WORLD TRADE
ORGANIZATIONWT/DS103/RW
WT/DS113/RW
11 July 2001
(01-3427)
Original: English
CANADA – MEASURES AFFECTING
THE IMPORTATION OF MILK
AND THE EXPORTATION OF DAIRY PRODUCTS
Recourse to Article 21.5 of the DSU by
New Zealand and the United States
Report of the Panel
The report of the Panel on Canada - Measures Affecting the Importation of Milk and the Exportation
of Dairy Products, Recourse to Article 21.5 of the DSU by New Zealand and the United States  is
being circulated to all Members, pursuant to the DSU.  The report is being circulated as an
unrestricted document from 11 July 2001 pursuant to the Procedures for the Circulation andDerestriction of WTO Docu ments (WT/L/160/Rev.1).WT/DS103/RW
WT/DS113/RW
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Table of Contents
I. INTRODUCTION................................................................................................................. .......................1
(i) Terms of reference .......................................................................................................... ..............................2
(ii) Composition of Panel....................................................................................................... .............................2
II. PRELIMI NARY RULIN GS ......................................................................................................... ..............3
1. Canada's request concerning busine ss confidential information..........................................................3
(i) The Panel's decision........................................................................................................ ..............................5
2. The European Communities reque st concerning access to the re buttals for third parties....................7
(i) The Panel's decision........................................................................................................ ..............................9
III. FACTUAL ASPECTS............................................................................................................ ...............11
(i) Previous system ............................................................................................................. .............................11
(ii) Previous panel and A ppellate Body judgements............................................................................... ..........11
(iii) Canada's Implementation Measures.......................................................................................... ..................11
(iv) Regulatory Amendments at the Provincial Level.............................................................................. ..........12
IV. MAIN ARG UMENTS .............................................................................................................. .............13
1. Burden of proof .............................................................................................................. .....................13
2. General ...................................................................................................................... .........................13
3. Article 9(1)(c) of the Agreement on Agriculture .............................................................................. ...20
(i) "payments".................................................................................................................. ................................20
(ii) "financed by virtue of governmental action" ................................................................................ ..............23
4. Article 10.1 of the Agreement on Agriculture ................................................................................. ....26
5. Articles 3.3 and 8 of the Agreement on Agriculture........................................................................... .31
6. Articles 1 and 3 of the SCM Agreement ........................................................................................ ......31
V. THIRD PARTIE S ARGUMENTS ...................................................................................................... .....33
A. A USTRALIA ............................................................................................................................... ...............33
1. General ...................................................................................................................... .........................33
2. Article 9.1 (c) of the Agreement on Agriculture.............................................................................. ....33
(i) "payments".................................................................................................................. ................................33
(ii) "financed by virtue of governmental action" ................................................................................ ..............34
3. Article 3 and 8 of the Agreement on Agriculture .............................................................................. ..34
4. Article 10.1 of the Agreement on Agriculture ................................................................................. ....35
5. Article 3 of the SCM Agreement............................................................................................... ...........35
B. E UROPEAN COMMUNITIES ........................................................................................................................35
1. Article 9.1 (c) of the Agreement on Agriculture.............................................................................. ....35
(i) "financed by virtue of governmental action" ................................................................................. .............35
2. Article 10.1 of the Agreement on Agriculture ................................................................................. ....37
VI. FINDINGS .................................................................................................................... .........................39
A. A GREEMENT ON AGRICULTURE ..................................................................................................................39
1. Burden of Proof.............................................................................................................. .....................39
2. Article 9.1(c) ............................................................................................................... ........................40
(a) Introduction ................................................................................................................ .....................................40
(b) "Payments" .................................................................................................................. ....................................40
(c) "Financed by Virtue of Governmental Action"................................................................................. ...............48
(i) Arguments by the parties .................................................................................................... ........................48
(ii) Textual and contextual analysis of "financed by virtue of"................................................................. ........48
(iii) General analysis by the Panel ............................................................................................. ........................50
(iv) Does governmental action prevent Canadian producers from selling milk produced outside their quota on
the domestic market?........................................................................................................... .................................53
(v) Does governmental action oblige Canadian milk processors to export all milk contracted as commercialexport milk, and, accordingly, penalize the diversion of  commercial export milk to  the domestic market?.........54
The federal Dairy Products Marketing Regulations............................................................................... ..........54
Provincial Measures ............................................................................................................ ............................56WT/DS103/RW
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Quebec......................................................................................................................... ...............................57
Ontario........................................................................................................................ ................................57
Other Canadian Milk-Exporting Provinces........................................................................................ .........59
(vi) Conclusion................................................................................................................. .................................60
(d) Payment "on the export of an agricultural product".......................................................................... ...............60
(e) Conclusion regarding Article 9.1(c) ......................................................................................... .......................60
3. Article 3.3.................................................................................................................. ..........................61
4. Article 10.1................................................................................................................. .........................62
5. Article 8.................................................................................................................... ...........................63
B. SCM A GREEMENT ............................................................................................................................... ......63
VII. CONCLUSIONS A ND RECOMMENDATIONS...............................................................................66
VIII. ANNE X..................................................................................................................... ..............................68
1. Abbreviations used for dispute settlement case s referred to in  the report ..........................................68WT/DS103/RW
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I. INTRODUCTION
1.1 On 23 December 1999, pursuant to Article 21.3(b) of the DSU, Canada, New Zealand and the
United States agreed (WT/DS103/10; WT/DS113/10) on the reasonable period of time for
implementation of the recommendations and rulings of the Dispute Settlement Body (the DSB) in thematter of "Canada - Measures Affecting the Importation of Milk and the Exportation of Dairy
Products". According to the terms of the 23 December 1999 agreement, as amended on
11 December 2000 (WT/DS103/13;  WT/DS113/13), the staged implementation process, "including
any new measures for the export of " dairy products,  was to be completed by 31 January  2001.
1.2 On 19 January 2001, Canada circulated to all Members of the DSB (WT/DS103/12/Add.6,
WT/DS/113/12/Add.6) its "final status report", pursu ant to Article 21.6 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (the DSU). In that report Canada affirmed "thatit will be in full compliance with the rulings an d recommendations of the DSB by the conclusion of
the implementation period" on 31 January 2001.
1.3 New Zealand and the United States consider that Canada has failed to comply with the above
mentioned recommendations and rulings of the DSB by 31 January 2001.
1.4 Without prejudice to their rights under the WTO, and in accordance with paragraph 1 of the
21 December 2000 "Agreed Procedures between Canada, New Zealand and the United States under
Articles 21 and 22 of the Dispute Settlement Understa nding in the follow-up to the dispute in "Canada
- Measures Affecting the Importation of Milk and the Exportation of Dairy Products" (WT/DS113/14
and 103/14, respectively) (Agreed Procedures), New Zealand and the United States requested
consultations with Canada on 2 February 2001.  Consultations were held on 9 February 2001, butfailed to resolve the dispute.
1.5 Pursuant to Article 21.5, and as envisaged in the Agreed Procedures, New Zealand and the
United States on 16 February 2001 accordingly requested the establishment of a panel in this matter
and requested that the DSB refer the matter to the original panel, if possible (WT/DS113/16 and
103/16, respectively.)
1.6 On 16 February 2001, New Zealand and the United States also requested authorization from
the DSB, pursuant to Article 22.2 of the DSU, to suspend the application to Canada of tariff
concessions and other obligations under the General Agreement on Tariffs and Trade 1994 (GATT
1994) covering trade in the amount of US$35 million for each complainant.  Pursuant to Article 22.6
of the Understanding on Rules and Procedures Gove rning the Settlement of Disputes (DSU), Canada
objected on 28 February 2001 to the level of suspension of tariff concessions and other obligations
under the GATT 1994 proposed by New Zealand and the United  (document WT/DS113/17 and103/17, respectively).  In accordance with the provisions of Article 22.6 of the DSU and as envisaged
in the "Agreed Procedures, Canada therefore requested that this matter be referred to arbitration.
1.7 In accordance with the Agreed Procedures, the complainants did not object to the referral of
the level of suspension of concessions or other obligations to arbitration pursuant to Article 22.6 of
the DSU.  In this case, New Zealand and the United States agreed to request the arbitrator to suspend
its work until either (a) the adoption of the Article 21.5 compliance panel report; or (b) if there were
an appeal, the adoption of the Appellate Body report.
1.8 At its meeting on 1 March 2001, the Dispute Se ttlement Body (DSB) decided, in accordance
with Article 21.5 of the DSU, to refer to the origin al Panel, if possible, the matter raised by New
Zealand and the United States in document s WT/DS113/16 and WT/DS103/16, respectively.WT/DS103/RW
WT/DS113/RW
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(i) Terms of reference
1.9 At that DSB meeting, it was also agreed that the Panel should have standard terms of
reference as follows:
"To examine, in the light of the relevant provisions of the covered agreements cited
by the United States in document WT/DS103/16 and by New Zealand in document
WT/DS113/16, the matter referred to the DSB by the United States and New Zealand
in those documents and to make such findings as will assist the DSB in making the
recommendations or in giving the rulings provided for in those agreements."
(ii) Composition of Panel
1.10 The Panel was composed on 12 April 2001 as follows:1
Chairperson: Mr. Ernst-Ulrich Petersmann
Members: Mr. Guillermo Aguilar Alvarez
Mr. Peter Pale čka
1.11 Australia, the European Communities and Mexico reserved their third party rights.
1.12 The Panel held a meeting with the parties on 29-30 May 2001 and with the third parties on
30 May 2001.  The report of the Panel was submitted to the parties on 5 July 2001.
                                                     
1 The Chairperson of the original Panel, Mr. To mmy Koh, was not available for these proceedings.
The parties agreed to his replacement by Mr. Peter Pale čka as a member of the Panel.WT/DS103/RW
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II. PRELIMINARY RULINGS
1. Canada's request concerning business confidential information
2.1 On 15 May 2001, Canada, pursuant to paragraph 12 of the Panel's working procedures,
requested a preliminary ruling from the Panel regarding the adoption of procedures governingbusiness confidential information (BCI) that may be submitted to Canada in the course of these
proceedings.  Canada proposed that such procedures form part of the Panel's working procedures
pursuant to paragraph 14 thereof and Article 12.1 of the DSU.
2.2 Canada indicated that Canadian producers and processors proposing to submit BCI to the
Canadian litigation group in the context of these proceedings need BCI procedures to be in place
before disclosure is made.
2  Currently, Canada did not have access to certain BCI and would not be in
a position to obtain, assess and provide such BCI to the Panel or to the other Parties unless adequateprocedures are in place to govern its handling and the access thereto in the course of these
proceedings.  That is why Canada requested BCI pr ocedures and proposed procedures that are built
upon those adopted in the Brazil and Canada Aircraft  cases, the Australia - Automotive Leather  case
and the United States - Wheat Gluten  case.
3  The objective is to provide the Panel and all parties
involved in the dispute, including third parties, with all relevant factual information necessary to
arrive at correct factual and legal conclusions.  Canada contended that it would not be able to do so
without these procedures in place.
2.3 Canada submitted that the confidentiality provisions already applicable to this dispute are
paragraph 3 of the model working procedures set out in Annex 3 of the DSU4 and Article 18.2 of the
DSU.  In many cases these provisions may provide sufficient protection for information which aMember may want to form part of the factual record of the proceedings.  In some cases, these
provisions may suffice even to protect BCI from being disclosed beyond the parties to a dispute.
2.4 Article 12.1 of the DSU, Canada submitted, explicitly allows the Panel to adapt its working
procedures to the circumstances of the case before it.  Under the procedures proposed in Appendix I, a
Member party to this dispute would not be denied access to BCI.  While specific persons within the
Member's delegation or larger consultative group would be excluded from access to specific
numerical and other BCI, they would be provided with a summary form of the information which
would enable them to draw the appropriate analytical  conclusions.  In light of the considerations set
out above, Canada respectfully requested that the Panel adopt the BCI procedure, as proposed by
Canada, as part of its working procedures.
2.5 New Zealand  did not see a need for additional working procedures for BCI in relation to the
current proceedings.  Article 18 and Appendix 3 of the DSU already provide sufficient coverage forthe concerns that Canada has expressed and, in an y event, New Zealand did not believe that Canada
has adequately demonstrated the need for stepping beyond the parameters of these provisions.
                                                     
2 Canada indicated that  within the Canadian delegation and wider consultative group itself, procedures
similar to those requested here would govern the handling of BCI.
3 Brazil – Aircraft, panel report;  Canada – Aircraft,  panel report;  Australia – Automotive Leather
panel report;  United States – Wheat Gluten, panel report.
Please note that the full title of all cases referred to  here and in the rest of th e report can be found in the
Annex on page 68.
4 By virtue of Article 12.1 of the DSU and paragraph 1 of Annex 3 of the DSU, paragraph 3 of Annex 3
of the DSU is also paragraph 3 of the Working Procedures of this Panel.WT/DS103/RW
WT/DS113/RW
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2.6 As Canada recognised, the DSU already contains provisions which deal with the issue of
ensuring confidentiality in dispute settlement proceedings.  In New Zealand's view, Article 18 and
Appendix 3 of the DSU adequately ensure that, when  a party to a dispute submits information which
it designates as "confidential", all other parties to the dispute are under an obligation to treat suchinformation as confidential.  This is confirmed inter alia  by the Appellate Body in Canada - Aircraft
where the Appellate Body noted, inter alia , that Article 18.2 obliges Members to "maintain the
confidentiality of any submissions or information submitted, or received" in a dispute settlement
proceeding.
5   The Appellate Body went on to observe that such a provision also "oblige[s] Members
to ensure that such confidentiality is fully respecte d by any person that a Member selects to act as its
representative, counsel or consultant."6
2.7 New Zealand also observed that there is no precedent for BCI procedures being imposed on a
party to a dispute under the DSU.  Additionally, and most importantly, there is no precedent for the
working procedures of a panel being substantively modified over the objections of one of the principal
parties to a dispute.
2.8 New Zealand noted that on the only occasion when the Appellate Body has been asked to
consider the issue of BCI procedures (in Canada-Aircraft), it declined the request of the parties, whohad agreed such procedures at the panel stage, to apply those procedures mutatis mutandis  to
proceedings before the Appellate Body.  Moreover, it refused to agree to impose those procedures on
third participants in the appeal.
.7   New Zealand also submitted that in the circumstance where there is
no precedent for BCI procedures to be imposed on a party to a dispute, the burden on Canada to
justify its proposal is a heavy one which Canada has by no means met.
2.9 New Zealand considered that if Canada's concerns are being driven by domestic
considerations whereby some parts of its industry want to protect information from other parts of the
Canadian industry, then this is an internal matter for Canada and is of no concern to New Zealand or
the Panel.  In New Zealand's view, pertinent info rmation in relation to the so-called "commercial
export milk" is already before the Panel.  As a result, New Zealand was unclear as to what additionalinformation Canada believes is "necessary" for the Panel to resolve this dispute.
2.10 In light of the above, New Zealand requested that the Panel decline Canada's request for
additional working procedures in relation to BCI.  Such additional procedures would be unnecessary
and would serve no useful purpose in the upcoming hearing.
2.11 The United States  shared some of New Zealand's concerns and was not advocating the
adoption of such procedures.  At the same time, the United States would not object to the inclusion of
BCI procedures in this case as long as they adequately address the concerns raised by the UnitedStates.  The United States opposed the adoption of  Canada's proposal without modifications based on
its objection to the following provisions:  1) the definition of "business confidential information",
2) the inclusion of outside legal counsel or other advisor or consultant to a party in the definition of
"representative",  3) the exclusion of government employees involved in the dairy field from the
definition of "representative", and 4) the inclusion of provisions for the submission of BCI to thirdparties.  The United States was concerned that if the Panel were to adopt the procedures proposed by
Canada without modification, the systemic ramifications could be severe.  For example, other panels
could use the procedures as a model in other disputes.  These procedures have a number of flaws and
may be particularly inappropriate, or even inconsistent with WTO obligations, if used in another
                                                     
5 Canada - Aircraft , Appellate Body report, paragraph 145.
6 Id.
7 Id., paragraph 147.WT/DS103/RW
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context such as a dispute brought under the Agreement on Safeguards or the Anti-dumping
Agreement.
2.12 With regard to outside legal counsel, although the United States understood that a party may
include outside legal counsel in its delegation, the United States did not believe that the sanctions inplace under the DSU and WTO rules are sufficient to ensure that BCI is adequately protected if access
is permitted for outside legal counsel.  Moreover, there is too great a potential for a conflict of
interest.  The situation in Thailand - Steel  demonstrates the danger of submitting BCI to outside legal
counsel who may also represent a domestic stakeholder.  In that case, different representatives of the
same law firm represented the government and the private sector association.  Despite the fact that the
law firm, as a representative or counsel to the government, was bound by the same confidentiality
obligations under the DSU as Poland, the private se ctor association somehow came into possession of
Thailand's brief.  For inter alia  these reasons, the United States proposed striking "legal counsel or
other advisor or consultant of a party" from the definition of "representative " and striking entirely the
provision for submission of BCI to third parties.
2.13 Furthermore, the United States considered that information other than business proprietary
information does not need protection as business confidential information.  Such a broad definitionimposes an even greater burden on the Panel and parties and is not consistent with the restrained use
of the BCI designation.  Also, this definition is not consistent with the rationale provided by Canada
in support of its need for BCI procedures.
2.14 As concerns the definition of "representatives", the United States considered that the proposal
for exclusion of government employees involved in the dairy field is overly broad.  The United Stateswould propose striking "government" from the exclusion in the definition of "representative", or at
least making it clear that the exclusion only applies to government entities that are actual market
participants.  The United States accordingly requested that if the Panel decides that the adoption of
BCI procedures is warranted in this case, that it adopt the Canadian procedures as BCI procedures
with the modifications proposed by the United States .  And in any event the procedures should specify
that they are applicable only to BCI submitted by Canada.
(i) The Panel's decision
2.15 After having reviewed Canada's request and the comments by New Zealand and the United
States, the Panel  decided to decline, at the time of its preliminary ruling
8, Canada's request to adopt
the procedures governing BCI proposed by Canada.  The Panel reached this conclusion on the basis of
the following considerations.
2.16 The Panel considers that Article 18.2 of the DSU9 and paragraph 3 of the Panel's Working
Procedures10 already provide substantial protection to parties regarding treatment of BCI.11
                                                     
8 23 May 2001.
9 Written submissions to the panel of the Appellate Body shall be treated as confidential, but shall be
available to the parties to the dispute.  Nothing in this Understanding shall preclude a party to a dispute from
disclosing statements of its own positions to the public.  Members shall treat as confidential informationsubmitted by another Member to the panel or the Appellate Body which that Member has designated asconfidential. […]
10 The deliberations of the Panel and the documents submitted to it shall be kept confidential.  Nothing
in the DSU shall preclude a party to a dispute from disclosing statements of its own positions to the public.
Members shall treat as confidential information submitted by another Member to the Panel which that Member
has designated as confidential.   […]WT/DS103/RW
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2.17 The Panel notes that New Zealand does not see the need for BCI procedures12, and that the
United States does not intend to submit BCI.13 . The Panel considers that it has the authority to amend
the Working Procedures, after consulting the partie s, including the possibility to adopt procedures
governing BCI, pursuant to Article 12.1 of the DSU and paragraph 14 of the Working Procedures.  Italso considers that it would not be prevented from doing so because the parties to the dispute are in
disagreement regarding such a proposed amendment, provided that requirements of due process are
respected.  Article 12.1 of the DSU only provides that the Panel should consult with the parties.
2.18 The Panel considers that it needs to examine Canada's request in the light of a panel's
obligation under Article 11 of the DSU to make an objective assessment of the facts of the case.  If
certain information is required to allow the Panel to make an objective assessment of the facts and
such information cannot reasonably be expected to be disclosed to the Panel and the parties in theabsence of additional procedures governing BCI, the Panel would need to accommodate a party's
concerns regarding treatment of BCI.  A panel's decision not to do so in such circumstances might
very well affect that party's due process rights, as that party might find itself unable to disclose
information necessary to its defence, and hence, make it impossible for the Panel to make an objective
assessment of the facts.
2.19 At the same time, the Panel considers that a party requesting the adoption of BCI procedures
should clearly explain to the Panel what kind of information it may be unable to obtain and disclose
but for the adoption of BCI procedures, in order to enable the Panel to assess the need for such BCI
procedures.  In this respect, the Panel notes that Canada does not provide any indication as regards the
nature of the information which it may consider necessary or desirable to disclose during theproceedings, and which it considers it could not disclose in the absence of BCI procedures.  Rather,
Canada limits itself to stating that:
"One of the provisions that may form part  of a commercial transaction involving milk
for use in products destined for export […], is the confidentiality of terms of the
contract, or indeed, of the entire contract itself. Confidentiality covenants along theselines are commonplace in commercial transactions. […]
14
[…] Canadian producers and processors proposing to submit BCI to the Canadian litigationgroup in the context of these proceedings need BCI procedures to be in place before
disclosure is made.
15  Currently, Canada does not have access to certain BCI and will not be
in a position to obtain, assess and provide such BCI to the Panel or to the other Parties unless
                                                                                                                                                                    
11 See the Appellate Body report on Canada –Aircraft , paragraph 145, where the Appellate Body notes,
with approval, the following statement made by the Panel in  Indonesia –Automobiles , paragraph 14.1.:
"We would like to emphasize that  all members of parties' delegations - whether or not they are government
employees -- are present as representatives of their go vernments, and as such are subject to the provisions of
the DSU and of the standard working procedures, including Articles 18.1 and 18.2 of the DSU andparagraphs 2 and 3 of those procedures .  In particular, parties are requir ed to treat as confidential all
submissions to the Panel and all information so designated by other Members; and, in addition, the Panel meets
in closed session.  Accordingly,  we expect that all delegations will fully respect those obligations and will treat
these proceedings with the utmo st circumspection and discretion . […]." (emphasis added by the Appellate
Body).
12 Paragraph 2 of the response by New Zealand, 21 May 2001.
13 Paragraph 2 of the response by the United States, 21 May 2001.
14 Paragraph 3 of Canada's request for a preliminary ruling, 15 May 2001.
15 [Footnote omitted]WT/DS103/RW
WT/DS113/RW
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adequate procedures are in place to govern its handling and the access thereto in the course of
these proceedings."16
2.20 While the Panel understands that confidentiality clauses may prevent private entities from
disclosing certain or all information contained in a contract17, it notes that certain data in connection
with such contracts, albeit not on an individual basi s, has already been made available by the parties
to the dispute, including Canada.18  The Panel does not, and, of course, cannot, exclude that there may
be other factual information which Canada may wish to provide and which would assist the Panel in
making an objective assessment of the facts.  Th e Panel considers, however, that for BCI procedures
to be put in place, with the associated burden imposed on the Panel and the parties, Canada would, at
least, need to describe to the Panel the nature of  that information, and why the existing confidentiality
requirements are insufficient.  Only then would the Panel be able to assess the need to adopt BCIprocedures.
2.21 In conclusion, Canada's request has not enabled the Panel to assess the need for the proposed
procedures governing BCI.  The Panel is therefore not persuaded at this time that it should adopt BCI
procedures, as proposed by Canada.  The Panel, however, does not exclude that it may need to revisit
the issue at a later time, if and when Canada provides additional justification and clearly establishesthe need for additional arrangements regarding BCI.
19  The Panel is committed to protecting the due
process rights of all parties to the dispute and will  take any appropriate action for that purpose in the
course of the proceedings, after consulting the parties.
2. The European Communities request concerning access to the rebuttals for third parties
2.22 On 18 May 2001 the European Communities (EC) made the following request concerning
third party access to the rebuttals.  The EC noted that paragraph 8 of the Working Procedures of the
Panel provides in relevant part that "Third parties shall receive copies of the parties' first written
submissions".  In the view of the EC, this regula tion conflicts with 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". (emphasis added)
2.23 The EC argued that it had continuously objected to similar Working Schedules of previous
compliance panels.  The DSU Article 21.5 panel in Australia - Automotive Leather  justified its
approach solely with the following argument:  "I f it had decided to hold two meetings, with the
parties, as in the normal situation envisioned in  Appendix 3 of the DSU, third parties would have
received only the written submissions made prior to the first meeting, but not the rebuttals or other
submissions made subsequently."20  The EC considered that this reasoning is not tenable.  The
argument is based on the assumption that two substantive meetings are the "normal situation" in DSUArticle 21.5 proceedings.  The EC recalled that, due to the expedited nature of compliance panels, all
                                                     
16 Paragraph 4 of Canada's request for a preliminary ruling, 15 May 2001.
17 The Panel notes that none of the "Examples of Commercial Export Milk Contracts" provided by
Canada in Exhibit 15 to its First Submission contain any obligations as regards confidentiality of their terms andconditions.(Exhibit 15 erroneously referred to as Exhibit 14 in the original ruling)  The Panel is aware, however,that those examples may not necessarily constitute a representative sample in this respect.
18 Including average prices, traded volumes and supply terms. See paragraphs 42 and 51 of Canada's
first submission, 15 May 2001.
19 The Panel is fully aware that Canada's request for adoption of BCI procedures needs to be assessed in
the light of Article 10.3 of the Agreement on Agriculture .
20 Australia – Automotive Leather,  recourse to Article 21.5, panel report, paragraph 3.9.WT/DS103/RW
WT/DS113/RW
Page 8
DSU Article 21.5 panels so far have only held one substantive meeting.21  This is, thus, the normal
situation.
2.24 The practice of giving third parties only the first submissions, the EC continued, deprives
them of their participatory rights under the DSU.  Article 10.1 of the DSU emphasises that the"interests of the parties to a dispute and those of other Members under a covered agreement at issue in
the dispute shall be fully taken into account during the panel process".  The EC believed that its
systemic interest in the correct interpretation of the Agreement on Agriculture  can only be protected if
it can contribute meaningfully to the Panel proceedings by giving its views on all arguments
exchanged by the parties before the first and only substantive meeting of the Panel, as foreseen by
Article 10.3 of the DSU.
2.25 The EC submitted that Article 12.1 of the DSU grants each panel the authority to adapt the
Working Procedures "after consulting the parties to the dispute".  However, Article 12.1 of the DSU
does not grant any panel the authority to " limit the right of third parties under Article 10.3 to receive
the submissions of the parties to the dispute to the first meeting to copies of the first submissions of
the parties".
22  The Appellate Body, in United States - 1916 Act  has only acknowledged the
discretionary authority of panels to grant extended  third party rights.23
2.26 The EC noted that even if previous DSU Article 21.5 panels have similarly excluded the third
parties from the second set of submissions, such a practice, which is, in the opinion of the EC, in
conflict with the express provisions and the objectives of the DSU, cannot be considered as being
justified because it has also been followed in some  other procedures.  On the basis of the foregoing
considerations, the EC was of the view that this Panel should ensure that the third parties receive thesecond set of submissions to be exchanged before its substantive meeting.
2.27 Canada noted that its general policy is to make available, upon request, a public version of
the submissions it has filed.  Accordingly, the EC can receive Canada's rebuttal submission, as can the
other third parties, as of 25 May 2001, if they so request.  Canada's response in this case is without
prejudice to Canada's position on the broader question of whether third parties have a right under theDSU to receive the rebuttal submissions of disputing parties before the hearing, in the context of
dispute settlement proceedings under Article 21.5 of the DSU.
2.28 New Zealand  did not oppose the EC request but noted that any decision by the Panel to
accede to the EC request should be seen as being confined to this dispute and without prejudice to the
rights and obligations contained under the DSU.
2.29 The United States  noted that the EC has made similar arguments in other Article 21.5
proceedings in which a panel has held only a single meeting with the parties and third parties, and ineach such proceeding, the panel has rejected the EC argument.  The first in this line of cases is
Australia - Automotive Leather , in which the panel rejected the EC request.
24   The panel in Australia-
Salmon - f aced a similar argument by the EC and also found that third parties are not entitled to
rebuttal submissions in Article 21.5 panel proceedings where there is only one substantive meeting of
                                                     
