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Brazil — Aircraft (WT/DS46/AB/R)
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burden of proof
defences and exceptions B.3.3.4
SCM 3.1(a) (Annex I (Illustrative List of Export Subsidies)) / SCM 27
(developing countries) B.3.3.4
onus probandi actori incumbit as general principle of evidence,
defences/exceptions and B.3.3.4
compliance, confidentiality of proceedings (DSU 17.10/DSU 18.2) C.6.2
confidentiality of proceedings (DSU 17.10/DSU 18.2)
applicability to individuals on Members’ delegations (including
non-government employees) B.4.2-3, C.6.2
Members’ responsibility for ensuring compliance C.6.2-3
business confidential information
additional procedures, need for B.4.1-3
Procedures Governing Business Confidential Information B.4.1,
W.2.6.3-5
closed session meetings B.4.3
“proceedings” C.6.1
Rules of Conduct, Art. VII:1 and, applicability to AB Members B.4.3,
C.6.2,
W.2.4.1
consultation and dispute settlement (AD 17), “matter”, referral
to DSB (AD 17.4), identification of measure at issue, need for (DSU 6.2) C.7.2,
R.2.3.8
consultations (DSU 4)
establishment of panel, as prerequisite R.2.4.1
measure at issue (DSU 4.4), as identified in request for
establishment of panel (DSU 6.2), need for identity with C.7.2, R.2.3.8,
S.2.17.1
object and purpose, clarification and development of the facts /
agreed solution (SCM 4.3) C.7.2, R.2.4.1,
S.2.17.1
consultations (SCM 4.1-4.4)
clarification and development of the facts / agreed solution (SCM
4.3) C.7.2, R.2.4.1,
S.2.17.1
measure at issue (DSU 4.4), as identified in request for
establishment of panel (DSU 6.2), need for identity with C.7.2, R.2.3.8,
S.2.17.1
need for S.2.17.1
developing countries, special and differential treatment (SCM 27)
S.2.35.1.1-4
obligations of developing country Members (SCM 27.4)
(phase-out/standstill) S.2.35.1.1-4
on basis of level “granted” (SCM 27.4, footnote 55)
S.2.35.1.2-3
inflation, relevance S.2.35.1.4
as positive obligations S.2.35.1.1
“prohibited” subsidy status (SCM 3.1(a)) and S.2.35.1.1
special and differential nature of treatment S.2.35.1.1-4
municipal law, contractual obligations under, relevance to compliance
with WTO obligations S.2.19.3
payments on export of agricultural product financed by virtue of
governmental action (AG 9.1(c)), cost of production, failure to recoup as, SCM Illustrative
List of Export Subsidies, items (j) and (k) and S.2.40.1
request for establishment of panel, requirements (DSU 6.2),
consultations, indication as to whether held R.2.4.1
Rules of Conduct, applicability, AB Members B.4.4,
C.6.2, W.2.4.1
“specific measure at issue” (AD 17.4/DSU 6.2), identification as
part of the matter referred to the DSB, need for (AD 17.4/DSU 7.1), specific measure the subject of
consultations, need for identity with C.7.2,
R.2.3.8
subsidies, prohibited (SCM, Part II)
Illustrative List of Export Subsidies (SCM Annex I)
export credits at rates below actual cost of funds so employed (item
(k)) S.2.40.1
“used to secure a material advantage” S.2.40.1
“withdrawal of subsidy without delay” (SCM 4.7) S.2.19.3
contractual obligations, relevance S.2.19.3
time-limits
DSU 21.3 provisions, relevance S.2.19.3
specification by panel S.2.19.3
Working Procedures (appellate review) (DSU 17.9)
confidentiality (Rules of Conduct, Art. VII:1) B.4.3,
C.6.2, W.2.4.1
Rules of Conduct, applicability (WP 8) B.4.3,
C.6.2, W.2.4.1
Brazil — Aircraft (Article 21.5 — Canada) (WT/DS46/AB/RW)
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burden of proof
defences and exceptions, SCM 3.1(a) (Annex I (Illustrative List of
Export Subsidies)) / SCM 27 (developing countries) B.3.3.6
onus probandi actori incumbit as general principle of evidence,
defences/exceptions and B.3.3.6
judicial economy, mootness of panel findings M.3.1
mootness of panel findings M.3.1
judicial economy and M.3.1
municipal law, defence to breach of international law, whether M.5.2
payments on export of agricultural product financed by virtue of governmental action (AG
9.1(c)), cost of production, failure to recoup as, SCM Illustrative
List of Export Subsidies, items (j) and (k) and S.2.40.2-4
subsidies, prohibited (SCM, Part II)
Illustrative List of Export Subsidies (SCM Annex I)
export credits at rates below actual cost of funds so employed (item
(k)) S.2.40.2-4
“used to secure a material advantage” S.2.40.2-4
“withdrawal of subsidy without delay” (SCM 4.7) S.2.19.1
“withdraw” S.2.19.1
Brazil — Desiccated Coconut (WT/DS22/AB/R)
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countervailing duties (SCM, Part V)
applicable law, entry into force of WTO Agreement, relevance S.2.41.2
