duty, importers might increase their imports of a product, potentially leading to increased domestic supply and, under certain economic conditions, to a reduced market price for the good to downstream users. Under the US interpretation of subparagraph (iv), as in its view of export restraints, Canada argues, the government, in reducing the duty, would have "entrusted or directed" the importers to "provide goods" to domestic users of the product. Under both Canadian and EC arguments, government actions such as a reduction in import duties are simply not within the forms of government actions that constitute a "financial contribution" under Article 1.1(a)(1).
5.178.
Finally, Canada states, in response to both Canada's and the EC's arguments regarding the ability of producers subject to an export restraint to adapt to market conditions, the United States continues to argue that an export restraint is nonetheless a government "entrustment or direction" to "provide goods" that is countervailable if a benefit and specificity are found. Canada notes that the freedom of producers to adapt to the imposition of an export restraint highlights the lack of an entrustment or direction under Article 1.1(a)(1)(iv). In Canada's view, a direction by the government to not undertake one activity simply does not translate, under subparagraph (iv), into a direction to undertake another.

F. SECOND WRITTEN SUBMISSION OF THE UNITED STATES

1. Introduction

5.179.
By way of an overview, the United States emphasizes that what is at issue is a category of measures – export restraints – that are regarded as "subsidies" in the normal, economic sense of the term. The United States submits that the WTO Secretariat and United Nations organizations, to name a few, have characterized export restraints as such. Notwithstanding this, Canada is seeking to prove that an export restraint can never, under any set of circumstances, constitute a subsidy under the SCM Agreement as a technical matter. In the US view, Canada advances this claim without offering any evidence regarding the nature and operation of actual export restraints as they exist in the real world. The United States asserts that Canada does so notwithstanding the fact that, as complainant, it bears the burden of proof, and, in this case, bears the burden of proving the negative.
5.180.
Second, for the United States there is no real, tangible dispute here. Canada is not contesting the imposition of any countervailing duty. Indeed, in the post-WTO era, no countervailing duty has been imposed by the DOC in respect of an export restraint against Canada or any other Member. Nor is Canada arguing that there is a US law or regulation that, on its face, is inconsistent with any WTO agreement. Instead, the United States submits, what Canada is really arguing is that it believes that, if ever faced with the question, the DOC will interpret its WTO-consistent statute so as to encompass export restraints. However, such a challenge simply does not involve a challenge to a measure "taken" within the meaning of the DSU, according to the United States.
5.181.
Third, the United States argues, notwithstanding the fact that this case should be dismissed on procedural grounds, and notwithstanding the abstract nature of Canada's challenge, Canada is wrong with respect to its substantive claims. The United States submits that it has demonstrated, based upon an analysis of the text, context, and object and purpose of the SCM Agreement, that Canada is wrong when it claims that an export restraint could never, under any set of circumstances, constitute a subsidy. Thus, while the United States believes the Panel need not and should not address Canada's substantive claims, should the Panel choose to do so, the United States believes that the Panel must reject them.

2. The Mandatory/Discretionary Doctrine

5.182.
Significantly for the United States, neither Canada nor the EC challenges the continuing validity of the mandatory/discretionary doctrine. Thus, the only real question before the Panel is whether the so-called " measures" identified by Canada require the DOC to treat export restraints as subsidies.

(a) Section 771(5)

5.183.
With respect to Section 771(5) of the Tariff Act of 1930, the United States notes that Canada concedes that the statute, on its face, "does not specifically address export restraints."76 Canada has to concede this in the US view because, as it acknowledged in 1995 in its comments to the DOC, Section 771(5) "adopts a definition of 'subsidy' that is substantively the same as that of the Subsidies Agreement."77 Thus, under the mandatory/discretionary doctrine, the United States asserts, Section 771(5) does not violate US WTO obligations.

(b) The SAA

5.184.
The United States maintains that the parties also agree that the SAA is "authoritative" with respect to the interpretation of Section 771(5). However, the United States believes that it has demonstrated that all that the SAA "authoritatively" says is that the DOC must follow the standard set forth in Section 771(5), which Canada concedes is WTO-consistent.78 Thus, under the mandatory/discretionary doctrine, even if the SAA were a separate measure, within the Panel's terms of reference, in the US view it would not violate US WTO obligations.

(c) The Preamble

5.185.
The United States notes that the parties agree that a regulatory preamble can be used to interpret an agency regulation. More specifically, US case law shows that a regulatory preamble can be used as evidence of an agency's contemporaneous understanding of its proposed rules.79 However, with respect to the preambular language at issue, the United States asserts, the DOC did not promulgate a regulation nor was the preambular language included in the Code of Federal Regulations. The United States states that it has demonstrated that, as a matter of US law, the Preamble at issue in this case is not binding on the DOC.80
5.186.
Moreover, lost in the debate over an obscure principle of US administrative law, the United States argues, is the fact that even if the Preamble were binding on the DOC, the Preamble does not reflect an interpretation by the DOC that Section 771(5) requires the DOC to treat export restraints as subsidies (or financial contributions). Rather, the Preamble simply expresses the tentative opinion that the statute "would permit" the DOC to treat an export restraint as a subsidy; i.e., that treating an export restraint as a subsidy would be one possible interpretation of the statute.81
5.187.
Thus, under the mandatory/discretionary doctrine, the United States asserts, the Preamble does not violate US WTO obligations because (1) it is not binding on the DOC; and (2) even if it were binding, it does not require the DOC to treat export restraints as subsidies.

