WT/DS522/12  
 
17 April 2018  
(18-2326) Page: 1/11 
    
 
CANADA – MEASURES CONCERNING TRADE IN COMMERCIAL AIRCRAFT  
COMMUNICATION FROM T HE PANEL  
The following communication, dated 17 April 2018 , was received from the Chairperson of the Panel 
with the request that it be circulated  to the Dispute Settlement Body . 
 
_______________  
 
 
On 24 October 2017 , Canada  submitted to the Panel a request for a preliminary ruling concerning 
the inconsistency of certain aspects of Brazil's panel request with the requirements of Article 6.2 of 
the Understanding on Rules and Procedu res Governing the Settlement of Disputes . 
 
On 9 April 2018 , the Panel issued the attached preliminary ruling  to the parties and third parties.   
 
At the joint request of  the parties to the dispute, the Panel decided to inform the Dispute 
Settlement Body (D SB) of the content of its preliminary ruling . Therefore, I  would be grateful if 
you would circulate this letter and the attached preliminary ruling to the Members of the DSB.  
 WT/DS522/12  
 
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  PRELIMINARY RULING O F THE PANEL  
9 APRIL 2018  
1  INTRODUCTION  
1.1.  On 24 October 2017 Ca nada requested the Panel to find that certain aspects of 
Brazil's  request for the establishment of a panel fail to meet the requirements of Article 6.2  of the 
Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), and that 
certai n measures in that request fall outside the Panel's terms of reference.1  
1.2.  Canada asks the Panel to consider its request for a preliminary ruling at an early stage of the 
proceedings, prior to the filing of the parties' first written submissions.2 In partic ular, Canada 
argues that an early decision of the Panel would have an impact on the scope of the dispute and 
on the scope of the information -gathering process under Annex V to the Agreement on Subsidies 
and Countervailing Measures (SCM Agreement).3 
1.3.  In a le tter dated 13 February 2018, Brazil informed the Panel that it did not object to an early 
ruling of the Panel. Brazil submitted its comments on Canada's request on 5 March 2018.  
1.4.  On 9 March 2018, the Panel adopted a partial timetable reflecting procedural s teps to be 
taken until the issuance of its preliminary ruling. On 19 March 2018, the Panel received third -party 
comments from  the European Union and the United States . 
2  MAIN ARGUMENTS OF TH E PARTIES  
2.1  Canada  
2.1.  Canada argues that Brazil's request for the establishment of a panel:  
a. fails to provide a brief summary of the legal basis of the serious prejudice claims 
sufficient to present the problem clearly by not identifying the allegedly subsidized 
product and the corresponding like product;  
b. identifies measures for which no consulta tions were held ; and  
c. fails to identify the specific measure(s) at issue with respect to the Centre technologique 
en aérospatiale (CTA), the National Research Council (NRC), and the Natural Sciences 
and Engineering Research Council of Canada (NSERC).4 
2.2.  Speci fically, Canada argues that, in the context of serious prejudice claims, panel requests 
must identify the subsidized product and the corresponding like product in order to "present the 
problem clearly".5 According to Canada, an analysis of serious prejudic e necessarily focuses on the 
relationship between a subsidy, a subsidized product, and a like product.6 Canada claims that its 
due process rights to prepare its defence are being impaired due to Brazil's failure to identify the 
allegedly subsidized product s and corresponding like products in its panel request. For this reason, 
Canada requests the Panel to rule that Brazil's serious prejudice claims are outside its terms of 
reference .7 
2.3.  Canada further argues that Brazil's panel request refers to four measures  that were not 
identified in Brazil's request for consultations: (a) the provision of up to CAD 950 million for 
                                                
1 Canada's request for a preliminary ruling, para. 1.  
2 Canada's request for a preliminary ruling, para. 55.  
3 Canada's request for a preliminary ruling, para. 55.  
4 Canada's request fo r a preliminary ruling, para. 1 . 
5 Canada's request for a preliminary ruling, para. 12.  
6 Canada's request for a preliminary ruling, para. 16.  
7 Canada's request for a preliminary ruling, para. 23.  WT/DS522/12  
 