21 Australia – Automotive Leather ;  Australia – Salmon ;  United States – DRAMS ;  Canada – Aircraft ;
Brazil – Aircraft ;  EC – Bananas (Ecuador) ;  United States – FSC ; United States – Shrimps ;  Mexico – High
Fructose Corn Syrup ;  Brazil – Aircraft – Second Recourse to Article 21.5 of the DSU .
22 This was expressly done in the Article 21.5 panel report, Australia – Salmon" , paragraph 7.5.
23 United States – 1916 Act,  Appellate Body report, paragraphs 139-150.
24 Australia - Automotive Leather,  Recourse to Article 21.5, panel report, paragraph 3.9.  This decision
was followed in Australia - Salmon,  Recourse to Article 21.5, panel report, paragraphs 7.5-7.6.WT/DS103/RW
WT/DS113/RW
Page 9
the panel.25  More recently, the panel in United States -  DRAMS  also rejected the EC's position.26   In
the view of the United States, the reasoning of th ese prior panels is sound, and should be followed by
this Panel.
2.30 The United States also urged the Panel to reject the EC's assertion that Article 12.1 of the
DSU requires that the EC be consulted regarding th e provisions of the Working Procedures in this
case involving third party rights.  Article 12.1 states clearly that panels are to consult the parties to the
dispute, not the third parties.  The United States noted that, with the exception of business confidential
information, it routinely makes its submissions to WTO panels available to the public by placing its
submissions on the Internet Web page of the Office of the US Trade Representative.  Thus, as a
practical matter, third parties (along with the rest of the world) have access to the US rebuttal
submission.  The United States understood that bo th Canada and New Zealand may also make their
rebuttal submissions public.  In any event, the work ing procedures make it clear that the other parties
to the dispute have the option to provide copies of their rebuttal submissions to the EC.  In conclusion,
the United States asked that the Panel follow the consistent positions of past panels on this issue and
reject the EC's request.
2.31 Mexico  submitted that although it recognized the right of panels to deviate from the working
procedures set forth in Appendix 3 to the DSU, a panel may not act in a manner contrary to the actual
provisions of the DSU, in particular when this affects the rights of third parties.  According to
Mexico, Article 10.3 of the DSU clearly stipulates that third parties shall receive the submissions of
the parties to the dispute to the first meeting of the panel.  Thus, if in the case of an accelerated
procedure the panel decides to conduct its first meeting after receiving the rebuttal submissions, thismust not affect the rights of third parties to have their interests fully taken into account, including the
right to receive all of the submissions of the parties to the first meeting of the panel.  Pragmatic
arguments such as the fact that the parties to the dispute have a policy of making their rebuttals public
are, in Mexico's view, not acceptable.  Mexico pu t forward three general observations in this respect:
(i) the right of third parties includes the right to receive submissions from the parties without havingto seek them;  (ii) certain Members only publish the actual texts of their submissions, and not the
annexes;  (iii) the third parties are not necessarily always English speaking.  In view of the above,
Mexico supported and associated itself with the EC's request that the rebuttal submissions of the
parties be provided.
(i) The Panel's decision
2.32 After having reviewed the EC's request and the comments by the parties, the Panel  decided
27
to accept the EC's request, and accordingly amend its Working Procedures.  The Panel reached this
conclusion on the basis of the considerations presented hereafter.  Appendix 3 to the DSU requires
this Panel to "follow the relevant provisions of th is Understanding" (paragraph 1) subject to the power
of the Panel to adopt "any additional procedures specific to the panel" (paragraph 11).  In this case, all
parties and third parties agree that Article 10.3 of the DSU remains applicable and requires that
"(t)hird parties shall receive the submissions of the parties to the dispute to the first meeting of the
Panel".  The disagreement relates as to whether the third party rights under Article 10.3 of the DSU
have been inappropriately limited by the Panel when it adopted, in accordance with the practice of
previous Article 21.5 panels and in agreement with the parties to this dispute, the following rule in
                                                     
25 Australia- Salmon,  Recourse to Article 21.5,  panel report, paragraphs. 7.5 and 7.6.
26 United States - DRAMS  - Recourse to Article 21.5, Decision of the panel concerning the EC request
for access to the parties' rebuttal submissions, 27 June 2000 (footnotes omitted).
27 Decision dated 25 May 2001.WT/DS103/RW
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Page 10
paragraph 8 of this Panel's Working Procedures:  "Third parties shall receive copies of the parties' first
written submissions".28 (emphasis added)
2.33 Referring to the EC's claims in paragraphs 2.22 - 2.26 above, as supported by Mexico in
paragraph 2.31, the Panel noted that the text of Article 10.3 is clear and requires this Panel to makeavailable to third parties " the submissions of the parties to the dispute to the first meeting of the
panel" (emphasis added).  In the particular context of Article 21.5, panels which, as in this case,
request both parties to submit also their rebuttal submissions prior to the first meeting with the parties,
the literal reading of Article 10.3 clearly requires to make available to third parties also these rebuttal
submissions.  Even in the different context of no rmal Article 12 panel proceedings with two meetings
with the parties, nothing in the text of Article 10.3 and in the different context of normal Article 12
panel proceedings justifies ignoring the clear textual requirement of Article 10.3 to enable thirdparties to participate in the first panel meeting with access to all "the submissions" of the parties made
up to this point of the panel process.  In the particular context of this Article 21.5 Panel proceeding,
the term "submissions" in Article 10.3 of the DSU must therefore include the parties' rebuttal
submissions.
2.34 In the view of the Panel, only this strict compliance with the unequivocal text of Article 10.3
secures that the interests and rights of third parties are "fully taken into account during the panel
process" (Article 10.1) in a manner enabling the Panel to "make an objective assessment of the matter
before it" (Article 11.1).  In the Panel's view, the object and purpose of Article 10.3 of the DSU is to
allow third parties to participate in an informed and, hence, meaningful, manner in a session of the
meeting with the parties specifically set aside for th at purpose.  Third parties can only do so if they
have received all the information exchanged between the parties before that session.  Otherwise, third
parties might find themselves in a situation wher e their oral statements at the meeting become
partially or totally irrelevant or moot in the light of second submissions by the parties to which third
parties did not have access.  Without access to all the submissions by the parties to the dispute to the
first meeting of the panel, uninformed third party submissions could unduly delay panel proceedingsand, as rightly emphasised by the EC and supported by Mexico, could prevent the Panel from
receiving "the benefit of a useful contribution by third parties which could help the Panel to make the
objective assessment that it is required to make under Article 11 of the DSU".
29
2.35 The Panel therefore concludes that nothing  in the DSU authorises this Panel to restrict the
right of third parties to only receive the "first" submissions made on 4 May 2001, and to withhold
from the third parties the rebuttal submissions due for 25 May 2001 (i.e. before the first meeting of
the panel on 29-31 May 2001).  The Panel decides that, pursuant to Article 10.3 of the DSU, thirdparties have the right to receive all written submissions "to the first meeting," including rebuttal
submissions made before that first meeting.  Accordingly, the Panel replaces the current sentence in
paragraph 8 of its Working Procedures ("Third parties shall receive copies of the parties' first written
submissions") by the text in Article 10.3 of the DSU:  "Third parties shall receive the submissions of
the parties to the dispute to the first meeting of the panel."  The Panel notes that, pursuant toArticle 12.1 of the DSU and paragraph 14 of its Working Procedures, the Panel can amend the
Working Procedures after consulting the parties.  The Panel considers that, having invited and
received comments by the parties regarding the European Communities' request, it has duly consulted
with them.
                                                     
28 The Panel notes that its Working Procedures were adopted consistently with past practice of Article
21.5 Panels.
29 EC request for ruling, 18 May 2001.WT/DS103/RW
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Page 11
III. FACTUAL ASPECTS
(i) Previous system
3.1 Under the previous Canadian supply management system, introduced on 1 August 1995, a
processor had to obtain a permit from the Canadian  Dairy Commission (CDC), allowing it to buy milk
under Special Milk Class 5(d) and (e).  Class 5(e), referred to as "surplus removal", was made up of
both in-quota and over-quota milk.  Class 5(d) referred to specific negotiated exports including cheese
under quota destined for the markets of the United States and the United Kingdom, as well as
evaporated milk, whole milk powder and niche market s.  The permit also specified the dairy products
to be exported.  The CDC only issued Special Milk Class 5(e) permits when all demand for milk in
the domestic market was met.  Once the processor had obtained the CDC permit, it approached the
local marketing board, which made milk available to the processor at the regulated price and with aguaranteed margin. Prices for Classes 5(d) and (e) were negotiated and established on a case-by-case
basis with the processors/exporters.  The CDC conducted these negotiations in accordance with the
criteria agreed upon in the Canadian Milk Supply Management Committee (CMSMC).
(ii) Previous panel and Appellate Body judgements
3.2 In its decision of 17 May 1999, the original panel in Canada - Dairy concluded that Canada
"through Special Milk Classes 5(d) and (e) … has acted inconsistently with its obligations under
Article 3.3 and Article 8 of the Agreement on Agriculture  by providing export subsidies as listed in
Article 9.1(a) and Article 9.1(c) of that Agreement in excess of the quantity commitment levels
specified in Canada's Schedule; … "
30  In its report of 23 September 1999 the Appellate Body upheld
the findings in the original panel report with respect to Articles 3.3, 8 and 9.1(c) of the Agreement on
Agriculture . 31  In respect of Article 9.1(a), the Appellate Body did not uphold the reasoning of the
Panel, but it reserved its judgement on the question of whether Classes 5(d) and 5(e) conferred export
subsidies within the meaning of Article 9.1(a).32  The Appellate Body recommended that Canada
bring those measures found to be inconsistent with its obligations under the Agreement on Agriculture
into conformity with that agreement.33  Canada's implementation of the Appellate Body ruling has
resulted in the elimination of Special Milk Class 5(e) and the restriction of Class 5(d) to the export of
dairy products within Canada's export subsidy commitment levels.34
(iii) Canada's Implementation Measures
3.3 In Canada, regulatory jurisdiction over the marketing and trade of dairy products is divided
between the federal and provincial governments.  Implementation of the recommendations and rulings
of the DSB in Canada-Dairy  therefore required action by the federal and provincial governments, and
their agencies.
3.4 Milk destined for the commercial export market is referred to under federal regulations as
commercial export milk or cream.35
                                                     
30 Paragraph 8.1(a).
31  Canada - Dairy , Appellate Body report, paragraph 144(b).
32 Id., paragraph 144(a).
33 Id., paragraph 145.
34 Canada Gazette Part II, Vol.135, No.1: Regulatory Impact Analysis Statement for the Regulations
under the Canadian Dairy Commission Act amending the Dairy Products Marketing Regulations.  The
amendment to section 7.1 "provides that export subsidies for Canadian dairy products will be provided only by aprogram established under paragraph 9(1)(i) of the CDC Act (Special Milk Class 5(d))." (Exhibit NZ-6)
35 Canada Gazette Part II, Vol.135, No.1.  (Exhibit CDA-1A)WT/DS103/RW
WT/DS113/RW
Page 12
3.5 Under the domestic supply management scheme, milk can be marketed either on the domestic
market subject to a quota, or as Class 4(m) (animal feed) for any amount above the quota.  Milk
produced in Canada can also be pre-committed for sale outside the quota system and be sold to
processors for export as commercial export milk (CEM).  Regulations relating to healthconsiderations and auditing continue to apply to export milk.
3.6 Pursuant to the Canadian Dairy Commission Act
36,, the Dairy Products Marketing
Regulations37 have been modified to exclude commercial export milk and cream from federal
licensing,38] quota39 and levy requirements40 and from the requirement to market this milk through the
provincial marketing boards.  Furthermore, the milk delegation orders issued to provinces pursuant to
the Agricultural Products Marketing Act , R.S.C. 1985, c. A-6, have been amended to remove
provincial authority regarding commercial export milk or cream.41  As a consequence of the changes
made under the Dairy Products Marketing Regulations  and the Ministerial Direction ,42 the regional
pooling agreements (the P-9, P-6 and P-4 Agreements) do not apply to commercial export milk.  The
national pooling agreement, the P-9, provides for a domestic surplus management Class, Class 4(m).
(iv) Regulatory Amendments at the Provincial Level
3.7 As a consequence of the original Canada - Dairy panel and Appellate Body reports, legal
frameworks in nine of the Canadian provinces have been modified to exclude export milk from the
domestic management scheme.
3.8 In British Columbia, Alberta, Saskatchewan, Manitoba, New Brunswick, Nova Scotia, and
Prince Edward Island as well as in Ontario and Quebec, individual producers and processors
participating in the commercial export market agree on the terms of commercial export transactions.The governments in Ontario and Quebec require that all export participants operate through a single
commercial export exchange.  These "bulletin boards" are part of the operational framework within
which commercial export transactions take place.
43
3.9 If milk is not marketed as CEM, it is domestic milk and accordingly subject to existing
domestic regulations.
                                                     
36 R.S.C. 1985, c. C-15 (Exhibit CDA-1C).
37 SOR/94-466 (Exhibit CDA-1B).  The Dairy Products Marketing Regulations were amended by  the
Regulations Amending the Dairy Products Marketing Regulations , C. Gaz. 2001.II.57 (Exhibit CDA-1A).
38 Supra , note 31, s. 3(3) and s. 7.
39 Id., s. 4, 5 and 6.
40  Id, s. 3(3).
41 See Order Amending Milk Orders Under the Agricultural Products Marketing Act , SOR/2001-16, C.
Gaz. 2001.II.67.  (Exhibit CDA-1A)
42 Published in Canada Gazette, 3 January 2001.
43 For details of the pertinent legislation in the provinces, please see the exhibits referred to by Canada,
New Zealand and the United States, respectively, in their submissions to the Panel.WT/DS103/RW
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Page 13
IV. MAIN ARGUMENTS
4.1 New Zealand  and the United States  claimed that the new measures' established by Canada,
enable processors for export to obtain milk at prices that are lower than domestic prices, providing
those processors with export subsidies within the meaning of Article 9 or of Article 10 of theAgreement on Agriculture .  Accordingly, any exports of dairy products produced from milk accessed
under Canada's new schemes must be within Canada's export subsidy reduction commitments.  The
complainants requested the Panel to recommend to the DSB that Canada bring its export subsidies
into conformity with its obligations under the Agreement on Agriculture.
4.2 Canada  requested that the Panel reject the claims of New Zealand and the United States and
find that Canada's measures, including federal measures and the provincial measures of British
Columbia, Alberta, Saskatchewan, Manitoba, On tario, Quebec, Nova Scotia, New Brunswick and
Prince Edward Island, fully implement the reco mmendations and rulings of the DSB and are thus
consistent with Canada's WTO obligations.
1. Burden of proof
4.3 New Zealand  submitted that as specified by Article 10.3 of the Agreement on Agriculture ,
Canada bears the burden of establishing that its dairy management measures, including thoseputatively taken to comply with the DSB's recomm endations, have not subsidised dairy exports in
excess of its commitment levels under that Agreement . Canada has demonstrably failed to meet this
burden.
4.4 Canada  responded that while Canada recognised the presence of Article 10.3, it noted that
reports issued by panels and the Appellate B ody under Article 21.5 of the DSU uniformly confirm
that a Member's measure is presumed to comply with WTO obligations and, thus, any Member
challenging that measure bears the burden of proof.
44  In any case, Canada's submissions provide more
than sufficient evidence and legal arguments to s how that it does not subsidise any quantities exported
in excess of its export subsidy commitment levels.
4.5 New Zealand and the  United States replied that none of the cases Canada cited dealt with
the Agreement on Agriculture  and Article 10.3.  In cases involving the allegation that subsidisation in
excess of export subsidy reduction commitments has occurred, Article 10.3 reverses the normal rule
relating to burden of proof.  The conclusion applies equally to cases brought under Article 21.5.
2. General
4.6 New Zealand  noted that Canada has put in place new measures in substitution for the
measures that were ruled in contravention of Canada's WTO commitments by the panel and Appellate
Body in the original Canada - Dairy proceedings. Canada has developed schemes designed tocontinue the exportation of dairy products at pr evious levels by creating a new means of access to
lower-priced milk for processors for export.  The ef fect of these schemes is that Canada will continue
to export subsidised dairy products in excess of its export subsidy reduction commitment levels.
Canada has thus put in place measures that are not in conformity with the Agreement on Agriculture
and is therefore in violation of its obligations under Article 21 of the DSU.  Canada's implementation
                                                     
44 See, e.g., Canada - Aircraft , Recourse to Article 21.5, paragraph 5.14;  Australia - Salmon, Recourse
to Article 21.5,  paragraph 7.37;  EC - Bananas , Recourse to Article 21.5  by the EC paragraph 4.13;  EC
Bananas, Recourse to Article 21.5 by Ecuador, paragraph 6.133 and n.225;  Brazil - Aircraft, Recourse to
Article 21.5,  paragraph 66.WT/DS103/RW
WT/DS113/RW
Page 14
of the original ruling, New Zealand continued, has involved the elimination of Special Milk Class 5(e)
and the limitation of the use of Class 5(d).  Replacement measures have been adopted by Canada on a
province-by-province basis.
4.7 New Zealand submitted that the new schemes have not eliminated an essential governmental
presence and role.  Federal and provincial governments have enacted the relevant amendments to
existing regulatory schemes.  They retain audi ting functions over contracts between producers and
processors and over exports by processors.  The new schemes rest on the basic requirement, imposed
by government, that milk surplus to the needs of the domestic market must be sold for export or not
sold at all.  Producers of such non-quota milk cannot sell into the domestic market, but are compelled
to sell to processors for export.  The effect of the creation of this separate market for non-quota milk
is that processors for export can obtain milk at prices that are significantly lower than the price formilk sold on the domestic market with the sole proviso that the resulting product is exported.
4.8 In New Zealand's view, Canada's new schemes ha ve implications for the exportation of dairy
products from other countries.  If Canada's schemes are allowed to stand, there will be no limit on the
exportation of subsidised dairy products by count ries with domestic supply management schemes,
thereby undermining the export subsidy disciplines in the Agreement on Agriculture .  The new dairy
export mechanisms put in place by Canada all involve "payments on the export of an agricultural
product, financed by virtue of governmental action" within the meaning of Article 9.1(c) of the
Agreement on Agriculture .  Alternatively, the schemes involve export subsidies "applied in a manner
which results in, or which threatens to lead to, circumvention" of Canada's export subsidy
commitments within the meaning of Article 10.1 of the Agreement on Agriculture .  Hence, Canada
continues to be in violation of Article 3.3 and Article 8 of the Agreement on Agriculture .
4.9 The United States submitted that while the programmes introduced in August 2000 are in
some regards different from the Special Milk Clas s 5(e) which they replace, their objective, the
provision of low priced milk to exporters to make dairy exports commercially viable, is precisely the
same.  The new programmes vary somewhat from province to province, but possess several commonelements.  Specifically, the provincial programmes allow exporters to purchase milk at prices that are
below prevailing market levels for milk used in dairy products sold into Canada's domestic market.
The low-priced milk made available to dairy processors and exporters can only be used to
manufacture dairy products for export.  Thus, the availability of such discounted milk is contingent on
export.  Furthermore, any person that diverts the low-priced milk, products made from it, or
components of the milk, into Canada's domestic market faces severe sanctions.
4.10 Because Ontario and Quebec account for the vast majority (approximately 80 per cent) of
dairy product exports from Canada, the United States has focused on the fundamental aspects of the
provincial regimes that have been established there.  There are four core elements to those provincial
regimes.  First, any milk produced above the level of the domestic quota must be sold for export-
processing only (or relegated to use in the production of animal feed).  The milk that is committed to
export may not be introduced into the domestic market;  such milk (or the resulting dairy products)must be exported.  Second, the price paid by exporters for milk produced outside of the domestic
quota is not regulated;  this is in contrast to milk produced within the domestic quota, for which prices
are specifically established by the provincial authorities.  Third, any milk producer desiring to
contract to provide milk for export must do so through a single, mandatory offer-and-acceptance
process established by the provincial milk marketing board in conjunction with dairy processors ineach province.  Fourth, the export contracts are policed and enforced by the federal and provincial
governments through a comprehensive array of mechanisms.  While the contracts can be enforced by
the private parties themselves, they are also subject to audit and enforcement by both provincial and
federal authorities.  For example, in Quebec a substantial monetary penalty is imposed on any entity
diverting into Canada's domestic market any milk or milk products committed to an export contract.WT/DS103/RW
WT/DS113/RW
Page 15
4.11 The separate market for discounted export milk, the United States claimed, exists in all
provinces solely by virtue of the government requirement that milk produced above or outside of
domestic quota must be sold for export.  By mandating the separation of the two markets, the
Canadian government ensures that reduced price milk will be offered to processors for export.  Theproducers have no real choice if they produce over-quota or without quota.  They can either: (i) sell
their milk into the export market for a lower price;   (ii) sell their milk into the animal feed market
under Class 4(m) for an even lower price which has been set by government; or (iii) destroy the extra
milk which would have obvious political ramifications.  The only real commercial option is to sell any
over-quota or non-quota milk into the export market.  By restricting the choice of the producer, the
government enables the transfer of lower-priced milk  to the processor.  Absent these restrictions, the
processor would have to pay the higher price appl icable to milk for dairy products sold into the
domestic market.
4.12 The government further secures the supply of discounted milk for the export market, the
United States continued, by requiring that producers "pre-commit" their milk destined for the export
market and that export milk must be delivered "first out of the tank."  This ensures that, by law,
producers cannot abandon their obligations to supply milk for export at a discount from the domesticprice.  These requirements further demonstrate that the export market is not a true commercial market
but rather a contrived market created and controlled by the Canadian government.  While creating the
impression that producers are making a commercial decision to produce for the export market, these
two requirements help ensure that export milk is not redirected into the domestic market.  In reality,
producers are doing exactly what they did under the Special Milk Class programme - arranging for thedisposition of any milk not permitted to be sold in the domestic market
4.13 The CDC, the United States further submitted, also continues to play a central role in the
export of dairy products.  Although Canada has eliminated Special Milk Class 5(e), the CDC is still
involved in the issuance of permits and the negotiation of milk prices for Class 5 (d) and 5(a), 5(b)
and 5(c).  Also, the CDC remains heavily engaged both in the operation of Canada's supplymanagement system, as well as in the enforcement of the export mechanisms recently created by the
provinces.  For example, pursuant to section 10 of the federal regulations, the CDC possesses the
authority to audit the books and records of both producers and processors to determine whether milk
committed for export has in fact been exported.  In addition, under new section 11(1), the CDC's
inspectors have the authority to seize any dairy product that the inspector believes on reasonable
grounds was marketed in inter-provincial or export trade in contravention of the federal regulations.
45
4.14 Canada  submitted that it has fully implemented the recommendations and rulings of the DSB
in Canada –Dairy  through federal measures and provincial measures in British Columbia, Alberta,
Saskatchewan, Manitoba, Ontario, Quebec, Nova Scotia, New Brunswick and Prince Edward Island.
First, Canada has limited exports of dairy products manufactured with milk purchased under Special
Milk Class 5(d) to Canada's export subsidy commitment levels and has abolished Special Milk Class
5(e) (surplus removal through exports).  The function of surplus removal performed by Special MilkClass 5(e) has been replaced by measures internal to the domestic system.  Second, federal regulations
and regulations in nine separate provinces have been changed to eliminate government control over
the commercial decisions by producers and processors  to participate in the commercial export market.
As a result of these regulatory changes, there ar e now two separate markets for milk in Canada:  a
regulated supply-managed market and an unregulated commercial export milk market.
4.15 Canada argued that the dairy regime has been fundamentally altered so that neither the CDC
nor the provincial marketing boards can control commercial export transactions in the commercial
                                                     
