EUROPEAN COMMUNITIES AND CERTAIN MEMBER STATES – MEASURES AFFECTING TRADE IN LARGE CIVIL AIRCRAFT
Document: Recourse to Article 22.6 of the DSU by the European Union Constitution of the Arbitrator Note by the Secretariat
Date: 13 January 2012
Document codes: WT/DS316/20
Complainant: U.S.
Respondent: EU, France, Germany, Spain, United Kingdom
Third parties: Australia, Brazil, Canada, China, Japan, South Korea
Dispute stage: Retaliation & Arbitration
Agreements cited: Art. 3.1, 3.2, 5, 6.3  Subsidies and Countervailing Measures (SCM)Art. XVI:1  GATT 1994Art. 1, 2  Subsidies and Countervailing Measures (SCM)Art. III:4  GATT 1994

EUROPEAN COMMUNITIES AND CERTAIN MEMBER STATES –
MEASURES AFFECTING TRADE IN LARGE CIVIL AIRCRAFT

Recourse to Article 22.6 of the DSU by the European Union

Constitution of the Arbitrator

Note by the Secretariat

1. At the meeting of the Dispute Settlement Body (DSB) on 22 December 2011, the
United States stated that the European Union a nd certain member States had not brought measures
found to result in adverse effects into complian ce with their obligations under the Agreement on
Subsidies and Countervailing Measures (SCM Agreemen t) and that it had requested authorization to
take countermeasures.1
2. The European Union at the same meeting objected to the level of suspension of concessions
or other obligations contained in the United States' request and claimed that the principles and
procedures set forth in Article 22.3 of the DSU ha d not been followed. The European Union also
stated that the United States' proposal is not allowed under the covered agreements. The
European Union requested the matter be referred to arbitration under Article 22.6 of the DSU. The
DSB agreed that the matter raised by the European Union in its statement was referred to arbitration
as required by Article 22.6 of the DSU.
3. Article 22.6 of the DSU provides as follows:
"When the situation described in paragraph 2 occurs, the DSB, upon request, shall
grant authorization to suspend concessions or other obligations within 30 days of the
expiry of the reasonable period of time unl ess the DSB decides by consensus to reject
the request. However, if the Member con cerned objects to the level of suspension
proposed, or claims that the principles and procedures set forth in paragraph 3 have
not been followed where a complaining part y has requested authorization to suspend
concessions or other obligations pursuant to pa ragraph 3(b) or (c), the matter shall be
referred to arbitration. Such arbitration sha ll be carried out by the original panel, if
members are available, or by an arbitrator 15 appointed by the Director-General and
shall be completed within 60 days after the date of expiry of the reasonable period of
time. Concessions or other obligations sh all not be suspended during the course of
the arbitration."
(original footnote) 15 The expression "arbitrator" shall be interpreted as referring either to an
individual or a group.

1 See WT/DS316/18.

4. Article 7.9 of the SCM Agreement provides as follows:
"In the event the Member has not taken a ppropriate steps to remove the adverse
effects of the subsidy or withdraw the subs idy within six months from the date when
the DSB adopts the panel report or the Appellate Body report, and in the absence of
agreement on compensation, the DSB shall grant authorization to the complaining
Member to take countermeasures, commensur ate with the degree and nature of the
adverse effects determined to exist, unless the DSB decides by consensus to reject the
request."
5. Article 7.10 of the SCM Agreement provides as follows:
"In the event that a party to the dispute requests arbitration under paragraph 6 of
Article 22 of the DSU, the arbitrator sha ll determine whether the countermeasures are
commensurate with the degree and nature of the adverse effects determined to exist."
6. The Arbitration will be carried out by the original panel, namely:
 Chairman: Mr Carlos Pérez del Castillo

 Members: Mr John Adank
 Mr Thinus Jacobsz