WT/DS267/R/Add.3
Page L-1
Annex L
COMMUNICATIONS FROM THE PANEL
Contents / PageL-1. Communications to Parties
Annex L-1.1 Communication of 21 May 2003 / L-2
Annex L-1.2 Communication of 27 May 2003 / L-3
Annex L-1.3 Communication of 28 May 2003 / L-4
Annex L-1.4 Communication of 20 June 2003 / L-6
Annex L-1.5 Communication of 25 July 2003 / L-11
Annex L-1.6 Communication of 30 July 2003 / L-27
Annex L-1.7 Communication of 5 August 2003 / L-28
Annex L-1.8 Communication of 19 August 2003 / L-31
Annex L-1.9 Communication of 23 August 2003 / L-32
Annex L-1.10 Communication of 25 August 2003 / L-33
Annex L-1.11 Communication of 5 September 2003 / L-34
Annex L-1.12 Communication of 12 September 2003 / L-36
Annex L-1.13 Communication of 18 September 2003 / L-37
Annex L-1.14 Communication of 24 September 2003 / L-38
Annex L-1.15 Communication of 13 October 2003 / L-39
Annex L-1.16 Communication of 3 November 2003 / L-50
Annex L-1.17 Communication of 14 November 2003 / L-53
Annex L-1.18 Communication of 8 December 2003 / L-54
Annex L-1.19 Communication of 23 December 2003 / L-65
Annex L-1.20 Communication of 24 December 2003 / L-68
Annex L-1.21 Communication of 12 January 2004 / L-69
Annex L-1.22 Communication of 3 February 2004 / L-71
Annex L-1.23 Communication of 16 February 2004 / L-78
Annex L-1.24 Communication of 20 February 2004 / L-80
Annex L-1.25 Communication of 24 February 2004 / L-81
Annex L-1.26 Communication of 4 March 2004 / L-82
Annex L-1.27 Communication of 7 April 2004 / L-83
L-2. Communications to Third Parties[1]
Annex L-2.1 Communication of 28 May 2003 / L-84
Annex L-2.2 Communication of 25 July 2003 / L-86
Annex L-2.3 Communication of 30 July 2003 / L-93
Annex L-2.4 Communication of 13 October 2003 / L-94
WT/DS267/R/Add.3
Page L-1
ANNEX L-1.1
COMMUNICATION TO BRAZIL
AND THE UNITED STATES
21 May 2003
I refer to the letter from the United States dated 21 May 2003and addressed to the Chair of the Panel. I understand this was also copied to your delegation. The Panel wishes to ask Brazil to communicate its views, if any, in writing in response to this letter.
The Panel would appreciate if Brazil's written response could be submitted before the close of business this Friday, 23 May 2003. This is in view of the fact that the Chairman of the Panel, Mr.Rosati, is proposing to convene an organizational meeting with the parties on Monday 26 May 2003 from 11:30 a.m. The venue will be communicated to you shortly.
WT/DS267/R/Add.3
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Annex L-1.2
COMMUNICATION TO BRAZIL
AND THE UNITED STATES
27 May 2003
The Panel takes note of the United States' comments with respect to the Panel's timetable and working procedures, dated 21 May 2003, and Brazil's communication dated 23 May 2003.
Attached you will find the Panel's proposed working procedures and timetable. The Panel intends to hold an organizational meeting with the parties at 8 a.m. on Wednesday, 28 May 2003 at room C in order to hear the parties' views on these proposals.
As indicated in the attached proposed timetable, prior to the submission by the parties of their first written submissions, the Panel intends to request the parties to address, in their initial briefs to the Panel, the following:
· whether Article 13 of the Agreement on Agriculture precludes the Panel from considering Brazil's claims under the Agreement on Subsidies and Countervailing Measures in these proceedings in the absence of a prior conclusion by the Panel that certain conditions of Article13 remain unfulfilled. In particular, the Panel invites the parties to explain their interpretation of the words "exempt from actions" as used in Article 13 of the Agreement on Agriculture, as well as bringing to the Panel's attention any other relevant provisions of the covered agreements and any other relevant considerations which the parties consider should guide the Panel's consideration of this issue.