45 "Regulations Amending the Dairy products Marketing Regulations", Canada Gazette Part II,
Vol.135, No.1.WT/DS103/RW
WT/DS113/RW
Page 16
export milk market.  Decisions to produce milk for the commercial export milk market are left to the
sole commercial discretion of individual producers.  Likewise, decisions to purchase this milk are left
to the sole discretion of processors.  The characteristics of the previous regime which were found by
the panel and Appellate Body to give rise to export subsidies, Canada continued, no longer exist withrespect to commercial export transactions.  Due to regulatory changes at both the federal and
provincial levels, among other things:  (i) milk producers have complete freedom to independently
allocate some, none or all of their milk to the commercial export market;  (ii) producers do not need to
hold quota to produce milk for the commercial export market;  (iii) neither the CDC nor the provincial
marketing boards determine when and what quantity of commercial export milk may be processed for
export;  (iv) individual producers and processors determine the sale price of commercial export milk;
not the CDC or provincial boards;  (v) processors do not have to obtain a permit form the CDC orappeal to the provincial marketing boards to obtain commercial export milk;  (vi) the CDC does not
negotiate or guarantee the processors' profit margins on sales of commercial export milk;
(vii) provincial marketing boards do not regulate the collection of commercial export milk revenues
from processors for payment to producers;  (viii) there is no pooling of commercial export returns by
government;  and (ix) market forces, not govern ments, determine the effective selling price of
commercial export milk.
4.16 The limited powers retained by the CDC and the provincial milk marketing boards, Canada
continued, relate to licensing for the purpose of ensuring compliance with health, sanitary and quality
standards and the post-transaction power to require the disclosure of records relating to milk
utilisation and verification for the purpose of regulating and protecting the domestic market.  There isnothing in these powers that enables the CDC or the provincial marketing boards to control
commercial export transactions.  Indeed the CDC is  subject to clear and mandatory Direction from the
Minister of Agriculture and Agri-Food stipulating th at:  "The Commission shall not act in any manner
so as to influence, directly or indirectly, the terms, conditions or formation of contracts for the sale of
commercial export milk or cream."
4.17 As a result of the implementation measures adopted by Canada, transactions for the sale of
commercial export milk are market driven at every stage according to Canada.  From the processor's
determination of its volume and price requirements and issuance of an offer to purchase, to the
decision by a producer to produce milk for the commercial export market, and his or her commitment
under a contract to provide the milk, to the payment to the producer by the processor, these
transactions are strictly a matter of private contract.
4.18 Canada submitted that processors make individual choices regarding the price that they are
willing to pay for commercial export milk and the qu antity of this milk that they wish to purchase,
based on the commercial export business that they are able to secure.  The prices offered for the milk
are influenced by the prices at which the processors are able to sell their finished products, which are
in turn influenced by international competition fo r these foreign sales, currency fluctuations and
world-market conditions.  In the deregulated commercial export milk marketplace, processors seek anassured supply of milk so that they can plan their export business, maximize revenue opportunities
and respect their commitments to foreign buyers.  Processors therefore seek commercial export milk
supply commitments well in advance of production, and in some cases up to twelve months in
advance.  Referring to the United States arguments in paragraph 4.12, Canada submitted that pre-
commitment does not provide, through governmental action, security of supply to processors.Security of supply is a function of the private contractual commitment by producers to deliver a
specified volume of milk at a specified price.
4.19 Canada further contended that individual producers for their part, make production and
marketing choices based on commercial grounds (i.e., on an allocation of sales to the two markets
with a view to maximising revenue) and make calculated pre-planned production decisions.  InWT/DS103/RW
WT/DS113/RW
Page 17
response to identified market opportunities, proc essors make offers to purchase commercial export
milk in advance of production and producers decide whether to take up those opportunities and in
what quantities.  Referring to the complainants argument that producers produce milk beyond their
quota and then enter into export contracts after the fa ct to get rid of this milk, Canada submitted that,
on the contrary, the commercial practice of the dairy industry throughout Canada is that processors
arrange their milk supply for export in advance of production.  Pre-commitment and its corollary, the
first milk out of the bulk tank principle, are the operational realities of contracted production.
4.20 Referring in particular to New Zealand's arguments in paragraph 4.8, Canada submitted that
New Zealand is attempting to have the Panel establish new rules applying to two-price systems and
their relationship to export subsidy commitments – rules that have not yet been the subject of
agreement between WTO Members.  Collapsing domestic support disciplines into export subsidydisciplines would have consequences extending far beyond the reach of the disciplines carefully
negotiated by WTO Members and, therefore, should be rejected.  The right to export while
maintaining tariffs and domestic support was clearly built into the decisions incorporated into the
results of the Uruguay Round.  Any re-negotiation of WTO obligations is the responsibility of
Members, and this is being pursued by Members in the current negotiations on agriculture.
4.21 New Zealand  responded that a producer wishing to produce in excess of current quota must
purchase quota if the milk is to go into the domestic market.  But the total amount of quota is finite,
and quota costs are substantial.  Faced with such limitations, the producer who produces non-quota
milk either has to negotiate a contract with a processor for export at a price less than the domestic
market price or has to have the milk disposed of under Class 4(m).  This is not the functioning of avoluntary, commercially-based market as Canada woul d have it.  It is a case of individual producers
making less than optimal choices because they are constrained by the regulatory system established
and administered by governments.  Accordingly, Canada's replacement schemes provide export
subsidies within the meaning of Article 9.1(c) of the Agreement on Agriculture .  But even if this is not
the case, they nevertheless provide export subsidies within the meaning of Article 10.1 of theAgreement on Agriculture .
4.22 Canada  submitted further that the evidence clearly demonstrates that producers have a
number of very real choices in the marketplace and manage their production based on the choices that
they make.  Evidence submitted by Canada illustrates the range of pre-production choices available to
a producer, the quota and production management requi rements associated with those choices and the
post-production consequences of those choices.  Producers are no longer required to hold domestic
quota to produce milk in Canada.  A producer, therefore, can choose not to hold domestic quota andcan produce exclusively for the commercial export milk market.  A producer can also choose to
purchase or lease quota and sell into the domestic market.  The data presented by Canada
demonstrates there is an active commercial trade in quota.
4.23 Where a producer chooses to produce commercial export milk through a private contract with
a processor, Canada argued, the producer decides how much of his or her production to allocate to thismarket and makes a contractual commitment to do so prior to producing the milk.  It is then the
responsibility of the producer to manage his or her production in order to meet the contractual
commitment.  Where a quota-holding producer does not want to sell into the commercial export
market the producer can maintain production at levels within his or her quota range and will receive
the Special Class 4(m) price for any production that exceeds that range (see paragraph 4.25 below).
4.24 Nothing prevents producers from producing milk and selling it to a processor under a
commercial export contract instead of selling it into the regulated market, and nothing requires them
to do so.  Canada was of the view that if, as Ne w Zealand and the United States suggested, producers
were forced into the commercial export market by governmental measures, one would expect to see aWT/DS103/RW
WT/DS113/RW
Page 18
very high proportion of producers, if not all, participating in commercial export transactions but as of
April, 2001, only about 30 per cent of Canadian producers had participated in commercial export
contracts since deregulation measures were introduced in August 2000.
4.25 Canada considered that it has demonstrated that producers manage variations in production
and respond to changes in quota levels within the flexibility provided by the administration of the
domestic system.  However, if in aiming to fill domestic quota, a producer over produces, the over-
quota production cannot be sold into the commercial export market.  Over-quota milk must be sold by
the producer into the domestic system through internal pricing arrangements (at the Class 4(m) price
of approximately $10 per hectolitre).  About one ha lf of Canadian producers have sold a small volume
of milk at the Class 4(m) price.  This small volume of sales (less than 1 per cent of total Canadian
production) shows that producers are able to manage their production effectively so as to minimise theamount of milk that will be sold at this low price.  The large number of producers selling at the Class
4(m) price demonstrates that this Class is effective in dealing with over-quota production and that
producers do not and cannot divert over-quota milk in to the commercial export market.  Canada was
of the view that if it were possible to sell over-quota milk on the commercial export market there
would not be such a high degree of participation in Class 4(m).
4.26 New Zealand  responded with respect to Canada's assertion in paragraphs 4.17 - 4.19 above
that this is a misleading statement of the system under which the sale of milk for processing for export
takes place. Given a real choice, producers would not sell to processors for export at all but rather in
the higher priced domestic market.  But that market is available only for milk produced under a
government-set quota, and its existence protects processors for export from having to purchase milk atthe higher domestic market price.  Commercial export milk cannot be sold on the domestic market
without "financial consequences", which are designed to "prevent the flow of commercial export milk
into the domestic market, as admitted by Canada.  This prohibition on the sale of non-quota milk on
the domestic market results in the transfer of economic resources to processors for export that allows
them to enter the international market.
4.27 As concerns the possibility of selling non-quota milk at the Class 4(m) price, in New
Zealand's view the information presented by Canada (see paragraph 4.25), including the "small"
volume of sales involved, confirms that Class 4(m) is not a realistic alternative for producers of non-
quota milk.  While producers may have been forced to use Class 4(m) in the past, the $10 per
hectolitre average price received  could not even cover a producer's marginal costs of production.
This means that producers of non-quota milk are effe ctively compelled by governmental action to sell,
at a price discount, to processors for export.  New Zealand was of the view that the economicincentives that govern Canada's "commercial export milk market" are not the prices offered by
processors for export, but the requirement that non-quota milk be sold for export.  The commercial
export milk market is ancillary to the domestic system and its existence is completely dictated by the
constraints in that system.  It is an artificial market which would not exist if individual producers were
allowed to choose where they place their production.
4.28 With respect to Canada's claim that the notion of "surplus milk" no longer applies to the milk
sold under export contracts, New Zealand submitted this is a matter of words, not substance.  The
fundamental nature of the system has not changed.  The milk that producers now have to pre-plan and
pre-commit is still "surplus milk" in the sense that  it is deemed to be surplus to the needs of the
domestic market.  The way in which processors for export gain access to milk has not changed in itsfundamental respects.  Canada's replacement schemes still provide processors for export with access
to lower-priced milk than that available in the domestic market.  These schemes continue to constitute
an export subsidy under Article 9.1(c) of the Agreem ent on Agriculture.  Alternatively, they violate
Article 10.1 of that Agreement.WT/DS103/RW
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Page 19
4.29 New Zealand contended that Canada does not address the consequences for the agricultural
trading system if its view were to be accepted.  Export subsidies are fundamentally a means used by
governments to maintain domestic prices at levels higher than world prices.  The existence of a price
difference is, therefore, an indicator that an export subsidy may exist, even if it is not the only element
needed to establish an export subsidy.  It is not possible to ignore the  comparator domestic market
when looking at whether an export subsidy exists under Article 9.1.  Canada claims that its creation of
separate "markets" with producers acting "commercially" in each means that the price difference
somehow disappears.  But the implications of such an argument are clear.  A government could claim
no export subsidy existed by simply creating in law a separate "market" for export with lower prices
than those in the domestic market.
4.30 The United States  submitted that cost of production data used to set prices in the domestic
system contradict the claim in Canada's first submission that farmers freely supply this milk based on
normal commercial factors.  According to data from the official cost of production survey, less than
30 per cent of Canadian farmers cover their cost of production at an average price of C$57.41/hl and
less than 1 per cent could cover costs at export market prices of around C$30/hl.  Why would the
average farmer choose to produce for this market?
4.31 As concerns the complainants arguments with respect to the cost of production and the price
at which the milk is sold in  the commercial export market, Canada  submitted that the relevant facts
show that profitable participation in the commercial export milk market is feasible for many
producers.  Furthermore, Canada considered that it has demonstrated that the CDC and provincial
marketing boards have no role in individual producer and processor decisions to participate in thecommercial export milk market and thus cannot be said to be compelling producers to sell their milk
under commercial export contracts.  Although the precise details of how each provincial industry now
operates vary, they share a crucial feature:  producers and processors decide, free of government
control, whether to engage in commercial export  transactions, the volume of milk to commit to
produce and the price for the milk.  As in any priv ate contract, the responsibilities for enforcing the
contractual obligations rest with the parties to the transaction (i.e., the producer and the processor).
4.32 In British Columbia, Alberta, Saskatchewan, New Brunswick, Nova Scotia and Prince
Edward Island, Canada continued, terms and conditions regarding commercial export contracts are
agreed to directly and privately between producers  and processors.  In Manitoba, Ontario and Quebec,
export contract offers and acceptances are communicated through commercial exchanges using
electronic bulletin boards.  The exchange format allows processors to post contract offers to which
producers respond by phone.  The results or confirmations are then posted on the web site.  Theexchanges are administrative constructs operated by independent, reputable, private firms and are
particularly effective in provinces with market places having numerous participants.  In Manitoba,
processors and producers can also contract directly and there is nothing to preclude the establishment
of other bulletin boards.
4.33 New Zealand  responded with respect to Canada's arguments in paragraph 4.32, that
governmental action remains indispensable to the transfer of economic resources from producers to
processors for export because the decision to produce milk for export is a decision that is dictated by
the fact that milk for the domestic market is regulated by quota.  The decision to sell is equally
trammelled.  No profit-maximising producer would sell into the commercial export milk market in the
absence of the prohibition against selling non-quota milk into the domestic market.  This prohibitionis by virtue of governmental action.  Equally, the decision of a processor for export to purchase milk
in the commercial export milk market is a product of governmental action.  In the absence of a
prohibition on the selling of non-quota milk into the domestic market, a processor for export would
only be able to access milk from the higher priced domestic market.WT/DS103/RW
WT/DS113/RW
Page 20
4.34 The United States  submitted that the fundamental obligation of the Agreement on Agriculture
concerning export subsidies is contained in Article 8, which provides that: "Each Member undertakes
not to provide export subsidies other than in conformity with this Agreement  and with the
commitments as specified in that Member's Schedule."  Article 3.3 of the Agreement , in turn, provides
that a Member shall not provide export subsidies listed in paragraph 1 of Article 9 in excess of the
budgetary outlay and quantity commitment levels specified in Section II of Part IV of that Member's
Schedule.  To ensure, moreover, that the disciplines on export subsidies contained in Article 3.3 are
not circumvented, Article 10.1 of the Agreement directs that any export subsidy not identified in
Article 9.1 may "not be applied in a manner which results in, or which threatens to lead to,
circumvention of export subsidy commitments . . ."  Thus, a Member may use export subsidies not
listed in Article 9.1 only within the limits of its scheduled reduction commitments.
4.35 Given this framework, the United States contin ued, any export subsidy that falls either within
the scope of the export subsidy descriptions contained in Article 9.1 or within the broader reach of
Article 10.1 of the Agreement  is subject to the limitations, both budgetary and quantitative, included
in each Member's Schedule.  The United States considered that Canada's provincial export measures
are export subsidies within the meaning of Article 1(e) of the Agreement  and, therefore, must be
confined within the quantitative limits prescribed in Canada's Schedule.  Canada's failure to respect its
Schedule limitations on export subsidies is, in turn, a failure to comply with the DSB's
recommendations to bring its milk export subsidies into conformity with the Agreement .
3. Article 9(1)(c) of the Agreement on Agriculture
(i) "payments"
4.36 New Zealand  and the United States  submitted that two elements are required in order to
establish the existence of an export subsidy under Article 9.1(c).  First, there must be a "payment",
and second, that payment must be "financed by virtue of governmental action".
4.37 In the original Canada – Dairy proceeding,  New Zealand  submitted, the Appellate Body held
that the term "payments" "denotes a transfer of economic resources."  In the Appellate Body's view,
whether "payments" had been made in the context of Special Milk Classes 5(d) and 5(e) depended
upon whether processors for export were obtaining milk at prices that were discounted from the prices
that applied in the domestic market.46  New Zealand considered that this reasoning applies equally to
Canada's new measures.  Milk continues to be availabl e to processor for export at prices that are lower
than domestic market prices.
4.38 The United States  submitted that the new provincial export schemes fulfil both of the
conditions set forth in paragraph 4.36 above and, thus, constitute Article 9.1(c) export subsidies.  TheAppellate Body articulated the standard for determining whether a "payment" exists as follows:
If goods or services are supplied to an enterprise, or a group of enterprises, at reduced
rates (that is, at below market-rates), "payments" are, in effect, made to the recipient
of the portion of the price that is not charged.  Instead of receiving a monetary
payment equal to the revenue foregone, the recipient is paid in the form of goods orservices.  But as far as the recipient is concerned, the economic value of the transfer
is precisely the same.
47
                                                     
46 Canada - Dairy  , Appellate Body report, paragraph 107.
47 Canada - Dairy , Appellate Body report, supra note 1, paragraph 113.WT/DS103/RW
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Page 21
4.39 Under the new provincial programmes, the United States continued, the export contract prices
offered are significantly below the market prices paid for milk entering Canada's domestic market for
final consumption.  For example, the average price fo r Class 3 milk sold into the Canadian market for
ultimate consumption within Canada was about C$56 per hectolitre for the period August toDecember 2000, i.e. about 85 per cent above the price offered in export contracts reported for the
same month.  Thus, just as in the case of the earlier Special Milk Class system, the new provincial
export measures result in milk producers providing milk for export at a substantial discount to the
prevailing market price for milk delivered for ultimate consumption in Canada.  Milk producers are
now foregoing revenue in the same manner that the original panel and Appellate Body found to
constitute a "payment" for purposes of Article 9.1(c) under the Special Milk Class system.
4.40 Canada  responded that the complainants arguments disregard the finding of the Appellate
Body on what constitutes a 'payment' under Article 9.1( c).  The Appellate Body held that  "[i]f goods
or services are supplied to an enterprise, or a group of enterprises, at reduced rates  (that is, at below
market rates ), 'payments' are, in effect, made to the recipient of the portion of the price that is not
charged".
48   The corollary of this proposition, Canada continued, is that where the recipient of goods
or services pays  market-rates or market value49 for those goods or services, there can be no "payment"
under Article 9.1(c)50 as no "advantage" or "benefit" is conferred on the recipient.51  Sales at fair
market value through arm's length transactions in a private commercial context cannot be considered
to confer a benefit.52
4.41 Applying the facts to the text of the Agreement on Agriculture , Canada continued, there is no
export subsidy provided to processors within the meaning of Article 9.1(c) of the Agreement on
Agriculture.   There are no "payments" on the export of dairy products manufactured with commercial
export milk, since commercial export milk is sold at, not below market rates.  Even if "payments"
were provided to processors in commercial export transactions, an export subsidy would not exist
because those "payments" would not be fina nced by virtue of governmental action.
4.42 New Zealand responded that Canada's whole argument rests on the assumption that its
commercial export milk market can be considered in isolation from its domestic market.  But the so-
called commercial export milk market exists only because of the ban of non-quota milk from the
domestic market.  Processors for export receive a transfer of economic resources because they are
able to access milk at a price that would not be available to them if producers were permitted to sell
non-quota milk into the domestic market.  In the absence of any requirement that producers sell non-
quota milk into the "commercial export milk market", processors for export would have to purchase
their product from the domestic market at the higher domestic price.  The implication of Canada'sargument would be that governments that were not permitted to make payments directly to processors
for export, nor were entitled to do so by the provision of payments-in-kind or revenue forgone, could
provide such payments indirectly by effectively forcing producers to sell milk for export into a
separate "export market" at a lower price.
4.43 The United States,  responding to the arguments by Canada in paragraph 4.56 above, argued
that these arguments should be rejected because the original panel did not consider the  SCM
Agreement  in analysing Article 9.1(c) of the Agreement on Agriculture .  It was only when pondering
                                                     
48 Id. (emphasis added).
49 "Market-rate" and "market value" are synonymous.  See the New Shorter Oxford English Dictionary
(Clarendon Press: Oxford, 1993) page 1699.
50See also Canada-Dairy, Appellate Body report, supra  note 1, paragraph 107.
51 See also Canada-Dairy , Appellate Body report, supra note 1, paragraph 87.  This reasoning equally
applies to Article 9.1(c).  See Canada - Dairy , Appellate Body report, supra  note 1, paragraph 107.
52 See for example, United States –Hot-Rolled Lead and Carbon Steel , paragraphs 72-74.WT/DS103/RW
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Page 22
the claim under Article 10.1 of the Agreement on Agriculture  that the panel considered the SCM
Agreement  as context  and then the panel determined that it was more appropriate to analyse
paragraph (d) of the Illustrative List of Export Subsidies than to analyse the general concepts of
Article 1 of the SCM Agreement .  As well, Canada's interpretation of Article 9.1(c) is not supported
by the language of the agreement itself or the negotiating history cited by Canada.
4.44 Canada  submitted that whether or not there exists "payments" on the exports of agricultural
products must be determined in the light of the prevailing market conditions.  At the time of the
findings of the original panel and Appellate Body, there was only one market for milk in Canada:  a
regulated market.  Government set the prices of all milk under this market.  It is in light of these
market conditions that the difference between the domestic and the export price was found to
constitute a "payment" under Article 9.1(c).
4.45 The market conditions which presently exist are completely different, Canada contended.
Hence the fact that there exists a difference between the export price and the regulated domestic price
is, in Canada's view, irrelevant.  Producers and processors now have access to two markets:  a
regulated market and a commercial export market.  Market forces, not government, now determine the
price at which commercial export milk is purchased and sold.  More particularly, the price at whichcommercial export milk is bought and sold reflects the price at which the seller (a private producer) is
ready and willing to sell and a buyer (the private processor) is willing to buy.   The prices are
determined through mutual agreement, without regulatory control or compulsion of any kind.
Processors are not paying less than adequate remuneration for commercial export milk.  Rather, they
are paying prices determined by the competitive forces of supply and demand in internationalmarkets.  Moreover, Canada noted that New Zealand conceded that commercial export milk prices
were global or world market prices.  For these reasons, there are no "payments" on the exports of
dairy products manufactured with commercial export milk.  Canada therefore considered that since
the first element of Article 9.1(c) has not been met, there is no violation of this export subsidy
discipline.
4.46 New Zealand submitted that the Appellate Body did not hold that since government no
longer sets prices in its export market, somehow this means the difference in prices between the
export market and the domestic market is no longer relevant.  Instead it held that the provision of
lower-priced milk constitutes a payment.  It did not say that the lower price has to be set by
government.  Canada's argument is based on a confusion between the question of whether lower-
priced milk is made available and the question of whether this is done by virtue of governmental
action.  The first question under Article 9.1(c) is one of fact – are "payments" being made, that is, islower-priced milk being provided?  It is not a question of whether government is setting prices. The
answer to the first part of this question is self-evi dent.  The price for  milk paid by processors for
export is substantially less than the price paid for milk accessed in the domestic market.  That fact is
not denied by Canada, and it constitutes a payment within the meaning of Article 9.1(c).
Furthermore, such a transfer of economic resources from producers to processors is provided by virtueof governmental action, because producers of non-quota milk cannot sell their milk into the domestic
market at domestic market prices.  That prohibition results from the action of governments.
4.47 The United States, referring to Canada's arguments in paragraphs 4.40 and 4.45 above,
responded that Canada's approach to analysing whether a "payment" is conferred assumes that the
appropriate benchmark is the export market price.  However, this approach is inconsistent with thelegal standard that the Appellate Body and the origin al  panel in this case applied in determining the
existence of a subsidy under Article 9.  In determining whether a "payment" is made within Article
9.1(c), the United States considered that this Panel must assess what would have been otherwise
available  to processors/exporters in the market-place.  For all practical purposes, the only source of
milk otherwise available to Canadian processors/exporters is milk produced in Canada.  And that milkWT/DS103/RW
WT/DS113/RW
Page 23
is sold at a high price pursuant to regulation (unless, of course, the milk is destined for export).  Just
as in the case of the Special Milk Class 5(e) scheme, the processor is accessing milk for export at a
price that is lower than would be paid by the same processor purchasing the same milk for use in
manufacturing dairy products destined for the domestic market.  Likewise, producers are providingmilk for export at a substantial discount to the market price for milk delivered for domestic
consumption.
(ii) "financed by virtue of governmental action"
4.48 New Zealand considered that, in the present case, Canada's new measures equally meet the
test of whether "governmental action" is "indispensable"
53 to the transfer of resources that amounts to
a "payment".  Canada's new schemes provide milk to processors for export at prices lower than
domestic prices because of the requirement that 'non-quota' milk be sold for export.  It is thegovernmental segregation of the 'market' for export milk from the domestic market that allows
processors to access milk at prices that are lower than domestic prices.  The Appellate Body held that
"payments" were "financed by virtue of governmental action" because the "governmental action" in
question was "indispensable to the transfer of resources that takes place as a result of the operation of
Special Milk Classes 5(d) and 5(e)."
54  The standard was whether processors for export would be able
to gain access to milk at prices lower than those available on the domestic market in Canada were it
not for the actions of the Canadian government or its agencies.
4.49 If Canadian governments and their agencies did not make a distinction between "domestic"
and "export" markets, New Zealand continued, processors for export would not have access to lower-
priced milk for export production.  They would simply have access to milk available on a singleCanadian market at whatever price was current in that market.  It would be up to processors to decide
whether to sell the resultant product domestically or for export.  No export subsidisation would be
involved.  As a result, the new Canadian measures clearly provide "payments on the export of an
agricultural product financed by virtue of govern mental action" within the meaning of Article 9.1(c)
of the Agreement on Agriculture .  Such subsidies are subject to Canada's reduction commitments.
4.50 With regard to the analysis of the second prong of Article 9.1(c), the United States
submitted, it is clear from a review of the government's involvement that the payments to the
processors under the provincial export programmes are made by "virtue of governmental action."
There are three primary indicia of the government's involvement in the new provincial export
programmes.  These include:  (i) the fact that Canada artificially segregates the market for milk that is
exported and milk that is consumed domestically;  (ii) that provincial regulations require that any milk
committed for export contracts through the new export schemes be exported, and that the federal andprovincial governments have sanction authority to enforce this requirement;  and (iii) that in Ontario
and Quebec all milk destined for export must be sold through an exclusive mandatory bulletin board
system.
4.51 Furthermore, the United States argued, the panel in the original proceeding recognized the
role of the domestic quota system in the transfer of resources from the producer to the processor underthe Special Milk Class system as "government action" within Article 9.1(c).
55  Its analysis of this issue
is directly applicable to the role of the domestic quota system and hence the government under the
new provincial export programmes.  In sum, the United States submitted, Canada has not refuted that
the overall action of Canadian governments in establishing domestic production quotas, in excluding
over-quota and non-quota milk from the domestic market, in exempting export contract milk from
                                                     
53 Canada - Dairy , Appellate Body report, paragraph 120.
54 Id.
55 Canada - Dairy , panel report, paragraph 7.100.WT/DS103/RW
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Page 24
domestic pricing requirements, in instituting mandatory and exclusive export contracting mechanisms,
and in enforcing the various obligations arising from these regulatory requirements, constitutes
pervasive government intervention.  It is only th rough the exercise of these government powers that
exporters are provided milk at discounted prices.  Not only is government action involved, but it isindispensable.  Accordingly, the requirement under Article 9.1(c) that payments are financed "by
virtue of government action" is satisfied in this case.
4.52 The United States contended further that Canada insists that there must be a "direct
connection" or there must be evidence that the go vernment has "affirmatively instructed or directed
someone to provide a financial contribution" under Article 1.1(a)(1)(iv) and that this standard must be
satisfied to fall within Article 1 of the SCM Agreement  and therefore Article 9.1(c) of the Agreement
on Agriculture .  This interpretation is, in the opinion of the United States, not legally sound as it
ignores the phrase "by virtue of" in Article 9.1(c) which suggests an indirect connection and
essentially writes the language in paragraph (d) of the Illustrative List referring to the provision of
subsidies "indirectly" through "government mandated-schemes" out of the SCM Agreement .
4.53 Finally, with respect to Canada's reference to the negotiating history, the United States
submitted that under the Vienna Convention on the Law of Treaties, negotiating history should onlybe considered if the plain meaning of the text is ambiguous.  Canada has not established this and,
indeed, it is not.   In any event, a review of the negotiating history does not strengthen Canada's
arguments.  The quote referred to by Canada
56 simply supports the principle that it is the extent of
government action that is important.  The United States agreed and believed that it had established
that government action is indispensable to the payment to the exporters in this case.
4.54 Canada submitted that even if "payments" were found to exist,  they would not be financed
by virtue of governmental action.  All of the factors relied upon by the original panel and Appellate
Body related directly to the determination of the vo lume of milk for export or to decisions regarding
prices, including  the pooling of revenues..57   Each involved some form of affirmative or positive
action on the part of governments or their agencies by virtue of which the payments were financed.
As the panel in Canada-Dairy  reasoned, the existence of parallel markets for domestic use and for
export with different prices does not necessarily constitute an export subsidy.  What is key is the
government involvement in providin g the "payment".  In particular, there must be a direct connection
between the "governmental action" on the one hand and the "payments" on the other.  Governments
need not be the actual source of the funds.  However, the financing must be by virtue of governmental
action, as opposed to commercial decisions by private individuals or companies.  The very text of
Article 9.1(c) provides an illustration of this point.  The financing need not involve a "charge on thepublic account".  However, as shown by the example of a mandatory levy "imposed" on an
agricultural product, in Canada's view, the financing of the payment must be directly connected to
                                                     