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  Superclusters8; (b) the City of Montreal's PR@M Industry program me9; (c) the energy efficiency 
programmes administered by Hydro -Québec10; and (d)  the Government of Québec's "Tax Credit 
for Investment Relating to Manufacturing and Processing Equipment".11 According to Canada, the 
inclusion of these four programmes in the request for the establishment of a panel broadens the 
scope of the dispute beyon d that of the request for consultations.  
2.4.  Finally, Canada argues that Brazil's panel request fails to identify the specific measures at 
issue with regard to "the provision of funding, technology transfer, in -kind goods and services, and 
other support throu gh the CTA, the … NRC, and the … NSERC".12 Canada asserts that the 
description provided in the panel request is extremely broad and that the reference to various 
external sources in footnotes does not contribute to the precise identification of the measures  at 
issue.13  
2.5.  Accordingly, Canada requests the Panel  to find that its terms of reference do not include the 
following legal claims and measures:  
a. Brazil 's claims with regard to serious prejudice under Articles 5(c), 6.3, 6.4 , and 6.5 of 
the SCM Agreement ; 
b. Canada's provision of up to CAD 950 million for Superclusters;  
c. City of Montreal PR@M Industry program me; 
d. Hydro -Québec Energy Efficiency program mes; 
e. Government of Québec  Tax credit for investment relating to manufacturing and 
processing equipment; and  
f. suppor t provided by the CTA, the NRC , and the NSERC.  
2.2  Brazil  
2.6.  Brazil responds that its panel request is consistent with the requirements laid down in 
Article  6.2 of the DSU, as interpreted in previous reports of WTO panels and the Appellate Body, 
and that all measures are properly within the panel's terms of reference.14  
2.7.  Brazil asserts that Article 6.2 of the DSU does not require complainants to identify the 
allegedly subsidized product and the corresponding like product in their panel requests.15 
According to B razil, a party's panel request must identify "claims" rather than 
"arguments"16: complainants do not have to develop all elements of their case in their panel 
requests, especially in the context of serious prejudice claims under the SCM Agreement, for which  
special information -gathering provisions are envisaged in Annex V.17 The identification of the 
product market in which the serious prejudice allegedly occurs is part of the evidentiary basis that 
should support a complaining party's arguments in the substa ntive stage of the dispute.18 
2.8.  In any event, Brazil considers that it sufficiently identified the product at issue in its request 
for the establishment of a panel. First, Brazil argues that the reference to "commercial aircraft" in 
the title and in the text of the panel request is specific enough.19 Second, Brazil indicates that its 
request contains claims with regard to prohibited and actionable subsidies granted to 
                                                
8 Canada's request for a preliminary ruling, para s. 27-30. 
9 Canada's requ est for a preliminary ruling, paras. 31 -34. 
10 Canada's request for a preliminary ruling, paras. 35 -38. 
11 Canada's request for a preliminary ruling, paras. 39 -43. 
12 Canada's request for a preliminary ruling, para. 44.  
13 Canada's request for a preliminary ruling, paras. 45 -52. 
14 Brazil's response to Canada's preliminary ruling  request , paras. 26 -30. 
15 Brazil's response to Canada's preliminary ruling request , paras. 31 and 39.  
16 Brazil's response to Canada's preliminary ru ling request , paras. 37 -39. 
17 Brazil's response to Canada's preliminary ruling request , para. 38.  
18 Brazil's response to Canada's preliminary ruling request , para. 39.  
19 Brazil's response to Canada's preliminary ruling request , para. 43.  WT/DS522/12  
 
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  Bombardier,  Inc. ("Bombardier") and that the subsidized product is the Bombardier's C -Series 
commercial aircraft program.20 
2.9.  Moreover, Brazil argues that the attendant circumstances surrounding its panel request 
demonstrate that Canada's due process rights are not being impaired. The attendant 
circumstances referred to by Brazil are: the reference to  "measures affecting commercial aircraft" 
and the "C -Series aircraft program" in the request for consultations; the various references to 
"C-Series" in the statement of available evidence annexed to the request for consultations; the 
references made by Bra zil to the C -Series programme at the DSB meetings of 31 August 2017 and 
29 September 2017 where the panel request was presented; and the lack of objections by Canada 
in those circumstances.21  
2.10.   Concerning Canada's allegations that the panel request broadens the scope of the dispute, 
Brazil responds that the four measures at issue were only announced after consultations were held 
or were not known to Brazil until information circulated concerning the 
United  States'  countervailing investigation on commercial ai rcraft from Canada.22 For Brazil, their 
inclusion in the panel request does not change the essence or scope of the dispute.23 
2.11.   Finally, Brazil argues that the panel request, read as a whole and in light of the attendant 
circumstances, sufficiently identifies the CTA/NRC/NSERC measures.24 
2.12.   For the foregoing reasons, Brazil asks the panel to confirm that its serious prejudice claims 
and the measures at issue are within its terms of reference.  
2.3  Main arguments of the third parties  
2.3.1   The European Union  
2.13.   The European Uni on argues that a respondent in a dispute involving serious prejudice claims 
would expect the panel request to specify the like product.25 In this respect, the European Union 
stresses the importance for a respondent to know in which market the serious prejud ice is 
caused.26 Against this background, the European Union asserts that the Panel should assess 
whether Brazil's panel request is sufficiently precise for the respondent to understand which 
products are experiencing a serious prejudice allegedly caused by  the challenged measures.27 
2.14.   Concerning the alleged failure by Brazil to consult on specific measures, the European Union 
argues that although the contested measures may be similar in nature, they appear to be 
"separate and legally distinct" from the other m easures listed in the request for consultations.28 
2.15.   Finally, as regards the identification of the specific measures at issue in relation to the 
CTA/NRC/NSERC measures, the European Union notes that the narrative of the panel request is 
broad.29 However, the E uropean Union also notes that Brazil's panel request contains a general 
section identifying "Quebec's Aerospace Strategy" and a contextual explanation concerning the list 
of measures which follows; and that the panel request also provided important clarifi cations and 
details in footnotes.30 
                                                
