Common use of SUMMARY OF KEY PANEL/AB FINDINGS Clause in Contracts

SUMMARY OF KEY PANEL/AB FINDINGS. TBT Art. 2.1 (holistic analysis of measure at issue): The Appellate Body criticized the panel for analysing the measure in what it called a “segmented” fashion. According to the Appellate Body, analysing a measure in a segmented manner may raise concerns when the constituent parts of the measure are interrelated and operate in an integrated way. The Appellate Body explained that while it is not necessarily inappropriate for a panel, in analysing the conformity of a measure with obligations under the WTO covered agreements, to proceed by assessing different elements of the measure in a sequential manner, a segmented approach may raise concerns when a panel fails to make an overall assessment that synthesizes its reasoning or intermediate conclusions concerning related elements of a measure at issue so as to reach a proper finding of consistency or inconsistency in respect of that measure. 2.1 (treatment less favourable – whether detrimental impact stems exclusively from a legitimate regulatory distinction): In reversing the panel's analysis of whether the measure's detrimental impact stemmed exclusively from a legitimate regulatory distinction, the Appellate Body stated that a panel does not err by assessing whether the detrimental impact can be reconciled with, or is rationally related to, the policy pursued by the measure at issue, so long as, in doing so, it does not preclude consideration of other factors that may also be relevant to the analysis. In the present case, however, the Appellate Body found that the panel had erred by failing to consider whether the regulatory distinctions embedded in the measure were “calibrated with”, “tailored to”, or “commensurate with” the different risks to dolphins from different fishing methods in different areas of the ocean. • GATT Art. XX: The Appellate Body confirmed that, so long as the similarities and differences between Art. 2.1 of the TBT Agreement and Art. XX of the GATT 1994 are taken into account, it may be permissible for a panel to rely on reasoning developed in the context of one agreement for purposes of conducting an analysis under the other. The Appellate Body also considered that, by not identifying the different risks to dolphins from different fishing methods in different areas of the ocean, the panel failed to properly assess whether the regulatory distinctions under the amended tuna measure were calibrated to such risks.

SUMMARY OF KEY PANEL/AB FINDINGS. TBT ASCM Art. 2.1 3.1(a) (holistic analysis of measure at issueprohibited subsidies – export subsidies): The Appellate Body criticized found that a subsidy is de facto export contingent within the panel meaning of Art. 3.1(a) and footnote 4 if the granting of the subsidy “is geared to induce the promotion of future export performance by the recipient”. This standard cannot be met simply by showing that anticipated exportation is the reason for analysing granting the subsidy. Rather, the satisfaction of the standard must be assessed by examining the measure in what it called a “segmented” fashiongranting the subsidy and the facts surrounding the granting of the subsidy, including the design, structure, and modalities of operation of the measure. According to the The Appellate Body, analysing a measure in a segmented manner may raise concerns when having reversed the constituent parts of Panel's legal standard, was unable to complete the measure are interrelated analysis as to whether the challenged LA/MSF measures were de facto export contingent. • ASCM Arts. 5(c) and operate in an integrated way. 6.3 (adverse effects – serious prejudice (displacement and lost sales): The Appellate Body explained upheld, although narrower in scope, the Panel's finding that while it is not necessarily inappropriate for a panelthe LA/MSF measures and certain non-LA/MSF measures, in analysing found to constitute specific subsidies caused serious prejudice to the conformity of a measure with obligations under the WTO covered agreements, to proceed by assessing different elements interests of the measure in a sequential manner, a segmented approach may raise concerns when a panel fails to make an overall assessment that synthesizes its reasoning or intermediate conclusions concerning related elements United States within the meaning of a measure at issue so as to reach a proper finding of consistency or inconsistency in respect of that measure. 2.1 (treatment less favourable – whether detrimental impact stems exclusively from a legitimate regulatory distinction): Art. 5(c). In reversing the panel's analysis of whether the measure's detrimental impact stemmed exclusively from a legitimate regulatory distinctionreaching this conclusion, the Appellate Body stated clarified that a panel does was not err by assessing whether permitted to simply rely on the detrimental impact can be reconciled withcomplaining Member's identification of a product, or is rationally related to, but was required under Art. 6.3 to make an independent product market determination to ascertain the policy pursued by specific products that compete in the measure at issue, so long as, in doing so, it does not preclude consideration same market. (a) (injury/threat of other factors that may also be relevant to the analysis. In the present case, however, the Appellate Body injury): The Panel found that the panel United States had erred by failing failed to consider whether demonstrate material injury or threat of material injury to the regulatory distinctions embedded in the measure were “calibrated with”United States LCA industry, “tailored to”, or “commensurate with” the different risks to dolphins from different fishing methods in different areas of the oceanand therefore rejected a claim under Art. 5(a). • GATT ACSM Art. XX: 7.8 (remedies – “to remove adverse effects or withdraw the subsidy”): The Appellate Body confirmed thatstated that to the extent it upheld the Panel's findings with respect to actionable subsidies that caused adverse effects or such findings were not been appealed, so long as the similarities and differences between Panel's recommendation pursuant to Art. 2.1 of the TBT Agreement and 7.8 stands. Art. XX of 7.8 provides in relevant part that “the GATT 1994 are taken into accountMember granting each subsidy found to have resulted in such adverse effects, it may be permissible for a panel 'take appropriate steps to rely on reasoning developed in remove the context of one agreement for purposes of conducting an analysis under adverse effects or … withdraw the other. The Appellate Body also considered that, by not identifying the different risks to dolphins from different fishing methods in different areas of the ocean, the panel failed to properly assess whether the regulatory distinctions under the amended tuna measure were calibrated to such riskssubsidy'”.