56 "[T]here was no doubt that there was an obligation to notify all schemes of levy/subsidy affecting
imports or exports in which the government took a part either by making payments into the common fund or byentrusting to a private body the functions of taxation and subsidisation with the result that the practice would inno real sense differ from those normally followed by governments.  In view of these considerations the Panel
feels that the question of notifying levy/subsidy arrangements depends upon the source of the funds and the
extent of government action, if any, in their collection."  Panel report, Review Pursuant to Article XVI:5,  BISD,
9S/189.
57 For instance, after describing the mandatory pooling arrangements in respect of Class 5(d) and the
more limited form of pooling in respect of Class 5(e), the Appellate Body described these arrangements asinvolving "governmental action" that remains an essential aspect of the financing of "payments" to processors.
Canada - Dairy , Appellate Body report, supra  note 1, paragraph 121.WT/DS103/RW
WT/DS113/RW
Page 25
"governmental action".  The ordinary meaning of the words "by virtue of"58 also support this
proposition.
4.55 The complainants, Canada continued, had not demonstrated this connection, and therefore
argued that measures relating to the regulated market effectively force producers to providecommercial export milk to processors.  Canada submitted that no support for such a test can be found
in either the findings of the original panel or of  the Appellate Body.  Nor can any support be found in
the ordinary meaning of the words under Article 9.1(c ), interpreted in their context and in the light of
their object and purpose, or in the negotiating history of Article 9.1(c) and other export subsidy
disciplines.
4.56 In this respect Canada submitted that the words in Article 9.1(c) must also be read in light of
basic subsidy principles and disciplines that both the Agreement on Agriculture  and the SCM
Agreement  contain.  Canada's interpretation of Article 9.1(c) is informed by the important context
provided in the SCM Agreement .  Under Article 1.1(a)(1)(iv) of the SCM Agreement , an "indirect
subsidy" arises when governments affirmatively instruct or direct someone to provide a financial
contribution, for example in the form of goods.  There must be an affirmative action of delegation or
command on the part of government.  Absent this, there is no government action and no subsidy.Since no such governmental action exists in Canada with respect to CEM, there can be no subsidy
under Article 9.1(c) of the Agreement on Agriculture .  Canada considered that its interpretation is
confirmed by the negotiating history of Article 9. 1(c) which contemplates that "indirect subsidies"
exist when governments instruct or direct someone else to provide a financial contribution that they
would normally provide themselves.
4.57 Canada submitted that it had removed any possibility of any payments "financed by virtue of
governmental action".  In particular, the CDC and provincial marketing boards have no authority over
the decision to produce, purchase or sell commercial export milk.  They do not set the price of
commercial export milk nor do they control processor margins or pool revenues, impose quantitative
limits, issue transaction-specific permits, calculate returns or dictate means of payment in commercialexport transactions.  In short, commercial export transactions have been deregulated.
4.58 New Zealand  responded that Canada misconstrues the clear wording of Article 9.1(c), and
confuses the requirement that there be a "direct subsidy" under Article 9.1(a) with the requirement
that the "payment" must be financed "by virtue of" governmental action under Article 9.1(c).  The
word "direct" stands in contrast to the phrase "by virtue of" which is not confined to a relationship that
is "direct".  If the drafters of Article 9.1(c) had intended the connection between "governmental
action" and "payment" to have been "direct", they would have used words that provided that meaning
and not the more generic phrase "by virtue of".
4.59 Canada  submitted that as a result of its deregulation, the factors relied upon by the original
panel and Appellate Body to find "governmental action", all of which involved some form of positive
action on the part of government, have been eliminated with respect to commercial export
transactions.  According to Canada, governme nts do not provide commercial export milk to
processors, nor have they mandated that someone else provide commercial export milk to processors
in their place.  Licensing and auditing do not constitute financing by virtue of governmental action.
These activities have nothing to do with the decision to produce, sell or purchase milk for commercial
export markets.  Similarly, the fact that in certain provinces commercial export transactions must be
concluded on a bulletin board does not meet the test under Article 9.1(c), as producers in theseprovinces also decide of their own volition whether or not to provide commercial export milk to
                                                     
58 Black’s Law Dictionary , supra  note 88, page 201, defines "by virtue of " as follows:  "[b]y force of,
by authority of, by reason of."WT/DS103/RW
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processors.  Whether or not Canada's measures prohibit, penalise or impede the diversion of
commercial export milk into the domestic market is also irrelevant to the question of the existence of
an export subsidy.  Those measures are maintained to support or protect the regulated market, not to
support, force or mandate exports.
4.60 New Zealand  responded that whether the prohibition to sell export contract milk into the
domestic market results from a directive with a formal sanction imposed at either the federal or
provincial level, or whether it results from financial consequences for the processor who diverts milk
under a commercial export contract into the domestic market, the result is the same.  There is,
effectively, a prohibition on the sale of non-quota milk into the domestic market.
4.61 Canada submitted that the ordinary meaning of the words "by virtue of" does not support the
positions of New Zealand and the United States.  "By virtue of" means "by force of, by authority of,by reason of".  Governments must therefore direct  or require the provision of goods.  Governments
have done no such thing with respect to commerci al export milk.  Rather, producers voluntarily
choose to provide commercial export milk to processors.  Canada considered that the complainants
erroneously present as direct action the very actions necessary to deregulate the export market and
measures to ensure health and safety standards for all milk and auditing of the regulated market.Given the absence of direct governmental action, Canada continued, their efforts must fail because
they present no evidence of impermissible government action – direct or indirect.
4.62 Canada considered the assertion by the complainants that, by precluding the sale of
commercial export milk into the domestic market, Canada effectively forces  producers to provide
processors with commercial export milk as incorrect.  First, producers choose  to produce for this
market, just as they choose to produce for the regulated market.  Second, an export subsidy is not
defined by the effects  of government measures related to the domestic regulated market.  The
complainants' assertions are not based on the legal standards that actually exist in either the
Agreement on Agriculture or the SCM Agreement .  In Canada, government does not provide
commercial export milk to processors, nor does it instruct or direct producers to provide this milk toprocessors or mandate that they do so.
4.63 New Zealand  responded that Canada's reliance on the ordinary meaning of the words "by
virtue of" is unduly selective.  Canada ignores one of the meanings given – "by reason of".  In the
view of New Zealand, such an extrapolation bears no relation to the dictionary definitions provided
for either in Black's Law Dictionary , or in the Oxford English Dictionary , which indicates that it
means "by the power or efficacy
59 of (something aiding or justifying);  hence, in later use, by the
authority of, in reliance upon, in consequence of, because of",
4. Article 10.1 of the Agreement on Agriculture
4.64 New Zealand  and the United States  submitted that even if the new Canadian measures did
not provide export subsidies within the meaning of Article 9.1(c) of the Agreement on Agriculture ,
they nevertheless provide export subsidies within the meaning of Article 10.1 of that Agreement.
New Zealand considered that the first part of this Article requires two elements to be established:
there must be "export subsidies not listed in paragraph 1 of Article 9"; and those export subsidies must
be "applied in a manner which results in, or which threatens to lead to, circumvention of export
subsidy commitments."  Alternatively, if it can be shown that "non-commercial transactions" have
been used to circumvent export subsidy commitments, this too will constitute a violation of
Article 10.1.  Measures which meet some but not all the definitional elements of the individual exportsubsidy practices listed in Article 9.1 would be covered by Article 10.1, provided that they meet the
                                                     
59 Exhibit NZ-27.WT/DS103/RW
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basic requirement of Article 1(e) of the Agreement on Agriculture  that they are "subsidies contingent
upon export performance".
4.65 The product that is sold to processors for export under Special Milk Classes 5(d), New
Zealand  submitted, and the product that is sold to processors for export under Canada's replacement
schemes is identical.  In each case, processors for export are provided with access to lower-priced
milk.  In the one case, Canada recognises that the exported product is subsidised and keeps it within
its export subsidy reduction commitments.  In the other case, Canada claims that the exported product
is not subsidised and that it is entitled to exclude it from its reduction commitments.  However, a
measure that mirrors in all respects a measure that provides an export subsidy and is treated as such
by Canada under Special Milk Classes 5(d), must itself be an export subsidy.
4.66 The drafters of Article 10.1, New Zealand submitted, were trying to capture measures that did
not technically fall within the definitions of Article 9.1, but which had the same economic effect as
measures that did.  A key element of the subsidisation that occurs in this case relates to the price
difference between the domestic market and the so-called "commercial export milk market".  The
relevance of price differences in establishing the existence of an export subsidy is noted particularly in
Article 9.1(b) of the Agreement on Agriculture .  The presence of a price difference becomes, in a
sense, a "warning factor" of the existence of an export subsidy.
4.67 The United States  referred to the Appellate Body which stated in the United States - FSC
case that the obligations under Article 10.1 come into play when three factors are present:  (i) there is
a subsidy not identified in Article 9.1 of the Agreement , (ii) that subsidy is contingent on export, and
(iii) the subsidy results in, or threatens to lead to, circumvention of a Member's export subsidycommitments.  The Appellate Body has drawn upon the definition of a "subsidy" in the SCM
Agreement  as context for construing that same term for purposes of the Agreement on Agriculture.  A
subsidy arises where the grantor makes a "financial contribution" which confers a "benefit" on the
recipient as compared with what would have been otherwise available to the recipient in the
marketplace.
60
4.68 Here, the United States continued, exporters obtain milk on a discounted basis, at a lower
price than would otherwise be available to them in their domestic market, which is, practically
speaking, the only market for milk in Canada.  The exporters thus receive a benefit comprised of the
cost savings resulting from the availability of lower priced milk.  Second, it is undisputed that the
availability of discounted milk is dependent on use of the milk in the manufacture of dairy exports.
Thus, it is a subsidy contingent on export.  Third, the subsidy results in, or threatens to lead to, the
circumvention of Canada's reduction commitments.  Because there is no constraint on the availabilityof the export subsidy created by the new export schemes, those export subsidies are unlimited in
scope as are the exports they foster.
4.69 Canada  noted that the Agreement on Agriculture  does not define the term "subsidy".
However, as the Appellate Body has indicated in the United States - FSC  report,
61 the definition of
"subsidy" in Article 1.1 of the SCM Agreement  provides important contextual guidance in defining the
scope of an "export subsidy" under Article 1(e) of the Agreement on Agriculture .62  Both the United
States and New Zealand implicitly recognize this in their submissions.63  In assessing whether
Canadian measures fall under Article 10.1 ( i.e., whether there is a transfer of economic resources and
                                                     
60 United States - FSC,  Appellate Body report, paragraph 135-154.
61 United States – FSC, Appellate Body report,  paragraph 136.
62 Id.
63 Submission by New Zealand, paragraph 7.28 and Submission of the United States, paragraph 96.WT/DS103/RW
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whether that transfer involves a benefit to the recipient64), reference is therefore made to the definition
of a "subsidy" under the SCM Agreement .  As such, the definition of "subsidy" under the SCM
Agreement  consists of two discrete elements: (i) a financial contribution by a government ; and (ii)
conferral of a benefit thereby. 65  The nature of the government action, Canada continued, is
determinative as to whether a "financial contribution" exists under Article 1.1(a)(1).  If a government
has not acted in a manner enumerated in Article 1.1(a)(1), then a "financial contribution" does not
exist and there can be no "subsidy".  As stated before, Canada's measures adopted to implement the
recommendations and rulings of the DSB do not prov ide "subsidies" within the meaning of Article
1.1(a)(1)(iii) or (iv).  Furthermore, since there is no subsidy and no export subsidy involved in
commercial export milk transactions, there can be no circumvention of Canada's export subsidy
commitment within the meaning of Article 10.1 of the Agreement on Agriculture .
4.70 New Zealand  noted that to "circumvent" means to "find a way round" or "evade".  A Member
finds a way around or evades its obligations if it transfers by another means the very economic
resources that it would be prohibited from providing in another form under Article 3.3 and Article 9.1
of the Agreement on Agriculture .  In the view of New Zealand, Canada has done precisely this.
Through the combined exercise of federal and provincial authority, mechanisms have been establishedto provide processors for export with lower-priced milk. Equally, where a Member has taken
measures that will enable the export of subsidised products in excess of reduction commitments, those
measures threaten to lead to circumvention, even though no quantities in excess of reduction
commitments may have yet been exported.  New Zealand further noted that Article 10.1 also provides
that non-commercial transactions shall not be used to circumvent export subsidy commitments. Anon-commercial transaction is one in which private profit-maximising individuals would not, from
choice, engage.  In the present case, the market in which these transactions take place is completely
constructed.  Producers of non-quota milk are compelled to sell to processors for export.  Such are
thus "non-commercial transactions" within the meaning of Article 10.1
66.
4.71 New Zealand considered that Canada has failed to meet the burden of showing that no export
subsidies within the meaning of Article 10.1 have been provided and thus Canada is circumventing its
export subsidy commitments.  Referring to Canada's argument that as a result of the Import for Re-
Export Program access to imported milk is unrestricted and depends on commercial considerations
only, New Zealand contended that Canada does not answer the concerns expressed by the Panel, such
as the fact that permits under the programme are discretionary and that volumes imported suggest that
terms of access are less favourable.
4.72 New Zealand  and the United States  were of the view that the export subsidy provided by
Canada's replacement schemes falls within the definition of export subsidy contained in paragraph (d)
of the Illustrative List of Export Subsidies in Annex I to the SCM Agreement .  The SCM Agreement ,
the complainants submitted, is relevant to determining the meaning of "export subsidy" in
Article 10.1.  Specific guidance can be obtained from paragraph (d) of the Illustrative List of Export
Subsidies in Annex I of the SCM Agreement .  The new Canadian dairy exporting schemes fulfil all of
the elements of paragraph (d):  first, dairy processors continue to have access to milk through the
electronic export contract bulletin boards which is priced on more favourable terms than would
otherwise be available to such processors for milk  in the domestic market;  second there has been the
provision of a product "for use in the production of exported goods, on terms more favourable than for
provision of like or directly competitive products … for use in the production of goods for domesticconsumption" as the price for export milk is much lower than that for milk to be sold for domestic
                                                     
64 United States – FSC,  Appellate Body report, supra  note 107, paragraph 137.
65 Canada –Aircraft,  panel report, paragraph 156.  See also Brazil –Aircraft , Appellate Body report,
paragraph 157.
66 Submission by New Zealand, paragraphs 7.43 to 7.47.WT/DS103/RW
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uses;  third, the lower-priced milk has been provided "by governments or their agencies directly or
indirectly through government-mandated schemes" as it is made available to processors for export as
a result of the prohibition, imposed and enforced by government, on the selling of non-quota milk into
the domestic market; and fourth, the terms and conditions on which milk is made available forprocessors for export are more favourable than those available to them on world markets.  Therefore,
New Zealand and the United States continued, the Canadian schemes provide "subsidies" within the
meaning of Article 1 of the SCM Agreement , and hence are "export subsidies" within the meaning of
Article 10.1 of the Agreement on Agriculture  as they are subsidies "contingent upon export
performance".
4.73 Canada  reiterated that since governments do not affirmatively instruct or direct producers to
provide commercial export milk to processors, no "subsidy" exists such as under Article 1.1(a)(1)(iv)of the SCM Agreement .  Nor are governments providing a "subsidy" in a manner such as that
described under Article 1.1(a)(iii) of the SCM Agreement , which contemplates a direct provision of
goods by government.  Applying the facts to the text of the SCM Agreement  itself, there is no export
subsidy provided to processors in commercial export transactions.  In particular, there is no export
subsidy within the meaning of paragraph (d) of the I llustrative List of Export Subsidies in Annex I of
the SCM Agreement , contrary to the complainants' arguments under that Agreement.
4.74 Canada noted that three conditions must be met in order for a measure to constitute an export
subsidy under paragraph (d) of the Illustrative List.  The first of these conditions (i.e . that
governments must provide goods either directly or indirectly through government mandated schemes)
is clearly not met.  Since every export subsidy in the Illustrative List is by definition an Article 1.1"subsidy" that is contingent on export performance, the words "indirectly through a government
mandated scheme" must have a meaning consistent with Article 1.1(a)(1)(iv).  To hold otherwise
would render the words "i.e. where" in paragraph 1.1(a)(1) completely meaningless and would
amount to grafting a new type of "financial contribution" onto the definition of "subsidy" in the SCM
Agreement .  Accordingly, for the same reason discussed previously regarding governmental action
under Article 9.1(c) of the Agreement on Agriculture,  governments do not provide milk to processors,
either directly or indirectly through a government mandated scheme.
4.75 Given that the first requirement in paragraph (d) is not met, Canada continued, the other two
conditions under paragraph (d) are irrelevant.  In any event, processors can and do source milk for use
in the manufacture of exported dairy products under the Import for Re-Export Program.  IREP serves
as a competitive alternative source to commercial export milk.  At the time the original panel report
was issued, there were no guidelines in respect of the Import for Re-Export Program to structure thediscretionary authority associated with the Program.  Canada has recently issued a set of guidelines.
67
Although, technically, the issuance of IREP permits is still discretionary, what is important is howthat discretion is actually exercised.  In practice, IREP requests that meet the guidelines are granted
automatically.  Indeed, every single one of the over 500 requests since 1 August 2000 to import milk
or milk products for re-export has been granted.  Moreover, once an IREP request is approved, importpermits for individual transactions are electronically issued online.  IREP users are free to import any
quantity of milk or milk products they wish and to decide the export use to which the imported
product will be put.  Thus, in reality, access by Canadian processors through IREP to milk and milk
products is unrestricted and depends on commercial considerations only.
4.76 In addition, Canada noted, it has been repeatedly held by the Appellate Body that, absent
evidence that discretionary legislation is being applied in a manner contrary to WTO obligations,
                                                     
67 See Notice to Importers, Export and Import Permits Act, Serial no 616, 17 April 2001 (Exhibit  CDA-
33).WT/DS103/RW
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there can be no presumption of inconsistency:  "Only legislation that mandates a violation of GATT
obligations can be found, as such, to be inconsistent with those obligations."68
4.77 In answer to a question by the Panel, Canada indicated that the average weighted price for
fluid milk during the period August 2000-Febr uary 2001 was $0.44 per kilogram.  However, Canada
considered that this average price is significantly inflated by imports under the programme of
pasteurised milk for ships' stores use.  Canada noted that imported raw milk is bought at prices
reflective of US market conditions for such milk.  As concerns the average price of imported whole
milk powder during this period, on a per hectolitre equivalent basis, it was $20.46.69   Canada was of
the view that whole milk powder is competitive with raw milk in industrial processing.  The
differences between the two products relate mainly to  issues of transportation and storage.  Indeed, in
many cases the re-hydration of whole milk powder for a number of end uses is more cost effectivethan paying the transportation and storage costs associated with the use of raw milk.  Imports of
whole milk powder have almost tripled since the previous Panel proceedings and now account for
approximately half of total imports under the programme.
4.78 In New Zealand's  opinion, Canada's response to the question by the Panel concerning the
IREP does not change the essential nature of the IREP scheme.  The programme remainsdiscretionary in nature and the "guidelines" appear  to  be nothing more than a listing of the substantial
number of requirements that need to be met. In addition, it appears from information provided by
Canada 
70that the "within access commitment" tariff continue s to apply to IREP as it did in earlier
years.  A tariff is itself a form of restriction and thus, in New Zealand's view, imports under the IREP
do not depend only on commercial considerations.  Moreover, a "permit fee" is also applicable foreach permit under the scheme, fees which are not applied to commercial transactions.
4.79 Referring to Canada's answer to a question by the Panel with respect to the IREP (see
paragraph 4.75 above), the United States   contended that it is irrelevant whether or not all requests
for permits have actually been granted, for the purposes of the issues before this Panel.  The question
with regard to IREP is whether fluid milk is available on terms that are as favourable as thoseavailable for commercial export milk.  The United States was of the view that the terms are not as
favourable since a permit which is subject to the government's discretion must be obtained.  This is
not changed by the new guidelines.  These do not change or circumscribe the Minister's discretion.
Indeed, in paragraph 4.3 of the guidelines, it states simply that "the Minister may issue to any resident
of Canada applying therefore a permit …"
71  In other words, although the government has granted the
last 500 requests, it is within the Minister's discretion to deny the next 500 requests.  As concerns
Canada's answer to another question by the Panel (see paragraph 4.77 above), the United Statesresponded that the price of imported fluid milk under the IREP is too high to be as favourable as milk
obtained trough domestic sources for export contracts.  Secondly, in the opinion of the United States
the price of whole milk powder and that of fluid milk are not equally favourable since the whole milk
powder price is almost double that of fluid milk according to US calculations when certain corrections
have been applied to Canada's calculations.  Third, even if whole milk powder were available at thesame price as fluid milk, it would still be available on less favourable terms since it would need to be
re-hydrated for most end-uses, implying additional time and expense in spite of technological
advances.
4.80 Canada  indicated that every one of the over 500 requests had been granted since
1 August 2000.  Thus, the mere presence of discretion does not, in reality, render the choice between
                                                     
68  United States - Act of 1916  Appellate Body report, paragraph 60.
69 @ 11 kg. per hectolitre.
70 Notice to Importers, Export and Import Permits Act, Serial no 616, 17 April 2001 (Exhibit  CDA-33).
71 Notice to Importers, Export and Import Permits Act, Serial no 616, 17 April 2001 (Exhibit  CDA-33).WT/DS103/RW
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domestic and imported products "restricted" or "not dependant only on commercial considerations".
Canada also submitted that the United States incorrectly revised Canada's calculation of the milk-
equivalent average price of whole milk powder imported under the IREP.  Using appropriate
conversion factors, milk-equivalent prices remain wi thin the range of commercial export milk prices
even if one were to use the average value of imported whole milk powder cited by the United States.
4.81 The United States  submitted that Canada's argument with respect to Article 10.1 is without
legal support and should be rejected by the Panel.  Canada's argument that there must be a "direct
connection" is not supported by the language of Article 10.1 of the Agriculture Agreement or
paragraph (d) of the Illustrative List of Export Subsidies contained in Annex 1 to the SCM Agreement .
The United States reiterated that the original panel concluded that it was more appropriate to consider
paragraph (d) of the Illustrative List than the general concepts of Article 1 of the SCM Agreement
when analysing the context of Article 10.1 of the Agreement on Agriculture .  The new provincial
export programmes satisfy each of the elements of paragraph (d).  Accordingly, the new export
programmes constitute export subsidies for purposes of the SCM Agreement .  Because the SCM
Agreement is part of the context of the Agreement on Agriculture , the fact that the provincial
programmes constitute a subsidy under the Illustrative List supports a finding that the programmes areexport subsidies under Article 10.1 of the Agreement on Agriculture .  Additionally, Canada does not
dispute that there are no restraints on the availability of the export subsidies under the new export
programmes.  Consequently, the export programmes have already resulted in or threaten to lead to the
circumvention of Canada's reduction commitment within the meaning of Article 10.1.
5. Articles 3.3 and 8 of the Agreement on Agriculture
4.82 New Zealand  submitted that, any export of dairy products by Canada under Special Milk
Class 5(d) and the new schemes in excess of its reduction commitment levels constitutes a violation of
Canada's obligations under Article 3.3 and Article 8 of the Agreement on Agriculture.
4.83 A review of available export data, the United States  submitted, shows that, when the volume
of exports made pursuant to Special Milk Class 5(d) is combined with exports made under theprovincial marketing schemes, the total aggregate volume of exports of cheese already exceed
Canada's reduction commitments and exports of other milk products are barely below the quantity of
subsidised exports that may be permitted consistent with Canada's reduction commitments.
Consequently, because the new provincial export schemes constitute export subsidies, Canada's
exports of cheese and other dairy products breach its obligations under Articles 3.3, 8 and 9 of the
Agreement on Agriculture.
4.84 Canada  contended that since it has not exported in excess of its reduction commitment levels,
there was no violation of Articles 3.3 and 8 of the Agreement on Agriculture.
6. Articles 1 and 3 of the SCM Agreement
4.85 The United States  submitted that, in addition to constituting violations of Articles 9.1(c), or
in the alternative, Article 10 of the Agreement on Agriculture , Canada's measures affecting the
exportation of dairy products constitute prohibited export subsidies pursuant to Articles 1.1 and 3.1 ofthe SCM Agreement .  These measures --i.e. Canada's new provincial export subsidy programmes as
well as the maintenance of Special Class 5(d) -- provide discounted milk to milk dealers on the
condition that the milk is exported to foreign markets.  They do so by allowing exporters to purchase
milk at prices that are below prevailing market-levels as compared to milk used in dairy products sold
in Canada's domestic market.  Access to this low-priced product is contingent on the product beingexported, because should a milk dealer divert the low-priced milk or products made from it to the
domestic market, the milk dealer must pay a severe pena lty.  The result is that milk sold for export isWT/DS103/RW
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Page 32
often half the price of milk sold on the domestic market.  Therefore, Canada's measures constitute
subsidies contingent upon export performance in violation of Article 3.1(a) of the SCM Agreement .
4.86 In demonstrating a violation of Article 3 of the SCM Agreement,  the United States submitted
that it relied upon paragraph (d) of the Illustrative List of Export Subsidies in Annex 1 to the SCMAgreement.  Canada criticised this approach as inappropriately abbreviated.  However, Canada
adopted and indeed championed the same approach in another subsidies case.  In  Brazil - Aircraft ,
Canada argued that a measure that satisfies the requirements of the Illustrative List is ispo facto  an
export subsidy and therefore prohibited.
72  Jus t as in  Brazil - Aircraft , the Panel in this dispute is
confronted with a per se  violation of Article 3 of the SCM Agreement .
4.87 The United States therefore claimed that Canada's measures constitute subsidies contingent
upon export performance in violation of Article 3.1(a) of the SCM Agreement , and the appropriate
remedy shall be withdrawal of the subsidy without delay pursuant to Article 4.7 of the SCM
Agreement .
4.88 Canada  responded that since there is no "subsidy" conferred to processors within the
meaning of Article 1.1(a)(1)(iii) or (iv), there can be no "prohibited export subsidy" under Article 3 of
the SCM Agreement .  The arguments of the United States under this provision should, therefore, also
be rejected.
                                                     