(d) US "Practice"

5.188.
The United States notes that Canada does not dispute the fact that there is no post-WTO case in which the DOC has found an export restraint to be a subsidy. The United States further submits that Canada also does not dispute the fact that, even if there were such a case, as a matter of US law it would not be binding on the DOC.82 Thus, under the mandatory/discretionary doctrine, the United States argues, US "practice" – understood in the conventional sense of agency case precedent – would not violate any US WTO obligation not to treat an export restraint as a subsidy.
5.189.
However, the United States argues, in the course of this dispute Canada's definition of "practice" has constantly evolved. In its latest incarnation, according to the United States, "practice" is an alleged "administrative commitment" to treat export restraints as subsidies; in other words, the DOC's alleged institutional state of mind. However, nowhere in any of its submissions has Canada explained how an "administrative commitment" – whatever that may be – is binding on the DOC as a matter of US law. Thus, even if this "administrative commitment" could constitute a measure for purposes of the DSU, in the US view Canada has failed to demonstrate that this "thing" requires the DOC to treat export restraints as subsidies.83 Thus, under the mandatory/discretionary doctrine, the United States asserts, any such alleged "administrative commitment" does not violate US WTO obligations.

(e) The Measures Taken Together

5.190.
The United States believes that Canada has argued that even if the documents it has identified do not individually require the DOC to treat export restraints as subsidies, the measures do so require when "taken together."84 However, the United States argues, nowhere in any of Canada's submissions is there any explanation – let alone a demonstration – as to how, under US law in general, individual measures that do not require an agency to act in a particular manner collectively can constitute such a requirement. Nor is there any demonstration as to how, under US law, the particular documents at issue collectively require the DOC to treat export restraints as subsidies. For the United States, the reasons for this void in Canada's argument is that Canada's fundamental assertion is simply wrong, as a matter of US law. Thus, under the mandatory/discretionary doctrine, the United States submits, the measures taken together do not violate US WTO obligations.

3. None Of The Measures Cited By Canada Violate Any Of The Provisions Of The WTO Agreements That Canada Has Invoked

5.191.
The United States recalls its explanation in paragraphs 44-51 of the US Oral Statement and in the US answer to Question 17 (Second Set), that most of the "measures" identified by Canada are incapable of violating any of the provisions of the WTO agreements that Canada has invoked in this case.
5.192.
In the US view, none of the measures can violate Article 1.1, because Article 1.1 is a definitional provision which does not impose obligations as such. Likewise, none of the measures can violate Article 10 (or Articles 11, 17 and 19 as they relate to the requirements of Article 10), because these provisions pertain to actions taken in the context of actual CVD proceedings, and Canada is not challenging any such action. Article 32.1 is also inapplicable because it pertains to "specific action against a subsidy of another Member", and Canada is not challenging any such action.
5.193.
Thus, the United States asserts, the only provisions that could conceivably apply to a challenge to measures "as such" are Article 32.5 of the SCM Agreement and Article XVI:4 of the WTO Agreement, both of which apply to "laws, regulations and administrative procedures." In general, to violate either of these provisions, a law, regulation or administrative procedure would have to violate some other provision of a WTO agreement. In the context of this case, the United States submits, a law, regulation, or administrative procedure would violate these provisions only if it mandated action inconsistent with Articles 1.1, 10 (or 11, 17 and 19), or 32.1 of the SCM Agreement.
5.194.
In the US view, the only measure at issue in this case which potentially could fall under Article 32.5 or Article XVI:4 is Section 771(5), which is a "law". However, the United States argues, Canada concedes that Section 771(5) is, on its face, not inconsistent with any of the provisions it has cited, and the United States has demonstrated that this conclusion does not change if Section 771(5) is interpreted in conjunction with the SAA. Thus, the United States concludes, Section 771(5) does not violate either Article 32.5 or Article XVI:4.
5.195.
With respect to the other "measures", the United States argues that they simply are not subject to Article 32.5 or Article XVI:4. Neither the SAA, the Preamble, nor Canada's amorphously defined "practice" constitutes a "law", a "regulation", or an "administrative procedure" within the meaning of these provisions.

4. Canada Has Failed In Its Attempt To Demonstrate That An Export Restraint Can Never, Under Any Set Of Circumstances, Constitute A Subsidy

5.196.
Concerning Canada's claim that an export restraint can never, under any set of circumstances, constitute a subsidy under subparagraph (iv) of Article 1.1(a)(1), the United States reiterates its position that the Panel need not and should not reach this issue.85 Should the Panel nonetheless choose to do so, the United States asserts that it has demonstrated that an export restraint is potentially capable of satisfying the standards of subparagraph (iv).

