BRAZIL - MEASURES AFFECTING DESICCATED COCONUT AB-1996-4
Document: Appellate Body BRAZIL - MEASURES AFFECTING DESICCATED COCONUT AB-1996-4 Report of the Appellate Body
Date: 21 February 1997
Document codes: WT/DS22/AB/R
Complainant: Philippines
Respondent: Brazil
Third parties: Canada, EU, Indonesia, Sri Lanka, U.S.
Dispute stage: Appellate Body
Agreements cited: Art. VI:6, VI:3  GATT 1994

ORGANIZATION Appellate Body
BRAZIL - MEASURES AFFECTING DESICCATED COCONUT
AB-1996-4
Report of the Appellate Body

APPELLATE BODY
Brazil - Measures Affecting Desiccated
Coconut
Philippines, Appellant/Appellee
Brazil, Appellant/Appellee
European Communities, Third Participant
United States, Third Participant
AB-1996-4
Present:
El-Naggar, Presiding Member
Ehlermann, Member
Lacarte-Muró, Member
I. Introduction
The Philippines and Brazil appeal from certain issues of law and legal interpretations in the
Panel Report, Brazil - Measures Affecting Desiccated Coconut1 (the "Panel Report"). That Panel was
established to consider a complaint by the Philippines against Brazil relating to the countervailing duties
imposed by Brazil on imports of desiccated coconut from the Philippines pursuant to Interministerial
Ordinance No. 11 (the "Ordinance") on 18 August 1995.
The applicationforinitiationof the countervailingdutyinvestigationwas filedwiththe Brazilian
authorities on 17 January 1994. The investigation was initiated on 21 June 1994, provisional
countervailing duties were imposed on 23 March 1995, and definitive countervailing duties were imposed
on 18 August 1995. The Marrakesh Agreement Establishing the 2 (the "WTO
Agreement") entered into force for both parties to this dispute, Brazil and the Philippines, on 1 January
1995, that is, after the application for, and the initiation of, the investigation and prior to the imposition
of the provisional and definitive countervailing duties.
1, 17 October 1996.
2Done at Marrakesh, Morocco, 15 April 1994.

The Panel Report was circulated to Members of the (the "WTO")
on 17 October 1996. It contains the following conclusions:
a. Article VI of GATT 1994 does not constitute applicable law
for the purposes of this dispute. As a result, the substance
of the Philippines' claims under that Article, and of its claims
under Articles I and II of GATT 1994 which derive from their
claims of inconsistency with Article VI of GATT 1994, cannot
be considered by this Panel.
b. The Agreement on Agriculture does not constitute applicable
law for the purposes of this dispute. As a result, the substance
of the Philippines' claims under that Agreement cannot be
considered by this Panel.
c. The Philippines' claim regarding Brazil's failure to consult
is not within the terms of reference of this Panel and therefore
its substance cannot be considered.3
The Panel made the following recommendation:
The Panel, having concluded that the substance of the Philippines'
claims are not properly before it, recommends that the Dispute
Settlement Body make such a ruling.4
On 16 December 1996, the Philippines notified the Dispute Settlement Body5 (the "DSB") of
its intention to appeal certain issues of law covered in the Panel Report and legal interpretations developed
by the Panel, pursuant to paragraph 4 of Article 16 of the Understanding on Rules and Procedures
Governing the Settlement of Disputes (the "DSU") and filed a Notice of Appeal with the Appellate Body,
pursuant to Rule 20 of the Working Procedures for Appellate Review (the "Working Procedures").
On 9 January 1997, the Philippines filed an appellant's submission.6 On 14 January 1997,
Brazil filed an appellant's submission pursuantto Rule 23(1) of the Working Procedures. On 24January
3Panel Report, para. 294.
4Panel Report, para. 295.
5WT/DS22/8, 18 December 1996.
6Pursuant to Rule 21(1) of the Working Procedures.