72 Brazil - Aircraft , panel report, paragraph 4.48.WT/DS103/RW
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V. THIRD PARTIES ARGUMENTS
A. AUSTRALIA
1. General
5.1 Australia considered that creating a separate regime for milk used in the export of dairy
products ensures that processors/exporters have access to inexpensive milk.  Whether labelled as
special milk class 5(e) or excluded from quota milk for domestic consumption, the effect is the same.
The replacement measures continue to provide milk at a price below an adequate level of
remuneration, are contingent on the export of the manufactured product, and therefore would
constitute an export subsidy under both the Agreement on Agriculture  and the SCM Agreement .  Milk
for export is excluded from the domestic market;  the only way that producers can sell above-quota or
non-quota milk is if it is exported.  And the only way that processors can receive lower pricediscounted milk is if it is for export.  Without the prohibition on selling milk for export in the
domestic market, processors for export would not have access to milk at discounted prices.
5.2 The fact that milk is "pre-committed" and "first-out-of-the-tank"
73 ensures that processors
receive discounted milk.  This does not alter the fact that a producer would not produce commercially
for export (that is non-quota milk) where the returns are so low compared to milk for domesticconsumption while the domestic milk supply management system is maintained and a producer can
secure high prices for milk for domestic consumption.  In the view of Australia, export milk is surplus
to Canada's domestic supply management needs.
2. Article 9.1 (c) of the Agreement on Agriculture
5.3 Australia noted that there are two requirements under Article 9.1(c):  (i) "payments on the
export of an agricultural product"; and (ii) the payments must be "financed by virtue of governmental
action".
(i) "payments"
5.4 Australia referred to the Appellate Body repo rt which upheld the original panel's finding in
relation to the meaning and definition of "payment" in the context of Article 9.1 (c).
74   The Appellate
Body found that the word "payments" "denotes a transfer of economic resources";  further, "a
'payment' could be made in a form, other than money,  that confers value, such as by way of goods or
services."75  The provision of milk at discounted prices to processors for export constitutes
"payments" in a form other than money w ithin the meaning of Article 9.1(c) of the Agreement on
Agriculture .  As the milk is supplied at below market ra tes, "'payments' are, in effect, made to the
recipient of the portion of the price that is not charged".76 
5.5 Just as under the Special Milk Classes system, Australia continued, the replacement measures
provide a benefit to processors/exporters since the processors/exporters receive milk at a price that
enables them to export the processed product concerned.  Despite export milk being "excluded" from
the domestic market, it is only non-quota milk that is available to processors for export.  Milk for
export cannot be redirected to the domestic market.
                                                     
73 Documents describing provincial dairy export mechanisms, dated 22 September from Canada's
Department of Foreign Affairs and International Trade.
74 Canada - Dairy , Appellate Body report, paragraphs 107, 112-113.
75 Id., paragraph 107.
76 Id., paragraph 113.WT/DS103/RW
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5.6 Processors receive milk for export at below the price for milk destined for domestic
consumption.  The very fact, Australia argued, that Canada has deemed by legislation that there are
"separate" markets provides a benefit or advantage to processors not otherwise available in the
(domestic) marketplace.77  Milk for export could not be obtainable at such a low price to processors
without the existence of domestic price support.  The Canadian supply management system/regulatory
scheme is underpinned and implemented by Federal and provincial legislation and regulations and
milk marketing boards.
(ii) "financed by virtue of governmental action"
5.7 Australia noted that in examining the second element of Article 9.1(c), namely whether
payments are "financed by virtue of governmental action", the Appellate Body observed that "it is
appropriate to look to the "governmental" involvem ent as a whole and not just to the role of the
provincial milk marketing boards"78..  The Appellate Body further noted that "the price paid for the
milk by the processors  is not, in any way, dependent on whether milk is part of in-quota or over-quota
production".79.
5.8 The domestic milk supply management system is managed, monitored and supervised by
agencies of the Canadian federal or provincial governments, Australia continued.  The volume andpricing of milk is still determined by these agencies.  Regulatory schemes are enacted at both the
federal and provincial levels.  The provincial governments and the CDC still control the "separate"
domestic and export markets.  They determine the size of the quota for the domestic market.  Export
milk is still licensed by provincial milk marketing boards
80 and producer levies are still required to be
paid regardless of the destination of the milk.81.  All the control in relation to the pooling, pricing,
volume of milk etc continues to be regulated through the CDC and the provincial milk marketing
boards.  Australia considers that the replacement measures which create a 'separate' export milk
regime continue to provide "payments" with in the meaning of Article 9.1(c) of the Agreement on
Agriculture  by virtue of governmental action.
5.9 In summary, Australia considered that the replacement measures continue to provide
"payments" on the export of dairy products within the meaning of Article 9.1(c) of the Agreement on
Agriculture  by virtue of governmental action.  Accordingly, Canada should bring its replacement
measures for dairy products into conformity with its WTO obligations.
3. Article 3 and 8 of the Agreement on Agriculture
5.10 Since the replacement measures are export subsidies within the meaning of Article 9.1(c) of
the Agreement on Agriculture  and to the extent that Canada's dairy exports exceed Canada's annual
quantity commitments, Australia considered that Canada is in breach of Article 3.3 of the Agreement
on Agriculture  not to provide export subsidies in excess of its budgetary outlay and quantity
commitments levels specified in Section II of Part IV of its Schedule and in breach of Article 8 of the
Agreement on Agriculture  not to provide export subsidies otherwise than in conformity with the
Agreement and with the commitments specified in its schedule.
                                                     
77 Submission by Canada, paragraphs 83 ff.
78 Canada - Dairy , Appellate Body report, paragraph 119.
79 Id., paragraph 121.
80 Dairy Farmers of Ontario Milk General Regulation 09/00, Section 5.
81 Id., Section 7.WT/DS103/RW
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4. Article 10.1 of the Agreement on Agriculture
5.11 In the alternative, Australia argued, if the replacement measures are not found to be a 9.1(c)
export subsidy under the Agreement on Agriculture , the measures would still amount to an export
subsidy, as defined under Article 1(e) of the Agreement on Agriculture, 82 as captured by Article 10.1
of the Agreement on Agriculture .  The object and purpose of that Article is to prevent the
circumvention of export subsidy commitments.  As there is no limitation or restraint on Canada's
export subsidies on dairy products, Canada's replacement measures threaten to lead to circumvention
of its export subsidy commitments.  This is reinforced by Article 10.3 which places the onus on an
exporting Member to demonstrate that any exports in excess of its scheduled commitments are not
subject to export subsidies.  As noted above, in Australia's view, the replacement measures provide an
export subsidy and so the onus is on Canada to demonstrate that it is not in breach of its exportsubsidy commitments.
5. Article 3 of the SCM Agreement
5.12 Australia argued that the replacement measures in question fall under Article 3.1(a) of the
SCM Agreement .  Since Canada is in breach of its export subsidy commitments under the Agreement
on Agriculture , it does not receive cover through Article 13(c) of the Agreement on Agriculture , and
so is in breach of Article 3 of the SCM.  In the alternative, if the Panel finds that the replacement
measures are not an export subsidy within the meaning of the Agreement on Agriculture  but are an
export subsidy under Article 3.1(a) of the SCM, then again Canada would receive no cover fromArticle 13(c) of the Agreement on Agriculture , and so would be in breach of Article 3 of the SCM
Agreement .
5.13 Australia noted that Canada claims that export milk is not "surplus" to domestic requirements
but is pre-planned and pre-committed production.  However, Canada does not address the fact that the
ability of a producer to acquire additional quota (essentially through trading of quota) is determinedby a system of legislation and regulations which set the quota volumes.  The fact that the quota
volumes are being adjusted more frequently by government suggests greater manipulation of product
available for the export market.
5.14 As concerns the benchmark price advocated by Canada, Australia considered that the point of
comparison is the domestic or regulated market.  This is the basis on which it is determined whethermilk is supplied at or below market rates.  By virtue of Canada's supply management system and
consequent high domestic prices, the price of milk to processors is below market rates and therefore
constitutes a payment.  Further, through regulatory control of a "separate" export market, Canada has
assured processors that they will not have to pay the domestic price by "preventing" export milk being
diverted into the domestic market.
B. E
UROPEAN COMMUNITIES
1. Article 9.1 (c) of the Agreement on Agriculture
(i) "financed by virtue of governmental action"
5.15 The EC was of the view that the complainants' citation to the test developed by the Appellate
Body for "by virtue of governmental action" is incomplete and therefore misleading.  The United
States and New Zealand only purport to show that  governmental action is "indispensable to the
                                                     
82 ""[E]xport subsidies" refers to subsidies contingent upon export performance, including the export
subsidies listed in Article 9 of this Agreement."WT/DS103/RW
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occurrence of the payment".83   However, the Appellate Body differentiates in a more nuanced manner
whether governmental action "is not simply involved", but whether it is "in fact, indispensable" for
"the transfer of resources, to take place".84
5.16 Referring to the complainants' arguments concerning the segregation of the market for
contracted export milk from the domestic market85, the EC submitted that these arguments imply that
all kinds of purely regulatory government measures could amount to export subsidies within the
meaning of Article 9.1(c) of the Agreement on Agriculture  simply because, by affecting market
conditions, they necessarily have an impact on the conduct of certain economic operators and "may"
have incidentally a trade distorting effect.
5.17 The EC noted that Article 9.1(c) departs from the general notion of subsidy laid down in
Article 1.1 of the SCM Agreement  by not requiring that a payment must involve a charge on the public
account.  This wording does not prevent producer-financed payments on the export of an agricultural
product to qualify as export subsidy.  However, the condition is that such payments must be "financed
by virtue of governmental action".  The key question, therefore, is to determine the extent of
governmental involvement in the transfer of economic resources between agricultural producers and
export processors.
5.18 The EC, referring to Canada's arguments that there must be a direct connection between
governmental action and payments and relying on the dictionary meaning of the term "by virtue of",
submitted that that expression, when compared to the notion of "government- mandated " schemes in
item (d) of the Illustrative List of export subsidies annexed to the SCM Agreement , does not establish
a particular degree of government involvement.  Th e EC considered rather that the term "financed"
provides important guidance in that respect.  To finance means, to "engage in or manage financial
operations".86  Moreover, the term "financed" implies that money is being paid, i.e., a financial
contribution is being made.  The immediate context of the expression "financed by virtue of
governmental action" is also relevant to its interpretation.  Article 9.1(c) illustrates its scope by laying
down an example, i.e., "payments that are financed  from the proceeds of a levy imposed  on the
agricultural product concerned".  This suggests that the transfer of economic resources under
Article 9.1(c) must (i) be imposed by the governme nt, and (ii) involve a kind of zero sum situation,
where the exporters win what the producers lose.
5.19 In the opinion of the EC, neither the example of a protective duty, as cited by the panel in its
original report, nor a double-pricing system as such can fulfil the conditions set by Article 9.1(c), if
producers can still freely determine whether to sell over-quota products at cost plus margin or not to
produce them at all.  Under such conditions, the decision of farmers is only an incidental effect of ageneral regulatory measure which may have trade distortive effects, but still does not fulfil all
conditions to be a WTO incompatible export subsidy.
5.20 Such a strict reading of "financed by virtue of governmental action" is further buttressed by
the purpose of Article 9.1 of the Agreement on Agriculture  which, in the view of the EC, was intended
                                                     
83 First Written Submission of New Zealand, paragraph 7.11;  First Written Submission of the United
States, paragraph 82.
84 Canada –Dairy,  Appellate Body report, paragraph 120.
85 First Written Submission of the United States, paragraphs 79, 83, 86 and 90;  Second Written
Submission of the United States, paragraphs 9, 16 and 55;  First Written Submission of New Zealand,paragraphs 7.12-7.16;  Second Written Submission of New Zealand, paragraphs 1.03, 2.10, 3.01 and 4.13.  Seealso Third Party Submission of Australia, paragraph 3 as well as the panel report in Canada – Dairy,  as
modified by the Appellate Body report, paragraph 7.62.
86 Shorter Oxford Dictionary, Volume I, at 950.WT/DS103/RW
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to provide a "careful, specific list of the principal categories of export subsidies that were known to be
provided to the agricultural sector at the time the Agreement on Agriculture  was drafted."87  
5.21 The EC therefore submitted that the major argument of the complainants regarding the
exclusion of contracted export milk from the domestic market is not, in itself, sufficient to establish
that payments were "financed by virtue of governmental action".
2. Article 10.1 of the Agreement on Agriculture
5.22 The EC took issue with the broad interpretation of the concept of "export subsidies not listed
in paragraph 1 of Article 9", advocated by the complainants.  In particular, New Zealand argues that
"all measures that do not technically meet the strict letter of Article 9.1, but have the same economic
effect", must fall within Article 10.1.88  The United States asserts that any argument whereby the
standard for finding a subsidy under Article 10 is the same as under Article 1 of the SCM Agreement
is without legal support.89
5.23 Referring to the text of Article 1(e) of Agreement on Agriculture, the EC submitted that it
leaves open the question of whether the definition of subsidy under the Agreement on Agriculture  is
the same as under the SCM Agreement .  The Appellate Body has not yet clarified the precise notion of
export subsidy applicable under Article 10.1 of the Agreement on Agriculture .  In United States –
FSCs , the Appellate Body developed a general definition of subsidy whereby "a 'subsidy' involves a
transfer of economic resources from the grantor to the recipient for less than full consideration", but
drew heavily on the general context of the SCM Agreement .90  The Appellate Body also saw no reason
to read the requirement of "contingent upon export performance" in the Agreement on Agriculture
differently from the same requirement imposed by the SCM Agreement , because "the two agreements
use precisely the same words to define export subsidies".91
5.24 Although not attempting to develop a comprehe nsive analytical framework of the precise
relationship between the notion of export subsidy under Article 1(e) of the Agreement on Agriculture
and Article 1.1 of the SCM Agreement, the EC put forward the following:  the term "subsidy" is the
same under both agreements, as is the expression "contingent upon export performance".  Secondly,several provisions directly bear on the relationship between the concept of export subsidy under
Article 1(e) and 10.1 of the Agreement on Agriculture  and that under the SCM Agreement .  Thus,
Article 21 of the Agreement on Agriculture  provides that "the provisions of the GATT 1994 and of
other multilateral trade agreements shall apply subject to the provisions of this Agreement".
Article 3.1 of the SCM Agreement , in turn, prohibits export subsidies "except as provided in the
Agreement on Agriculture".  This suggests a co-exten sive application of the notion of subsidy, unless
the Agreement on Agriculture  explicitly provides otherwise, as, e.g., through the specific list of export
subsidies in Article 9.1.
5.25 Another argument, the EC continued, can be gleaned from Article 13 of the Agreement on
Agriculture , entitled "due restraint", which foresees that  export subsidies which conform fully to the
provisions of Part V of this Agreement shall be "subject to countervailing duties only upon
determination of injury or threat thereof based on volume, effect on prices, or consequent impact inaccordance with Article VI of the GATT 1994 and Part V of the Subsidies Agreement".  This
                                                     
87 Appellant's Submission of the United States in United States - FSC , paragraphs 321-322, agreed to
by the EC in its Appellee's submission, paragraph 258.
88 First Written Submission of New Zealand, paragraph 7.27.  See also, Second Written Submission of
New Zealand, paragraph 4.22.
89 Second Written Submission of the United States, paragraphs 51, 52.
90 United States – FSC,  Appellate Body report, paragraph 136.
91 Id., paragraph 141.WT/DS103/RW
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reference implies that a Member wishing to im pose countervailing duties could determine the
existence of a subsidy on the basis of Article 9.1 of the Agreement on Agriculture  in addition to
Articles 1-3 of the SCM Agreement  and therefore requires a co-extensive application of the basic
concept of subsidy.  The EC did not see any provision in the Agreement on Agriculture  that mandates
the use of different concepts of subsidies.  The chapeau of Article 1.1 of the SCM Agreement,  which
states that "[f]or the purpose of this Agreement, a subsidy shall be deemed to exist" does not exclude
that other agreements refer back to this basic definition of subsidy which is the only one agreed on by
the Members.  Like the expression "contingent upon export performance", the term "subsidy" is the
same under both agreements.
5.26 In conclusion, the EC failed to understand how one of those concepts can be subject to a
diverging interpretation depending on whether it arises in the context of the SCM Agreement  or the
Agreement on Agriculture , while the other is consistently interpreted.  Such an approach is certainly
not justified on the basis of the language and context of Articles 1(e) and 10.1 of the Agreement on
Agriculture .  To the contrary, the EC considered that a pick and choose approach resulting in an
oscillating notion of subsidy under the anti-circumvention provision does not provide security and
predictability to trade in agricultural products.WT/DS103/RW
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VI. FINDINGS
A. AGREEMENT ON AGRICULTURE
1. Burden of Proof
6.1 New Zealand and the United States argue that pursuant to Article 10.3 of the Agreement on
Agriculture , Canada must establish that no export subsidy has been granted in respect of exports
exceeding Canada's reduction commitments. Canada  "recognises the presence of Article 10.3", but
submits that "it is important to note that reports issued by panels and the Appellate Body under
Article 21.5 of the DSU uniformly confirm that a Member's measure is presumed to comply with
WTO obligations and, thus, any Member challenging that measure bears the burden of proof."
6.2 Article 10.3 of the Agreement on Agriculture  provides,
Any Member which claims that any quantity exported in excess of a reduction
commitment level is not subsidized must establish that no export subsidy, whether
listed in Article 9 or not, has been granted in respect of the quantity of exports in
question.
6.3 The Panel considers that, when reduction commitments have been exceeded, Article 10.3 has
the effect of reversing the usual burden of proof with regard to claims made under Articles 3.3, 9 and10 of the Agreement on Agriculture .
92  Thus, in the case before the Panel, if dairy exports exceed
Canada's reduction commitments, and Canada claims that any quantity of exports exceeding its
commitment levels is not subsidized, then it is for Canada to present evidence which is sufficient in
terms of Article 10.3 to establish a presumption that no export subsidy has been granted in respect of
the quantities exported in excess of its reduction commitment levels.
6.4 The Panel does not consider that the rules on the allocation of the burden of proof change
simply because a claim is made in the context of Article 21.5 DSU proceedings.  The Panel notes in
that respect the following statement by the Appellate Body in its report in Brazil - Aircraft (21.5) :
We recall that, before the original panel in  Brazil – Aircraft , Brazil conceded that it
had the burden of proof in demonstrating its alleged "defence" under item (k).However, in these Article 21.5 proceedings, Brazil argues that this burden of proof,
under item (k), is on Canada.  In our view, the fact that the measure at issue was
"taken to comply" with the "recommendations and rulings" of the DSB does not alter
the allocation of the burden of proving  Brazil's "defence" under item (k). (emphasis
added)
The Panel considers that this reasoning equally applies to the allocation of the burden of proof
pursuant to Article 10.3 of the Agreement on Agriculture .
6.5 It is clear from the text of Article 10.3, however, that the burden of proof with regard to
Articles 3.3, 9 and 10 is only reversed if reduction commitment levels have been exceeded.  The
exceeding of reduction commitment levels triggers the reversal of burden of proof pursuant to
                                                     
92As acknowledged by Canada in the original panel proceedings.  See report of the panel on Canada –
Dairy , paragraph 7.33.WT/DS103/RW
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Article 10.3.  The Panel must therefore turn to the question whether reduction commitment levels
have indeed already been exceeded by Canadian dairy exports.93
6.6 The Panel notes in this respect that, according to Canada, total cheese exports from Canada
between August 2000 and February 2001 amounted to 10,026 metric tons.94  Canada's reduction
commitment level for the marketing year 2000/2001 was set at 9,076 metric tons.  The Panel thus
finds that Canada's reduction commitment level for cheese has been exceeded.  The Panel notes that
Canada claims that a quantity of those excess exports is not being subsidized.  The Panel, therefore,
concludes that, with regard to the claims made under Articles 3.3, 9 and 10 of the Agreement on
Agriculture , Canada has the burden of proof.
2. Article 9.1(c)
(a) Introduction
6.7 In deciding on the Article 9.1(c) claim, the Panel will address the following questions on the
basis that a measure or arrangement which meets all of the substantive requirements of Article 9.1(c)
constitutes an export subsidy for the purposes of the Agreement on Agriculture :
(a) Are there "payments"?
(b) If so, are such payments "financed by virtue of governmental action"?
(c) If so, are those payments made "on the export of an agricultural product"?
(b) "Payments"
6.8 New Zealand and the United States argue that the prices at which Canadian milk processors
source commercial export milk ("CEM") are significantly below the prices at which Canadian milk
processors source milk for the domestic market, and that Canadian milk producers are thereforeforegoing revenue in the same manner that the Panel and the Appellate Body have found to constitute
a payment.  In their view, in determining whether a "payment" is made within Article 9.1(c), the Panel
must assess what would have been otherwise available to processors/exporters in the marketplace.
6.9 Canada refers to paragraph 113 of the Appellate Body report in Canada – Dairy , the second
sentence of which states that
[i]f goods or services are supplied to an enterprise, or a group of enterprises, at
reduced rates (that is at below market rates), "payments" are, in effect, made to the
recipient of the portion of the price that is not charged.
According to Canada, the corollary of this propositi on is that where the recipient of goods or services
pays market rates or market value, there can be no "payment."  Since the commercial export milk
market has been deregulated, processors are paying "market value" for the milk.  Therefore, in
Canada's view, commercial export milk in Canada is being sold at, not below, market rates, and, inline with the aforementioned Appellate Body citation, there could be no "payment."
                                                     
93 The Panel considers that the ordinary rules on burden of proof apply to a claim that reduction
commitment levels have been exceeded, an d, accordingly, that it is in the first instance up to the complainants to
establish a prima facie  case that exports of the product are in excess of the commitment level relating to that
product.
94 Canada's reply to Question 22.WT/DS103/RW
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6.10 Before assessing the parties' arguments, the Panel notes that there appears to be no
disagreement between the parties as to whether the prices paid for domestic market milk and those
paid for what is described as commercial export milk show a clear differential.  On the one hand, New
Zealand provides data indicating that current commercial export milk prices per hectolitre are withinthe range of C$25.03 to C$35.09.  The United States provides an average value of C$31.53 per
hectolitre for Ontario and C$29 per hectolitre for Quebec.  Canada states that prices range from
C$19.06 to C$36.86 per hectolitre of commercial expo rt milk.  According to New Zealand and the
United States, domestic market milk, on the other hand, sells for anywhere between C$49.48 and
C$56.06 per hectolitre (New Zealand), or, at an average, for C$52.92 per hectolitre (the United
Stataes).  Canada has not disputed the latter figures.
6.11 The parties, however, clearly differ over what the Appellate Body meant by the supply of
goods "at below market rates".  According to New Zealand and the United States, the market rate is
the higher price of milk in the regulated domestic market.  According to Canada, the lower CEM price
resulting from "arm's length transact ions in a private commercial context"
95 is the market rate.
Consequently, in order to decide whether a "payment", within the meaning of Article 9.1(c), is made
to processors for export through the provision of commercial export milk at lower prices thandomestic milk, the Panel needs to determine against what benchmark  the commercial export milk
prices have to be compared.
6.12 The Panel first recalls that the ordinary mean ing of "payment" has already been examined by
both the Panel and the Appellate Body in the original proceedings.  The Appellate Body considered
that the word "payments" in Article 9.1(c) denotes a transfer of economic resources,
96 and agreed with
the panel that the ordinary meaning of the word "p ayments" in Article 9.1(c) encompasses "payments"
made in forms other than money, including revenue foregone.97  The Appellate Body concluded that,
In our view, the provision of milk at discounted prices to processors for export under
Special Classes 5(d) and 5(e) constitutes "payments", in a form other than money,
within the meaning of Article 9.1(c).  If goods or services are supplied to anenterprise, or a group of enterprises, at reduced rates (that is, at below market-rates),
"payments" are, in effect, made to the recipient of the portion of the price that is not
charged.  Instead of receiving a monetary payment equal to the revenue foregone, the
recipient is paid in the form of goods or services.  But, as far as the recipient is
concerned, the economic value of the transfer is precisely the same.
98
6.13 The Panel notes that the ordinary meaning of "payments" in Article 9.1(c), as determined by
the Appellate Body, does not provide explicit  guidance as regards the benchmark which is to be
applied when determining whether goods are being provided at "discounted", "reduced" or "below
market" rates.  It is clear that, in casu , the regulated export price was considered "discounted",
"reduced" or "at below market rates" as compared with the regulated price of milk destined for the
domestic market.  Canada argues, however, that when the export price is no longer regulated, the
benchmark would change from the regulated domestic market price to the deregulated export marketprice.  Canada bases this assertion, inter alia , on the Appellate Body's reference to "at below market
rates", arguing that the "market rate" can only be th e price resulting from "arm's length transactions in
a private commercial context".
                                                     
95 Canada's First Submission, paragraph 84.
96 Report of the Appellate Body on Canada - Dairy , paragraph 107.
97 Id., paragraph 112.
98 Id., paragraph 113.WT/DS103/RW
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6.14 The Panel is not persuaded by Canada's argument.  The Appellate Body did indeed equate
"reduced rates" with "below market rates" in paragraph 113 of its report.  However, it can not be
inferred from that statement that the Appellate B ody meant to exclude from the meaning of "market
rates" prices which were not the result of "arm's length transactions in a private commercial context"but, rather, the result of a certain degree of governmental intervention.  On the contrary, the opposite
conclusion is borne out by the very facts of the case which provide the context of the Appellate
Body's statement.  In the original dispute the export milk price was considered "discounted" in
reference to a price which was clearly not the result of "arm's length transactions in a private
commercial context".  The "market rate" in that case was a price regulated by the government.  The
Appellate Body statement itself cited by Canada clearly allows for the possibility that the "market
rate" is a price regulated by the government, and not the result of "arm's length transactions in aprivate commercial context".  The Appellate Body statement therefore does not prejudge the question
before the Panel whether, for the purpose of Article 9.1(c), the appropriate benchmark is the domestic
regulated price or, as claimed by Canada, the price resulting from "arm's length transactions in a
private commercial context".
6.15 Canada asserts along the same lines that "[t]he fact that prices in the regulated market are
higher than the prices in the commercial export market is irrelevant",
99 and explains in its oral
statement the reasons underlying that assertion:
To understand the Appellate Body's ruling [in Canada – Dairy ], it is important to
examine the market conditions that were prevailing in Canada at that time.  The Panel
determined that there was only one market  for milk in Canada: a regulated market
(other markets were considered not to be viable alternatives for sourcing milk for
export in Canada).
 […]
As a result of Canada's implementation of the recommendations and rulings of the
DSB, governments no longer set the prices for milk for export.  The domestic
regulated market and the commercial export market now respond to different
conditions of competition .100 (emphasis added)
Thus, according to Canada, there would now be two distinct milk markets, domestic and export, and,
consequently, the domestic price benchmark to determine whether export prices are discounted can no
longer be relevant.  Canada notes that by deregulating the export milk market, it "has not created this
market," but, rather, has "given producers and processors access to an existing market."101
6.16 The Panel is not convinced by Canada's argument.  The Panel does not agree with the market
definition which Canada proposes in order to determine whether a "payment" exists within the
meaning of Article 9.1(c).  Pursuant to Canada's argument, for the purposes of Article 9.1(c), a
"transfer of economic resources" from the grantor to the recipient can not take place in a given market
if there is a different degree of government intervention in that market, depending on whether a good
is destined by the buyer for export or not.  In this case, the Canadian government intervenesextensively with regard to dairy transactions when the milk is destined for the domestic market, and
intervenes less extensively
102 with regard to dairy transactions when the milk is destined for export.
The Panel notes, however,  that the  "commercial export market" is not any different from the
                                                     
