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Table of contents back to top
I. General
back to top
A. Object and Purpose of the SCM Agreement
II.
Article 1 back to top
A. Text of
Article 1
B. Interpretation and Application
of Article 1
1. General
(a) Distinction between “financial contribution”
and “benefit”
2. Article 1.1(a)(1): “financial contribution”
(a) General
(b) “by a government or any public body”
(i) “Public body”
(ii) Financial contribution “by” individual
public entities or private bodies
(c) Article
1.1(a)(1)(i): transfer of funds
(i) “a government practice”
(ii) “direct transfer of funds”
(iii) “potential direct transfers of funds”
(d) Article 1.1(a)(1)(ii): “government revenue
otherwise due is foregone or not collected”
(e) Article 1.1(a)(1)(iii): a government provides
goods or services other than general infrastructure, or purchases goods
(i) General
(ii) “provides”
(iii) “goods”
(iv) “other than general infrastructure”
(v) Purchases of services
(f) Article 1.1(a)(1)(iv): entrustment or
direction of private bodies
3. Article 1.1(b): “benefit is thereby conferred”
(a) “benefit”
(i) benefit to recipient vs. cost to government
(ii) Advantage vis-a-vis the market
(iii) The relevant recipient
— scope of the SCM
Agreement
(iv) Evidence establishing the existence of
benefit
(b) “is … conferred”
(i) General
(ii) Mandatory/discretionary conferral of a
benefit
(c) Pass-through of benefit: changes in ownership
(d) Pass-through of benefit: subsidized inputs
(e) Pass-through: sales of the subsidized product
to unrelated buyers
(f) Rebuttal of a
prima facie case of benefit
(g) Relationship with other Articles
(i) Article 14
(ii) Article 14(c)
(iii) Annex I, item (k)
(iv) Annex IV
4. Relationship of Article 1.1 with other Articles
(i) Footnote 1 and Footnote 59
5. Relationship with other WTO Agreements
(a) Article XVI of the WTO Agreement
III.
Article 2 back to top
A. Text of
Article 2
B. Interpretation and Application
of Article 2
1. Article 2
(a) General
(b) “certain enterprises”
(c) Individual payments under a generalized
programme necessarily specific?
2. Article 2.1(a): “explicitly limits”
3. Article 2.1(c): de facto specificity
(a) General
(b) “other factors may be considered”
(c) “account be taken of”
(d) “disproportionately large”
(e) “predominant use”
4. Article 2.2: regional specificity
5. Article 2.3: subsidies falling under Article 3
deemed to be specific
IV.
Article 3 back to top
A. Text of
Article 3
B. Interpretation and Application
of Article 3
1. “Except as provided in the Agreement on
Agriculture”
2. Article 3.1(a)
(a) General
(b) “contingent in law … upon export
performance”
(c) “contingent … in fact … upon export
performance”
(i) De facto contingency
(ii) Treatment of facts in the determination of de
facto export contingency
(d) “Export performance”
(i) General
(ii) “produced within or outside the Member”
(e) Relationship with other Articles
(i) Article 4.7
(ii) Article 27
(iii) Footnote 59
(f) Annex
VII(b)
(g) Footnote 4
3. Article 3.1(b)
(a) “subsidies contingent … upon the use of
domestic over imported goods”
(i) Contingency
(ii) De facto contingency
(b) Relationship with other Articles
(i) Chapeau of Article 3.1
(ii) Article 3.1(a)
(iii) Article 27
(c) Relationship with other Agreements
(i) Agreement on Agriculture
V.