20 Brazil's respons e to Canada's preliminary ruling request , para. 44.  
21 Brazil's response to Canada's preliminary ruling request , paras. 46 -55. 
22 Brazil's response to Canada's preliminary ruling request , para. 56.  
23 Brazil's response to Canada's preliminary ruling request , paras. 61 -74. 
24 Brazil's response to Canada's preliminary ruling request , paras. 10 -25. 
25 European Union's comments on Canada's preliminary ruling request, para. 25.  
26 European Union's comments on Canada's preliminary ruling request, paras. 25 -26. 
27 Europe an Union's comments on Canada's preliminary ruling request, para. 30.  
28 European Union's comments on Canada's preliminary ruling request, para. 38  (referring to 
Appellate  Body Report, Argentina – Import Measures , para. 5.13) . 
29 European Union's comments on Canada's preliminary ruling request, paras. 10 -12. 
30 European Union's comments on Canada's preliminary ruling request, para s. 14-15. WT/DS522/12  
 
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  2.3.2   The United States  
2.16.   The United States does not comment on the merits of Canada's request for a preliminary 
ruling, but supports the resolution of the request prior to the filing of substantive submissions by 
the parties.31 
3  ANALYSIS BY THE PANE L 
3.1  Relevant provisions of the DSU  
3.1.  Article 6.2 of the DSU provides, in relevant part:  
The request for the establishment of a panel shall be made in writing. It shall indicate 
whether consultations were held, identify the specific measures  at issue and provide a 
brief summary of the legal basis of the complaint sufficient to present the problem 
clearly.  
3.2.  Requests for the establishment of a panel must thus fulfil four requirements to be consistent 
with Article  6.2 of the DSU. They must: (a) b e made in writing; (b) indicate whether consultations 
were held; (c) identify the specific measures at issue; and (d) provide a brief summary of the legal 
basis of the complaint sufficient to present the problem clearly. All these requirements must be 
discernible from the text of the request for the establishment. Any defect in the panel request 
cannot be cured at a later stage in the proceedings.32 
3.3.  We shall first address Canada's claim that Brazil's panel request fails to provide a brief 
summary of the seri ous prejudice claims sufficient to present the problem clearly. We shall then 
turn to Canada's contention that Brazil's panel request expands the scope of the dispute beyond 
that of the request for consultations. Finally, we shall examine whether Brazil's panel request fails 
to identify the specific measures at issue as regards certain alleged subsidies provided by Canada.  
3.2  Whether Brazil's panel request provided a brief summary of the serious prejudice 
claims sufficient to present the problem clearly  
3.4.  The pa rties disagree as to whether Brazil's panel request provides a brief summary of the 
legal basis of the serious prejudice claims sufficient to present the problem clearly, as required 
under Article 6.2 of the DSU.  
3.5.  Previous panel and Appellate Body reports have clarified that the requirement to provide a 
brief summary of the legal basis of the complaint sufficient to present the problem clearly can be 
subdivided into two elements : (a) a panel request must identify with a brief summary the "legal 
basis" of th e complaint; and ( b) that summary must be "sufficient to present the problem 
clearly".33 Concerning the first element , a panel request provides a "brief summary of the legal 
basis of the complaint" when it : (a) identifies the legal provision that has allege dly been violated; 
and (b) indicates how or why that provision has been violated.34 With regard to the second 
element , a summary of the legal basis of the complaint is considered to be "sufficient to present 
the problem clearly" when the panel request plain ly connects the challenged measure with the 
provision claimed to have been violated. This ensures that a respondent can "know what case it 
has to answer, and … begin preparing its defence".35  
3.6.  This requirement has been read as referring to the description, in the panel request, of a 
complainant's "claims" as opposed to its "arguments".36 A "claim"  is an allegation that a measure 
adopted or maintained by the complainant is inconsistent with a certain provision of the WTO 
                                                
31 United States' comments on Canada's preliminary ruling request, para. 2.  
32 Appellate Body Report, US – Carbon Steel , para. 127.  
33 Panel Report, US – OCTG (Korea) , para. 7.81.  
34 Panel Report, US – OCTG (Korea) , para. 7.82 (quoting  Appellate Body Report, EC – Selected Customs 
Matters , para. 130 ). 
35 Panel Report, EU – Biodiesel  (Argentina) , para. 7.29 (quoting  Appellate Bod y Reports, US – Oil 
Country Tubular Goods Sunset Reviews , para. 162 , in turn quoting Thailand – H-Beams , para. 88 ).  
36 Panel Report, US – Large Civil Aircraft (2nd complaint) (Article 21.5 – EU), para. 7.381 (quoting  
Appellate Body Reports, Guatemala – Cement I, para. 72; and EC – Bananas III , paras. 141 -143). WT/DS522/12  
 