99 Canada's Rebuttal Submission, paragraph 13.
100 Canada's Oral Statement, paragraphs 43-47.
101 Canada's Oral Statement, paragraph 49.
102 See, for instance, paragraphs 6.46-6.47 below.WT/DS103/RW
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domestic market in terms of sellers,103 buyers104 and the products105 which they trade.  The only
difference between these "two" markets is Canada 's degree of government intervention, depending on
whether the buyer purchases milk for export or not.  Thus, Canada makes a distinction between these
domestic and export dairy markets on the sole basis of the degree of its own regulatory intervention intransactions between producers and processors.  This  distinction between markets, for the purposes of
determining against what benchmark the existence of a "discount" needs to be assessed, solely
according to the degree of regulatory intervention by government, is not warranted by either the text
and context of Article 9.1(c), or the object and purpose of the Agreement on Agriculture .
6.17 First, with regard to the text, as noted earlier, nothing in the wording of Article 9.1(c)
suggests that the degree of government intervention, in function of the destination of the processed
product, should affect the interpretation of "paymen t".  The question of  government intervention is,
of course, highly  relevant under Article 9.1(c), but only in the analysis of the "financed by virtue of
government action" requirement.
6.18 Second, as regards context, other paragraphs of Article 9.1 indicate that the proper
comparison to be made in order to assess the existence of a "payment" is between the price charged
for the domestic market and the price charged for export.  According to Article 9.1(b), for instance,
the sale for export by governments of agricultural goods at a price lower than the comparable price
charged for the like product to buyers in the domestic market  constitutes an export subsidy.
Similarly, under Article 9.1(e), the provision by government of transport services for export
shipments at prices lower than the price charged for domestic shipments  is also an export subsidy.
Nothing in the text of these paragraphs specifies to what extent the higher domestic price may resultfrom government intervention.  The only benchmark which is stipulated is the price for the domestic
market, independently of  the extent of government intervention in the formation of that price.
6.19 Third, Article 9.1(c), and the associated reference by the Appellate Body to the "market",
should be read having regard to the object and purpose of the Agreement on Agriculture .  The Panel
considers that the Preamble of the Agreement on Agriculture  provides useful guidance to identify the
object and purpose of that Agreement.  According to the Preamble, Members
[…] decided to establish a basis for initiating a process of reform of trade in
agriculture […],
and recalled that
their long-term objective […] "is to establish a fair and market-oriented agricultural
trading system and that a reform process should be initiated through the negotiation
of commitments on support and protection and through the establishment ofstrengthened and more operationally effective GATT rules and disciplines",
                                                     
103 This conclusion is not affected by the fact that there are currently 74 producers in Canada who do
not hold quota and produce milk exclusively for export.  This group accounted for 0,08 per cent of totalCanadian milk production between August 2000 and February 2001 (Canada's reply to Question 21), andconstitutes less than 0,5 per cent of Canadian dairy producers (Canada's reply to Question 3).
104 The Panel understands that Canadian milk processors can engage in marketing activities both on the
domestic and export markets.
105 Canada confirms that "[a]ll milk in a producer's bulk tank is collected.  The quantity of commercial
export milk is specified in the contract between the producer and the processor.  Producers and processors
identify commercial export milk deliveries through the commercial export milk contracts and processors'monthly plant utilization reports.  As milk is fungible, commercial export milk is not stored or processed
separately from other milk." (Canada's reply to Question 14)WT/DS103/RW
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and that
[…] "the above-mentioned long-term objective is to provide for substantial
progressive reductions in agricultural support and protection sustained over an agreed
period, resulting in correcting and preventing restrictions in world agriculturalmarkets.
6.20 This language makes clear that the working assumption in agricultural trade is not that of a
market free of government intervention.  The establishment of a fair and market-oriented agricultural
trading system, through progressive reductions in agricultural support and protection, is the long-term
objective, and the Agreement on Agriculture  has established a "basis for initiating the process of
reform" aimed at achieving that long-term objective.  In the meantime, markets subject to a certain
degree of government regulation would appear to be rather the rule in agricultural trade, andregulation-free markets the exception.  Claiming that, under Article 9.1(c), the right benchmark to
determine whether a "payment" exists is the extent  to which government has decided to intervene in
the market, depending on whether a good is destined by the buyer for export or not, ignores that
fundamental economic reality, as reflected in the object and purpose of the Agreement on Agriculture .
6.21 Finally, even assuming, for the sake of argument , that the Panel would agree with Canada that
the "reduced" or "market" price is the price of those transactions in which government intervention is
absent, Canada's argument would be self-defeating.   The fundamental reason for this is that the
commercial export milk price itself is, in reality, not a mere product of "arm's length transactions in a
private commercial context".
106  At least part of that context is clearly government-regulated.  At this
stage, the Panel does not need to look further than Canada's oral statement that it has "given producersand processors access to" another market.  Thus, by its own admission, the Canadian government has
intervened  for producers and processors to "have access to" that market.  Thus, the very existence of –
or, as Canada puts it – "access to" that market is premised on some degree of government
intervention.  As a result, should the Panel consistently apply Canada's argument, the benchmark for
the comparison with the export price would not be that same export price, but the price which aprocessor would pay to a milk producer but for  any intervention by the Canadian government relating
to supply and price managem ent in the dairy market .  If the Canadian government were not to
maintain a quota-system on the domestic market, and, hence, if the Canadian producers were able to
produce more for the domestic market than they can now, supply for the domestic market would
increase.  The resulting market equilibrium milk pr ice is likely to be lower than current domestic
market prices, but higher than current export prices.  In conclusion, even under Canada's "deregulated
market" analysis, there would still be a difference, albeit less extensive, between current export prices
and the counterfactual benchmark which would result from a consistent application of its argument.
6.22 Canada alludes to the "concession" by New Zealand that the current commercial export milk
prices reflect "world prices", apparently suggesting that when the "market price" would be taken to
mean the "world price", there would still be no "payment".
107  The Panel disagrees with Canada in two
respects.  First, for the reasons set out above,108 the Panel considers that the domestic market price
constitutes the right benchmark for the purpose of determining the existence of a payment under
Article 9.1(c).  Second, even assuming, for the sake of argument, that the Panel were to accept that
world prices constitute the right benchmark, Canada's argument would fail.
6.23 The Panel notes that the panel in the original proceedings addressed the same issue when
determining the existence of a payment in kind under Article 9.1(a):
                                                     
106 Canada's Oral Statement, paragraph 49.
107 Canada's Oral Statement, paragraphs 21 and 51.
108 See paragraphs 6.12-6.21 above.WT/DS103/RW
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We noted above that a benefit must be conferred for a payment in kind to exist in the
sense of Article 9.1(a).109 In this case, the question thus arises whether the provision
of milk to processors/exporters under Classes 5(d) or (e) confers a benefit to these
processors/exporters.  This, in turn, raises the question of what the appropriatebenchmark  is for determining whether the provision of a good at a certain price
confers a benefit.
110  Does it suffice, as the complainants argue, that milk for export
use is provided to processors at a price below the  domestic milk price  for there to be a
benefit conferred to these processors (hereafter referred to as "the first benchmark",
namely the domestic milk price)?  Or, does one need to establish that
processors/exporters receive milk under Classes 5(d) and (e) at a price which is not
only lower than the domestic milk price, but also lower than the price of milk theseprocessors/exporters can obtain from any other source, in particular the price of milk
they can source from the world market  (hereafter referred to as "the second
benchmark", namely the lowest milk price to be obtained from any other source)?
111
(emphasis added)
6.24 Without making a finding on the issue of the appropriate benchmark, the original panel
proceeded, in the first instance, on the assumption that the second benchmark, although more
favourable to Canada, was appropriate in the circumstances.  In the panel's view, if the price of milk
under Classes 5(d) and (e) was lower than the price at which processors/exporters could obtain milk
from any other source, a bounty or benefit – i.e., so mething they would otherwise not have obtained –
would, indeed, be conferred.112  Canada had argued that milk imported under its Import for Re-Export
Program ("IREP") would be available under equally favourable terms and conditions as those offered
under Classes 5(d) and (e).  The panel, however, concluded that the fact that the Minister had to issue a
permit before such imports were allowed and that the Minister disposed of a wide discretion in doing so,was proof that these imports were not effectively available under equally favourable terms and conditions
as those offered under Classes 5(d) and (e).
113
6.25 This Panel notes that nothing has basically changed under Canada's IREP as regards the terms
and conditions on which milk can be imported for export processing in Canada. Data has been
provided which indicates that during the period August 2000 to February 2001 imports of dairyproducts under the IREP increased.  However, Canada has confirmed that the Minister still has to
issue a permit before such imports are allowed.  In the light of the  evidence before it as a whole, it
appears to the Panel that the Minister still disposes of wide and untrammelled discretion as regards the
issue of import licences under the IREP.
114  In addition, processors who wish to import under the IREP
                                                     
109 [footnote omitted]
110 [footnote omitted]
111 Report of the panel on Canada – Dairy , paragraph 7.47.
112 Id., paragraph 7.48.
113 Id., paragraph 7.53.
114 Canada's reply to Question 18.  Although Canada asserts that licences are now granted
automatically, the new Guidelines, dated 17 April 2001 and contained in Canada's Exhibit 33, merely confirmthat
"the Minister […] may determine an import access quantity which may be allowed to enter at the low
rate of duty and the Minister may allocate it to residents of Canada." (Section 4.2)(emphasis added),
and that
"the Minister may issue to any resident of Canada applying therefor a permit to import goods included
in an Import Control List, in such quantity and of such quality, by such persons, from such places orWT/DS103/RW
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still have to pay an administrative permit fee.115  Therefore, even if  (i) world prices were to constitute
the right benchmark for the purpose of determining the existence of a "payment" under Article 9.1(c),
and even if   (ii) current commercial export milk prices were to reflect world prices,  the fact that the
Minister has to issue a permit before IREP imports are allowed, that the Minister disposes of a widediscretion in doing so, and that payment of an administrative fee is required, is proof that these imports
are not effectively available under equally favourable terms and conditions as those offered for
commercial export milk.
116
6.26 The Panel notes that the parties have also presented arguments regarding the competitive
relationship between fluid milk and whole milk pow der imported under the IREP, and that they have
submitted conflicting evidence regarding milk equivalent prices of whole milk powder.117  The Panel
takes note of the parties' arguments on the matter, but considers that the fact that imports of IREP
milk are subject to the discretionary licensing authorit y held by the Minister is sufficient for the Panel
to conclude that IREP milk is not available on equally favourable terms.
6.27 For the reasons set out above,118 the Panel accordingly finds that the provision of milk at
discounted prices to processors for export under the CEM scheme constitutes "payments", in a form
other than money, within the meaning of Article 9.1(c) of the Agreement on Agriculture .
                                                                                                                                                                    
persons and subject to such other terms and conditions as  are described in the permit or in the
regulations ." (Section 4.3)(emphasis added)
Thus, the new Guidelines do not appear to restrict in an y way the Minister's discretion, and even if the Minister
were to be exercising that discretion in a certain way today, under the new Guidelines he would be free toexercise it differently tomorrow.  Canada's assertion that "absent evidence that discretionary legislation is beingapplied in a manner contrary to WTO obligations, ther e can be no presumption of inconsistency" (Canada's
reply to Question 18, paragraph 35) is in the Panel's view irrelevant.  The Panel is not assessing the WTOconsistency of the IREP, but is simply determining whether or not milk can be sourced at equally favourable
conditions through the IREP.
115 Canada's Exhibit 33, Section 7.1.
116 The Panel also considers that using world market  price related benchmarks under Article 9.1 (which
for many if not most agricultural products would in practice be difficult to establish) would tend to evisceratethe substance of the  export commitments and defeat one of the main objects and purposes of the Agreement on
Agriculture .  Clearly, to do so would open up the possibility of using benchmarks under administratively created
and controlled import for re-export schemes to get around the scheduled export subsidy reduction commitment
levels under which only 25 WTO Members are able at present to use export subsidies.
117 In its reply to Question 10 from the Panel, Canada has stated that the average weighted price for
fluid milk for the period examined was C$0.44/kg.  According to the United States, this price would
approximately be C$45/hl and would therefore not be equally favourable as the CEM price.  In addition, Canadahas argued that whole milk powder is competitive with fluid milk and is available on equally favourable terms.
According to the United States, however, imports of whole milk powder under the IREP do not constitute a
source of milk that is available on equally favourable terms as domestically purchased milk.  The United Stateshas asserted, first, that, when appropriate corrections are applied, the C$20.46/hl price provided by Canadawould be nearly doubled.  Second, even if the price of whole milk powder were equally favourable, the UnitedStates disagrees that whole milk powder would be directly competitive with fluid milk.  Canada has responded
to the United States' comment stating that if one were to  use other conversion factors used by the United States,
as well as the average value of C$2.55/kg for imported whole milk powder, the resulting milk equivalent priceswould remain within the range of CEM prices of C$29-$33/hl.  Canada has also noted that there is no "standardconversion factor" between whole milk powder and raw milk, whether it be at the Canadian, US or internationallevel.  According to Canada, while there has been limited debate within the International Dairy Federation onmilk equivalents, there is neither specific agreement nor general consensus on this issue.
118 Paragraphs 6.11-6.26 above.WT/DS103/RW
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6.28 Having found the existence of a "payment", the Panel notes that this finding is fully consistent
with the original panel's consideration in paragraph 7.62 of its report on Canada - Dairy , on which
Canada has relied.119  Paragraph 7.62 of the panel report reads:
We want to stress, however, that the existence of this "payment in kind" to processors
does not in and of itself establish the ex istence of an export subsidy within the
meaning of Article 9.1(a).  In our view, in particular the existence of parallel markets
for domestic use and for export with different prices does not necessarily constitute
an export subsidy.120  Whether or not the "payments-in-kind" to processors in this
dispute constitute an export subsidy depends on the government's involvement in
providing it.121  This relates to the second condition under Article 9.1(a).  (emphasis
added)
6.29 The Panel notes that this statement was made in the context of Article 9.1(a), not
Article 9.1(c). Nevertheless, the Panel agrees with Canada that the statement merits reflection also in
the context of Article 9.1(c).  The Panel considers that, in the case before it, the mere "payment"
would not in and of itself establish the existence of an export subsidy within the meaning of
Article 9.1(c).  In particular, the existence of parallel markets for domestic use and for export withdifferent prices would not necessarily constitute su ch an export subsidy.  This view, however, does
not in any way conflict with the Panel's fi nding regarding the existence of a "payment".
6.30 First, the Panel draws attention to the last phrase of paragraph 7.62, which makes clear that
the panel simply meant to say that a certain degree of government involvement is required for the
"payment in kind" to become an export subsidy under Article 9.1(a):  it must also be demonstratedthat the payment in kind is "provided by governments or their agencies".  The same reasoning holds
true for Article 9.1(c):  the existence of a "payment" is not sufficient to conclude that there is an
export subsidy.  The Panel must, in addition, examine whether that payment was "financed by virtue
of government action".
6.31 Second, footnote 412 to paragraph 7.62 explains when the existence of parallel markets for
domestic use and for export with different prices would not constitute an export subsidy:
The price differential may, for example, be a consequence of high – but WTO
consistent - import tariffs that can cause domestic prices to be higher than the world
market price.  In such scenario, effici ent producers may take the decision – based on
their own profitability - to also produce and se ll milk for export, albeit at a lower price
than the domestic price.  If the decision to sell in either the domestic market or the
export market is one made by the individual producer and  based on commercial
grounds only (e.g., on an allocation of sales to the two markets with a view to obtaining
a maximized total revenue, taking into account the inherently limited domestic demand
for milk and the lower price for export) -  not a decision by the government or its
agencies taken on behalf of the producers  - such scenario would, in our view, not
appear to be an export subsidy in the sense of Article 9.1. (emphasis added)
It is readily apparent, in the Panel's view, that the facts of this case do not fit with this hypothetical
scenario.  Domestic prices are high, not simply because of high import tariffs, but as a result of
government regulation setting, inter alia , price floors and marketing quotas.  At the same time, it
confirms that only when the decision by Canadian producers to sell for either market is based
                                                     
119 Canada's First Submission, paragraph 99.
120 [footnote omitted]
121 [footnote omitted]WT/DS103/RW
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exclusively on commercial considerations, the existence of parallel markets with different prices
would not necessarily constitute an export subsidy. This is precisely the analysis to which the Panel
will now turn.
(c) "Financed by Virtue of Governmental Action"
(i) Arguments by the parties
6.32 Both New Zealand and the United States argue that the above payments are being financed by
virtue of governmental action, in reference to paragraph 120 of the Appellate Body report on Canada
– Dairy , according to which this condition is met if governmental action is "indispensable" to the
transfer of resources.  Both claimants argue that, in this case, lower priced milk would indeed not be
available to processors for export, and resources not transferred, but for  the combined effect of a set of
governmental measures.
6.33 Canada argues that there must be "a direct connection" between the governmental action and
the payments, an interpretation which it sees confirmed by an ordinary meaning analysis of "by virtue
of".  According to Canada, such a direct connection does not exist in this case.
6.34 New Zealand and the United States argue, and Canada contests, that the following
governmental measures, "taken as a whole", meet the standard of "financed by virtue of governmentalaction" under Article 9.1(c):
(a) The regulatory distinction between the domestic milk market and the commercial
export milk market, whereby the former is regulated with respect to both quantity
ceilings and price floors and the latter is exempt from such regulation.
(b) The prohibition against selling over-quota or non-quota milk into the domestic
market, with the exception of class 4(m) milk (animal feed).
(c) The prohibition, both on federal and provincial level, against diverting any milk
committed to export into the domestic consumption market, enforced by sanctions
and penalties at the federal and provincial level.
(d) The regulations granting the authority to the Canadian Dairy Commission ("CDC") to
audit the books and records of producers and processors to determine whether
commercial export milk has been marketed for final consumption in Canada.
(e) The requirement that commercial export milk has to be "pre-committed" for export
and "first out of the tank".
(f) As regards Ontario and Quebec, the obligation to sell all commercial export milk
through an exclusive, mandatory bulletin board system where processors invite offers
of milk for export contracts at prices established by the processors.
(ii) Textual and contextual analysis of "financed by virtue of"
6.35 The Panel notes that the dictionary meaning of "by virtue of" is " by the power or efficacy of;
now, on the strength of; in consequence of; because of ",
122 and " by force of, by authority of, by reason
                                                     
122 New Shorter Oxford English Dictionary (Lesley Brown, ed.), page 3586.WT/DS103/RW
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of".123  The term appears to refer to (i) a certain degree of causality between cause and effect (in
consequence of, because of, by reason of), and (ii) the exercise of a power to enforce obedience or
influence action124 (by authority of, by the power of).  The Panel considers that dictionary meaning (i)
is subsumed under dictionary meaning (ii):  when a result is said to come about by the power toenforce obedience or influence action, the exercise of that power can be considered the cause, and the
obedience or action the result.  This is clear when the obedience is "enforced", but also when the
action is simply "influenced":  in both instances, the result would not occur but for  the power to
enforce or influence.  The Panel considers that these dictionary meanings provide useful guidance
regarding the ordinary meaning of "by virtue of".
6.36 The dictionary meaning of "to finance" is " pay or put to ransom;  engage in or manage
financial operations; provide oneself with capital;  provide with money, esp. capital;  provide moneyfor".
125  The Panel considers that the ordinary meaning of "payments financed", as used in
Article 9.1(c), is therefore "payments for which money is provided".126
6.37 The Panel now turns to an analysis of the context of "financed by virtue of" in Article 9.1.
First, the Panel notes that Article 9,1(c) itself provides an example of what may be understood as
meaning "financed by virtue of":  when payments are financed from the proceeds of a levy imposedon the agricultural product concerned or on an agricultural product from which the exported product is
derived, those payments would be "financed by virtue  of" governmental action.  In this example, the
governmental action would supposedly be constituted by the imposition  of the levy on the agricultural
product concerned or on an agricultural product from which the exported product is derived.  When
government imposes such a levy, for example, it will also be government who allocates  the proceeds
of that levy to a certain beneficiary or group of beneficiaries in society.  Therefore, when
Article 9.1(c) states that payments are financed from  the proceeds of the levy, it carries with it the
implicit, but clear, understanding, that government has necessarily also allocated  those proceeds to
the financing of the payments.  As a result, in the example provided by Article 9.1(c), "by virtue of"
clearly implies the exercise of government power with the effect of  financing payments on the export
of agricultural goods, whereby the governmental action is indispensable  for the funds to be transferred
from grantor to recipient.  The Panel, however, is aware that the example provided by Article 9.1(c) is
merely illustrative, not exhaustive, and that, therefore, the scope of "financed by virtue of" is not
necessarily restricted to the meaning imparted to it by this particular example.
6.38 Consideration should also be given to the context provided by the other paragraphs of
Article 9.1.  The Panel notes in this respect the prominent difference which exists as regards the
nature and extent of government action required under paragraph (c) as compared with the otherparagraphs of Article 9.1.  Whereas paragraph (c) requires that the payment merely be " financed by
virtue of " governmental action, other paragraphs of Article 9.1 require the " provision by  governments
or their agencies",
127 the " sale or disposal by  governments or their agencies",128 the " provision of
subsidies",129 "charges provided or mandated by governments".130  The Panel considers that this
difference must have some meaning.  In the Panel's view, a key difference exists as regards both (i)the nature  of the involvement and (ii) the extent  of the involvement by government.  First,
governments or their agencies under paragraph (c) need not necessarily themselves directly provide
                                                     
123 Black's Law Dictionary (5th Edition), page 182.
124 Based on the New Shorter Oxford English Dictionary meaning of "authority" (page 151).
125 New Shorter Oxford English Dictionary, page 950.
126 The Panel notes that none of the parties has examined in much detail how "financing" by virtue of
governmental action should be interpreted.
127 Article 9.1(a) of the Agreement on Agriculture .
128 Article 9.1(b) of the Agreement on Agriculture .
129 Article 9.1(d) of the Agreement on Agriculture .
130 Article 9.1(e) of the Agreement on Agriculture .WT/DS103/RW
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subsidies or goods or services at reduced rates.  The government or its agencies are merely involved
in the financing  of the payment which may exist as a result of the provision of goods at reduced rates.
Second,  the payments need not necessarily be directly financed by governments or their agencies
under paragraph (c).  Through the exercise of governmental power, they only establish the conditions
which ensure that the payment, i.e. the transfer of resources from producer to processor, takes place.
The governmental action is, in that sense, a necessary condition for the transfer to take place.
6.39 In conclusion, on the basis of the text and context of Article 9.1(c), the Panel considers that
for a payment to be "financed by virtue of governmental action", it must be established that a payment
would not be financed, i.e. resources would no t be transferred from grantor to recipient, but for
governmental action.
6.40 This textual and contextual meaning coincides wi th the Appellate Body's interpretation of this
term in its report on Canada – Dairy  as referring to action which is " indispensable " to the financing
of the payment.131  An action is indispensable when it is necessary or vital to a result which could not
take place without it.  Although it cannot be inferred from the Appellate Body report in Canada –
Dairy  that the Appellate Body meant to equate "by virtue of" with "indispensability" as a matter of
general interpretation, the Panel does consider that, having regard to the text and context ofArticle 9.1(c), it does constitute an appropriate standard to be applied under Article 9.1(c) in this case,
as it did in the original case.
(iii) General analysis by the Panel
6.41 The question which the Panel needs to address is the following: would milk processors for
export have access to lower priced commercial export milk in Canada but for  governmental action?
Put another way, have the Canadian government and its agencies taken action which is indispensable
for the lower priced milk to be available to processors for export?
6.42 The Panel considers that this standard would be met if it can be demonstrated that
governmental action, de jure  or de facto :  (i)  prevents Canadian milk producers from selling more
milk on the regulated domestic market, at a higher price, than to the extent of the quota allocated tothem;  and (ii)  obliges Canadian milk processors to export all milk contracted as lower priced
commercial export milk, and, accordingly, penalizes the diversion by processors of milk contracted as
commercial export milk to the domestic market.  As explained below,
132 only if both those
requirements were to be met, governmental action co uld be said to be indispensable for the transfer of
resources to take place: the lower priced commercial export milk would not have been available to
Canadian processors for export but for  these governmental actions, taken together.
6.43 When a producer decides whether to produce for the domestic market or the export market, it
can be assumed that he will try to maximize his profits.  The Panel notes in this respect that the parties
have submitted conflicting data on milk producers' average costs of production and their related
capability to produce profitably for export.133  According to Canada, the information provided by the
complainants is intended to convince the Panel that producers are forced  to sell milk into the
commercial export market because absent governme nt compulsion to do so, they would not sell into
                                                     
131 Report of the Appellate Body on Canada – Dairy , paragraph 120.
132 See paragraphs 6.43-6.48 below.
133 According to the United States, less than 1 pe r cent of Canadian producers could cover costs of
production at export prices of around C$30/hl (United States' Second Submission, paragraph 13 and UnitedStates' Exhibit 24), whereas Canada asserts that these fi gures are inadequate and argues that over 30 per cent of
Canadian producers could cover their costs of production at a price of C$31.53/hl (Canada's Oral Statement,
paragraphs 17-22 and Canada's Exhibit 26).WT/DS103/RW
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that market at a loss.134  Canada also asserts that government does not direct, compel, or even
encourage  producers to sell into the commercial export market.  Thus, according to Canada, the
reasons why certain producers sell into the commercial export market and other producers do not sell
into that market are irrelevant.135
6.44 The Panel makes the following observations in this respect.  First, under this Panel's, and the
Appellate Body's, interpretation of "by virtue of governmental action" as referring to governmental
action which is "indispensable to" the financing of a payment, it is not necessarily required that a
government "forces", "directs", or "compels" producers to sell into the commercial export market.
What is required is that producers would not sell into the commercial export market but for
governmental action.  This requirement is quite different from the one advanced by Canada.  Whether
the government "forces" or merely "encourages" pr oducers to sell into the commercial export market
are qualifications  of the causal relationship required under Article 9.1(c).  The "financed by virtue of"
requirement, however, does not necessarily qualify the causal relationship between governmental
action and payment in the way suggested by Canada.  It only requires that, independently of the nature
of the governmental action, it must be indispensable for the resources to be transferred.  What is
indispensable in terms of governmental action may vary from one case to another.
6.45 Second, the Panel disagrees with Canada that producers in this case would not be, at least,
"encouraged" by government to sell into the commercial export market if the existence of the above
two categories of governmental action would be es tablished.  Indeed, in the Panel's view, if the
existence of the above measures were to be established, the choice left to the Canadian producer is not
a real choice.  Why would the economically rationa l producer sell other than for the domestic market
at an average price of about C$53/hl in the absence of such regulation? Would the economically
rational producer rather sell commercial export milk in the C$30/hl range, under class 4(m) in the
C$10/hl range, or destroy his production?  In the Panel's view, this is not tenable.  The economically
rational producer will sell for export only if he cannot sell to the domestic market, either because his
quota is filled, or he anticipates that it will be filled,136 or because he does not have any quota.137
Arguing the opposite is disregarding the basic assumption that the economic behaviour of a producer
is premised on profit-maximization.  The reasons why producers in Canada sell into the commercial
export market are therefore not "irrelevant", as Canada would argue:  if the existence of the above
measures can be established, the "reason" would be the governmental action driving producers to the
economically second-best option of producing for expor t.  This reason is, in the Panel's view, highly
relevant, because it would establish that producers choose the economic second-best option as a
totally rational and predictable reaction to government action taking away the first-best option.
6.46 Therefore, the fact that milk has to be pre-committed  or first-out-of-tank  for it to be exported
does not affect the Panel's analysis in paragraph 6.42.  Canada argues that by pre-committing milk to
export, producers are required to decide how to allo cate their production in advance, before knowing
whether they will exceed their domestic quota.  According to Canada, this demonstrates that
commercial export milk is not milk produced above the domestic quota, and that the decision toproduce for export is a commercially free one.  In  the Panel's view, however, these pre-commitment
and first-out-of-tank requirements would not change the fact that the decision to sell for the export
market would not be based on purely commercial considerations if the above governmental action can
                                                     