Article 4 back to top
A. Text of
Article 4
B. Interpretation and Application
of Article 4
1. General
(a) Accelerated procedure and the deadline for the
submission of new evidence, allegations and affirmative defences
2. Article 4.2
(a) “include a statement of available evidence”
(b) Relationship with other WTO Agreements
3. Article 4.3
(a) “shall be to clarify the facts of the
situation”
4. Article 4.4
(a) Relationship between the matter before a panel
as defined by its terms of reference and the matter consulted upon
(b) Relationship with other WTO Agreements
5. Article 4.5
(a) Relationship with other Articles
6. Article 4.7
(a) “withdraw the subsidy”
(b) Time-period for withdrawal of measures
(c) Relationship with other Articles
(i) Article 7.8
(ii) Article 19.1
(d) Relationship with other WTO Agreements
(i) DSU
(ii) Agreement on Agriculture
7. Article 4.9
8. Article 4.10
(a) Meaning of “appropriate countermeasures”
(i) Countermeasures
(ii) “appropriate”
(iii) Same meaning in Articles 4.10 and 4.11
(b) Purpose of countermeasures under Article 4.10
(c) Amount of subsidy as the basis for the
calculation of countermeasures
(i) General
(ii) Exception to the requirement of equivalence
to level of nullification or impairment
(iii) Factors relevant for the calculation of
countermeasures
(d) Relationship with other Articles
(e) Relationship with other WTO Agreements
(i) DSU
9. Article 4.11
(a) Task of the Arbitrators under Article 4.11
(b) Article 4.11 provisions as special or
additional rules
(c) Burden of proof
(d) Treatment of data supplied by private entities
(e) Relationship with other provisions
(i) SCM Agreement
(ii) DSU
VI.
Article 5 back to top
A. Text of
Article 5
B. Interpretation and Application
of Article 5
1. General
(a) Elements of a claim under Article 5
(b) Temporal scope of Article 5
(c) No requirement of “continuing” benefit
(d) No requirement of “pass-through” in a
claim under Article 5 of the SCM Agreement
(e) Reference period for determining whether
subsidies cause adverse effects
2. Article 5(a): injury to the domestic industry
3. Article 5(b): “nullification or impairment”
(a) General
(b) Application of a measure
(c) Existence of a benefit
(d) Nullification or impairment of a benefit
4. Article 5 (c)
(a) “serious prejudice”
(b) “another Member”
(c) Standing as complainant
5. Relationship with other Articles
(a) Article 6.3(c)
(b) Article 7.1
VII.
Article 6 back to top
A. Text of
Article 6
B. Interpretation and Application
of Article 6
1. Article 6.1
(a) Expiry of Article 6.1
(b) Relationship with other Articles
(i) Article 27
(ii) Article 31
2. Article 6.3
(a) General
(i) “Serious prejudice … may arise”
(ii) “the effect of the subsidy”
(b) Forms of serious prejudice
(i) “displaces” or “impedes”
(ii) “significant”
(iii) “price undercutting”
(iv) “price suppression”
(v) “price depression”
(vi) “lost sales”
(vii) “in the same market”
(viii) “increase in the world market share”
VIII.
Article 7 back to top
A. Text of
Article 7
B. Interpretation and Application
of Article 7
1. Article 7.8
(a) General
(b) Relationship
with other Articles
(i) Article
4.7
2. Article 7.9 and 7.10
(a) Meaning of “countermeasures … commensurate
with the degree and nature the adverse effects determined to exist”
(i) “countermeasures”
(ii) “commensurate with the degree and nature”
(iii) “the adverse effects determined to exist”
(b) Purpose of countermeasures under Article 7.9
(c) Task of the Arbitrators
(d) Burden of proof
(e) Article 7.9 provisions as special or
additional rules
(f) Relationship with other Articles
(i) Article 4.10
IX.
Article 8 back to top
A. Text of
Article 8
B. Interpretation and Application
of Article 8
1. General
(a) Expiry of
Article 8
(b) The Doha
Round
2. Article 8.2
(a) Article
8.2(a)
(b) Relationship with other Articles
(i) Article 8.3
3. Article 8.3
(a) “notified”
(b) “updates of … notifications”
4. Article 8.5
(a) Procedures for arbitration
5. Relationship with other Articles
X.
Article 9 back to top
A. Text of
Article 9
B. Interpretation and Application
of Article 9
1. Expiry of
Article 9
2. Relationship
with other Articles
XI.
Article 10 back to top
A. Text of
Article 10
B. Interpretation and Application
of Article 10
1. The Doha
review mandate
2. Footnote 36
(a) “offsetting”
(b) “any
subsidy bestowed directly or indirectly upon the manufacture”:
pass-through of benefit from subsidized inputs
3. Footnote 37: “initiated”
4. Relationship with Article VI of the GATT 1994
(a) Combined application of Article VI of the GATT
1994 and the SCM Agreement
(b) Pass-through: subsidized inputs
5. Relationship with other Articles
XII.