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  agreements. The complainant will then s upport its claims with "arguments", which consist in the 
evidence and reasoning that it deems relevant to make its case.37 While claims must be identified 
with sufficient precision in the request for the establishment, the same does not apply to 
arguments. Parties, in fact, have the opportunity to develop their arguments (and to address the 
arguments of the other party and third parties) in their written submissions, in the substantive 
meetings with the panel, and in response to questions posed by the panel.   
3.7.  A "brief summary" of the legal basis of the complaint aims to succinctly  explain how or why 
the measure at issue is considered by the complainant to be violating the WTO obligation in 
question, and the narrative part of the panel request serves this function.38 To determine whether 
a panel request provides a brief summary of the legal basis of th e complaint sufficient to present 
the problem clearly, a panel must conduct "an objective examination of the panel request as a 
whole, as it existed at the time of filing, and on the basis of the language used therein".39 
3.8.  Concerning Canada's claim that Braz il failed to properly identify the allegedly subsidized 
products at issue, we note that although Article 6.2 of the DSU requires a complainant to "identify 
the specific measures at issue", it does not require a complainant to identify the specific products  
at issue. This is because the identification of the products concerned would normally flow from the 
description of the measures at issue.40 Although the Appellate Body found in EC – Chicken Cuts  
that, with respect to certain WTO obligations, in order to id entify the specific measures at issue , it 
may be necessary also to identify the products at issue41, we note that, for this element of its 
request for a preliminary ruling, Canada has not claimed that Brazil's panel request failed to 
properly identify the s pecific measures at issue.42  
3.9.  Canada refers to the statement by the panel in India – Agricultural Products  that there might 
be circumstances in which the failure to identify the products renders a panel request "so vague 
and broad that a respondent would no t be able to know the case against it and thus would not be 
able to begin preparing its defence".43 However, that case again concerned the alleged failure by 
the complainant to "identify the specific measures at issue" in its panel request. We emphasi ze 
that Canada does not challenge the manner in which Brazil identified the "specific measures" in its 
panel request. Canada's request for a preliminary ruling is based rather on an alleged failure by 
Brazil to "provide a brief summary of the legal basis of the complaint sufficient to present the 
problem clearly".   
3.10.   The first paragraph of Brazil's panel request indicates that the parties held consultations on 
"measures affecting trade in commercial aircraft".44 The third paragraph of Brazil's panel request 
identif ies the subject of the panel request as "prohibited and actionable subsidies provided to 
Bombardier … and its suppliers as well as legislation, regulations, other instruments, and 
amendments thereto providing such subsidies to these recipients".45  
3.11.   Thus, th e plain text of the first and third paragraphs of the request for the establishment 
indicates that the claims of serious prejudice concern subsidies allegedly bestowed by Canada to 
Bombardier (and its suppliers) affecting trade in commercial aircraft. That  Brazil is challenging 
measures affecting trade in commercial aircraft is further clarified by other specific references in 
the panel request to the aerospace industry46 and to the commercial aircraft sector.47 We consider 
                                                
37 Appellate Body Report, Korea – Dairy , para. 139.  
38 Appellate Body Reports, EC – Selected Customs Matters , para. 130; US – Countervailing and 
Anti-Dumping Measures (China) , para. 4.26.  
39 Panel Report, EU – Biodiesel (Argentina) , para. 7.27 (referring to  Appellate Body Report, EC and 
certain member States – Large Civil Aircraft , para. 641 ). 
40 Appellate Body Report, EC – Chicken Cuts , para. 165.  
41 Appellate Body Report, EC – Chicken Cuts , para. 16 6. 
42 Furthermore, that case concerned individual tariff classification decisions, and the Appellate Body 
considered that it may be necessary to identify the products at issue in order to distinguish the contested 
measures (for example, individual c lassification decisions by customs authorities) from other measures 
(different individual classification decisions by customs authorities) . We are not dealing with such measures in 
the present case.  
43 India – Agricultural Products , preliminary ruling of the Panel , WT/DS430/5, para. 3.36  (referring to 
Panel Reports, Korea – Alcoholic Beverages , para. 10.16; and EC – IT Products , paras. 7.194 -7.197) . 
44 Request for the establishment of a panel by Brazil, WT/DS522/6, p. 1.  
45 Request for the establishment of a panel by Brazil, WT/DS522/6, p. 1.  
46 Request for the establishment of a panel by Brazil, WT/DS522/6, p p. 3-5. 
47 Request for the establishment of a panel by Brazil, WT/DS522/6, p. 2. WT/DS522/12  
 
