Panel established to review Colombia’s compliance with frozen fries ruling

DS591: Colombia — Anti-Dumping Duties on Frozen Fries from Belgium, Germany and the Netherlands

The European Union said it regrets that it still needs to litigate this matter despite the panel report and the appeal arbitration award under Article 25 of the Dispute Settlement Understanding (DSU) which found that in each investigation on imports of frozen fries from Belgium, the Netherlands and Germany, Colombia did not comply with the provisions of the WTO's Anti-Dumping Agreement in its investigation and imposition of duties.

While the EU said it agrees that Colombia subsequently implemented some of the findings, the EU considers that Colombia recalculated the dumping margin using flawed methodologies resulting in an artificially inflated dumping margin for the EU exporting producers. Consultation with Colombia on 31 May regarding the implementation measures did not result in a solution, prompting the EU to request the establishment of a compliance panel, it said.

Colombia regretted the EU decision to request a compliance panel and said the new anti-dumping measure is fully compliant with Colombia's WTO obligations.  Colombia said it welcomes the fact that the EU appears to agree that seven cases raised in the original proceedings are not being challenged in the compliance proceedings and that the remaining two cases identify technical aspects of the dumping margin calculations that were not part of the original procedure. Colombia said it made great efforts to explain its calculations to the EU and how they are in compliance with WTO standards during the consultations.  Colombia said that in line with an October 2023 sequencing agreement with the EU it would not object to the establishment of the compliance panel.

The DSB agreed, pursuant to Article 21.5 of the DSU, to refer to the original panel, if possible, the matter raised by the EU. Brazil, Japan, the United States, Russia, Türkiye and China reserved their third party rights to participate in the proceedings.

DS622: European Union — Anti-Dumping Measures on Imports of Fatty Acid from Indonesia

Indonesia said it considers that EU anti-dumping measures on imported fatty acids from Indonesia are inconsistent with the WTO's Anti-Dumping Agreement and the General Agreement on Tariffs and Trade (GATT) 1994. The EU measures have nullified and impaired benefits accruing to Indonesia directly or indirectly, it said. In this regard, consultations between the two parties took place on 22 April but did not resolve the dispute, prompting Indonesia to request the establishment of a panel.

The European Union said it held constructive consultations with Indonesia on the matter and that Indonesia is fully entitled to bring this matter to dispute settlement, but the EU firmly believes that the measures at stake are fully justified.  The EU said it is confident its actions will be declared in line with WTO rules, but that it is not ready to accept the establishment of a panel. In the meantime, the EU reiterated the invitation to Indonesia to join the Multi-party interim appeal arrangement (MPIA), a contingent measure to safeguard the right to appeal in the absence of a functioning Appellate Body. 

The DSB took note of the statements and agreed to revert to this matter should a requesting member wish to do so.

DS577: United States — Anti-Dumping and Countervailing Duties on Ripe Olives from Spain

The European Union said it had no choice but to request authorization to suspend the application to the United States of concessions or other obligations according to Article 22.2 of the DSU so that the US fully implements the recommendation of the panel. The EU said it noted the US request to refer the matter to WTO arbitration and said it looks forward to cooperating with the US to enable the arbitrator to circulate its decision within 60 days.

The United States said under the terms of Article 22.6 of the DSU, the filing of its objection to the EU request automatically results in the matter being referred to arbitration.  The US said it is willing to continue discussing this matter with the EU on a bilateral basis, but EU suggestions that the US has taken no action on the matter are incorrect and the US continues to consult with interested parties on options to address the ruling.

The DSB took note of the statements and that the matter raised by the US has been referred to arbitration.

DS597: United States — Origin Marking Requirement (Hong Kong, China)

For the 13th time, the United States raised the matter of the panel ruling in DS597 at a DSB meeting. The US said it was raising the matter again as a result of recent developments in Hong Kong, China regarding free speech and human rights. The US referred back to its previous statements regarding its position on essential security and its reasons for placing this item on the DSB agenda.

Hong Kong, China criticized the US for once again raising this matter at the DSB and accused the US of continuing to misuse DSB meeting time for its political purposes. If the US disagrees with the panel's finding in DS597 on national security, it should allow the case to proceed to the Appellate Body, provided the US lifts its blockage on the appointment of new Appellate Body members.

China criticized the US for repeatedly bringing this matter to the agenda of the DSB and said the security exception under GATT 1994 is not entirely self-judging, as correctly found by this panel and six previous panels. 

Appellate Body appointments

Colombia, speaking on behalf of 130 members, introduced for the 81st time the group's proposal to start the selection processes for filling vacancies on the Appellate Body. The extensive number of members submitting the proposal reflects a common interest in the functioning of the Appellate Body and, more generally, in the functioning of the WTO's dispute settlement system, Colombia said.

The United States once again said that it does not support the proposed decision. Noting the ongoing talks on reforming the dispute settlement system, the US reiterated that it will not settle for a reformed system that does not address its interests.  The US is not working towards a restoration of the Appellate Body as it was previously. Calls for the restoration of the Appellate Body undermine members' collective efforts for reform, it said.

Twenty-two members then took the floor to comment. Many of these members referred to their previous statements made on this matter at earlier DSB meetings and noted the mandates set out at the 12th and 13th Ministerial Conferences in 2022 and early 2024 respectively to conduct discussions with the view to having a fully and well-functioning dispute settlement system accessible to all members by 2024.

Several members welcomed the progress being made in the formal dispute settlement reform process but admitted the 2024 objective was unlikely to be met and that members need to consider how to lock in the progress made so far in the talks. One delegation urged members to refrain from adopting an “early harvest” or mini-package as a temporary solution, highlighting the importance of a single undertaking approach across all reform issues.

Eleven members urged others to consider joining the MPIA in order to safeguard their right to appeal in the continued absence of a functioning Appellate Body.

Colombia said on behalf of the 130 members it regretted that for the 81st occasion members have not been able to launch the selection processes. Ongoing conversations about reform of the dispute settlement system should not prevent the Appellate Body from continuing to operate fully, and members shall comply with their obligation under the DSU to fill the vacancies as they arise, Colombia said for the group.

The DSB chair, Ambassador Saqer Abdullah Almoqbel of Saudi Arabia, concluded by noting that technical work in the dispute reform discussions is ongoing and that members took note of the progress being made at a Heads of Delegation meeting on 21 November. He expressed his full support for the facilitator in the dispute settlement reform discussions, Ambassador Usha Dwarka-Canabady of Mauritius, and the six co-convenors in their efforts towards achieving a positive outcome.

Surveillance of implementation

The United States presented status reports with regard to DS184, “US — Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan”,  DS160, “United States — Section 110(5) of US Copyright Act”, DS464, “United States — Anti-Dumping and Countervailing Measures on Large Residential Washers from Korea”, and DS471, “United States — Certain Methodologies and their Application to Anti-Dumping Proceedings Involving China.”

The European Union presented a status report with regard to DS291, “EC — Measures Affecting the Approval and Marketing of Biotech Products.”

Indonesia presented its status reports in DS477 and DS478, “Indonesia — Importation of Horticultural Products, Animals and Animal Products.” 

Next meeting

The next regular DSB meeting will take place on 18 December.

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