compliance with GATT VI:3 and SCM Agreement (SCM 10)
S.2.41.1-2
due process (dispute settlement proceedings)
opportunity to respond to evidence/presentations of other parties D.2.2.1
terms of reference, role D.2.2.1, J.2.1.1,
R.2.1.1, T.6.1.2
GATT 1947, continuing relevance under WTO S.2.41.2
GATT 1994, WTO Agreement, incorporation into (WTO Annex 1A)
as agreement distinct from GATT 1947 S.2.41.2
GATT as integral part of WTO (WTO II:2) S.2.41.2
interpretation of covered agreements
context (VCLT 31(2)) S.2.41.1
GATT VI/SCM Agreement, interrelationship S.2.41.1-2
ordinary meaning S.2.41.1
legal basis of claim (DSU 6.2) (request for establishment of panel),
arguments distinguished C.1.1
“matter referred to the DSB” (AD 17.4/DSU 7.1)
identification of specific issues and legal basis of claim/complaint
as dual requirements (DSU 6.2) T.2.6.1, T.6.1.2
“measure at issue” (DSU 6.2) as C.1.1,
J.2.1.2, R.2.1.1,
T.6.1.2
non-retroactivity of treaties (VCLT 28) P.3.4.1,
T.5.1.1-2
as general principle of international law P.3.4.1
pre-existing rights, countervailing duties (SCM 32.3) S.2.41.2
SCM Agreement
investigations and reviews of existing measures, initiated
… on
or after date of entry into force of WTO Agreement (SCM 32.3) S.2.41.2
retroactivity T.5.1.1-2
“specific measure at issue” (AD 17.4/DSU 6.2)
identification as part of the matter referred to the DSB, need for
(AD 17.4/DSU 7.1) J.2.1.2
due process right to defend oneself and D.2.2.1,
J.2.1.1, R.2.1.1,
T.6.1.1
terms of reference of panels (DSU 7)
as definition of jurisdiction / legal claims at issue D.2.2.1,
J.2.1.1, R.2.1.1,
T.6.1.1-2
legal claim included in terms of reference, limitation of
jurisdiction to T.6.1.2
due process and D.2.2.1, J.2.1.1,
R.2.1.1, T.6.1.2
WTO Agreement
conflict between constituent covered agreements, precedence (WTO,
Annex 1A) S.2.41.1
integral parts (WTO II) S.2.41.1, S.2.41.2
DSU as evidence of S.2.41.2
object and purpose (preamble) S.2.41.2
Brazil — Retreaded Tyres (WT/DS332/AB/R)
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amicus curiae briefs, NGO/private individual briefs,
discretionary power of panel to accept/reject A.2.1.15
consultations (SCM 4.1-4.4), “statement of available evidence”
(SCM 4.2) E.3.1.11
customs unions and free trade areas (GATT XXIV), regional trade
agreements and covered trade agreements, interrelationship, MERCOSUR R.1.7.1
evidence (admissibility in panel proceedings) (DSU 12.1 and Appendix
3), evidence post-dating establishment of panel E.3.1.11, E.3.2.30
General Exceptions (GATT XX) (chapeau)
application of measure as means of arbitrary or unjustifiable
discrimination G.3.11.9
“between countries where the same conditions prevail” R.1.4.2
cause or rationale as relevant factor G.3.12.10-11
compliance with international obligation and G.3.12.12-13
effect of discrimination as relevant factor G.3.12.12-13
“disguised restriction on international trade”
G.3.11.9-10
prevention of abuses of exceptions as objective G.3.11.9-10
as weighing and balancing process G.3.11.10
judicial economy
panel’s discretionary power to determine, which claims must be
examined J.1.23
“positive solution to dispute” requirement and J.1.23
necessity test (GATT XX(b)) G.3.3A.1-7
availability of alternative WTO-consistent measure and G.3.3A.2
complaining party’s obligation to suggest G.3.4A.1
contribution to realization of end pursued and (objective-pursued
test) G.3.4.2, G.3.4A.1-5,
R.1.4.2
“reasonably available” G.3.4A.1
methodology for determining
panel’s discretion G.3.3A.1
quantitative vs. qualitative test G.3.3A.1,
G.3.3A.3
multi-pronged approach G.3.3A.4
order of analysis G.3.3A.5-7, G.3.4A.1
relevant factors, comparison with alternative possibilities including
risks G.3.3A.5-7
as weighing and balancing process G.3.3A.5-7,
G.3.4A.4
order of analysis
holistic approach, desirability R.2.3.26
necessity test (GATT XX(b)) G.3.3A.5-7,
G.3.4A.1, R.2.3.26
standard of review (panels) (DSU 11)
evidence, alleged disregard or distortion by panel (“objective
assessment of the facts”)
discretion in selection of relevant evidence E.3.2.31-2,
S.7.3.39-40
discretion to select which evidence to refer to explicitly E.3.2.32,
S.7.3.40
legal characterization of facts and evaluation of evidence
distinguished G.3.4A.5
“such other findings as will assist the DSB” (DSU 7.1), judicial
economy and J.1.23
terms of reference of panels (DSU 7), obligations, to make such
findings as will assist the DSB (DSU 7.1) J.1.23
Working Procedures (appellate review) (DSU 17.9), withdrawal of
appeal (AB/WP 30), timing W.2.0.3
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