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  this characterization of the measur es which are the basis of Brazil's serious prejudice claims and 
the products which are covered by those measures to be sufficiently clear for the purpose of 
summarizing the legal basis of Brazil's complaint. We also note that Brazil submits that the contex t 
and attendant circumstances surrounding the panel request – including the request for 
consultations, the statement of available evidence annexed thereto and the parties'  statements at 
meetings of the DSB – contribute to the clarification of the product s cope of the serious prejudice 
claims. Having concluded that the panel request, on its face, identifies the product scope of the 
serious prejudice claims in a manner that is sufficient to present the problem clearly, we do not 
consider it useful to examine the attendant circumstances surrounding it.  
3.12.   Canada also contends that Brazil's panel request, by referring to a wide range of products, 
fails to identify an allegedly subsidized product in its summary of the legal basis of the complaint.48 
In this respect, we observe that Article 6.2 of the DSU does not prevent complainants from 
bringing claims relating to a broad range of products.49 As Canada itself notes, the panel in 
Canada  – Aircraft  found that the notion of "civil aircraft industry" was not too broad to  meet the 
requirements of Article 6.2 of the DSU.50 Nevertheless, Canada asserts that the present case is 
different because it deals with serious prejudice claims, whereas Canada – Aircraft was about 
claims of prohibited subsidies.51 
3.13.    In particular, Canada a rgues that claims of serious prejudice place the onus on the 
complainant to "demonstrate that the measures constitute subsidies and that they, through 
identified subsidized product(s), cause serious prejudice to like product(s)".52 The elements 
identified b y Canada will be necessary for the Panel's evaluation of Brazil's serious prejudice 
claims. However, this evaluation will take place on the basis of the parties' arguments. As 
explained above, these arguments do not need to be reflected in the complaining party's panel 
request. Article 6.2 of the DSU does not require complainants to "demonstrate" the 
WTO inconsistencies alleged in their claims.  
3.14.   In any event, we observe that the panel in Korea – Commercial Vessels  dealt with a similar 
issue while examining the compatibility of a panel request's serious prejudice claims with 
Article  6.2 of the DSU. In that dispute, the respondent argued that the complainant's panel 
request was not sufficiently clear because it liste d claims of serious prejudice relating to 
"commercial vessels". The respondent considered such reference to be "overly broad".53 The panel 
in that dispute concluded that the reference to "commercial vessels" in the panel request was a 
sufficiently precise s pecification of the product scope of the serious prejudice claims to comply with 
the standard of Article 6.2 of the DSU.54 
3.15.   Based on the foregoing, we consider that the description provided by Brazil in its panel 
request of the scope of its serious prejudice  claims concerning alleged actionable subsidies 
provided to Bombardier and its suppliers affecting trade in commercial aircraft properly provides a 
succinct explanation of the legal basis of the complaint sufficient to present the problem clearly .55  
                                                
48 Canada's request for a preliminary r uling, para. 10.  
49 The panel in US – FSC found that a request for the establishment of a panel listing violations of the 
Agreement on Agriculture with respect to "any" agricultural product  was sufficient to put the respondent on 
notice as regards the case against it. (Ibid. para. 7.29). However, the same panel further clarified that "the 
fact that a complainant in its request for establishment complains about violations relating to a broad range of 
products does not discharge it from its obligation to prese nt such evidence and argument as is necessary to 
raise a presumption of a violation of the WTO Agreement". (Ibid. para 7.31).  
50 Panel Report, Canada – Aircraft , paras. 9.36 -9.37. 
51 Canada's request for a preliminary ruling, fn 12.  
52 Canada's request for a preliminary ruling, fn 12.  
53 Panel Report, Korea – Commercial Vessels , para. 7.2, para. 31 of the preliminary rulings . 
54 Panel Report, Korea – Commercial Vessels , para. 7.2, para. 31 of the preliminary rulings . 
55 We further note that Brazil stated in its response to Canada's request for a preliminary ruling  
(para.  44) that the product scope of its serious prejudice claims is the "Bombardier's C -Series commercial 
aircraft program". Based on this clear statement, we  understand that Brazil's submissions will address serious 
prejudice claims relating to this product alone, and not any  other program mes or models of commercial 
aircraft . In this respect, we note that t he panel in Korea – Commercial Vessels  (para. 7.2, fn 18  of the 
preliminary rulings ) made a simil ar remark concerning the European Communities' clarifications on the product 
scope of its serious prejudice claims . WT/DS522/12  
 