(a) "Entrusts or Directs"

5.197.
The United States notes that the main thrust of Canada's argument relates to the "entrusts or directs" requirement in subparagraph (iv). The United States asserts, however, that it has previously demonstrated that an export restraint could, in appropriate circumstances, satisfy this requirement based upon the ordinary meaning of the terms. "Directs" means "cause to take a specified direction"; "to cause (something or someone) to move on a particular course".86 According to the United States, Canada can point to nothing in these definitions that excludes export restraints from coverage.
5.198.
The United States notes that Canada's case with respect to "entrusts or directs" essentially is focused on three arguments. First, Canada takes issue with the dictionary definitions of "directs" that employ a causal element, and seeks to insert an additional requirement that "an authoritative instruction to do something" affirmative, as opposed to refrain from doing something, is required.87 Second, Canada, along with the EC, argues that an export restraint can never satisfy the "entrusts or directs" standard because the producer of the restrained product has options available to it other than selling the product domestically, such as producing another product, processing a downstream product, or going out of business. Third, Canada argues that if its preferred approach is not accepted, there will be a "slippery slope" leading to the countervailing of all government regulatory actions.

(i) "Authoritative Instruction"

5.199.
With respect to Canada's first argument, the United States recalls that Canada asserts that, in the case of an export restraint, there is no specified direction to provide goods domestically, but rather the specified direction is "to not export." Significantly, asserts the United States, Canada concedes that export restraints constitute "direction."88 Canada argues, however, that there must be an "authoritative instruction" or an "order... to do a thing" in order for "direction" to exist.89 In the view of the United States, Canada cites no textual support for this proposition, but simply asserts that its preferred dictionary definitions should govern.90
5.200.
Moreover, the United States submits, Canada fails to account for the varying forms in which an export restraint may manifest itself (a problem which would not arise if Canada had brought a case based on real facts). Presumably, even under Canada's reading the "entrusts or directs" standard would be satisfied if an export restraint operated in conjunction with a governmental requirement that the restrained product must be processed domestically. At best, the United States asserts, Canada seeks to put form over substance. When a domestic producer is in the business of selling a product, the US view is that a restriction against exporting can be a direction to sell (i.e., provide goods) to domestic purchasers within any normal commercial setting.
5.201.
Furthermore, according to the United States, the word "directs" as used in subparagraph (iv) does entail elements of causation, as recognized in Question 11(c) (Second Set). To the United States, whether or not an export restraint causes a producer to sell domestically is a factual question that can only be answered on a case-by-case basis. What is significant to the United States for purposes of this dispute is that both Canada and the United States appear to agree that an export restraint is capable of bringing about the requisite effect. Canada made the following assertion in its oral statement:

"More specifically, the United States alleges that when faced with an export restraint, a domestic producer has only one economic choice and that is to sell the restrained good to domestic purchasers of that good. From an economic perspective, this is simply incorrect. It does not inevitably follow that an export restraint will force a domestic producer of the restrained good to sell into the domestic market."91

5.202.
To the United States, implicit in the phrase "it does not inevitably follow" is an acknowledgement by Canada that it "could" follow that an export restraint would force a domestic producer of the restrained goods to sell into the domestic market. The United States asserts that Canada is trying to have it both ways. On the one hand, it acknowledges that in theory an export restraint could force a domestic producer of the restrained good to sell in the domestic market. On the other hand, it essentially asserts that this could never happen in the real world, but fails to submit a scintilla of evidence to support this factual assertion.

(ii) "Alternative Choices"

5.203.
The United States argues that Canada's second attempt to argue around the ordinary meaning of "entrusts or directs" is its "alternative choices" argument. Canada and the EC argue that, faced with an export restraint, producers can choose to produce another product, not produce at all, or become processors of the downstream product.92
5.204.
However, the United States submits, there may be situations in which, as a factual matter, the producer of the restrained product does not have such options. Indeed, as discussed in the preceding section, in the US view Canada implicitly acknowledges this possibility, and fails to provide evidence that there could never be a real life case where Canada's theoretical options do not exist.
5.205.
In any event, according to the United States, with the exception perhaps of a command, nonmarket economy regime (something which need not be addressed in this case dealing with hypotheticals), a producer always has choices. If a government "orders" a bank to loan to a company, the bank always can refuse. The United States notes that there may be consequences to a refusal, but the bank still has a choice. For the United States, this commercial reality is no different in the case of an export restraint.
5.206.
Indeed, the United States maintains, even applying the Canada/EC standard of an authoritative instruction to sell on pre-determined conditions, a producer would have the option of producing a different product, going out of business, or commencing production of the downstream product. However, if the presence of choices in this situation means that no subsidy can exist, then for the United States subparagraph (iv) truly would be a meaningless provision – there could be no such thing as a producer-financed subsidy.93
5.207.
In the US view, the argument that a subsidy cannot exist because of the existence of a theoretical choice stands the SCM Agreement on its head. The United States notes that Canada has stated that subsidies distort comparative advantage,94 and for the United States that is precisely what an export restraint is capable of doing. The United States notes that it can only speak in the abstract because there are no facts in this dispute, but as an example posits that in a market based on comparative advantage and free of any export restraint, an input would be exported to a different market for processing there because it is more financially advantageous to do so. Because of an export restraint, the producer of the input (which could not otherwise economically justify processing) begins to produce the downstream product, thereby artificially enhancing production domestically at the expense of foreign producers. The United States asserts that Canada claims that none of this is of any concern under the SCM Agreement because the producer has choices.
5.208.
For the United States, the real point is that an export restraint can cause the producer to provide goods to domestic processors that it otherwise would not have provided absent the export restraint. Thus, in the US view, the key question as reflected in Question 11(c) (Second Set) is whether there is a significant enough causal connection between the government's action in introducing and enforcing an export restraint and the domestic producer's provision of the good in a manner that would not have occurred in the market.

