Declares the sense of Congress that the President should ensure that: (1) in any proceeding under the World Trade Organization (WTO) involving U.S. unfair trade and trade remedy laws, the members of the WTO dispute settlement panel in that proceeding have expertise in the provisions of the Uruguay Round Agreement as well as in administering the unfair trade and trade remedy law at issue, and are currently administrators, or retired administrators, of unfair trade or trade remedy laws in a WTO member country; and (2) two or more members of the WTO Appellate Body panel hearing a case have expertise in administering such laws.
Declares the sense of Congress that the President should ensure that the members of such dispute settlement panels and the WTO Appellate Body: (1) understand commonly applied and commonly accepted principles of administrative law; (2) expressly understand and accept the central importance of Article 17.6 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Antidumping Agreement) to the successful completion of the Antidumping Agreement, the Uruguay Round negotiations as a whole, and to the proper and successful interpretation and application of the Antidumping Agreement; (3) apply the principles embodied in such Article to the Agreement on Subsidies and Countervailing Measures in order to effectuate "the consistent resolution of disputes arising from anti-dumping and countervailing duty measures", in particular in compliance with the WTO Declaration on Dispute Settlement Pursuant to the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 or Part V of the Agreement on Subsidies and Countervailing Measures; and (4) apply the principles embodied in Article 17.6 of the Antidumping Agreement to the Agreement on Safeguards in order to effectuate the consistent resolution of disputes arising from trade remedy measures.
Declares the sense of Congress that the President should reaffirm, in ongoing negotiations under WTO auspices, the importance: (1) of the correct application of Article 17.6 of the Antidumping Agreement and the need for dispute settlement panels and the WTO Appellate Body to follow that provision strictly in both antidumping and countervailing duty cases; and (2) of allowing private parties who have an interest in, and are supportive of, the U.S. position in international disputes, to observe, have access to, and participate in WTO proceedings, to the maximum extent permissible under current WTO rules and practices.
[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H. Con. Res. 243 Introduced in House (IH)]
108th CONGRESS
1st Session
H. CON. RES. 243
Expressing the sense of the Congress regarding dispute settlement
proceedings in the World Trade Organization.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
July 15, 2003
Mr. Levin submitted the following concurrent resolution; which was
referred to the Committee on Ways and Means
_______________________________________________________________________
CONCURRENT RESOLUTION
Expressing the sense of the Congress regarding dispute settlement
proceedings in the World Trade Organization.
Whereas the ability of the United States to apply its unfair trade and trade
remedy laws has for more than half a century been a cornerstone of the
support of the United States for the multilateral trading system, the
General Agreement on Tariffs and Trade, and, since 1995, the World Trade
Organization (in this preamble referred to as the ``WTO'');
Whereas remedies for unfair trade have been a fundamental part of rights under
the General Agreement on Tariffs and Trade since 1947; Article VI of the
GATT 1994 (as defined in section 2 of the Uruguay Round Agreements Act
(19 U.S.C. 3501)) authorizes the imposition of duties in response to the
unfair international trading practice of injurious dumping and expressly
``condemns'' this practice;
Whereas to this day, injurious dumping is the only trading practice that is
specifically condemned by the GATT;
Whereas Article VI also expressly authorizes the imposition of duties to respond
to subsidized imports that cause injury to a United States industry;
Whereas Article XIX of the GATT 1994 authorizes WTO member countries to apply
safeguard measures when products are being imported in such increased
quantities and under such conditions as to cause or threaten serious
injury to a domestic industry;
Whereas during the Uruguay Round of multilateral trade negotiations that
concluded in 1994, the United States and other countries negotiated
detailed agreements that effectuate and implement these foundation
provisions of the GATT 1994;
Whereas the clear and appropriate limits to the review by the WTO of the laws,
regulations, administrative decisions, and other actions of the United
States were an essential condition of the approval by the Congress of
legislation implementing the Uruguay Round Agreements;
Whereas Articles 3.2 and 19.2 of the Understanding on Rules and Procedures
Governing the Settlement of Disputes (in this preamble referred to as
the ``Dispute Settlement Understanding'') expressly provide that the
Dispute Settlement Body, dispute settlement panels, and the Appellate
Body of the WTO ``cannot add to or diminish the rights and obligations''
provided in the Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade 1994 (in this preamble referred to as the
``Antidumping Agreement''), the Agreement on Subsidies and
Countervailing Measures, the Agreement on Safeguards, or any of the
other Uruguay Round Agreements referred to in section 101(d) of the
Uruguay Round Agreements Act;
Whereas notwithstanding those provisions and in direct contravention of them,
dispute settlement panels, the Appellate Body, and the Dispute
Settlement Body of the WTO have repeatedly diminished the rights of the
United States to apply unfair trade laws and trade remedy laws by
imposing new obligations on the United States in the application of
those laws;
Whereas with regard to unfair trade laws and trade remedies, the President's
Statement of Administrative Action (in this preamble referred to as the
``SAA'') accompanying the Uruguay Round Agreements Act (H.R. Doc. No.