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  3.16.   We now  turn to Canada's contention that Brazil's panel request failed to provide a brief 
summary of the legal basis of the complaint sufficient to present the problem clearly by not 
specifying the Brazilian like products allegedly suffering serious prejudice.  
3.17.   The plain text of Article 6.2 of the DSU does not  require complainants to specify the "like 
products" that experience  serious prejudice.  The identification of the like products would normally 
flow from the description of the allegedly subsidized products.  Provided the complainant clarifies 
that it is alleging serious prejudice in respect of like products, a detailed description of the specific 
nature of those like products is not needed in order for the summary of the legal basis of the 
complaint to be suffi cient to present the problem clearly . By describing  the allegedly subsidized 
products , a complainant also circumscribes the scope of the corresponding like products 
experiencing serious prejudice. Since  we have already found that Brazil has described the a llegedly 
subsidized products in a sufficiently clear manner , we also conclude that the reference to like 
products of Brazil in the panel request provides a succinct explanation sufficient to present the 
problem clearly . 
3.18.   In any event, we note that footnote 46 of the SCM Agreement establishes the following 
probative standard for the consideration of whether two products are "like":  
Throughout this Agreement the term "like product " ("produit similaire" ) shall be 
interpreted to mean a product which is identical , i.e. alike in all respects to the 
product under consideration, or in the absence of such a product, another product 
which, although not alike in all respects, has characteristics closely resembling those 
of the product under consideration . 
3.19.   Determining wh ether a product is "alike in all respects" or "has characteristics closely 
resembling" as compared to another requires the evaluation of a considerable amount of 
"arguments" and evidence. Clearly, complainants cannot be requested to submit such "arguments"  
and evidence in their panel requests. A thorough assessment of the subsidized products and of the 
corresponding like products experiencing serious injury should take place at the substantive stage 
of the proceedings. Therefore, our conclusion that Brazil' s panel request provides a brief summary 
of the serious prejudice claims sufficient to present the problem clearly does not discharge Brazil 
from the burden to prove at the substantive stage, inter alia , the existence of a Brazilian product  
or various Braz ilian products  that are "alike in all respects" or have "characteristics closely 
resembling" Bombardier's commercial aircraft .  
3.20.   In view of the foregoing, the Panel finds that Brazil's panel request fulfils the requirement to 
provide a brief summary of the legal basis of the serious prejudice claims sufficient to present the 
problem clearly.  
3.3  Whether Brazil's panel request expands the scope of the dispute beyond that of the 
request for consultations  
3.21.   We now turn to Canada's contention that Brazil's panel request expands the scope of the 
dispute beyond that of its request for consultations by including measures that were not 
mentioned in the request for consultations, and on which no consultations were held.56 In 
particular, Canada argues that the following measures fall outside the Panel's terms of reference: 
Canada's provision of up to CAD 950 million for Superclusters; the City of Montreal's Pr@m 
Industry programme; Hydro -Québec Energy Efficiency programmes; and the Government of 
Québec's Tax credit for investment relating to manufacturing and processing equipment.57   
3.22.   Brazil states that the four measures at issue were not included in its request for 
consultations because Brazil was not aware of those measures at the time it filed that request.58 
For Brazil, the four measures fall within the terms of reference of the Panel because they do not 
                                                
56 Canada's request for a preliminary ruling, para.  25. 
57 Canada's request for a preliminary ruling, para s. 24 and 25. 
58 Brazil's response to Canada's preliminary ruling request , para. 56. The request for consultations is 
dated 8 February 2017 and consultations were held on 10 March 2017. Brazil indicates that the Innovation 
Superclusters initiative was announced on 2 3 March 2017 (Brazil's panel request, fn 11) and that it became 
aware of the other measures when Québec and Bombardier disclosed the program mes to the US Department 
of Commerce  in July 2017.  WT/DS522/12  
 