As also indicated in the attached timetable, the Panel will invite the parties to submit any written comments on each other's comments on this issue. The Panel currently wishes to signal its intention to clarify to the parties its view on these issues prior to the parties' submission of their first written submissions.
In the event that the Panel were to rule that Article 13 precludes the Panel from considering certain claims raised by Brazil prior to a conclusion that certain conditions of Article 13 remain unfulfilled, we may decide to adjust the timetable to permit the parties to make further submission(s) after the second substantive meeting and to schedule further substantive meeting(s), as necessary, with the parties.
With respect to the participation of third parties in these Panel proceedings, the Panel isaware of the provisions of Article 10.3 of the DSU, which states that third parties shall receive the submissions of the parties to the dispute to the first meeting of the Panel. Given the significant systemic issues in this Panel proceeding, and in exercise of our discretion tomanage these Panel proceedings, we believe that it would be appropriate in this case for the third parties to have access to the parties' initial written comments (and any written comments the parties may make on each others' comments) as well as to have the ability to submit any written comments they themselves may have on the issue that we have identified above. We therefore intend to invite the parties to serve also on the third parties their initial briefs and any responding comments. At the organizational meeting, we will inviteany comments you may have onthis proposedapproach to third party participation.
[Attachment omitted]
WT/DS267/R/Add.3
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Annex L-1.3
COMMUNICATION TO BRAZIL
AND THE UNITED STATES
28 May 2003
Attached you will find the timetable and working procedures adopted by the Panel for this dispute in accordance with Article 12.1 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (the "DSU"). In adopting the timetable and working procedures, the Panel has carefully considered the parties' comments at this morning's organizational meeting.
As indicated in the attached timetable, prior to the submission by the parties of their first written submissions, the Panel requests the parties to address, in their initial briefs to the Panel (to be submitted on 5 June 2003), the following:
· whether Article 13 of the Agreement on Agriculture precludes the Panel from considering Brazil's claims under the Agreement on Subsidies and Countervailing Measures in these proceedings in the absence of a prior conclusion by the Panel that certain conditions of Article 13 remain unfulfilled. In particular, the Panel invites the parties to explain their interpretation of the words "exempt from actions" as used in Article 13 of the Agreement on Agriculture, as well as bringing to the Panel's attention any other relevant provisions of the covered agreements and any other relevant considerations which the parties consider should guide the Panel's consideration of this issue. For greater clarity, the Panel invites the parties, during this initial stage of the proceedings, to focus on matters of legal interpretation, rather than upon the submission of any factual evidence that might be associated with the substantive elements of Article 13.
As also indicated in the attached timetable, the Panel will invite the parties to submit any written comments on each other's comments on this issue (i.e. on 13 June 2003). The Panel intends to rule on these issues on 20 June 2003, prior to the parties' submission of their first written submissions.
As has been indicated, the Panel recognizes that it may need to revisit certain aspects of its timetable and working procedures in light of developments during the course of the Panel procedures, including the nature of the Panel's ruling that is scheduled for 20 June 2003. In particular, in the event that the Panel were to rule that Article 13 precludes the Panel from considering certain claims raised by Brazil prior to a conclusion that certain conditions of Article 13 remain unfulfilled, we may decide to adjust the timetable to permit the parties to make further submission(s) after the second substantive meeting and to schedule further substantive meeting(s), as necessary, with the parties. Related amendments to the working procedures may also be made, if necessary.
With respect to the participation of third parties in these Panel proceedings, we have carefully considered the parties' comments at this morning's organizational meeting. In exercise of our discretion tomanage these Panel proceedings, we continue to believe that it would be appropriate in this case for the third parties to have access to the parties' initial written comments (and any written comments the parties may make on each others' comments) as well as to have the ability to submit any written comments they themselves may have on the issue that we have identified above. The Panel considers that such third party participation in this initial stage of the Panel proceedings is appropriate for the following reasons.
The Panel isaware of the provisions of Article 10.3 of the DSU, which states that third parties shall receive the submissions of the parties to the dispute to the first meeting of the Panel. We would also observe that the factual circumstance that presents itself here is not itself specifically addressed by the DSU. In our view, the legal issue that the Panel has asked the parties to address in their initial briefs will necessarily have ramifications for the remainder of the Panel proceedings, including the scope of the first substantive meeting, at which third parties will participate.