SUMMARY OF KEY PANEL/AB FINDINGS. TBT Art. 2.1 (holistic analysis of measure at issue): The Appellate Body criticized the panel for analysing the measure in what it called a “segmented” fashion. According to the Appellate Body, analysing a measure in a segmented manner may raise concerns when the constituent parts of the measure are interrelated and operate in an integrated way. The Appellate Body explained that while it is not necessarily inappropriate for a panel, in analysing the conformity of a measure with obligations under the WTO covered agreements, to proceed by assessing different elements of the measure in a sequential manner, a segmented approach may raise concerns when a panel fails to make an overall assessment that synthesizes its reasoning or intermediate conclusions concerning related elements of a measure at issue so as to reach a proper finding of consistency or inconsistency in respect of that measure. 2.1 (treatment less favourable – whether detrimental impact stems exclusively from a legitimate regulatory distinction): In reversing The Panels assessed the panel's analysis even-handedness of the 2016 Tuna Measure through the lens of calibration – that is, whether the measure's detrimental impact stemmed exclusively from a legitimate ’s relevant regulatory distinction, the Appellate Body stated that a panel does not err by assessing whether the detrimental impact can be reconciled with, or is rationally related to, the policy pursued by the measure at issue, so long as, in doing so, it does not preclude consideration of other factors that may also be relevant distinctions were calibrated to the analysis. In the present case, however, the Appellate Body found that the panel had erred by failing to consider whether the regulatory distinctions embedded in the measure were “calibrated with”, “tailored to”, or “commensurate with” the different risks to dolphins arising from the use of different fishing methods in different areas of the ocean. The Panels proceeded to establish the risk profiles of the relevant fishing methods and extensively reviewed the evidence pertaining to such risks. On the basis of detailed factual findings, the Panels concluded that the different elements of the measure, that is (a) the eligibility criteria, (b) the certification requirements, (c) the tracking and verification requirements, and (d) the determination provisions, were calibrated to the differences in the overall risks to dolphins. Consequently, the Panels found that the treatment accorded to Mexican tuna products was based on legitimate regulatory distinctions and consistent with TBT Art. 2.1. On appeal, the Appellate Body upheld the Panels’ reasoning and conclusions. 2.1 (holistic analysis of measure at issue): The Panels emphasized that by first looking at whether each of the elements of the 2016 Tuna Measure was calibrated to differences in the overall risks to dolphins, they were not undertaking an isolated consideration of each element. Hence, the Panels proceeded to consider how these elements interrelate with each other. On the basis of the correlation among the four elements, the Panels concluded that the 2016 Tuna Measure, as a whole, was calibrated. The Appellate Body upheld the Panels’ findings in this regard. • GATT Art. XX: XX (general exceptions – chapeau): The Appellate Body confirmed that, so long as Panels agreed with the similarities parties that the 2016 Tuna Measure violated both GATT Arts. I:1 and differences between III:4 and was provisionally justified under subparagraph (g) of Art. 2.1 XX. In a finding upheld by the Appellate Body, the Panels concluded that since the measure is calibrated to different levels of the TBT Agreement and Art. XX of the GATT 1994 are taken into account, it may be permissible for a panel to rely on reasoning developed in the context of one agreement for purposes of conducting an analysis under the other. The Appellate Body also considered that, by not identifying the different risks posed to dolphins from by different fishing methods in different areas of the ocean, the panel failed to properly assess whether the regulatory distinctions under the amended tuna measure were calibrated to such risksit is not applied in a manner that constitutes a means of arbitrary or unjustifiable discrimination.