(iii) The "Slippery Slope"

5.209.
The United States asserts that Canada's final argument in support of its position that the ordinary meaning of "entrusts or directs" should be ignored is its "slippery slope" or "doomsday" argument.95 In the US view, part of Canada's tactic is to focus on select words chosen from the US submissions, such as "functional equivalence" and "conceptual similarity", and characterize them as "unbounded concepts."96 The United States submits that in so doing, however, Canada's arguments go way beyond export restraints to encompass all indirect subsidies.
5.210.
In any event, for the United States there is absolutely no factual support for Canada's doomsday predictions. Most telling, in the ten years since Leather from Argentina and in the six years since the WTO Agreement entered into force, doomsday has not arrived. Indeed, the United States asserts, Canada cannot even find a real life case on which to base its claim. In fact, with respect to export restraints, the United States has not even had occasion under post-WTO law to evaluate whether any particular export restraint gave rise to a financial contribution. Indeed, the United States argues, if one goes even further back and looks at pre-WTO determinations, one finds that in Lumber III, the DOC found that the export restraints in three of the four provinces examined did not satisfy the standard that the DOC employed at the time; the standard that Canada and the EC falsely claim is the standard under current law.
5.211.
For the United States, the most significant point about the "slippery slope" argument, however, is that the "entrusts or directs" standard – which is an element both of US law and subparagraph (iv) – requires a causal connection. The United States argues that some export restraints may satisfy this standard, others may not. Even for those export restraints that might satisfy this standard, the requirements of benefit and specificity will operate so as to weed out certain export restraints and other types of indirect government measures from the category of actionable subsidies.97

(b) "Private Body"

5.212.
The United States asserts that it previously has demonstrated that dictionary definitions in multiple languages thoroughly undermine Canada's peculiar interpretation of "private body",98 and further argues that even the EC does not support Canada's invented requirement for an "organized collectivity."99

(c) To Carry Out One or More of the Type of Functions Illustrated in (i) to (iii) Which Would Normally Be Vested in the Government and that in No Real Sense Differs from Practices Normally Followed by Governments

5.213.
With respect to the final elements of subparagraph (iv), the United States argues, Canada offers no explanation as to why an export restraint is incapable of satisfying these elements.100 Instead, it simply asserts that these elements cannot be satisfied, and offers no explanation of what these elements mean.
5.214.
The United States notes that these elements are discussed in greater detail in its answers to the Panel's questions. The United States recalls its position that "normally vested in" and "normally followed by governments" refer to the functions of taxation and subsidization, and asserts that support for this position is found in the only reference on point, the 1960 Article XVI:5 Report, which refers to the "functions of taxation and subsidization."

(d) Object and Purpose

5.215.
The United States argues that Canada and the EC both object to the US reliance on the object and purpose of the SCM Agreement, falsely suggesting that the United States has relied on object and purpose to the exclusion of the text.101 According to the United States, both are wrong.
5.216.
In the view of the United States, the US submissions speak for themselves, and demonstrate that the United States has not ignored the text, but instead has demonstrated that the text supports the US position. However, the United States argues, consistent with customary principles of public international law, as reflected in Article 31 of the Vienna Convention on the Law of Treaties, object and purpose form part of a single rule of treaty interpretation. For the United States, in this case in particular, object and purpose are informative on how the text should be interpreted.
5.217.
To the United States, what is particularly telling is its view that neither Canada nor the EC can plausibly dispute that the object and purpose of the SCM Agreement – regardless of what weight is attached to it – support the US position. The United States recalls its previous statement that the primary object and purpose of the SCM Agreement is to impose disciplines on certain government measures that distort international trade.102
5.218.
The United States objects that Canada seeks to characterize the US position as "one-dimensional" by referring to a single paragraph from the Statement Made by the Delegation of Canada at a Meeting Held on 28-29 June 1988, CAN-106, in which Canada noted that there need to be limits on the use of countervailing measures.103 While the United States acknowledges that the SCM Agreement also regulates the use of countervailing measures, it is clear that this is not its primary purpose. Indeed, the United States submits, virtually the entirety of CAN-106 speaks to the need to discipline the use of subsidies as trade-distorting measures. The United States urges the Panel to read CAN-106 in its entirety. The United States notes that even when speaking of disciplines on countervailing measures, Canada makes it clear that great care must be taken to avoid creating a loophole.
5.219.
The United States also emphasizes that in its view neither Canada nor the EC disputes the object and purpose of subparagraph (iv), which is to prevent governments from doing indirectly what they cannot do directly. For the United States, if the Panel, in the absence of any facts, were to categorically exclude export restraints from the definition of Article 1.1, the object and purpose of subparagraph (iv) would be undermined.
5.220.
Finally, the United States argues, Canada claims that the SCM Agreement's method of designating practices as either prohibited, actionable, or non-actionable supports its view that export restraints should be excluded from the definition of Article 1.1.104 According to the United States, if anything the opposite is true. If export restraints were categorically excluded from Article 1.1, they essentially would be rendered non-actionable, and the Panel effectively would be rewriting the SCM Agreement. In the US view, the drafters of the SCM Agreement presumably provided a definition of "subsidy" so that each particular government measure (not each category of measure) could be evaluated on the basis of its own facts and circumstances.