Article 11 back to top
A. Text of
Article 11
B. Interpretation and Application
of Article 11
1. Article 11.2
(a) “caused by subsidized imports”
2. Article 11.4
(a) “by or on behalf of the domestic industry”
(i) Requirement to make a determination
(ii) exclusive reliance on information in the
application
(b) Relationship with Article 5.4 of the
Anti-Dumping Agreement
3. Article 11.6
(a) Non-application of self-initiation standard to
sunset reviews under Article 21.3
4. Article 11.9
(a) Non-application of “de minimis” standard
to sunset reviews under Article 21.3
(b) Exclusion of exporters from subsequent
administrative and changed circumstances reviews
5. Article 11.11
(a) “in no case more than 18 months”
XIII.
Article 12 back to top
A. Text of
Article 12
B. Interpretation and Application
of Article 12
1. General
2. Article 12.1
(a) “information which the authorities require”
(b) Article 12.1.1: 30-day deadline for
questionnaire replies
3. Article 12.4.1
(a) summaries shall be in sufficient detail to
permit a reasonable understanding of substance of confidential
information
(b) statement of the reasons why summarization is
not possible
4. Article 12.6
(a) Verification Meetings
5. Article 12.7
6. Article 12.8
7. Article 12.9
(a) “interested party”
(b) “allowing domestic or foreign parties other
than those mentioned above to be included as interested parties”
(c) Relationship with Article 12.7 of the SCM
Agreement
XIV.
Article 13 back to top
A. Text of
Article 13
B. Interpretation and Application
of Article 13
XV.
Article 14 back to top
A. Text of
Article 14
B. Interpretation and Application
of Article 14
1. General
2. Article 14(a): “usual investment practice …
of private investors”
(a) General
(b) Relevance of distinction between inside
investor vs. outside investor
3. Article 14(b): loans
4. Article 14(c): loan guarantees
5. Article 14(d): provision of goods or services
and purchases of goods
(a) “in relation to prevailing market conditions
for the good or service in question in the country of provision”
(b) Prior subsidization in the relevant market
XVI.
Article 15 back to top
A. Text of
Article 15
B. Interpretation and Application
of Article 15
1. Article 15.1
(a) Interpretation and Application
(b) Selection of the period of investigation
2. Footnote 46
(a) “characteristics closely resembling”
3. Article 15.2
(a) “Significant” increase in subsidized
imports
(b) Treatment of imports from companies which
merged
(c) Price effect
(d) Period of data collection
4. Article 15.4
(a) Consideration of all relevant economic factors
(b) Relationship with Article 16
5. Article 15.5
(a) “through the effects of subsidies” /
footnote 47
(b) Non-attribution of injury caused by other
factors
6. Article 15.8
XVII.
Article 16 back to top
A. Text of
Article 16
B. Interpretation and Application
of Article 16
1. “producers”
XVIII.
Article 17 back to top
A. Text of
Article 17
B. Interpretation and Application
of Article 17
XIX.
Article 18 back to top
A. Text of
Article 18
B. Interpretation and Application
of Article 18
XX.
Article 19 back to top
A. Text of
Article 19
B. Interpretation and Application
of Article 19
1. General
2. Article 19.1
(a) “through the effects of the subsidy”
(b) Relationship with other Articles
(i) Article 4.7
(ii) Article 19.4
3. Article 19.3
(a) Right to an expedited review
(i) General
(ii) Aggregated investigations
(b) “appropriate amounts” and possible double
remedies
4. Article 19.4
(a) General
(b) “found to exist” — continued existence
of benefit at the time of imposition
(c) Relationship with other Articles
XXI.
Article 20 back to top
A. Text of
Article 20
B. Interpretation and Application
of Article 20
1. Retroactive
application of countervailing duties
2. Relationship
between paragraphs 1, 2 and 6 of Article 20
3. Relationship
with other Articles
(a) Articles
17.3 and 17.4
XXII.