316, Vol. 1, 103d Cong., 2d Sess. (1994)) states clearly that explicit
limits in the Dispute Settlement Understanding and the standard of
review established at Article 17.6 of the Antidumping Agreement are
expressly designed to establish clear parameters for dispute settlement
panels and the Appellate Body in reviewing decisions of the United
States Department of Commerce and the United States International Trade
Commission in antidumping and countervailing duty cases;
Whereas the SAA states that ``Article 17.6 [of the Antidumping Agreement]
contains a special standard of review, which is analogous to the
deferential standard applied by U.S. courts in reviewing actions by the
U.S. Department of Commerce and the U.S. International Trade
Commission'';
Whereas that standard of review provides that--
(1) a dispute settlement panel may not reevaluate the factual findings
of the national authorities if the national authorities' determination was
objective and unbiased, even though the panel might have reached a
different conclusion; and
(2) where the language of the Antidumping Agreement may be interpreted
in more than one way, a dispute settlement panel must confirm a
determination by national authorities that conforms to one of the
permissible interpretations of the Antidumping Agreement;
Whereas the SAA further states that--
(1) ``Article 17.6 ensures that WTO panels will not second-guess the
factual conclusions of the agencies, even in situations where the panel
might have reached a conclusion different from that of the agency. In
addition, article 17.6 ensures that panels will not be able to rewrite,
under the guise of legal interpretation, the provisions of the Agreement,
many of which were deliberately drafted to accommodate a variety of
methodologies''; and
(2) ``A Ministerial Declaration accompanying the Uruguay Round
Agreements provides for the `consistent resolution' of disputes arising
from the imposition of antidumping and countervailing duty measures through
the application of the article 17.6 standard of review to both types of
disputes'';
Whereas dispute settlement panels and the Appellate Body of the WTO have
undermined the rights of the United States and imposed new obligations
on the United States--
(1) by failing repeatedly to follow the clearly stated obligation in
Article 17.6(i) of the Antidumping Agreement to find that an antidumping
measure is inconsistent with that provision of the Antidumping Agreement
only if the establishment of the facts was not proper or the evaluation was
not unbiased and objective;
(2) by failing repeatedly to follow the clearly stated obligation in
Article 17.6(ii) of the Antidumping Agreement that there may be more than
one permissible interpretation of that agreement and panels or the
Appellate Body may find an action inconsistent with that provision of the
Antidumping Agreement only if the decision does not follow one of those
permissible interpretations;
(3) by repeatedly disregarding the Ministerial Declaration of the WTO
by not applying the juridical parameters set out in Article 17.6 of the
Antidumping Agreement to decisions under the Agreement on Subsidies and
Countervailing Measures to fulfill ``the need for the consistent resolution
of disputes arising from anti-dumping and countervailing duty measures'';
(4) by repeatedly inventing new obligations regarding how a WTO member
may or may not address the impact of government subsidization of a
government-owned corporation that has been privatized;
(5) by inventing new obligations for when a country may impose a
safeguard measure to remedy or prevent injury caused by a surge of imports,
including obligations concerning the causal relationship between increased
imports and serious injury to the domestic industry, and the ``non-
attribution'' of other factors;
(6) by imposing the new causation and non-arbitration obligations under
the Agreement on Safeguards to antidumping proceedings;
(7) by creating new mandatory guidelines for the use of facts available
in antidumping investigations;
(8) by imposing an evidentiary standard with regard to pricing of
government provision of goods and services that is inconsistent with the
Uruguay Round Agreements by prohibiting in all cases the use of evidence of
prices from comparable external sales, properly adjusted to reflect the
home market conditions, even when a home market is shown to be nonexistent
or heavily distorted by the government subsidy;
(9) by attempting to impose a narrow definition of an indirect subsidy
that does not reflect any legal obligation under the Agreement on Subsidies
and Countervailing Measures, by insisting that a government must explicitly
order a private party to subsidize (without any other option) rather than
simply to ``entrust or direct'' the private party to subsidize;
(10) by deciding cases prematurely when the United States has taken no
action that violates the substantive provisions of the Uruguay Round
Agreements;
(11) by imposing new obligations on the ways in which the United States
may spend its revenues, obligations the United States never agreed to
accept and which Congress never would have accepted, and setting a
dangerous precedent of and interference by the WTO into the spending
decisions of the United States Government;
(12) by creating a requirement that a showing of ``unforeseen
developments'' is a prerequisite for imposing a safeguard measure;
(13) by creating a ``parallelism'' requirement requiring a WTO member
to make additional findings and conclusions before it can exercise its
right under a free trade agreement to exclude from a safeguard measure
imports from other members of the free trade agreement; and
(14) by creating restrictions on the form and level of safeguard
measures that may be imposed;
(15) by repeatedly conducting de novo reviews of the decisions of WTO
members in antidumping, countervailing duty, and safeguards cases by
considering additional facts and interpretations of facts never presented