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  expand the "scope and essence" of the dispute as it was characterized in the request for 
consultations.59 In particular, Br azil argues that its request for consultations identified the essence 
and scope of the dispute as including a list of measures as well as "[o]ther federal, provincial, and 
local subsidy programs benefiting Bombardier and the C -Series aircraft program … and  … [a]ny 
other existing or future measures … that involve a financial contribution by Canadian federal, 
provincial or local government entities or by any entity controlled by such Canadian government 
entities that benefit Bombardier or the C -Series program ".60  
3.23.   Article 4.4 of the DSU provides that any request for consultations must identify the 
measures at issue. However, it is well established that Articles 4 and  6 of the DSU, or Article 4 
and 7 of the SCM Agreement do not require a precise and exact identi ty between the measures 
that were the subject of consultations and those identified in the panel request, provided that the 
scope and essence of the dispute  has not been changed .61 
3.24.   Whether a complaining party has expanded the scope or essence of the dispute  by including 
in the panel request a measure that was not covered in its request for consultations must be 
determined on a case -by-case basis. We therefore assess whether the four measures expand the 
scope and essence of the dispute as it was characterized  in Brazil's request for consultations.  
3.25.   We start by noting that, according to Brazil, "the scope and essence of this dispute have 
been clear from the date Brazil requested consultations with Canada. The dispute involves the 
following: 'Canada’s federal, p rovincial, and local government have provided substantial subsidies 
to Bombardier to develop, launch, and preserve its C -Series aircraft program. Canada’s support to 
Bombardier for the C -Series program includes loans, grants, equity infusions, tax credits,  and 
other financial contributions' ".62 Brazil also states that it explicitly identified the essence and scope 
of the dispute as including the listed measures and "[o]ther federal, provincial, and local subsidy 
programs benefiting Bombardier and the C -Series aircraft program … and … [a]ny other existing or 
future measures … that involve a financial contribution by Canadian federal, provincial or local 
government entities or by any entity controlled by such Canadian government entities that benefit 
Bombardier  or the C -Series program".63 In the Panel's view, this provides a sufficient basis for 
additional measures to be included  in the panel request provided the measures do not expand the 
scope or change the essence of the dispute.  
3.26.   We now consider whether the m easures at issue expand the scope of the dispute as claimed 
by Canada.  
3.27.   We note that Brazil states that the Innovation Superclusters Initiative "clearly falls within 
the essence of this dispute and does not expand the scope of the dispute beyond measures 
providing subsidies to Bombardier 's C-Series aircraft program ".64 In relation to the other 
three  measures, Brazil states that the three identified bodies "provided support to the C -series 
program" and that the measures "fall under the types of measures that Brazil listed in its request 
for consultations".65 Brazil then explains that "[b]ecause the scope and essence of [this dispute] is 
Canada 's provision of support to Bombardier 's C-Series program through various types of 
measures , including grants, loans, tax  credits and others, the inclusion of the above -referenced 
measures … will not expand the scope or change the essence of this dispute".66  
3.28.   For its part , Canada has sought to explain how the measures are different from those 
included in the request for consultations. With regard to Superclusters, Canada argues that "it is a 
new program unrelated to any measures that Brazil identified in its request for consultations" 
being funded through different sources.67 Concerning the City of Montreal's Pr@M Industry  
Program, Canada argues that the request for consultations does not mention any programme 
                                                
59 Brazil's response to Canada's preliminary ruling request , para.  61. 
60 Brazil's response to Canada's preliminary ruling request , para.  60 (quoting Brazil's consultation 
request, p. 5).  
61 Appellate Body Report, Argentina – Import Measures , para 5.13 . 
62 Brazil's response to Canada's preliminary ruling request , para.  59. 
63 Brazil's response to Canada's preliminary ruling request , para.  60 (quoting Brazil's consultation 
request, p. 5).  
64 Brazil's response to Canada's preliminary ruling request , para.  64. (emphasis added)  
65 Brazil's response to Canada's preliminary ruling requ est, para.  71. 
66 Brazil's response to Canada's preliminary ruling request , para.  72. 
67 Canada's request for a preliminary ruling, para.  29. WT/DS522/12  
 
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  administered by the City of Montreal.68 With regard to Hydro -Québec Energy Efficiency 
program mes, Canada observes that Brazil's request for consultations does not iden tify any energy 
efficiency program mes, nor refers to any Hydro -Québec measure.69 Finally, Canada argues that 
Brazil's request for consultations does not refer to the Government of Quebec's Tax credit for 
investment relating to manufacturing and processing e quipment.70 
3.29.   We are not persuaded by Canada's arguments that the scope of the dispute (which Brazil 
describes as Canada's  provision of support to Bombardier's C -Series program through various 
types of measures, including grants, loans, tax credits, and other s) will have in fact been 
expanded by the inclusion of these measures. The Panel agrees with Brazil that the four measures 
at issue fit within the scope and essence of the dispute as described by Brazil, so that the scope of 
the dispute is not expanded by Brazil's panel request.  
3.30.   In view of the foregoing, the Panel concludes  that Cana da's provision of up to 
CAD 950 million for Superclusters, the City of Montreal Pr@m Industry programme, Hydro -Québec 
Energy Efficiency programmes, and the Government of Québec' s Tax credit for investment relating 
to manufacturing and processing equipment are within its terms of reference.  
3.4  Whether Brazil's panel request fails to identify the specific measures at issue as 
regards certain alleged subsidies granted by Canada  
3.31.   We now  turn to Canada's claim that Brazil's panel request failed to identify the specific 
measure at issue with respect to the CTA, the NRC, and the NSERC.  
3.32.   Canada argues that the description of these alleged subsidy programmes is "extremely 
broad" and could cov er thousands of measures for each of these organizations.71  
3.33.   Brazil responds that the language in its panel request "as a whole contained far more detail 
than is required to provide Canada 'with sufficient particularity so as to indicate the nature of the 
measures and the gist of what is at issue'" (footnote omitted).72 Brazil states that its panel request 
identified the commercial aircraft industry as the relevant industry, identified the relevant 
measures, identified the specific organizations providing the  support, and described the type of 
support provided. Brazil notes that the panel request also included footnotes referencing outside 
sources (websites) about the alleged subsidy programmes at issue.73  
3.34.   The European Union, in its comments regarding Canada's  preliminary ruling request, agrees 
with Brazil that the footnotes and certain other aspects of its panel request "certainly add 
specificity to the CTA, NRC and NSERC measures".74 However, the European Union "wonders why 
such important clarification was onl y made in a footnote and whether Canada could be sure that 
these were the specific and only measures that Brazil sought to challenge in its Panel Request".75 
The European Union suggests that Brazil may have been hampered by the lack of public 
information on  the precise measures it sought to challenge.76  
3.35.   We observe that the identification of a measure within the meaning of Article 6.2 of the DSU 
need be framed only with sufficient particularity so as to indicate the nature of the measure and 
the gist of what is at issue.77 We also recall that, although compliance with Article 6.2 of the DSU 
must be "'demonstrated on the face' of the panel request"78, a panel may supplement its analysis 
                                                