134 Canada's Oral Statement, paragraph 17.
135 Id., paragraph 18.
136 See paragraph 6.47 below.
137 The Panel notes that at this time more than 99,5 per cent of Canadian producers have chosen not to
sell exclusively milk for the commercial export market (Canada's reply to Question 3).  The 74 producers whodo not hold quota and do exclusively produce for the commercial export market, accounted for 0,08 per cent of
total milk production in Canada between August 2000 and February 2001 (Canada's reply to Question 21).WT/DS103/RW
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be established.  A decision based on purely commercial  considerations will maximize profit.  Selling
for export, rather than for the domestic market, does not maximize profit, unless the first-best profit-
maximizing option has been foreclosed by governmental action .  Inevitably, if a producer decides "in
advance" to produce for the second-best option, it is because he knows that the first-best option will,at some point, no longer be available.  Accordin g to Canada, producers can calculate and "pre-plan"
their production for export.
138  If this assertion by Canada is true, then a producer who regularly – and
knowingly – produced surplus-milk in the past, will  know whether he will be producing milk above
his quota in the future.  Consequently, that produce r, following Canada's assertion, would be able to
anticipate whether his production will exceed the quota, and "pre-commit" that portion to export.  If
the decision to pre-commit for export was a truly commercial one, i.e. the first-best option, producers
would produce for export rather than fill their quo ta.  Producers in Canada who pre-commit milk for
export, however, continue to meet their domestic quota.139
6.47 Finally, the complainants have argued that th e regulatory requirement to use exclusively
electronic bulletin boards for all export milk transactions in Ontario and Quebec is part of the
governmental action by virtue of which the payment is made.  The Panel notes that the bulletin boards
physically bring together offer and demand for commercial export milk, and, in that sense, areinstrumental in the conclusion of export milk c ontracts.  The Panel does not see, however, how the
use of such bulletin boards, mandatory or otherwise, could be indispensable  to the provision of lower-
priced milk.  In the Panel's view, it would be the governmental action referenced at paragraph 6.42
which would be indispensable to the provision of lower-priced milk.  The very assertion by the
complainants that payments on export milk are financed by governmental action in the otherprovinces, where those bulletin boards either are not in place, or, as in the case of Manitoba, their use
is not mandatory, would appear to confirm this.  All other things remaining the same, if a payment
could be financed by virtue of governmental acti on in provinces where no bulletin boards are in place
or their use is not mandatory, those bulletin boards could then not be said to be "indispensable" to the
financing of the payment in the two provinces where they do exist and their use is mandatory.  At thisstage, therefore, the Panel does not consider that the mandatory and exclusive use of electronic
bulletin boards for commercial export milk in Ontario and Quebec would appear to be indispensable
to making commercial export milk available to processors at reduced rates.
6.48 Thus, the Panel considers that the above governmental action, if proven, would drive milk
producers in Canada to sell milk produced outside their quota at a lower price into the export market.
The fact, however, that producers are driven by governmental action to sell milk produced outside
their quota into the export market would not necessa rily be sufficient to ensure that such milk
effectively ends up in the export stream.  Anti-diversion measures need to be put in place and
enforced to ensure that processors  do not divert commercial export milk back to the domestic market.
If processors were allowed to market milk contracted for export by producers on the domestic market,
they would have a commercial incentive to do so.  Since processors buy commercial export milk at
prices approximately 40 per cent lower than domestic market prices, they could, by sourcing milk onthe export market and subsequently marketing the processed product on the domestic market, reduce
the cost of raw material by 40 per cent and substantially increase their profit margins.  As a result, it is
unlikely that the same amounts of lower priced commercial export milk would end up in the export
stream.  Thus, but for  governmental action obliging Canadian milk processors to export all milk
contracted for export, and, accordingly, penalizing the diversion of commercial export milk to thedomestic market, there would be no payment on the export of milk.  Therefore, only if the Panel were
also to find that governmental action obliges Canadi an milk processors to export all milk contracted
                                                     
138 Canada's Rebuttal Submission, paragraph 54;  Canada's First Submission, paragraphs 42, 53-54.
139 The fact that 74 out of approximately 18,900 Canadian producers produce exclusively for export
without having domestic quota (Canada's reply to Question 3) does not affect the Panel's conclusion.  As stated
earlier, these producers account for only 0,08 per cent of Canadian milk production.WT/DS103/RW
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as commercial export milk, and, accordingly, penalizes the diversion of commercial export milk to the
domestic market, a payment on Canadian dairy exports could be said to be "financed by virtue of
governmental action."
6.49 In conclusion, the two categories of governmental140 measures referred to at paragraph 6.42
above, if proven, in and of themselves, would be considered indispensable to the financing of the
payment on the export of milk.  The Panel will now turn to an analysis of the claims that these two
categories of governmental measures do effectively exist in Canada.
(iv) Does governmental action prevent Canadian pr oducers from selling milk produced outside
their quota on the domestic market?
6.50 In principle, dairy producers in Canada can only market their milk on the domestic market to
the extent of the quota they have been allocated.141  Consequently, and subject to the Panel's
considerations below,142 a Canadian dairy producer is in principle prevented from marketing his milk
on the domestic market outside the quota allocated to him.
6.51 Canada argues, however, that this governmental restriction is mitigated by (i) the possibility
to sell milk under Class 4(m) (animal feed), and (ii) the possibility for producers to trade and/or lease
additional quota among each other.
6.52 First, as regards the Class 4(m) option, the evidence on the record shows that Class 4(m) sales
are a commercially far less attractive option as compared to quota sales or commercial export sales.
Canada has confirmed that the average Class 4(m) price is C$10/hl, i.e. about 20 per cent of the
average quota milk price and about 30 per cent  of the average commercial export price.143  It follows
that, if a rational producer were to be given the choice between selling for the domestic quota marketor the commercial export market and selling under Class 4(m), he would, absent exceptional
circumstances, never sell milk under Class 4(m).  Not surprisingly, Class 4(m) sales constitute a very
small portion of total milk sales in Canada (less than 1 per cent
144).  The theoretical choice offered to
the producer under Class 4(m) is therefore not of such a nature as to mitigate the governmental
restriction on production for the domestic milk market.
6.53 Second, as confirmed by Canada, the fact that producers are free to trade quota among each
other  cannot in any way affect the ceiling of total quota volume  set by the government.145  The trading
among producers of individual quota always takes places below that ceiling, and inter-producer quota
transactions do not increase the total volume of available quota.  According to Canada, "quota is
                                                     
140 The Panel considers that the entities involved in  the adoption and/or enforcement of the measures
referred to in paragraph 6.42 above do not raise questions as regards their qualification as "governmental".These entities, i.e. the federal and provincial governments, the CDC, the CMSMC and the provincial marketingboards, were all found to meet the "governmental" requirement in the Panel report on Canada –Dairy
(paragraphs 7.73-7.80), and the Panel's underlying reasoning and its finding with respect to the governmental
character of the provincial marketing boards was confirmed by the Appellate Body (paragraphs 93-102).  ThePanel considers that no change in the source of these entities' powers or in the functions conferred upon themcan be observed which would justify changing the qualification of their action as "governmental".
141 This is not controversial.  See, for instance, Ca nada's First Submission, paragraphs 7, 24, 31, 41.
See also the report of the panel on Canada – Dairy , paragraph 2.20.
142 See paragraphs 6.52-6.53 below.
143 Canada's reply to Question 2b.
144 Id.
145 Canada's reply to Question 4(a)(i).  Only government, not inter-producer quota transactions, can
change the total quota volume.  The CMSMC automatically adjusts MSQ for the domestic market to reflect
changes in domestic demand using an agreed formula (Canada's reply to Question 15(a)).WT/DS103/RW
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always available to those producers willing to purchase/lease additional quota who bid  at or above
the market price for quota."146  This may be true.  However, if demand for a – by definition – scarce
product such as quota is strong, the price of additional quota is likely to be high.  When demand
increases, supply remaining the same, the price can be expected to increase as well.  As a result, thecost of trading additional quota would exceed the profit its use may generate, and the purchasing or
leasing of additional quota would no longer be a profit-maximizing one.
147  Canada has confirmed that
between August 2000 and February 2001, only about 3.85 per cent of originally allocated quota in
Canada changed hands.148 The Panel also notes that Canada had asserted, but not documented, that
"over 5 per cent of quota changes hands in Canada every year."149  The Panel considers that these
small proportions may be indicative of the extent to which producers in Canada consider the
purchasing or leasing of quota a commercially viable alternative.  The Panel considers, therefore, that
the theoretical choice offered to the producer to purchase or lease additional quota is not of such a
nature as to mitigate the governmental restriction on production for the domestic milk market.
6.54 In conclusion, the Panel considers that, for the reasons set out above,150 Canadian dairy
producers are, at least de facto , prevented by governmental action from freely marketing outside-
quota milk on the domestic market.
(v) Does governmental action oblige Canadian milk processors to export all milk contracted as
commercial export milk, and, accordingly, penalize the diversion of commercial export milk
to the domestic market?
6.55 Arguments have been advanced by the complainants concerning both federal and provincial
regulatory provisions.  The Panel will first address the arguments made concerning the federalRegulations, and thereafter the arguments made concerning the various provincial provisions.
The federal Dairy Products Marketing Regulations
6.56 The United States submits that although there is no explicit prohibition on diverting milk
contracted for export into the domestic market, to do so would still constitute a violation of the federal
Dairy Products Marketing Regulations (the "federal Regulations").  According to the United States,this is because only milk that precisely meets the definition of "commercial export milk" is exempt
from the federal Regulations.  Part of the definition of "commercial export milk" under section 2(1)(b)
is that the milk must be "marketed in a province set out in the schedule and  in a manner that is
consistent with exclusions from the dairy product marketing laws in that province ."  Thus, in the view
of the United States, if commercial export milk is diverted into the domestic market in violation of
provincial regulations, it would no longer fall with in the exclusion for "commercial export milk" and
therefore would be subject to domestic regulation and the seizure power of the federal inspectors.
151
                                                     
146 Canada's reply to Question 4(a)(ii), paragraph 11.  Emphasis added.
147 The Panel notes that New Zealand has asserted, on the basis of New Zealand's Exhibit 15, that "the
right to produce 1 kg of butterfat per day can cost over C$25.000" (New Zealand's Rebuttal Submission,
paragraph 4.18), and that Canada has not contested this assertion.
148 Canada's reply to Question 4b.
149 Canada's Rebuttal Submission, footnote 53.  Canada's Oral Statement, paragraph 14.
150 Paras. 6.50-6.53.
151 United States' Second Submission, paragraph 49.  In its First Submission, the United States had also
asserted that it results from new section 7(4) of the federal Regulations that "any person who knowingly divertscommercial export milk for final consumption in Canada violates the [federal] Regulations." (footnote 62)According to the United States, Section 11(1) of the federal Regulations "empowers inspectors appointed underthe Canadian Dairy Commission Act to seize any dairy product that the inspector believes on reasonablegrounds was marketed in interprovincial or export trade in contravention of the [federal] Regulations. Since the
[federal] Regulations prohibit the diversion into Canada's domestic market of any milk committed to export, theWT/DS103/RW
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The United States has provided the Panel two examples of situations where, in the United States'
view, milk that falls out of the defined exemption for "commercial export milk" could trigger a
violation of federal Regulations and, thus, seizure by the federal inspector of the milk, or the products
into which it was manufactured, under section 11(1):152
(a) if the processor purchased milk from a producer without a federal license (since none
is required under federal regulation for commercial export milk):  the diversion of this
milk would entail a violation of section 7(3), because, if the milk no longer meets the
definition of "commercial export milk," then section 7(3) would apply and a federal
license would be required.
(b) if the processor is not identifying the diversion of milk in his written records (in other
words, the records are incorrect or incomplete):  a violation of section 10 would arisebecause he would not be keeping accurate records.
6.57 Canada confirms that if milk is marketed in a province in a manner that is not consistent with
exclusions from the dairy products marketing laws in that province, then it does not meet the
definition of commercial export milk in the federal Regulations , and is therefore not excluded from
the application of sections 4 to 7 and 8 and 9 of the federal Regulations.
153  As regards the possibility
of seizure by federal inspectors in the two examples provided by the United States, Canada has stated
that "[a] violation of [the] requirement [to keep books and records under Section 10] cannot be
equated to a diversion of commercial export milk into the domestic market."154
6.58 The United States and Canada confirm that there is no de jure  prohibition in the federal
Regulations on diverting milk contracted as commercial export milk to the domestic market.  AsCanada confirms, however, if a sale of commercial export milk into the domestic market were to
occur, there would be "financial consequences" for the processor.  The processor would pay twice  for
milk:  initially at the price contracted under the commercial export contract, and then a second time at
the much higher domestic price.
155  The Panel therefore considers that the federal Regulations
penalize diversion of commercial export milk to the domestic market through the application of"financial disincentives".  These "financial disincentives" exceed the domestic market price and are
therefore of a punitive nature.
   The Panel considers that this penalty, in conjunction with the CDC's
auditing power,156 constitutes an effective government-imposed deterrent to diversion of commercial
export milk.
                                                                                                                                                                    
CDC inspectors (and their provincial counterparts) have  been given authority to seize any commercial export
milk or cream that based 'on reasonable grounds' is believed to have been sold into the domestic market for finalconsumption, rather than exported as required by th e [federal] Regulations." (paragraph 46).  Following the
Panel's request to clarify its position regarding those ar guments under the federal Regulations, the United States
confirmed that it considered its argument regarding section 7(4) moot (United States' reply to Question 5a).  The
Panel will therefore not address the argument made under section 7(4) of the federal Regulations.
152 United States' reply to Question 5c.
153 Canada's reply to Question 5c.
154 Canada's Comments on the United States' and New Zealand's replies to the Questions of the Panel,
paragraph 8.
155 Canada's reply to Question 5c, paragraph 16.  Although Canada does not specify that these
"financial disincentives" would result from the application of the federal Regulations, the fact that (i) theinformation was provided in response to the Panel' s specific question regarding the United States' argument
under the federal Regulations, and (ii) that Canada makes no reference in its reply to provincial measures, seemsto confirm, in the Panel's view, that Canada was referring to the application of the federal Regulations.
156 The CDC has the authority, pursuant to Section 10 of the federal Regulations, to request every
person who is engaged in the production or processing of a dairy product for marketing in interprovincial orWT/DS103/RW
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6.59 As regards the possibility of seizure by federal inspectors in the two examples provided by the
United States, the Panel considers that, even if the examples were to accurately reflect the operation
of the federal Regulations, their relevance to the Panel's assessment is rather limited.  In the Panel's
understanding, example (a) would ordinarily only apply if the diverted milk has been produced by a
producer who does not hold a licence and, therefore,157 would normally not hold quota.  As
acknowledged by the United States,158 the number of those Canadian milk producers that produce
without a quota for the export market is extremely small, and so are the quantities they produce.
Example (b) does not concern a breach of the federal Regulations by the diversion of commercial
export milk to the domestic market, but, rather, by not keeping accurate records.  If the diversion of
commercial export milk would be accurately reflected in the processor's records, the "financial
disincentives" referred to by Canada are likely to kick in, but no breach of Section 10 would occur,and, thus, no milk would be seized.
Provincial Measures
6.60 Both complainants have argued that anti-diversion measures are in place at the provincial
level in Canada.  They have mostly focused their arguments on the provinces of Quebec and Ontario,
given the importance of these provinces in terms of Canadian milk exports.
159  All parties, however,
have also submitted or clarified information with regard to other milk-exporting provinces in Canada.
6.61 The Panel takes note of Canada's statement that, under each of the nine provincial regimes
governing the purchase and sale of non-quota milk, "all producers and processors in Canada are
subject to sanctions for breach of [certain provin cial regulatory] requirements.  These could include
suspension or cancellation of license or in some circumstances penalties […] and/or financial
consequences (i.e. through product re-classification or in the case of comme rcial export milk, if sold
in the domestic market, by becoming part of the domestic classification system )."160  (emphasis added)
6.62 The Panel, therefore, accepts as established that  diversion of commercial export milk into the
domestic market will, at least, result in "financial consequences" in all nine milk-exporting provinces
in Canada.  The Panel will now turn to an analysis of the individual provinces to determine the levelof these financial consequences and the applicability of other sanctions, such as the suspension or
cancellation of licences.
                                                                                                                                                                    
export trade to make available complete and accurate book s and records of all matters relating to production or
processing.  According to new Section 10.1, "[a]ny in formation made available to the [CDC] under Section 10
does not have to contain pricing or other information on commercial export milk or cream, except information
that is necessary to determine whether it has been marketed for final consumption in Canada ." (emphasis
added)  If the CDC would not have this authority to veri fy whether milk contracted as CEM has been diverted to
the domestic market, the likelihood that processors co uld divert CEM without paying the applicable penalties
would, of course, be much greater.  The assertion by Canada that a CDC audit which takes places after the
transaction cannot affect decisions regarding that transaction (Canada's First Submission, paragraph 111) is notconvincing: one would not forego the making of an income tax declaration because the tax inspector only auditsone's books later on.
157 Section 7(1) of the federal Regulations provides that the Canadian Dairy Commission shall cause a
federal licence to be issued only to a person (a) to whom  a share of the federal quota has been allotted;  (b) who
is registered as a milk producer with, or is licensed as a cream producer by, the Manitoba Milk Producers;  or (c)who is licensed as a producer under the Milk Act of Ontario.
158 United States' Second Submission, footnote 4.
159 The United States asserts that Quebec and Ontari o together account for approximately 80 per cent of
Canadian milk exports (United States' First Submission, paragraph 20).
160 Canada's reply to Question 19(ii).WT/DS103/RW
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Quebec
6.63 Decision 7111 of the Régie des Marchés Agricoles et Alimentaires du Québec (the "Régie"),
dated 28 July 2000, has amended the provisions of the Milk Marketing Agreement between the
Féderation des Producteurs de Lait du Quebec and Agropur (the "MMA Agreement").  The Panelnotes that Canada refers to Decision 7111 as either the "relevant legal provisions"
161 or the "relevant
regulatory amendment" in Quebec.162
6.64 Pursuant to the amended paragraph 2.25 of the MMA Agreement
All components of milk intended for export markets and covered by a specific
commitment between an individual producer and a milk dealer must be exported.
Any milk dealer who breaches this obligation is subject to the penalties stipulated in
this chapter.
Pursuant to the amended paragraph 2.43 of the MMA Agreement,
When a milk dealer is unable to show that all the quantities of components of the
volume of milk received have been exported or are stored, it must, upon receiving the
audit report to this effect, pay to the Federation, subject to the other remedies of the
parties to the contract, an amount, per kilogram of component, equal to twice thecomponent price payable in class 3b
2.
According to the United States, the penalty would equal an amount that would approximately be four
times the price that the processor would have paid for milk destined for export.163  Canada has not
contested this assertion.
6.65 The Panel considers that this penalty is of a punitive nature and, in conjunction with the
CDC's auditing power, constitutes an effective government-imposed deterrent to diversion of
commercial export milk.
Ontario
6.66 The United States has submitted a document entitled "Ontario Dairy Export Exchange
Mechanism", provided by the Canadian government and "describing the dairy export mechanisms for[….] Ontario."
164  In its reply to a request for clarification by the Panel following its meeting with the
parties, however, Canada has explained that this document is a draft document, and that it has been
replaced by a different version,165 which does not contain the provisions the United States referred
to.166  Notwithstanding the fact that the document submitted by the United States has never been more
than a draft, the United States opines that "[i]n any event, the statements in the document should be
treated as admissions by Canada for the purposes of this proceeding."167  The Panel does not agree
with the United States, and will only consider the final version of the document.
                                                     
161 Canada's reply to Question 19(i).
162 Canada's reply to Question 19(ii). Canada also lists Decision 7111 as such (Canada's Exhibit List,
page iv).
163 United States' First Submission, paragraph 37.
164 United States' Exhibit 6.
165 Canada's reply to Question 6.
166 "Ontario Dairy Export Contract Exchange Mech anism", contained in Canada's Exhibit 32, New
Zealand's Exhibit 7.
167 United States' reply to Question 6.WT/DS103/RW
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6.67 Section F.1 of the Ontario Dairy Export Contract Exchange Mechanism provides,
All buyers will keep and provide to the auditor of the domestic market all records
required to demonstrate that all components provided pursuant to an export contract
have either been duly exported or are being held in inventory.
6.68 The Panel considers that this provision clearly implies the existence of an obligation for
processors to export milk contracted through the Ontario Dairy Export Contract Exchange
Mechanism.  Although Canada has characterized the document as a "private industry agreement",168
the Panel notes that one of the parties to this agreement is DFO (Dairy Farmers of Ontario), aprovincial marketing board, which the Panel in its report on Canada – Dairy  has characterized as an
agency of the Canadian government,
169 and that the agreement, as acknowledged by Canada, "is
referenced in the DFO regulations as part of the definition of milk."170
6.69 Second, Section 1(b) of DFO Milk General Regulation 09/00171 sets forth the definition of
"export contract milk"  as "pre-committed first milk out of the producer's bulk tank that is the subject
of a commercial export contract made through the export contract exchange operated by the Third
Party Administrator and is deemed to be the first milk out of the tank."  The parties agree that, as a
result, if milk is not delivered to export it would no longer constitute export contract milk and wouldtherefore be subject to domestic regulation.
172
6.70 DFO Milk General Regulation 09/00 does not set forth a specific sanction on diversion, but
Section 3 of DFO Milk Pricing Regulation 08/00 provides that "export contract milk" is exempt from
the provisions set forth in that regulation.  If the milk no longer qualifies as "export contract milk"
(because it was not exported),  the processor would be subject to Section 4 which states that "[a]llclasses of milk supplied to a processor shall be sold by the DFO and bought by the processor at price
equal to the total of the amount per kilogram of [milk product] as set out in [the relevant column of
Schedule 1]."  According to the United States, this price would be paid in addition to the export price
that has already been paid by the processor, who would end up paying approximately C$90/hl.
Canada has not contested this assertion.
6.71 The Panel considers that the imposition of a severe monetary penalty under DFO Regulations
in case of diversion, in conjunction with the CDC's auditing power, constitutes an effective
government-imposed deterrent to diversion of commercial export milk in Ontario.
6.72 Finally, the United States refers to Section 5(4) of the DFO Milk General Regulation 09/00,
which provides that:
DFO may refuse to grant or renew or may suspend or revoke a licence […] where the
applicant or licensee has failed to comply with or has contravened the Act, theRegulations, the Plan or any Order or Direction of DFO.
                                                     
168 Canada's reply to Question 6.
169 Report of the panel on Canada – Dairy , paragraphs 7.76-7.78.
170 Canada's reply to Question 6 .
171 The Panel takes note of Canada's statement that "DFO Milk General Regulation 15/00 is the most
up-to-date version of the General Regulation, but makes no significant changes to DFO Milk GeneralRegulation 09/00 with respect to provisions involving export contract milk." (Canada's First Submission,Annex 5, footnote 2).  In view of this statement, and considering that the exchanges between the parties havedrawn upon DFO Milk General Regulation 09/00, the Panel will use DFO Milk General Regulation 09/00 as abasis for its analysis.
172 United States' reply to Question 16. Canada's reply to Question 6.WT/DS103/RW
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According to the United States, pursuant to Secti on 5(4) failure to export milk so committed can lead
to the revocation of the licence of a milk producer  in Ontario.173  Canada replies by stating that the
DFO "cannot use licensing as a means to enforce the terms of private commercial agreements",174 and
that "the United States is inviting the Panel to speculate that DFO will somehow use its health andsafety licensing authority for extraneous and ille gal purposes, namely, to somehow 'punish' for any
'breach' of the commercial export exchange."
175
6.73 The Panel understands that, according to the United States, DFO could punish a  producer  for
diversion of commercial export milk to the domestic market by a  processor .  On the one hand, the
Panel has difficulty seeing how, as a practical matter, the producer of a fungible product such as milk
could be identified on the basis of the processed product it was used in, and, if he can be identified,
why he would be punished for a regulatory breach by a processor.  On the other hand, the Panel notesthat Canada's replies to the Panel's questions on the matter have not fully enabled the Panel to make
its assessment in this respect.
176  The Panel is mindful of the fact that Canada has the burden of proof
pursuant to Article 10.3, and that, therefore, it is up to Canada to raise a presumption that what it
asserts is true.  Nevertheless, the Panel will not enter into speculations as regards the interpretation
and application of this aspect of Ontario law, as it already has found that the imposition of a severemonetary penalty under DFO Regulations in case of diversion, in conjunction with the CDC's auditing
power, constitutes an effective government-imposed deterrent to diversion of commercial export milk
in Ontario.
Other Canadian Milk-Exporting Provinces
6.74 The Panel has reviewed the evidence submitted by the parties with respect to the provincial
regulatory instruments governing commercial export milk in the remaining 7 milk-exporting
provinces.  On the basis of that review, the Panel has found that in each of these provinces:
(a) commercial export milk is clearly defined as milk that must be exported;
177
(b) milk that meets this definition of commercial export milk is exempted from domestic
regulation;178
                                                     