SUMMARY OF KEY PANEL/AB FINDINGS. TBT ADA Art. 6.8 (evidence – facts available): The Appellate Body upheld the Panel's findings that the United States acted inconsistently with Art. 6.8 in applying facts available to exporters, as the United States Department of Commerce (USDOC) had rejected certain information submitted after the deadline without considering whether it was still submitted within a reasonable period of time. The Appellate Body upheld the Panel's finding that the United States acted inconsistently with Art. 6.8 and Annex II when it applied “adverse” facts available to an exporter in respect of certain resale prices by its affiliated company despite the difficulties faced by that exporter in obtaining the requested information and USDOC's reluctance to take any step to assist it. • ADA Art. 9.4 (imposition of anti-dumping duties – “all others” rate): Having found that margins established based in part on facts available are to be excluded in calculating an “all others” rate under Art. 9.4, the Appellate Body upheld the Panel's finding that the relevant US statute requiring the inclusion of margins based partially on facts available was inconsistent as such and as applied with Art. 9.4. • ADA Art. 2.1 (holistic analysis dumping determination – “ordinary course of measure at issuetrade”): The Appellate Body criticized concluded that the panel for analysing USDOC's 2.1 because the measure test did not properly assess the possibility of high-priced sales, as compared to low-priced sales, between affiliates being not “in what it called a “segmentedthe ordinary course of trade” fashion. According to within the Appellate Body, analysing a measure in a segmented manner may raise concerns when the constituent parts meaning of the measure are interrelated and operate in an integrated wayArt. 2.1. The Appellate Body explained that while it is not necessarily inappropriate for a panel, in analysing the conformity of a measure with obligations under the WTO covered agreements, to proceed by assessing different elements of the measure in a sequential manner, a segmented approach may raise concerns when a panel fails to make an overall assessment that synthesizes its reasoning or intermediate conclusions concerning related elements of a measure at issue so as to reach a proper finding of consistency or inconsistency in respect of that measure. 2.1 (treatment less favourable – whether detrimental impact stems exclusively from a legitimate regulatory distinction): In reversing the panel's analysis of whether the measure's detrimental impact stemmed exclusively from a legitimate regulatory distinction, the Appellate Body stated that a panel does not err by assessing whether the detrimental impact can be reconciled with, or is rationally related to, the policy pursued by the measure at issue, so long as, in doing so, it does not preclude consideration of other factors that may also be relevant to the analysis. In the present case, however, the Appellate Body found that the panel had erred by failing to consider whether the regulatory distinctions embedded USDOC's reliance on downstream sales was “in the measure were “calibrated with”principle, “tailored to”, or “commensurate withpermissible” the different risks to dolphins from different fishing methods in different areas of the oceanunder Art. 2.1. • GATT ADA Art. XX: 3.1 and 3.4 (injury determination – domestic industry): The Appellate Body confirmed thatupheld the Panel's finding that the captive production provision in the US statute was not inconsistent as such with Art. 3, so long as it allowed the United States International Trade Commission (ITC) to examine both the merchant market and the captive market along with the market as a whole and thus to evaluate relevant factors in an “objective manner” under Art. 3. However, the Appellate Body, reversed the Panel's finding that the statute was applied in this case consistently with Art. 3.1 and 3.4, as the similarities and differences between ITC report did not refer to data for the captive market. 3.5 (injury determination – causation): Having found that the non-attribution language in Art. 2.1 3.5 requires “separating and distinguishing” the injurious effects of the TBT Agreement and Art. XX other factors from the injurious effects of the GATT 1994 are taken into accountdumped imports, it may be permissible for a panel to rely on reasoning developed in the context of one agreement for purposes of conducting an analysis under the other. The Appellate Body also considered that, by not identifying reversed the different risks to dolphins from different fishing methods in different areas Panel's interpretation and its finding that the ITC properly ensured that the injurious effects of the ocean, other factors had not been attributed to the panel failed to properly assess whether the regulatory distinctions under the amended tuna measure were calibrated to such risksdumped imports.