5. Conclusion

5.221.
Based on the foregoing, the United States renews its request that the Panel dismiss Canada's complaint by making the preliminary rulings described in paragraph 125 of the US Request. Should the Panel decline to dismiss Canada's complaint, the United States renews its request that the Panel make the findings described in paragraph 87 of the US First Submission.

G. SECOND ORAL STATEMENT OF CANADA

1. Introduction And The United States' Continued Efforts To Define "Subsidy" As "Countervailable Benefit"

5.222.
Canada asserts that it has demonstrated that the measures in question treat an export restraint as a financial contribution and that an export restraint is not a financial contribution under Article 1.1(a)(1) of the SCM Agreement. Canada submits that the US response has been that; first, the measures do not "require" the US to treat an export restraint as a financial contribution, but leave it to Commerce to determine on a case-by-case basis; and that second, export restraints can constitute a financial contribution if there is merely a "causal relationship" between an export restraint and a provision of the good to domestic users. These positions, according to Canada, rewrite both US law and the SCM Agreement.
5.223.
With regard to its first argument, Canada states, the United States relies primarily on assertions that the measures leave Commerce sufficient flexibility in any case to decide that an export restraint is not a financial contribution. To Canada, this alleged flexibility is illusory as the measures have already determined that an export restraint will satisfy the financial contribution requirement.
5.224.
Canada submits that while the United States argues that the measures are open to interpretation on a case by case basis the US repeatedly states that it cannot say how any export restraint would be treated under US countervailing duty law, and has failed to provide this Panel with a single example of an export restraint that it would not consider to be a financial contribution. In Canada's view, every instance of alleged flexibility turns out to be an example in which an export restraint was not considered to be a subsidy because there was no benefit, or there was no export restraint in the first place.
5.225.
Canada notes that the second part of the US argument rests on a claim that subparagraph (iv) is satisfied if there is a causal relationship between a government action and the provision of a good. In Canada's view, the US analysis is not sustainable under the ordinary meaning of the language of subparagraph (iv) in its context and in light of the object and purpose of the Agreement. There is simply no way to explain why subparagraph (iv) is written as it is if it were intended to mean what the US claims.
5.226.
To the extent the measures contain any element of discretion, Canada asserts, it is not of a nature that enables the United States to invoke the mandatory/discretionary distinction as a defence. Such treatment of export restraints is inconsistent with subparagraph (iv), because an export restraint does not fall within the plain meaning of that provision. For Canada, the US claims to the contrary reflect the continuing effort by the United States to maintain the open-ended definition of "subsidy" that it tried, but failed, to obtain during the negotiation of the SCM Agreement.
5.227.
In Canada's view, this dispute reveals a fundamental difference of opinion as to the government actions that fall under the definition of "financial contribution" in Article 1.1. On the one hand, Canada and the European Communities have advanced a position that relies on the ordinary meaning of the language in its context, and provides certainty and predictability to the operation of the SCM Agreement. The United States has advanced an interpretation of "financial contribution" that is so broad that any government action that causes a benefit will be considered a "financial contribution", thus, in effect, reading the "financial contribution" element out of the Agreement. For Canada, this expands its scope to such an extent that the certainty and predictability achieved by the negotiators is lost.
5.228.
Canada submits that the fundamental approach of the United States is aptly summarized in paragraph 2 of its second written submission, where the United States asserts that export restraints "are regarded as 'subsidies' in the normal economic sense of the term," which means that export restraints must be capable of being subject to countervailing duties. According to Canada, this logic echoes the failed US effort in the Uruguay Round to define "subsidy" as any government action that led to a "benefit". In Canada's view, arriving at the definition of a subsidy was one of the most important achievements of the Round, an achievement that the position of the United States seeks to ignore. The United States begins with a subsidy in the so-called "vernacular" and works backwards to conclude that an export restraint must be a subsidy under the Agreement. Canada asserts that the United States, in the context of export restraints, in effect implemented the agreement it tried to negotiate instead of the one agreed to.

