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H.Con.Res. 244 (eh) [Engrossed in House] ...


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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 

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