We therefore invite the parties to serve also on the third parties their initial briefs and any responding comments. The Panel will also invite third parties to submit any written comments they might have concerning the initial phase of these proceedings. The deadline for any third party comments is 10 June 2003. The parties' comments to be submitted on 13 June may, of course, also address comments made by third parties.
[Attachment omitted]
WT/DS267/R/Add.3
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Annex L-1.4
COMMUNICATION TO BRAZIL AND THE
UNITED STATES AND THIRD PARTIES
20 June 2003
1. In a communication to the Panel, dated 21May2003, prior to the Panel's adoption of its working procedures, the United States had "propose[d] that the Panel organize its procedures to deal with the threshold Peace Clause issue at the outset of this dispute". The United States asserted inter alia that "[b]ecause in this dispute Brazil has made claims under 17 different provisions of the WTO Multilateral Agreements with respect to numerous US programmes under at least 12 US statutes, we believe the Panel’s consideration of the critical Peace Clause issue would be aided by briefing and argumentation focused on this threshold issue". Brazil submitted a communication in response, dated 23 May 2003, opposing the US proposal.
2. On 28 May 2003, after having heard the views of the parties, we adopted our timetable and working procedures in accordance with Article 12.1 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (the "DSU").
3. At the same time, we indicated that we would consider giving a ruling on certain issues on 20June 2003, prior to the submission by the parties of their first written submissions, in relation to the following question and we requested the parties and third parties to address us in relation to it:
"whether Article 13 of the Agreement on Agriculture precludes the Panel from considering Brazil's claims under the Agreement on Subsidies and Countervailing Measures in these proceedings in the absence of a prior conclusion by the Panel that certain conditions of Article 13 remain unfulfilled. In particular, the Panel invites the parties to explain their interpretation of the words "exempt from actions" as used in Article 13 of the Agreement on Agriculture, as well as bringing to the Panel's attention any other relevant provisions of the covered agreements and any other relevant considerations which the parties consider should guide the Panel's consideration of this issue. For greater clarity, the Panel invites the parties, during this initial stage of the proceedings, to focus on matters of legal interpretation, rather than upon the submission of any factual evidence that might be associated with the substantive elements of Article 13."
4. The parties submitted their initial briefs on this question on 5 June 2003. On 10 June, the following six third parties submitted briefs: Argentina; Australia; European Communities; India, NewZealand and Paraguay. The parties submitted further comments on 13 June 2003.
5. Article 13(a)(ii) of the Agreement on Agriculture states that domestic support measures that conform fully to the provisions of Annex 2 of the Agreement on Agriculture shall be exempt from actions based on Article XVI of GATT 1994 and PartIII of the Agreement on Subsidies and Countervailing Measures (the "SCM Agreement"). Article 13(b)(ii) of the Agreement on Agriculture states that domestic support measures that conform fully to certain conditions shall be "exempt from actions based on paragraph 1 of ArticleXVI of GATT 1994 or Articles5 and6 of the Subsidies Agreement, provided that such measures do not grant support to a specific commodity in excess of that decided during the 1992 marketing year." Articles 5 and 6 of the SCM Agreement are each qualified by the proviso that "[t]his Article does not apply to subsidies maintained on agricultural products as provided in Article 13 of the Agreement on Agriculture". Article 13(c)(ii) of the Agreement on Agriculture provides that export subsidies that conform fully to the provisions of PartV of that Agreement, as reflected in each Member's Schedule, shall be "exempt from actions based on ArticleXVI of GATT 1994 or Articles3, 5 and 6 of the Subsidies Agreement". Article 3.1 of the SCM Agreement, which prohibits export subsidies, is qualified by the proviso: "Except as provided in the Agreement on Agriculture...". These provisions of Article 13 afford a conditional exemption from certain obligations relating to certain actionable and prohibited subsidies under the provisions of the SCM Agreement and Article XVI of the GATT 1994. This conditionality requires, inter alia, a comparison of facts with the applicable exemption requirements.