CANADA – MEASURES RELATING TO EXPORTS OF WHEAT AND TREATMENT OF IMPORTED GRAIN
Document: Notification of an Appeal by the United States under paragraph 4 of Article 16 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU)
Date: 3 June 2004
Document codes: WT/DS276/15
Complainant: U.S.
Respondent: Canada
Third parties: Australia, Chile, China, Taiwan, EU, Japan, Mexico
Dispute stage: Appellate Body
Agreements cited: Art. XVII:1, III:4  GATT 1994Art. 2  Trade-Related Investment Measures (TRIMs)

CANADA – MEASURES RELATING TO EXPORTS OF
WHEAT AND TREATMENT OF IMPORTED GRAIN

Notification of an Appeal by the United States
under paragraph 4 of Article 16 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (DSU)

 The following notification, dated 1 June 2004, from the Delegation of the United States, is
being circulated to Members.

Pursuant to Article 16 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes ("DSU") and Rule 20 of the Working Procedures for Appellate Review, the
United States hereby notifies its decision to app eal to the Appellate Body certain issues of law
covered in the Report of the March Panel and July Panel
1 on () and certain legal interpretations
developed by the March Panel and July Panel in this dispute.

1. The United States seeks review by the Appella te Body of the March Panel's legal conclusion
in its preliminary ruling of June 25, 2003, that Ca nada's request for a preliminary ruling on Article 6.2
of the Understanding of Rules and Procedures Governing the Settlement of Disputes ("DSU") was
filed in a timely manner and that by implication a r esponse to Canada's letter of April 7, 2003 could
"cure" any breach of Article 6.2 of the DSU. Th ese findings are in error, and are based on erroneous
findings on issues of law and related legal interpre tations, including those found in paragraphs 53 to
64 of the Panel's preliminary ruling.
2

2. The United States seeks review by the Appellate Body of the July Panel's legal conclusion
that the Canadian Wheat Board ("CWB") Export Regi me is consistent with Canada's obligations
under Article XVII of the General Agreement on Tariffs and Trade 1994 ("GATT 1994"). This
finding is in error, and is based on erroneous findings on issues of law and related legal
interpretations, including, for example:

(a) that the phrase "enterprises of the other [Members]" in Article XVII:1(b) is limited to those
enterprises that wish to purchase products from a state trading enterprise ("STE");
3

(b) that the phrase "solely in acco rdance with commercial considerations" in Article XVII:1(b) is
a narrow requirement "simply intended to prevent STEs from behaving like 'political' actors"

1 As distinguished in the Panel Report, paras. 1.4 and 1.10.
2 See Panel Report, para. 6.10.
3 See, e.g., Panel Report, paras. 6.66 – 6.73; 6.150.

and not intended to prevent STEs from using th eir special and exclusive privileges to the
disadvantage of commercial actors;
4 and

(c) that "the CWB's legal structure and manda te, together with the special and exclusive
privileges granted to it," does not create an in centive for the CWB to make sales which are
not "solely in accordance with commercial cons iderations," and that this finding alone is
sufficient to determine that therefore the CWB Export Regime as a whole does not
necessarily result in making sales which are not "solely in accordance with commercial
considerations," as required by Article XVII:1.
5

3. The United States seeks review by the Appellate Body, pursuant to Article 11 of the DSU, of
the July Panel's assessment of the CWB's legal frame work as being limited solely to the structure of
the CWB's Board of Directors and the lack of day- to-day government control over the operations of
the CWB, and not including the special and exclusive privileges granted under the CWB Act.6 The
United States further seeks review by the Appellate Body, pursuant to Article 11 of the DSU, of the
July Panel's assessment that the CW B is "controlled by" grain producers. 7 In both situations, the
Panel's complete disregard for other evidence submitt ed by the United States, such as elements of the
CWB Act and Canada's control and influence over the CWB, 8 is inconsistent with the Panel's duty to
make an objective assessment of the matter before it.

Government of Canada under CWB Act ); U.S. First Submission, para. 16 n. 19 (referring to Government of
Canada's absorption of any losses sustained by the CWB under CWB Act).