68 Canada's request for a preliminary ruling , para. 33.  
69 Canada's request for a preliminary ruling , para. 37.  
70 Canada's request for a preliminary ruling, para. 40.  
71 Canada's request for a preliminary ruling, para.  45. 
72 Brazil's response to Canada's preliminary ruling request , para.  11. 
73 Brazil's response to Canada's preliminary ruling request , para s. 12 and 13.  
74 European Union's comments on Canada's preliminary ruling request , paras. 13 -15. 
75 European Union's comments on Canada's preliminary ruling request , para. 15 . 
76 European Union's comments on Canada's preliminary ruling request, para. 16.  
77 Appellate Body Rep ort, US – Continued Zeroing , para. 169.  
78 Appellate Body Report, US – Zeroing  (Japan) (Article 21.5  – Japan ), para. 108  (referring to 
Appellate  Body Reports, US – Carbon Steel , para. 127; and US – Continued Zeroing , para. 161) . WT/DS522/12  
 
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  by looking at external sources referenced in the request, such as websites re ferencing the 
measures at issue.79 
3.36.   In the present case, the Panel finds that the panel request, on its face, contains a 
description of the measures at issue, which is sufficient to indicate the nature of the measure and 
the gist of what is at issue.  
3.37.   We und erstand from the text of the panel request that t he reference to "Canada's and 
Quebec's provision of funding, technology transfer, in -kind goods and services, and other support 
through the CTA , the National Research Council ('NRC') and the Natural Sciences  and Engineering 
Research Council of Canada ('NSERC')"  forms part of Brazil's challenge to subsidies granted to 
Bombardier for its C -Series aircraft.80 These measures appear under the heading " Other Research 
and Development Subsidies" at page 3 of the panel request , which is an indication of the nature of 
the measures at issue under that heading. Read in the context of Brazil's panel request as a whole, 
we consider that this description is specific enough for Canada to know which measures are being 
challenge d in the present dispute.  
3.38.   We note that the websites referenced in footnotes 8, 9 , and 10  of Brazil's panel request 
supplement the information in the text of the panel request by providing additional information 
regarding the measure at issue. We agree with Brazil however, that the text of its panel request 
alone  is sufficient to meet the requ irements of Article 6.2.81  
3.39.   In view of the foregoing, we conclude that Canada's and Québec's  provision of funding, 
technology transfer, in -kind goods and services, and other support through the CTA , the NRC, and 
the NSERC  is identified with sufficient parti cularity in Brazil's panel request and therefore falls 
within the Panel's terms of reference.  
4  FINDINGS AND CONCLUS ION 
4.1.  For the reasons set out in this preliminary ruling, the Panel concludes that Brazil's panel 
request complies with the requirements of Art icle 6.2 of the DSU such that : 
a. Brazil 's claims with regard to serious prejudice under Articles 5(c), 6.3, 6.4 , and 6.5 of 
the SCM Agreement ; 
b. Canada's provision of up to CAD 950 million for Superclusters;  
c. City of Montreal PR@M Industry program me; 
d. Hydro -Québec Energy Efficiency program mes; 
e. Government of Québec  Tax credit for investment relating to manufacturing and 
processing equipment; and  
f. support provided by the CTA, the NRC , and the NSERC  
are within the terms of reference of the Panel.  
4.2.  This preliminary ruling will become an integral part of the Panel's report, subject to any 
modifications or elaboration of the reasoning, either in a subsequent ruling or in the Panel's report, 
in the light of comments received from the parties in the course of the proceed ings. 
__________  
                                                
79 Appellate Body Report, Argentina – Import Measures , para. 5.50.  
80 Brazil's response to Canada's preliminary ruling request , para s. 11-12 (quoting Brazil's panel request, 
p. 3).  
81 Brazil's response to Canada's preliminary ruling request , para.  16.