before the decisionmaking authorities of WTO members;
(16) by indicating in another WTO member's case that the practice of
zeroing negative product-specific antidumping margins in the course of
calculating a weighted-average antidumping margin across all product
categories violates the Antidumping Agreement;
Whereas these new obligations created by dispute settlement panels and the
Appellate Body were not agreed to by the United States or by any other
country and are not reflected in the text, negotiating history, or
interpretative history of the pertinent agreement;
Whereas these new obligations created by dispute settlement panels and the
Appellate Body often reflect changes that WTO members sought but which
were not agreed to and in many instances are inconsistent with prior
GATT decisions;
Whereas these actions and decisions by dispute settlement panels and the
Appellate Body are causing a serious erosion to the respect for the rule
of law within the WTO and substantially diminish confidence in the WTO,
and, if left uncorrected, will in turn lead to a serious erosion of
support for trade liberalization under the WTO;
Whereas the problem of dispute settlement panels and the Appellate Body acting
to undermine the rights of the United States and to create new
obligations is not limited to decisions involving the Antidumping
Agreement, the Agreement on Subsidies and Countervailing Measures, and
the Agreement on Safeguards;
Whereas in a number of other contexts, dispute settlement panels and the
Appellate Body have, without justification, injected new obligations
that fill gaps deliberately left open or unclear by negotiators;
Whereas on occasion, dispute settlement panels and the Appellate Body have
purported to inject new obligations ostensibly to reflect principles of
substantive public international law;
Whereas whatever the reason or motivation, these actions by dispute settlement
panels and the Appellate Body to create new rights and obligations under
the WTO are expressly prohibited by the Dispute Settlement Understanding
and the terms of other Uruguay Round Agreements;
Whereas the United States, together with other WTO members, should take
immediate actions to correct these serious misapplications of the rules
of the WTO as agreed to by the United States and other WTO members and
ensure that no additional misapplication of such rules occurs by dispute
settlement panels or the Appellate Body in the future; and
Whereas only these immediate actions can begin to restore a high level of
confidence in WTO decisions: Now, therefore, be it
Resolved by the House of Representatives (the Senate concurring),
That it is the sense of the Congress that the President should--
(1) ensure that in any proceeding under the World Trade
Organization (in this resolution referred to as the ``WTO'')
involving the unfair trade and trade remedy laws of the United
States, the members of the WTO dispute settlement panel in that
proceeding--
(A) have expertise administering the unfair trade
and trade remedy law at issue in the proceeding and are
currently administrators, or retired administrators, of
unfair trade or trade remedy laws in a WTO member
country; and
(B) have expertise in the provisions of the Uruguay
Round Agreement (as defined in section 2 of the Uruguay
Round Agreements Act) that is applicable to the unfair
trade or trade remedy law at issue in the proceeding;
(2) with respect to the Appellate Body of the WTO, ensure
that 2 or more members of the Appellate Body panel hearing a
case have expertise in administering unfair trade or trade
remedy laws;
(3) ensure that the members of dispute settlement panels
and the Appellate Body referred to in paragraphs (1) and (2)--
(A) understand commonly applied and commonly
accepted principles of administrative law, including
that tribunals, panels, courts, and other adjudicatory
bodies typically apply an appropriate standard of
deference to an expert decisionmaker with regard to
issues of fact and law;
(B) expressly understand and accept the central
importance of Article 17.6 of the Agreement on
Implementation of Article VI of the General Agreement
on Tariffs and Trade 1994 (in this resolution referred
to as the ``Antidumping Agreement'') to the successful
completion of the Antidumping Agreement, the Uruguay
Round negotiations as a whole, and to the proper and
successful interpretation and application of the
Antidumping Agreement;
(C) apply the principles embodied in Article 17.6
of the Antidumping Agreement to the Agreement on
Subsidies and Countervailing Measures in order to
effectuate ``the consistent resolution of disputes
arising from anti-dumping and countervailing duty
measures'', in particular in compliance with the WTO
Declaration on Dispute Settlement Pursuant to the
Agreement on Implementation of Article VI of the
General Agreement on Tariffs and Trade 1994 or Part V
of the Agreement on Subsidies and Countervailing
Measures; and
(D) apply the principles embodied in Article 17.6
of the Antidumping Agreement to the Agreement on
Safeguards in order to effectuate the consistent
resolution of disputes arising from trade remedy
measures;
(4) reaffirm, in ongoing negotiations under the auspices of
the WTO, the importance of the correct application of Article
17.6 of the Antidumping Agreement and the need for dispute
settlement panels and the Appellate Body of the WTO to follow
that provision strictly in both antidumping and countervailing
duty cases; and
(5) reaffirm, in ongoing negotiations under the auspices of
the WTO, the importance of allowing private parties who have an
interest in, and are supportive of, the United States position
in international disputes, to observe, have access to, and
participate in WTO proceedings, to the maximum extent
permissible under current WTO rules and practices.
<all>
Introduced in House
Introduced in House
Referred to the House Committee on Ways and Means.
Referred to the Subcommittee on Trade.
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