173 United States' First Submission, paragraph 80.  United States' Second Submission, paragraph 47.
174 Canada's First Submission, paragraph 109.
175 Canada's Second Submission, paragraph 44.
176 Questions 6, 7 and 8 by the Panel, and Canada's replies to these questions.  In questions 7 and 8, the
Panel had asked Canada to include in its replies any regulatory instruments referenced in its reply to Question 6,regarding the "Ontario Dairy Export Exchange Mechanism”.  In its reply to Question 6, Canada stated, inter
alia, that " the exchange set out in this agreement is […] referenced in the DFO regulations  as part of the
definition of milk, the marketing of which is deregulated when marketed through that exchange."  Although thePanel would therefore have expected Canada to include the relevant "DFO Regulations" in its replies to
Questions 7 and 8, Canada did not do so.
177 British Columbia Milk Marketing Board Regulation Amendments, BC Reg 167/94, section 1;
Alberta Dairy Board Regulation section 1(2)(e.1);  Saskatchewan Milk Control Regulations, Part I section 2 (f.1,f.2);  Manitoba Milk Producers' Marketing Export Contract Milk Exemption Order, sections 1, 2;  NewBrunswick Milk Marketing Board Exemption Order 11, section 2;  Nova Scotia Regulation Respecting
Contracted Exports of Dairy Products, Schedule 13, section 1(a);  Prince Edward Island Milk Marketing
Regulation Amendments, EC2000-785, section 1.
178 British Columbia Milk Marketing Board Regulation Amendments, BC Reg 167/94, section  7.1(2);
Alberta Dairy Board Regulation section 1(2)(e.1); Saskatchewan Milk Control Regulations, Part II section 3,Part III section 15(2), Part V section 39.7(2);  Manit oba Milk Producers' Marketing Milk General Order 301/89,
Part I, section 1; New Brunswick Milk Marketing Board Exemption Order 11, section 4; New Brunswick Milk
Marketing Board Milk Pricing Order, section 3;  No va Scotia Regulation Respecting Contracted Exports ofWT/DS103/RW
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(c) milk that was contracted as commercial export milk and subsequently diverted to the
domestic market becomes subject to domestic regulation, and, as a result, a processor
would be obliged to pay the higher domestic price on top of  the price already paid for
the commercial export milk.179
6.75 The Panel considers that this penalty is of a punitive nature and, in conjunction with the
CDC's auditing power, constitutes an effective government-imposed deterrent to diversion of
commercial export milk.
6.76 The Panel has not found that diversion of commercial export milk in those provinces may
lead to seizure by the provincial authorities.  The United States has in that respect only drawn the
Panel's attention to the seizure power of the Prince Edward Island Marketing Board pursuant to
Section 3(q), Chapter N-3 of the Prince Edward Island Marketing Regulations.180  That provision
gives the Prince Edward Island Marketing Board the power "to seize and dispose of any milk
marketed in violation of any order of the Board."   Consequently, if diversion would constitute a
violation of "an order of the Board", it would trigger the possibility of seizure.  The Panel is mindful
of the fact that Canada has the burden of proof pursuant to Article 10.3, but considers that it does not
need to make a finding on this particular issue, as it has already found that the financial penalty fordiversion is of a punitive nature and, in conjunction with the CDC's auditing power, constitutes an
effective government-imposed deterrent to diversion of commercial export milk.
(vi) Conclusion
6.77 In conclusion, the Panel finds that the payment is "financed by virtue of governmental
action", in that lower-priced commercial export milk would not be available to Canadian processorsbut for  the above federal and provincial actions (i) restricting supply on the domestic milk market,
obliging producers, at least  de facto , to sell outside-quota milk for export, and (ii) obliging processors
to export all milk contracted as commercial export milk, and penalizing diversion by processors of
commercial export milk into the domestic market.
(d) Payment "on the export of an agricultural product"
6.78 The lower priced commercial export milk is on ly available to processors if the milk is
contracted for export and effectively exported.  Only by contracting for export and effectively
exporting milk can producers and processors engage in transactions outside the regulatory framework
of price floors and quota ceilings applicable to domestic market milk transactions in Canada.  The
Panel, therefore, finds that a clear export contingency exists, and that the payment is made "on the
export of an agricultural product."
(e) Conclusion regarding Article 9.1(c)
6.79 For the reasons set out above,
181 the Panel finds that a payment on the export of milk is
financed by virtue of governmental action in Canada, within the meaning of Article 9.1(c).
                                                                                                                                                                    
Dairy Products, Schedule 13, section 2;  Prince Edward Island Milk Marketing Regulations, MMB00-02,
section 3, 4;  Prince Edward Island Milk Marketing Regulation Amendments, EC2000-785, section 3.1(1).
179 In certain regulatory instruments, it is explicitly stipulated which domestic market price will have to
be paid by the processor:  British Columbia Milk Marketing Board Regulation Amendments, BC Reg 167/94,section 7.2;  Saskatchewan Milk Control Regulations, Part IV, section 39(4)(4).
180 United States' reply to Question 19.
181 Paragraphs 6.7-6.78.WT/DS103/RW
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3. Article 3.3
6.80 Having found that CEM exports are being subsidized within the meaning of Article 9.1(c), the
Panel recalls the original panel's182 and Appellate Body's183 finding that, as acknowledged by
Canada,184 Class 5(d) exports are also subsidized within the meaning of Article 9.1(c).  Consequently,
if the sum of CEM and Class 5(d) export quantities in the marketing year 2000/2001 were to exceed
Canada's quantity commitment levels specified in its Schedule, the Panel would find a breach of
Article 3.3.
6.81 According to data provided by New Zealand and the United States, and spanning the period
August 2000 – February 2001, Canadian exports of cheese amount to 9,613 metric tons,185 and
exports of other milk products range from 25.600186 to 28.826187 metric tonnes.  Canada's reduction
commitment levels for the marketing year 2000/2001 are set at 9,076 and 30.282 metric tons,respectively.  The United States contended that these figures do not include exports under Canada's
IREP.
188  As a result, according to this data, Canadian cheese exports would already be subsidized in
excess of Canada's reduction commitment levels specified in its Schedule as of February 2001.
According to Canada, however, these figures do include exports under Canada's IREP.189  According
to Canada, Canadian exports of other milk products between August 2000 and February 2001,excluding  IREP exports, amount to 25,538 metric tons,
190 and Canadian cheese exports for the same
period, excluding  IREP exports, 7,986 metric tons.191  As a result, according to the Canadian data, no
export subsidies would have been provided in respect of any dairy exports in excess of Canada's
quantity commitment levels specified in its Schedule as of February 2001.
6.82 In the light of such conflicting evidence, the Panel requested each of the parties to explain
precisely how the data they had used was arrived at and to refer to the exact source and
documentation which was used for its computation.  The Panel also requested the parties to provide
the available statistical data, as well as the source and documentation used for its computation, on
total cheese exports from Canada for the months following February 2001, both including and
excluding IREP exports.192  The replies by the parties did not enable the Panel to determine whether
or not the figures regarding dairy exports for the period August 2000 – February 2001 included IREP
exports.193  Canada, however, did provide the Panel with data on cheese exports for the months of
                                                     
182 Report of the panel on Canada – Dairy , paragraph 7.113.
183 Report of the Appellate Body on Canada – Dairy , paragraph 124.
184 Canada's reply to Question 23a, paragraph 1.
185 New Zealand's Exhibit 4.  United States' Exhibit 1.
186 New Zealand's Exhibit 4.
187 United States' Exhibit 1.
188 United States' Oral Statement, paragraph 29.
189 Canada's Rebuttal Submission, paragraph 50. Reiterated in Canada's reply to Question 23a,
paragraph 2.
190 Canada's reply to Question 22.
191 Id.
192 Panel's Question 23.
193 In its reply to Question 23, New Zealand "note[d] that [9,613 tons] is the same figure used by the
United States and that, according to the United States, the statistics used do not include exports derived from the
IREP, although New Zealand has not been able to confirm this independently."  In its reply of 22 June 2001 to
Question 23 (paragraph 6), Canada explained that "although Statistics Canada does include IREP data [in theaggregate export data], it does not include data on transshipments such as products destined for ship-stores or
products-in-transit, which are the data that Statistics Canada considers as re-export data."  In its reply of 25 June2001 to Question 23, the United States "note[d] that, in its June 22 supplementary answer, Canada now assertsthat 're-exports' as reported by Statistics Canada does no t include exports under the IREP.  This is contrary to
our understanding."WT/DS103/RW
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March and April 2001.  The Panel proceeded to include in its assessment under Article 3.3 this data,
which, according to Canada, does not include IREP exports.194
6.83 The data provided by Canada in response to the Panel's questions shows that, as of
April 2001, exports of cheese under Class 5(d) and CEM together amount to 10,666 metric tons.195
As stated earlier, Canada's quantity commitment level for 2000/2001 was set at 9,076 metric tonnes.
The Panel, therefore, finds that Canada has provided export subsidies in respect of cheese in excess of
its quantity commitment level specified in its Schedule, in breach of Article 3.3.
4. Article 10.1
6.84 In the alternative to their claims under Article 9.1(c), both complainants have made claims
under Article 10.1.  The United States invokes the first phrase of Article 10.1, while New Zealand
invokes both the first and the second phrase of Article 10.1.  The first phrase applies to "exportsubsidies not listed in paragraph 1 of Article 9".  The second phrase applies to "non-commercial
transactions".  As the panel in the original proceedings noted, Article 9.1(c) and the first phrase of
Article 10.1 are mutually exclusive, and, accordingly, export subsidies listed in Article 9.1 cannot be
found to contravene the first phrase of Article 10.1.
196
6.85 In addressing the question whether the Panel s hould exercise judicial economy with regard to
the Article 10.1 claims, the Panel notes, on the one hand, the Appellate Body's statement in its report
on Australia – Measures Affecting Importation of Salmon :
The principle of judicial economy has to be applied keeping in mind the aim of the
dispute settlement system.  This aim is to resolve the matter at issue and "to secure a
positive solution to a dispute".  To provide only a partial resolution of the matter atissue would be false judicial economy.  A panel has to address those claims on which
a finding is necessary in order to enable the DSB to make sufficiently precise
recommendations and rulings so as to allow for prompt compliance by a Member
with those recommendations and rulings in order to ensure effective resolution of
disputes to the benefit of all Members .
197 (emphasis added)
6.86 On the other hand, the Panel notes the statement by the Appellate Body in its report on EC –
Asbestos :
The need for sufficient facts is not the only limit on our ability to complete the legal
analysis in any given case.  In  Canada – Periodicals , we reversed the panel's
                                                     
194 The Panel considers that, under the terms of Article  3.3, it can and, indeed, should take into account
this export data for the months of March and April 2001 to determine whether export subsidies have beenprovided in excess of reduction commitment levels,  notwithstanding the fact that these exports took place after
the matter was referred by the DSB to the original panel, i.e. after 1 March 2001.  It is submitted that the Panel's
finding that CEM exports are being subsidized within the meaning of Article 9.1(c) cannot be restricted toexports which took place before that date, but applies to all dairy exports traded under the terms and conditions
of the CEM scheme.  The same reasoning applies to exports which took place under the continued Class5(d)
scheme.  The Panel does not address claims not made or measures not included in the complainants' requests for
establishment of this Panel.  The Panel also notes that the United States explicitly stated in its request for
establishment of this Panel that "cheese and other dairy product exports during the 2000/2001 marketing yearappear to be occurring at monthly levels that, if cont inued for the remainder of the year, would result in an
additional year of subsidized export shipments inconsistent with Canada's obligations." (WT/DS103/16, page2)
195 Canada's reply to Question 23a.
196 Report of the panel in Canada – Dairy , paragraph 7.118.
197 Appellate Body report on Australia – Salmon , paragraph 223.WT/DS103/RW
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conclusion that the measure at issue was inconsistent with Article III:2, first sentence,
of the GATT 1994, and we then proceeded to examine the United States' claims under
Article III:2, second sentence, which the panel had not examined at all.  However, in
embarking there on an analysis of a provision that the panel had not considered, weemphasized that "the first and second sentences of Article III:2 are  closely related
 "
and that those two sentences are "part of a logical continuum ." 198  (emphasis added by
the Appellate Body)
6.87 Having regard to these considerations, the Panel notes that the facts underlying the
Article 9.1(c) and Article 10.1 claims are, in this ca se, fully co-extensive.  In addition, Articles 9 and
10 can be said to be "closely related" and "part of a logical continuum".199  As a result, should the
Panel's findings regarding Article 9.1(c) be subject to appellate review, and should the AppellateBody decide to reverse one or more of the Pane l's findings regarding Article 9.1(c), the Appellate
Body would still be able to make findings regarding the Article 10.1 claims on the basis of the Panel
record.  Thus, should the Appellate Body deem it necessary to complete the analysis by making
findings regarding Article 10.1 for the purpose of effectively settling this dispute, it could do so
notwithstanding the Panel's decision to exercise judicial economy.  Accordingly, the Panel's decisionto exercise judicial economy in this instance as regards the Article 10.1 claims should not prevent the
DSB from making sufficiently precise recommendations and rulings so as to allow for prompt
compliance by a Member with those recommendations and rulings in order to ensure effective
resolution of this dispute to the benefit of all Members.
6.88 In conclusion, having made an affirmative finding regarding the Article 9.1(c) claim, the
Panel has decided to exercise judicial economy and not to address the Article 10.1 claims.
5. Article 8
6.89 Article 8 provides that "[e]ach Member undertakes not to provide export subsidies otherwise
than in conformity with this Agreement and with  the commitments as specified in that Member's
Schedule."
6.90 Since the Panel has found a breach of Article 3.3 (through Article 9.1), it therefore also
concludes that Canada has acted inconsistently with Article 8.
B. SCM A
GREEMENT
6.91 The United States has argued that, in addition to constituting export subsidies within the
meaning of Article 9.1(c) of the Agreement on Agriculture , or in the alternative, Article 10.1 of that
Agreement, Canada's measures affecting the exportation of dairy products constitute prohibited export
subsidies pursuant to Articles 1.1 and 3.1 of the SCM Agreement .
6.92 The Panel has already noted supra  that the facts underlying the Article 9.1(c) and Article 10.1
claims are, in this case, fully co-extensive.  The Pane l believes that this conclusion also applies to the
facts underlying the claims made under the Agreement on Agriculture , on the one hand, and those
made under Articles 1.1 and 3.1 of the SCM Agreement , on the other.  In addition, the Panel considers
that Article 9.1 of the Agreement on Agriculture  and Articles 1.1 and 3.1 of the SCM Agreement  can
be said to be "closely related" and "part of a logical continuum".  Thus, the Panel's reasoning set forth
                                                     
198 Report of the Appellate Body on EC – Asbestos , paragraph 79. [original footnote omitted]
199 Article 10.1 requires Members not to apply export subsidies not listed in Article 9.1 in a manner
which results in, or which threatens to result in, circumvention of export subsidy commitments, nor to use non-
commercial transactions to circumvent such commitments.WT/DS103/RW
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supra200 regarding the claims made under Article 10.1 of the Agreement on Agriculture  is equally
relevant for the claims made under Articles 1.1 and 3.1 of the SCM Agreement .
6.93 The Panel also recalls, however, that the panel in the original proceedings decided to exercise
judicial economy with respect to the SCM claim, because (i) the United States arguments underArticle 3 were minimal (in reality only one sentence);
201  and (ii) the United States never invoked or
even referred to the rules and procedures contained in Article 4.202  In addition, the original panel
raised the question whether it could examine the Article 3 claim at all given that in the United States'
requests for consultations and establishment of the original panel, the United States only invoked
Article 30 as a legal basis for consultations and a panel on its SCM claims.203
6.94 In the current proceedings, the Panel notes that (i) the United States argued the Article 3 claim
more extensively than before the original panel; (ii) explicitly referred in its First Submission toArticle 4.7;
204 and (iii) provided a statement of available evidence in accordance with Article 4.2 in its
request for consultations.205  The question before the Panel is whether these new elements should lead
the Panel to decide not to exercise judicial economy, despite the Panel's earlier conclusion that the
facts underlying the claims made under the Agreement on Agriculture  and the SCM Agreement  are
fully co-extensive.
6.95 The Panel considers that it should decide this question in the light of the Appellate Body
statement cited above.206  The Panel should, therefore, only address those claims on which a finding is
necessary in order to enable the DSB to make sufficiently  precise recommendations and rulings so as
to allow for prompt  compliance by a Member with those recommendations and rulings in order to
ensure effective resolution of disputes to the benefit of all Members.  The question before the Panelcan therefore be formulated as follows:  if the Panel were not to address the SCM claim made by the
United States, would the DSB be prevented from making sufficiently  precise recommendations and
rulings so as to allow for prompt  compliance by Canada?
6.96 It is submitted that an affirmative  finding in respect of Article 3.1 of the SCM Agreement
would affect the specificity of the re commendation to be made by the Panel.
  In accordance with
Article 4.7, if the measure in question is found to be a prohibited subsidy, the panel shall (i)
recommend that the subsidizing Member withdraw  the subsidy without delay, and (ii) specify in its
recommendation the  time-period within which the measure must be withdrawn.207
6.97 First, as regards the recommendation to withdraw  the export subsidy, the Panel notes, on the
one hand, that the Appellate Body in Brazil – Aircraft (Art. 21.5)  analyzed the meaning of the word
"withdraw" as follows:
                                                     
200 See paragraph 6.87.
201 Report of the panel on Canada – Dairy , paragraph 7.138.
202 Id., paragraphs 7.139-7-140.
203 Id., footnote 515.
204 United States' First Submission, paragraphs 116 and 122.
205 WT/DS103/15.
206 Appellate Body report on Australia – Salmon , paragraph 223.
207 The Panel notes that, in order to make an Article 4.7 recommendation, it would first need to assess
the merits of the SCM claim and make an affirmative  finding that the measure is a prohibited export subsidy.
Only if the Panel were to find that the measure is a prohibited subsidy, Article 4.7 would come into play.  As aresult, the Panel would need to make an affirmative finding on the SCM claim, and, hence, not exercise judicial
economy, before  it could actually determine whether its recommendation would effectively be more specific.WT/DS103/RW
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[…] we observe first that this word has been defined as "remove", or "take away"208,
and as "to take away what has been enjoyed; to take from."209  This definition
suggests that "withdrawal" of a subsidy, under Article 4.7 of the SCM Agreement ,
refers to the "removal" or "taking away" of that subsidy."
[…]
In our view, to continue to make payments under an export subsidy measure found to
be prohibited is not consistent with the obligation to "withdraw" prohibited export
subsidies, in the sense of "removing" or "taking away".210
6.98 On the other hand, the Panel notes that Article 21.1 of the Agreement on Agriculture  provides,
The provisions of GATT 1994 and of other Multilateral Trade Agreements in
Annex 1A to the WTO Agreement shall apply subject to  the provisions of this
Agreement (emphasis added),
that Article 8 of the Agreement on Agriculture  provides,
Each Member undertakes not to provide export subsidies otherwise than in
conformity with this Agreement  and with the commitments as specified in that
Member's Schedule, (emphasis added)
and that Article 3.1 of the SCM Agreement  provides,
Except as provided in the Agreement on Agriculture , the following subsidies, within
the meaning of Article 1, shall be prohibited […]. (emphasis added)
6.99 In the Panel's view, it results from Articles 8 and 21.1 of the Agreement on Agriculture  and
Article 3.1 of the SCM Agreement  that the Panel would not be able to recommend Canada to
"withdraw" – as interpreted by the Appellate B ody – measures constituting an export subsidy,
exclusively in respect of agricultural products, both within the meaning of Article 9.1(c) of the
Agreement on Agriculture  and Article 3.1 of the SCM Agreement .  Under Articles 3.3 and 8 of the
Agreement on Agriculture , Canada has the right to provide export subsidies in respect of products
specified in its Schedule, provided that  it does not exceed the budgetary outlay and quantity
commitment levels specified therein.  Accordingly, if Canada has exceeded its quantity commitment
levels, the Panel can only recommend Canada to bring its measures into conformity with its
obligations under the Agreement on Agriculture .
6.100  Since the Panel, in case it would make an affirmative finding in respect of Article 3.1 of the
SCM Agreement , would not be able to make the withdrawal  recommendation provided for in the first
sentence of Article 4.7 of the SCM Agreement , the Panel does not need to consider the first sentence
of Article 4.7 to determine whether or not it should exercise judicial economy.  Having found that itwould not be able make a recommendation to withdraw the subsidy, in accordance with the first
sentence of Article 4.7, the Panel considers that, a fortiori , it would not be able to specify a time-
period  for withdrawal, in accordance with the second sentence of Article 4.7.
                                                     
208 [footnote omitted]
209 [footnote omitted]
210 Report of the Appellate Body on  Brazil – Aircraft (Art. 21.5) , paragraph 45.WT/DS103/RW
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6.101  Alternatively, assuming arguendo  that the Panel could make a recommendation to Canada to
"withdraw" the export subsidy, it could, pursuant to Article 21.1 of the Agreement on Agriculture  and
Article 3.1 of the SCM Agreement , only do so with respect to that portion of the subsidized exports
which exceeds Canada's reduction commitment levels under the Agreement on Agriculture .  The
Panel does not see how such a recommendation to partially withdraw would differ from a
recommendation to bring the measure into conformity with the Agreement on Agriculture .  If it could
make such a recommendation of "partial" withdrawal, it could also specify the time-period within
which such "partial" withdrawal was to take place.  Such a specification of a time-period for "partial"
withdrawal, however, would, in the Panel's view, not be necessary for Canada to know what it needs
to do in order to ensure prompt compliance.  In addition, the Panel notes that the practical relevance
of this question should be assessed in the light of the " Agreed Procedures under Articles 21 and 22 of
the Dispute Settlement Understanding in the follow -up to the dispute in Canada – Measures Affecting
the Importation of Milk and the Exportation of Dairy Products " which the parties to the dispute have
concluded.211  Pursuant to these Agreed Procedures, it is envisaged that, if the Appellate Body were to
confirm and the DSB to adopt the Panel's recommendations based on the Panel's findings under
Article 9.1(c) of the Agreement on Agriculture , an Article 22.6 arbitrator would, in any case,
relatively soon thereafter decide what level of suspension of concessions or other obligations should
be authorized against Canada.
6.102  For the reasons set out above,212 the Panel considers that, by not making findings on the SCM
claims, it will not prevent the DSB from making sufficiently precise recommendations and rulings so
as to allow for prompt compliance by Canada.  Consequently, having made an affirmative findingregarding the claim made under Article 9.1(c) of the Agreement on Agriculture , the Panel has decided
to exercise judicial economy and not to address the claims made under Articles 1.1 and 3.1 of the
SCM Agreement .
VII. CONCLUSIONS AND RECOMMENDATIONS
7.1 In light of the findings contained in Section VI above, the Panel therefore concludes that
Canada, through the CEM scheme and the continued operation of Special Milk Class 5(d), has acted
inconsistently with its obligations under Articles 3.3 and 8 of the Agreement on Agriculture , by
providing export subsidies within the meaning of Article 9.1(c) of the Agreement on Agriculture  in
excess of its quantity commitment levels specified in its Schedule for exports of cheese, for the
marketing year 2000/2001.
7.2 Since Article 3.8 of the DSU provides that "[i]n cases where there is an infringement of the
obligations assumed under a covered agreement [including the Agreement on Agriculture ], the action
is considered prima facie  to constitute a case of nullification or impairment", the Panel concludes that
– to the extent Canada has acted inconsistently with its obligations under the Agreement on
Agriculture  – it has nullified or impaired benefits accruing to New Zealand and the United States
under this Agreement.
                                                     
211 The Understanding between Canada and the United States is contained in WT/DS103/14.
According to the Agreed Procedures, (i) the United States has requested authorization to suspend concessions or
other obligations pursuant to Article 22.2 of the DSU ag ainst Canada;  (ii) Canada has objected to the level of
suspension of concessions or other obligations; (iii) the matter has been referred to arbitration pursuant to
Article 22.6;  (iv) the parties have requested the Artic le 22.6 arbitrator to suspend its work until either the
adoption of the Panel's report or, if there is an appeal, the adoption of the Appellate Body report;  and (v) in theevent that the DSB finds that Canada has failed to comply with the recommendations and rulings of the DSB orthat the measures taken by Canada to comply with the recommendations and rulings of the DSB are inconsistentwith the covered agreements as referred to in the Article 21.5 compliance panel request, the arbitrator willautomatically resume its work.
212 Paragraphs 6.95-6.101.WT/DS103/RW
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7.3 The Panel recommends  that the Dispute Settlement Body request Canada to bring its dairy
products marketing regime into conformity with it s obligations in respect of export subsidies under
the Agreement on Agriculture .WT/DS103/RW
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VIII.  ANNEX
1. Abbreviations used for dispute settle ment cases referred to in the report
Australia – Salmon :  Australia – Measures Affecting Importation of Salmon, recourse to Article 21.5 of the
DSU, (WT/DS18/RW), adopted 20 March 2000;
Australia - Automotive Leather :  Australia - Subsidies Provided to Producers and Exporters of Automotive
Leather (WT/DS126/R) , adopted 16 June 1999;
Australia – Automotive Leather :  Australia – Subsidies Provided to Producers and Exporters of Automotive
Leather, recourse to Article 21.5 of the DSU (WT/DS126/RW), adopted 11 February 2000;
Brazil - Aircraft:  Brazil - Export Financing Programme for Aircraft (WT/DS46/R), adopted 20 August  1999;
Brazil – Aircraft:  Brazil - Export Financing Programme for Aircraft, second recourse to Article 21.5 of the
DSU, (WT/DS46/RW), established 16 February 2001;
Canada - Aircraft :  Canada - Measures Affecting the Export of Civilian Aircraft (WT/DS70/R), adopted
20 August 1999;
Canada - Aircraft :  Canada - Measures Affecting the Export of Civilian Aircraft (WT/DS70/AB/R), adopted
20 August 1999;
Canada - Dairy :  Canada - Measures Affecting the Importation of Milk and the Exportation of Dairy
Products, (WT/DS103/R, WT/DS113/R), adopted 27 October 1999;
Canada - Dairy :  Canada - Measures Affecting the Importation of Milk and the Exportation of Dairy
Products, (WT/DS103/AB/R, WT/DS113/AB/R), adopted  27 October 1999;
EC - Bananas  (Ecuador): European Communities—Regime for the Importation, Sale and Distribution of
Bananas - recourse to Article 21.5 of the DSU (WT/DS27/RW/ECU), adopted 6 May 1999;
EC - Bananas  (European Communities): European Communities - Regime for the Importation, Sale and
Distribution of Bananas,  recourse to Article 21.5 of the DSU, /WT/DS27/RW/EEC), panel report circulated12 April 1999.
EC - Asbestos :  European Communities - Measures Affecting the Production of Asbestos and Asbestos Products
(WT/DS/135/ABR), adopted 5 April 2001;
Indonesia - Automobiles : Indonesia - Certain Measures Affecting the Automobile Industry, (WTDS54, 55,
59,63/R), adopted 23 July 1998;
Mexico – High Fructose Corn Syrup :  Mexico - Anti-dumping Investigation of High-Fructose Corn Syrup from
the United States, recourse to Article 21.5 of the DSU (WT/DS132/RW), circulated 22 June 2001;
United States – FSC  :  United States – Tax Treatment for "Foreign Sales Corporations, (WT/DS108/AB/R),
adopted 20 March 2000;
United States  – Steel :  United States - Hot-Rolled Lead and Carbon Steel:  Imposition of Countervailing Duties
On Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom,(WD/DS138/AB/R), adopted 7 June 2000;
United States  – Shrimp ;  United States - Import Prohibition of Certain Shrimp and Shrimp Products, Recourse to
Article 21.5 of the DSU (WT/DS58/RW), circulated 15 June 2001;WT/DS103/RW
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United States - Wheat Gluten :  United States - Definitive Safeguard Measures on Imports of Wheat Gluten from
the European Communities (WT/DS166/R), adopted 19 January 2001;
United States - 1916  Act:  United States - Anti-Dumping Act of 1916, (WT/DS136/AB/R, WT/DS162/AB/R),
adopted 26 September 2000;
United States - DRAMs :  United States - Anti-Dumping Duty on Dynamic Random Access Memory
Semiconductors of One Megabit or Above from Korea, Recourse to Article 21.5 of the DSU (WT/DS99/RW),mutually agreed solution notified 20 October 2000, panel report circulated 7 November 2000;  
Thailand - Steel :  Thailand - Antidumping Duties on Angles Shapes and Sections of Iron or Non-Alloy Steel and
H-Beams from Poland , (WT/DS122/R), adopted 5 April 2001.
__________