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WTO panel dismisses claims against Indonesia on safeguard duties on steel-The 19th China(Guangzhou)Int’l Metal
;&Metallurgy Exhibition
8/31/2017 金屬展-冶金展-鋼鐵展-steel expo-metal &metallurgy expo- |
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A WTO Panel has dismissed claims against Indonesia under the WTO Agreement on Safeguards on the grounds that the challenged duty was not actually a "safeguard measure". All disputing parties had agreed that the specific duty on iron or steel was a safeguard measure, but the Panel rejected this consensus position. The Panel upheld a "stand-alone" challenge against the duty under the Most-Favoured-Nation (MFN) obligation of Article I of the General Agreement on Tariffs and Trade 1994.
This decision reinforces the important principle that WTO Panels are not bound by the positions or arguments of the disputing parties, but must make their own, independent assessment of the issues.
The current dispute is somewhat unusual in that the Panel rejected the concurring views of the complaining parties (Chinese Taipei and Viet Nam) and the defending party (Indonesia) on a critical threshold issue of whether the measure was a safeguard. Indonesia had conducted an investigation under its safeguards legislation, and had notified the resulting duty to the WTO Committee on Safeguards. All disputing parties agreed that the Safeguards Agreement applied, although they differed on whether Indonesia''s duty was consistent with that Agreement.
The Panel took a different approach. It noted that Indonesia had no binding tariff obligations under GATT Article II with respect to the products subject to the duty. It stated that the Safeguards Agreement and GATT 1994 define "safeguard measures" in part as those which "suspend a GATT obligation" or "withdraw or modify a GATT concession". The Panel found that as Indonesia was "free to impose any amount of duty it deems appropriate" on these unbound products, the specific duty at issue in this case "did not suspend, withdraw, or modify Indonesia''s obligations under Article II of the GATT 1994". The Panel concluded that "in the absence of an obligation preventing a Member''s remedial action, there would be obviously no need for that Member to be released from a WTO commitment.” Therefore, the Safeguards Agreement did not apply, and the Panel dismissed all claims under that Agreement.
WTO panels and the Appellate Body often accept agreed positions advanced by the disputing parties, and proceed on that basis. However, the current Panel was well within its rights to choose not to do so. Indeed, given the Panel''s obligation under Article 11 of the Dispute Settlement Understanding to make an "objective assessment" of the matter before it, including "the applicability of and conformity with the relevant covered agreements", it was required to make its own independent assessment on the applicability of the Safeguards Agreement, despite the "concurring positions" of the disputing parties on this issue.
In 2014, Indonesia imposed a specific duty on galvalume, a type of flat-rolled iron or steel. The duty was imposed following an investigation under Indonesia''s safeguards legislation. This three-year duty was also notified by Indonesia to the WTO Committee on Safeguards. Indonesia applied the duty on imports of galvalume from all sources, although developing countries were exempt.
Importantly, as noted above, Indonesia has no tariff binding obligations with respect to galvalume.
Indonesia agreed that its measure was a safeguard within the meaning of the Safeguards Agreement, but argued that the duty was consistent with that Agreement.
金屬展-冶金展-2018廣州巨浪國際金屬暨冶金工業(yè)展覽會-亞洲最大金屬冶金展-巨浪展覽-The 19th
China(Guangzhou)Int’l Metal &Metallurgy Exhibition
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