2. The Measures At Issue Require The United States To Treat An Export Restraint As A "Financial Contribution"

5.229.
Canada notes that the United States argues that the SAA, the Preamble and Commerce practice are not measures at all and, even if they were, what they direct regarding export restraints is of no real effect as they do not require any particular action of Commerce. For Canada, these measures clearly are measures under GATT and WTO law. If they have no import, Canada submits, then the United States has made great efforts to creating meaningless interpretations of its statute. In Canada's view these are not empty measures. They authoritatively direct Commerce to treat an export restraint as a financial contribution.
5.230.
Canada submits that the United States attempts to keep the measures in clinical isolation from each other, but nevertheless itself recommends that the panel look to how the measures "relate to each other, under [its] domestic law." For Canada, this approach is grounded both in common sense and in WTO case law. The Panel in United States – Section 301 noted that statutory and non-statutory elements of a Member's domestic law are "often inseparable and should not be read independently from each other when evaluating the overall conformity of the law with WTO obligations."
5.231.
Canada notes that the SAA is an "authoritative expression" of the US Administration's and Congress's views regarding the "interpretation and application" of the WTO Agreements and is to be regarded as such in US judicial proceedings. Canada submits that it gives Commerce explicit direction as to how it is to treat export restraints. This is made abundantly clear by the statement in the SAA that "Article 1.1(a)(1)(iv) of the Subsidies Agreement and Section 771(5)(B)(iii) encompass indirect subsidy practices like those which Commerce countervailed in the past" (i.e. the export restraints in Leather and in Lumber). Canada argues that this statement does not read "may encompass" or "could encompass". Despite this clarity, and the clear direction in the SAA that the "entrusts or directs" standard be interpreted broadly, Canada argues, the United States insists that the SAA does not provide direction to Commerce on how the statute is to be interpreted. In Canada's view, the United States downplays the significance of the SAA because of what it terms Commerce's "freedom" to make up its own mind.
5.232.
Canada notes that the United States asserts that "all that the SAA 'authoritatively' says is that Commerce must follow the standard set forth in Section 771(5)", and that the SAA expresses no position on indirect subsidies. For Canada, the US view seems to be that the entire discussion in the SAA on what Article 1.1(a)(1)(iv) of the SCM Agreement and Section 771(5)(B)(iii) encompass should be read as Congress refraining from pre-judging the consideration of export restraints. Canada submits that this assertion is belied by the very purpose of the SAA as an affirmative, authoritative expression as to how the legislation is to be interpreted and applied.
5.233.
Canada argues that the United States further downplays the text of the SAA by characterizing statements made in the Korea Stainless Steel cases as simply the expression of "[Commerce's] non-binding opinion that the results under the new standard in subparagraph (iv) may not differ significantly from the results that would have obtained under [Commerce's] pre-WTO standard." Canada submits that what Commerce actually said, however, was that "the clear and unambiguous language of the SAA is that Congress intended the specific types of indirect subsidies found to be countervailable" in the cited pre-WTO cases are to continue to be countervailable under the new law. For Canada, this is a clear and unambiguous statement of Commerce's position, made in direct response to the argument that loans by private foreign banks could not constitute financial contributions.
5.234.
In Canada's view, to say that Congress simply left the issue to be decided by Commerce cannot be reconciled with the clear statements contained in the SAA and confirmed in other legislative history such as the Senate Joint Report on the URAA105 and more recently in Congressional statements concerning Canadian softwood lumber only two weeks ago.106
5.235.
Canada argues that the US description of the Preamble as reflecting Commerce's "tentative opinions" is at odds with what the Preamble says. For Canada, nothing in the Preamble suggests that the views expressed in it are in any way "tentative" or preliminary, and Commerce's past reliance on it in the Korea Stainless Steel cases makes clear that Commerce has not treated the Preamble as "tentative". In Canada's view, this US argument is also belied by US court cases and the United States' use of a preamble in WTO dispute settlement proceedings. There is nothing "tentative" in Commerce's conclusion that the standard under the URAA is no narrower than the standard under pre-WTO law and its reliance on the SAA discussion of pre-WTO case law regarding export restraints to make this statement. Canada argues that the Preamble cannot be considered "tentative" when it clearly states that Commerce will enforce the "entrust or directs" provision vigorously and that Commerce agrees with "those commenters who urged the Department to confirm that the current standard is no narrower than the prior U.S. standard for finding an indirect subsidy as described in…[Lumber]."
5.236.
Canada submits that in the light of the administrative framework under which US agencies promulgate regulations, the purported distinction between the Preamble and the remainder of the regulation is without basis. Likewise, in Canada's view, there is no basis to the claim that under US law, Commerce's Preamble to its final regulations must be published in the CFR in order to have legal effect.
5.237.
Canada submits that the United States is incorrect in arguing that there is no US practice relevant to the treatment of export restraints. Relevant US practice includes pre-WTO practice which is expressly incorporated in US law through the SAA and Preamble and post-WTO practice of the Commerce (e.g., Live Cattle and the Korea Stainless Steel cases) which evidence its commitment to apply "a standard no narrower than the prior US standard for finding an indirect subsidy". The Korea Stainless Steel cases left no doubt, according to Canada, that Commerce practice with respect to indirect subsidies, including export restraints, follows the dictates of the SAA and Preamble, and claims no scope for departure from the standard set out in the SAA and Preamble.
5.238.
Canada argues that the Live Cattle case is further evidence of Commerce's view that an export restraint satisfies the "financial contribution" requirement of Section 771(5)(B)(iii).Canada notes that in the Initiation Memorandum, Commerce specifically stated that the petitioner had provided "evidence that the CWB controls exports"; that the petitioner claimed the CWB was limiting the amount [of feed barley] exported to the United States"; and that the petitioner had offered "empirical evidence that the CWB restrains exports to the United States". In Canada's view, Commerce's decision to initiate an investigation of this allegation on the basis of this evidence means it necessarily concluded that CWB's "control" over barley exports, if proved to exist, would meet the standard for a financial contribution under Section 771(5)(B)(iii). Further, in its final determination, Canada notes, Commerce stated its view that in the context of export restraints "the provision of a good, whether provided directly or indirectly, for less than adequate remuneration constitutes a financial contribution."
5.239.
For Canada, if there is any element of discretion in the measures, it is not of a nature that would allow the United States to invoke the mandatory/discretionary distinction as a defence. The discretion the United States claims to exist in the SAA and Preamble has been curtailed such that Commerce is committed to apply US law inconsistently with the SCM and WTO Agreements. To effectively invoke this defence, according to Canada, the United States would have to demonstrate that Commerce has the discretion to disregard the SAA and Preamble and determine that an export restraint is not a financial contribution. All of the evidence is, however, to the contrary in Canada's view.

