United States — Countervailing Measures on Supercalendered Paper from Canada

 

Short title:	US — Supercalendered Paper
Complainant:	Canada
Respondent:	United States
Third Parties (original proceedings):	Brazil; China; European Union; India; Japan; Korea, Republic of; Mexico; Turkey
Agreements cited: (as cited in request for consultations)	Art. VI:3  GATT 1994 Art. 1.1(a)(1), 1.1(b), 2, 10, 11.1, 11.2, 11.3, 11.6, 12.1, 12.2, 12.3, 12.7, 12.8, 14, 14(d), 19.1, 19.3, 19.4, 22.3, 22.5, 32.1  Subsidies and Countervailing Measures (SCM)
Agreements cited: (as cited in panel request)	Art. 11.2, 11.3, 1.1(a)(iv)(1), 12.8, 1.1(b), 14(d), 10, 14, 19.1, 19.3, 19.4, 12.1, 11.1, 11.6, 1.1(a)(1), 2, 12.7, 12.2, 12.3, 12.8, 32.1  Subsidies and Countervailing Measures (SCM) Art. VI:3  GATT 1994
Consultations requested:	30 March 2016
Panel requested:	9 June 2016
Panel established:	21 July 2016
Panel composed:	31 August 2016
Panel report circulated:	5 July 2018 (adopted on 5 March 2020 )
Appellate Body report circulated:	6 February 2020 (adopted on 5 March 2020)
Art 22.6 DSU Arbitration decision circulated :	13 July 2022

 

Summary of the dispute to date

 

The summary below was up-to-date at 13 July 2022 

 

Consultations

 

Complaint by Canada

 

On 30 March 2016, Canada requested consultations with the United States regarding countervailing duties adopted by the United States on supercalendered paper, and the investigation underlying the imposition of those duties. The request for consultations also concerns an alleged ongoing conduct regarding the application of adverse facts available to “discovered” information during the course of a countervailing duty investigation.

 

Canada claims that the measures are inconsistent with:

 

- Articles 1.1(a)(1), 1,1(b), 2, 10, 11.1, 11.2, 11.3, 11.6, 12.1, 12.2, 12.3, 12.7, 12.8, 14, 14(d), 19.1, 19.3, 19.4, 22.3, 22.5, 32.1 of the SCM Agreement; and

 

- Article VI:3 of the GATT 1994.

 

Panel and Appellate Body proceedings

 

On 9 June 2016, Canada requested the establishment of a panel. At its meeting on 22 June 2016, the DSB deferred the establishment of a panel.

 

At its meeting on 21 July 2016, the DSB established a panel. Brazil, China, the European Union, India, Japan, Korea, Mexico and Turkey reserved their third-party rights. On 22 August 2016, Canada requested the Director-General to compose the panel. On 31 August 2016, the Director-General composed the panel.

 

On 27 January 2017, the Chair of the panel informed the DSB that the beginning of the panel's work had been delayed as a result of a lack of available experienced lawyers in the Secretariat. The panel expected to issue its final report to the parties before the end of 2017. On 5 July 2018, the Chair of the panel informed the DSB that the panel issued its final report to the parties on 15 December 2017. The Chair indicated that although public circulation of the report was scheduled for 21 March 2018, the parties requested on several occasions that circulation of the report be delayed, with the most recent request for delay until 5 July 2018. The Chair informed the DSB that, accordingly, the panel report would be circulated on 5 July 2018.

 

On 5 July 2018, the panel report was circulated to Members.

 

On 27 August 2018, the United States notified the DSB of its decision to appeal to the Appellate Body certain issues of law and legal interpretations in the panel report.

On 24 October 2018, the Appellate Body informed the DSB that it would not be able to circulate the Appellate Body report in this appeal by the end of the 60-day period, nor within the 90-day timeframe provided for in Article 17.5 of the DSU. The Appellate Body referred to the size of the panel record and the complexity of issued that had been appealed. The Appellate Body also noted the backlog of appeals pending with the Appellate Body, and the overlap in the composition of all divisions resulting in part from the reduced number of Appellate Body members. The Appellate Body indicated that Division members could spend only very little time preparing for this appeal and that it would not be possible for the Division to focus on the consideration of this appeal and be fully staffed for some time. On 9 December 2019, the Chair of the Appellate Body informed the DSB that the Appellate Body intended to circulate its report in this appeal on 6 February 2020.

 

On 6 February 2020, the Appellate Body report was circulated to Members.

 

 

At its meetings held on 28 February and 5 March 2020, the DSB adopted the Appellate Body report and panel report, as upheld by the Appellate Body report.

 

Proceedings under Article 22 of the DSU (remedies)

 

On 16 April 2020, Canada requested the Chair of the DSB to circulate to Members a communication where it indicated that it understood that the United States had not informed the DSB of its intension to implement the recommendations adopted by the DSB on 5 March in this dispute, as required by Article 21.3 of the DSU. Canada further indicated its intention to request authorization from the DSB, pursuant to Article 22 of the DSU, to suspend the application to the United States of concessions at the next DSB meeting held after the end of the suspension of such meetings. On 17 April 2020, the United States requested the Chair of the DSB to circulate to Members a response to Canada's communication of 16 April. In its response, the United States objected to the premise in Canada's communication that the DSB adopted recommendations in this dispute on 5 March 2020. The United States reproduced its statements at the DSB meeting of 5 March 2020 setting out the reasons why it considered that the report should be adopted by positive consensus and why it could not join such consensus. The United States thus considered that there is no recommendation for the United States to bring a measure into conformity with a covered agreement in this dispute.

 

On 18 June 2020, Canada requested the authorization of the DSB to suspend concessions or other obligations pursuant to Article 22.2 of the DSU on the grounds that the United States had failed to inform the DSB of its intention in respect of implementation of these recommendations and rulings in accordance with Article 21.3 or DSU or to propose a reasonable period of time comply. On 26 June 2020, the United States objected to Canada's proposed level of suspension of concessions pursuant to Article 22.6 of the DSU.

 

At the DSB meeting on 29 June 2019, the Chair of the DSB took note that the matter raised by the United States had been referred to arbitration pursuant to Article 22.6 of the DSU.

 

The Arbitrator was composed by the original panel members.

 

On 13 July 2022, the decision by the Arbitrator was circulated to Members.