Article 21 back to top
A. Text of
Article 21
B. Interpretation and Application
of Article 21
1. Article 21.1
(a) Temporal application
(b) Relationship with other Articles
2. Article 21.2
(a) General
(b) Types of review under Article 21.2
(c) Reviews not yet requested
(d) “necessary to offset subsidization”
(e) Exhaustiveness of the conditions listed
3. Article 21.3
(a) Self-initiation of sunset reviews
(i) General
(ii) Evidentiary requirements for self-initiation
of sunset reviews
(iii) De
minimis standard
(b) Determination of likelihood of
continuation/recurrence of subsidization
(i) General
(ii) Sufficient factual basis for the
non-determination
(c) Relationship with other paragraphs of Article
21
(i) Articles 21.2 and 21.4
(d) Relationship with other Articles
(i) Article 11.6
(ii) Article 11.9
(e) Relationship with other WTO Agreements
XXIII.
Article 22 back to top
A. Text of
Article 22
B. Interpretation and Application
of Article 22
1. Article 22.1 and 22.7
2. Article 22.5
3. Relationship with other Articles
XXIV.
Article 23 back to top
A. Text of
Article 23
B. Interpretation and Application
of Article 23
XXV.
Article 24 back to top
A. Text of
Article 24
B. Interpretation and Application
of Article 24
1. Rules of
procedure
2. Subsidiary
bodies
(a) Permanent
Group of Experts (PGE)
(b) Informal
Group of Experts (IGE)
(c) Working
Party on Subsidy Notifications
XXVI.
Article 25 back to top
A. Text of
Article 25
B. Interpretation and Application
of Article 25
1. General
(a) Questionnaire
format for subsidy notifications
(b) Periodicity
of submission and review of subsidy notifications
(c) Written procedure
2. Article 25.7
3. Article
25.11
(a) “shall
report … all preliminary or final actions”
(b) “semi-annual
reports”
(c) “nil” notifications under Article 25.11
and 25.12
(d) Relationship with other Articles
(i) Article
27.4
XXVII.
Article 26 back to top
A. Text of
Article 26
B. Interpretation and Application
of Article 26
XXVIII.
Article 27 back to top
A. Text of
Article 27
B. Interpretation and Application
of Article 27
1. General
(a) Relationship with item (k) of the Illustrative
List
2. Article 27.2
(a) “subject to compliance with the provisions
in paragraph 4”
(b) Exception for LDCs
(c) Relationship with other Articles
(i) Article 3.1(a)
(ii) Article 27.3
(iii) Article 27.4
(iv) Article 27.7
3. Article 27.3
(a) General
(b) Termination of transition period
(c) Relationship with other Articles
(d) Relationship with other WTO Agreements
4. Article 27.4
(a) “shall phase out its export subsidies”
(b) “a developing country Member shall not
increase the level of its export subsidies”
(i) “granting” of subsidies for the purposes
of Article 27.4
(ii) Constant or nominal values
(iii) Benchmark period
(iv) Actual expenditures or budgeted amounts
(c) Footnote 55
(d) “use of subsidies inconsistent with its
development needs”
(e) Burden of proof
(f) Extension of Article 27.4 transition period
(g) Relationship with other Articles
5. Articles 27.5 and 27.6
(a) Export competitiveness
(b) Review of the operation of Article 27.6
(c) Period for establishment of export
competitiveness under Article 27.5
6. Article 27.7
(a) Relationship with other Articles
7. Article 27.8
(a) “in accordance with the provisions of
paragraphs 3 through 8 of Article 6”
8. Article 27.9
9. Article 27.10
10. Article 27.11
(a) “notified”
11. Article 27.13
(a) “notified”
XXIX.
Article 28 back to top
A. Text of
Article 28
B. Interpretation and Application
of Article 28
1. Article 28.1
(a) “inconsistent with the provisions of this
Agreement”
XXX.
Article 29 back to top
A. Text of
Article 29
B. Interpretation and Application
of Article 29
XXXI.
Article 30 back to top
A. Text of
Article 30
B. Interpretation and Application
of Article 30
1. Articles of the SCM Agreement invoked in panel
and Appellate Body proceedings
2. Standard of review under the SCM Agreement
XXXII.
Article 31 back to top
A. Text of
Article 31
B. Interpretation and Application
of Article 31
1. Review of Articles 6.1, 8 and 9
XXXIII.