3. Export Restraints Do Not Come Within Article 1.1 (A)(1)(Iv) Of The SCM Agreement Because They Do Not "Entrust" Or "Direct" A Private Body To Provide Goods

5.240.
Canada notes that the definition of "subsidy" in Article 1.1 of the SCM Agreement is the fundamental basis upon which all actions under the SCM Agreement are premised. A measure that implements the definition inconsistent with the Agreement nullifies and impairs the rights of other WTO Members. In Canada's view, a proper interpretation of subparagraph (iv) of Article 1.1 results in a conclusion that its terms do not encompass export restraints. The need to show benefit and specificity cannot justify nullifying the financial contribution element.
5.241.
According to Canada, the United States ignores the word "entrusts", thus ignoring that "entrusts" provides context for the meaning of the word "directs." While not synonymous with "entrust", Canada argues, the word "direct" shares the same essential quality of a governmental communication to a private body. The United States, however, effectively replaces the word "directs" with "causes" in subparagraph (iv). For Canada, "direct" does not mean "cause." The mere fact that something occurred does not mean that the government directed someone to do that thing.
5.242.
Moreover, Canada states, the SCM Agreement drafters knew how to use "cause" or "causal relationships", as they did in Article 15.5, but chose for subparagraph (iv) the more limiting terms "entrusts or directs". Canada argues that the United States dismisses the multiple uses of the concept of "causes" in the Agreement, stating that words have interchangeable or overlapping meanings. It relies on EC –Bananas, but in that case, Canada argues, the comparison was of similar language in two related agreements, not of different terms within the same agreement. In Canada's view, while different agreements may use different formulations to express similar concepts, within an agreement it is reasonable to conclude that use of a different term evidences an intent to express a different concept.
5.243.
According to Canada, the dictionary meanings relating to authoritative instructions are appropriate in this case as they correspond with the wording in subparagraph (iv). The Concise Oxford Dictionary is precise in this regard. For "direct" when followed by "to + infinitive", it gives as a meaning "give a formal order or command to". Canada notes that in subparagraph (iv), the word "directs" is followed by the infinitive "to carry out".
5.244.
Canada states that an export restraint does not entrust or direct a private body to provide goods to anyone, and that the United States itself views an export restraint "…as limiting the opportunities available to the producer of the restrained good." According to Canada, an export restraint will limit the export of goods but this is not the same as directing someone to provide those goods. Canada asserts that the United States concedes that a producer always has choices but discounts such choices as a matter of commercial reality, which is Canada's own point. In particular, absent a measure that truly directs a producer to provide goods to someone, that producer will exercise the choice that is in its best interest.
5.245.
According to Canada, if the position of the United States were correct, then any government action that in some way caused lower prices would become a financial contribution as there would be some causal relationship between it and the behaviour of private market operators. In Canada's view, had this been the intention of the drafters of the SCM Agreement, they could have accomplished it by simply defining a subsidy as any government action that causes a benefit and is specific. Canada states that the need to show benefit and specificity cannot justify nullifying the financial contribution element.
5.246.
Canada states that the United States argues that the fact that producers have choices is consistent with the position that an export restraint is a direction to provide goods, and that the United States reaches this conclusion through a reductio ad absurdum proposition that even where a producer truly is ordered to provide goods, the producer would have the option of breaking the law. Canada notes that the United States argues (and Canada agrees) that this is not a real choice. The choices Canada described were economic and, moreover, legal choices available to the producer.
5.247.
According to Canada, the United States misconstrues the portion of subparagraph (iv) referring to "… one or more of the type of functions illustrated in (i) to (iii) …", by saying that this phrase must be read to include functions of the same"general character" as those in those subparagraphs despite the fact that the provision directly links the functions in subparagraph (iv) with the functions set out in subparagraphs (i)-(iii). Canada states that the United States also reads "illustrated" as connoting undefined functions sharing general characteristics of the functions in those subparagraphs. That is, rather than "illustrated" meaning "making clear or evident by way of example", it is broadened to include functions outside of those subparagraphs. In Canada's view, the effect is to impose disciplines on a range of private actions that are not subject to discipline when performed by governments, an untenable result.
5.248.
Canada asserts that contrary to US arguments, Canada has not said that the Illustrative List prohibits government measures that are not subsidies within Article 1.1. Rather, Canada submits, items on the Illustrative List are to be interpreted consistent with the coverage of the definition of "subsidy." Also, in Canada's view, subparagraph (iv) will apply to the functions illustrated in subparagraph (iii) where there is an entrustment or direction to provide goods or services or to purchase goods, a test that export restraints do not meet.

