UNITED STATES – SUBSIDIES ON UPLAND COTTON
Document: Recourse to Article 21.5 of the DSU by Brazil Notification of an Other Appeal by Brazil under Article 16.4 and Article 17 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), and under Rule 23(1) of the Working Procedures for Appellate Review
Date: 29 February 2008
Document codes: WT/DS267/34
Complainant: Brazil
Respondent: U.S.
Third parties: Argentina, Australia, Benin, Canada, Chad, China, Taiwan, EU, India, New Zealand, Pakistan, Paraguay, Venezuela, Japan, Thailand
Dispute stage: Mutually Agreed Solution
Agreements cited: Art. 3, 5, 6  Subsidies and Countervailing Measures (SCM)Art. 3.3, 7.1, 8, 9.1, 10.1  AgricultureArt. III:4, XVI  GATT 1994

UNITED STATES – SUBSIDIES ON UPLAND COTTON

Recourse to Article 21.5 of the DSU by Brazil

Notification of an Other Appeal by Brazil
under Article 16.4 and Article 17 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (DSU),
and under Rule 23(1) of the Working Procedures for Appellate Review

 The following notification, dated 25 February 2008, from the Delegation of Brazil, is being
circulated to Members.

Brazil appeals certain issues of law and lega l interpretations in the Panel Report in – Recourse to Article 21.5 of the DSU by Brazil.
1

2. Brazil's first appeal is contingent on the Appellate Body reversing the compliance Panel's
finding, in accordance with the United States' app eal, that payments made after 21 September 2005
pursuant to the Marketing Loan Payments ("ML") program and Counter-Cyclical Payments ("CCP")
program were within the scope of this proceeding under Article 21.5 and, therefore, properly before
the compliance Panel.
2

3. In that event, Brazil seeks reversal of the compliance Panel's finding that the DSB's
recommendations and rulings in the original pro ceedings, and the original panel's recommendations
and conclusions, included only the ML and CCP pa yments, and not also the ML and CCP programs.
3
This finding constitutes an error by the comp liance Panel under Article 21.5 of the DSU.
Alternatively, in making this finding, the complian ce Panel failed to make an objective assessment of
the matter under Article 11 of the DSU.

4. Brazil furthermore requests that the Appellate Body find:

(a) that the ML and CCP payments made after 21 September 2005 constitute measures
taken to comply with the DSB's recomme ndations and rulings in the original
proceedings within the meaning of Article 21.5 of the DSU, because of the close
connection to the ML and CCP programs subject to those recommendations and
rulings; or, alternatively

1WT/DS267/RW, circulated on 18 December 2007.
2Panel Report, paras. 9.75 to 9.81, as challenged in the United States' Appellant's Submission,
Section II.B, paras. 56 to 74.
3Panel Report, paras. 9.44 to 9.55, in particular para. 9.47.

(b) that the United States, through the continued use of the ML and CCP programs,
causes serious prejudice to Brazil's interest s within the meaning of Articles 5(c)
and 6.3(c) of the Agreement on Subsidies and Countervailing Measures.
5. Second, in the event that the Appellate Body reverses, in accordance with the United States'
appeal, the compliance Panel's finding that Brazil' s claims "relating to export credit guarantees
["ECGs"] for exports of pig meat and poultry m eat" were properly before the compliance Panel
4,
Brazil requests that the Appellate Body find that th e compliance Panel erred in rejecting Brazil's view
that "the measure that is the subject of [Brazil's] claims is the amended [General Sales Manager
("GSM")] programme itself".
5 This finding is inconsistent with Article 21.5 of the DSU.
Alternatively, in making this finding, the Panel fa iled to make an objective assessment of the matter
under Article 11 of the DSU. Brazil requests that th e Appellate Body find, instead, that the amended
GSM program itself was the measure taken to comply for purposes of Article 21.5 of the DSU, was
the measure subject to Brazil's claims, and was properly before the compliance Panel.

6. As part of this conditional appeal relating to ECGs, Brazil further requests that the Appellate
Body find that the United States applies th e GSM 102 program in a manner that results in
circumvention of U.S. export subsidy commitment s with respect to pig meat and poultry meat,
contrary to Articles 10.1 and 8 of the Agreement on Agriculture, as well as to Articles 3.1(a) and 3.2
of the SCM Agreement.

4Panel Report, para. 9.27, as challenged in the United States' Appellant's Submission, Section II.A,
paras. 33 to 55.
5Panel Report, para. 9.25.