Article 32 back to top
A. Text of
Article 32
B. Interpretation and Application
of Article 32
1. Article 32.1
(a) “in accordance with the provisions of GATT
1994, as interpreted by this Agreement”
(b) “specific Action against a subsidy”
(c) Relationship with other Articles
(i) Article 10
(ii) Article 14
2. Article 32.3
(a) Transitional rule
(b) “this Agreement”
(c) “investigations”
(d) “reviews of existing measures”
3. Article 32.5
(a) “to ensure … the conformity of its laws
… with the provision of this Agreement”
4. Article 32.6
5. Article 32.7
XXXIV.
Annex I back to top
A. Text of Annex I
B. Interpretation and Application
of Annex I
1. Items (c), (d), (j) and (k)
(a) “Provided or mandated by governments”
2. Item (d)
3. Items (e), (f), (g), (h) and
(i)
4. Footnote 59 of Item (e)
(a) Fifth Sentence: “double taxation of foreign
source-income”
(i) Scope of application
(ii) Scope of discretion to avoid double taxation
(iii) Design, structure and architecture of double
taxation to target foreign source income
(b) “foreign source income”
(i) Recourse to international tax law
(ii) Link between income of taxpayers and their
activities in a foreign State
(c) Burden of proof
(d) Relationship with other Articles
5. Item (j)
(a) General
(b) The definition of the terms
(i) “export credit guarantee … programmes”
(ii) “premiums”
(iii) “are inadequate to cover”
(iv) “long-term”
(v) “operating costs and losses”
(c) Application of item (j)
6. Item (k)
(a) First paragraph of item (k)
— “material
advantage” clause
(i) General
(ii) “payments of all or part of the costs
incurred by exporters or financial institutions in obtaining credits”
(iii) “used to secure a material advantage”
(b) First paragraph of item (k) as an affirmative
defence
(c) Second paragraph of item (k)
— “the safe
haven”
(i) General
(d) “in the field of export credit terms”
(e) “international undertaking on official
export credits”
(f) “a successor undertaking”
(g) OECD Arrangement
(h) “export credit practice”
(i) “in conformity” with “interest rates
provisions”
(i) “interest rate provisions”
(ii) “in conformity”
(j) Burden of proof
(i) Second paragraph of item (k) as an affirmative
defence
(ii) “Matching of a derogation”
(iii) Mandatory/discretionary distinction in the
context of an affirmative defence under item (k) second paragraph
(k) Relationship with other Articles
XXXV.
Annex II back to top
A. Text of Annex II
B. Interpretation and Application
of Annex II
1. Footnote 61
XXXVI.
Annex III back to top
A. Text of Annex III
B. Interpretation and Application
of Annex III
1. Relationship
with other Articles
(a) Article 3.1(a)
(b) Article
27.2(a)
XXXVII.
Annex IV back to top
A. Text of Annex IV
B. Interpretation and Application
of Annex IV
1. Expiry
2. Relationship with other Articles
XXXVIII.
Annex V back to top
A. Text of Annex V
B. Interpretation and Application
of Annex V
1. General
2. Use of information gathered under Annex V for
prohibited subsidy claims
3. Whether Annex V procedure initiated
4. Adverse inferences from non-cooperation
XXXIX.
Annex VI back to top
A. Text of Annex VI
B. Interpretation and Application
of Annex VI
XL.
Annex VII back to top
A. Text of Annex VII
B. Interpretation and Application
of Annex VII
1. Annex
VII(b)
(a) Rectification
to include Honduras
(b) Graduation
methodology
(c) Re-inclusion
of Member in Annex VII(b)
XLI.
Relationship with other WTO Agreements
back to top
A. GATT 1994
1. Article III
(a) Absence of
conflict between the SCM Agreement and Article III of GATT 1994
(b) Absence of
conflict between the SCM Agreement and Article III:2 of GATT 1994
2. Article VI
3. Article XVI
B. TRIMS
Agreement
C. DSU
1. Article 3.8
2. Article 4
3. Article 11
4. Article 13.2
5. Article 23.1
D. Agreement on Agriculture
E. GATT Subsidies Code
XLII.
Declaration on Dispute Settlement Pursuant to the Agreement on
Implementation of Article VI of the General Agreement on Tariffs and
Trade or Part V of the Agreement on Subsidies and Countervailing
Measures back to top
A. Text of Declaration
B. Interpretation
and Application
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