H. SECOND ORAL STATEMENT OF THE UNITED STATES

5.249.
The United States argues that if "bad facts make bad law", "no facts make worse law." The United States argues that Canada is asking the Panel to rule, in the absence of facts, that a particular category of measures can never, under any circumstances, constitute a financial contribution. For the United States this is a recipe for not only bad law, but "worse" law. In the US view, the Panel can avoid making "worse" law by finding that the so-called "measures" identified by Canada do not require the DOC to treat export restraints as subsidies. Such a finding is dispositive of this dispute, and is the only finding the Panel could make that would be supported by evidence.
5.250.
For the United States, Canada's assertion that it is not asking for an "advisory opinion" is nonsense. The United States argues that according to Canada, even if the Panel finds that Canada is not entitled to any relief, the Panel nonetheless must make findings on the status of export restraints, notwithstanding that any such findings would be of no legal effect. In the view of the US, that is the essence of a request for an "advisory opinion."
5.251.
The United States asserts that Canada tries to slip in the notion that the US bears the burden of proving that the "measures" at issue do not require WTO-inconsistent action, and argues that Canada is wrong for at least two reasons. First, Canada has made the factual allegation that the "measures" at issue require the DOC to treat export restraints as subsidies (or financial contributions). As the complainant, Canada bears the burden of substantiating this allegation, both in terms of the burden of coming forward and the ultimate burden of persuasion. Second, the Appellate Body did not find in the 1916 Act case that the mandatory/discretionary doctrine is an "affirmative defense." Thus, the United States submits, nothing in the 1916 Act case relieves Canada of its burden of proving its allegation that the "measures" at issue require the DOC to treat export restraints as subsidies.
5.252.
Turning to the mandatory/discretionary doctrine itself, the United States notes that Canada asserts that in each of the cases cited by the United States, the panel ruled in favor of the defending party only because that party had either applied discretionary legislation in a GATT-consistent manner or was "in some sense committed to do so." In the US view, Canada has ignored the GATT and WTO cases cited by the United States that directly contradict Canada's assertion. In EEC Parts, the panel found that the EEC's application of its anti-circumvention legislation was inconsistent with Article III:2, but found that the legislation, as such, was not GATT-inconsistent because it did not require GATT-inconsistent action. In Canada Aircraft, the panel found that particular debt financing under the Canada Account constituted a prohibited subsidy, but found that the Canada Account, as such, was not WTO-inconsistent because it did not mandate the provision of export contingent subsidies. Notwithstanding that the panel found that Canada had applied the Canada Account in a WTO-inconsistent manner, the panel found that "[i]n light of the distinction that GATT/WTO panels have consistently drawn between discretionary legislation and mandatory legislation, we find that we may not make any findings on the Canada Account programme per se."
5.253.
According to the United States, another erroneous Canadian proposition is that a Member must be allowed to challenge whether a Member has "curtailed its discretion" not to violate a WTO commitment. In the US view, there is no authority for this proposition, as previously recognized by Canada. In Canada Aircraft, Canada stated: "There is no basis in the findings of the Panel or the Appellate Body, the SCM Agreement, or international law for imputing to Canada an obligation to prove that discretionary laws could not possibly be used to grant export subsidies." (emphasis added). The United States notes that Appellate Body agreed with Canada.
5.254.
Turning to the application of the mandatory/discretionary doctrine to the "measures" at issue, the United States asserts that Canada appears to be upset that the United States has not acknowledged in this dispute that if there is a Lumber IV, the DOC will find Canadian log export restraints to be subsidies. According to the United States, none of the members of the US delegation at the Panel meeting – indeed, no employee of USTR or the DOC – is in a position to state what might happen if there ever were to be a Lumber