1997, Brazil filed an appellee's submission pursuant to Rule 22 of the Working Procedures and the
Philippines filed an appellee's submission pursuant to Rule 23(3) of the Working Procedures. That
same day, the European Communities and the United States submitted third participants' submissions
pursuant to Rule 24 of the Working Procedures.
The oral hearing provided for in Rule 27 of the Working Procedures was held on 30 January
1997. The participants and third participants presented their arguments and answered questions from
the Division of the Appellate Body hearing the appeal.
II. Arguments of Participants and Third Participants
A. The Philippines
The Philippines appeals from certain of the Panel's legal findings and conclusions, as well
as from certain legal interpretations developed by the Panel. The Philippines submits that the Panel
erred in concluding that Article VI of the General Agreement on Tariffs and Trade 1994 (the "GATT
1994") cannot be independently applied in transitional situations where the Agreement on Subsidies
and Countervailing Measures (the "SCM Agreement") is not applicable pursuant to Article 32.3 of
the SCM Agreement, and that the inapplicability of Article VI of the GATT 1994 renders Articles I
and II of the GATT 1994 inapplicable. In the Philippines' view, the Panel erroneously treated the
Philippines’ reliance on Articles I and II of the GATT 1994 as one that "derive[s] from" the Philippines’
invocation of Article VI of the GATT 1994.
According to the Philippines, the Panel’ s analysis is flawed by its failure to address this dispute
in accordance with the proper relationship between Articles I, II and VI of the GATT 1994 and
Article 32.3of the SCMAgreement. The Panel erred instartingand focusingitsanalysis onArticle 32.3
of the SCM Agreement, which the Philippines did not invoke. The Panel should have first evaluated
whether the disputed measure is inconsistent with Articles I and II of the GATT 1994, and if it was
found to be inconsistent, then the Panel should have examined whether the measure could be justified
under Article VI of the GATT 1994. Moreover, because Brazil's defence is predicated on an exception
(Article 32.3 of the SCM Agreement) to yet another exception (Article VI of the GATT 1994) to the
general rule (Articles I and II of the GATT 1994), the Panel should have interpreted Article 32.3 of
the SCM Agreement narrowly.

The Philippines argues that, when the WTO Agreement entered into force for both Brazil and
the Philippines on 1 January 1995, the Philippines became entitled to invoke its rights under Articles I
and II of the GATT 1994, and its rights arising under Article VI of the GATT 1994, in regard to any
countervailing measure imposed against the Philippines by any WTO Member, including Brazil, after
the WTO Agreement's entry into force. Article 32.3 of the SCM Agreement, at most, precludes the
application of the SCM Agreement to WTO-era measures applied for before the entry into force of
the WTO Agreement due to the differences between the SCM Agreement and the Agreement on
Interpretation and Application of Articles VI, XVI and XXIII of the General Agreement on Tariffs and
Trade (the "Tokyo Round SCM Code"), but such a transitional rule does not affect the applicability
of Articles I, II and VI of the GATT 1994, whose texts are exactly identical to their counterpart
provisions in the General Agreement on Tariffs and Trade 1947 (the "GATT 1947").
The Philippines asserts that international law principles as codified in the Vienna Convention
on the Law of Treaties (the "Vienna Convention")7 ensure the non-retroactive application of treaties.
Article 28 of the Vienna Convention insulates an act that took place before the new treaty's entry into
force from the obligations of that treaty. As the substance and conclusion of the investigation leading
to the imposition by Brazil of the countervailing measure at issue in this dispute occurred after the
entry into force of the WTO Agreement, Articles I, II and VI of the GATT 1994 constitute the law
applicable to the measure in dispute, and such applicability does not involve retroactivity. The
Philippines challenges the Panel's finding that the application of Article VI of the GATT 1994 to
the countervailing duty measure in dispute leads to a "manifestly absurd or unreasonable" result. In
the Philippines’ view, application of Article VI of the GATT 1994 to a definitive countervailing duty
is no less fair than applying WTO norms to other pre-WTO measures, such as occurred in United
States - Standards for Reformulated and Conventional Gasoline8 ("United States - Gasoline").
In the Philippines' view, the Panel improperly disregarded the Philippines’ argument that the
transitional decisions9 recognize the right of WTO Members to invoke WTO norms even in situations
723 May 1969, 1155 U.N.T.S. 331; 8 International Legal Materials 679.
8WT/DS2/9, adopted 20 May 1996.
9By "transitional decisions", we refer to the Decision on Transitional Co-Existence of the GATT 1947 and the WTO
Agreement, PC/12-L/7583, 13 December 1994; the Decision on Transitional Co-Existence of the Agreement on Interpretation
and Application of Articles VI, XVI and XXIII of the General Agreement on Tariffs and Trade and the Marrakesh Agreement
Establishing the World Trade Organization (the "Decision on Transitional Co-existence of the Tokyo Round SCM Code
and the WTO Agreement"), SCM/186, 16 December 1994; and the Decision on Consequences of Withdrawal from or
Termination of the Agreement on Interpretation and Application of Articles VI, XVI and XXIII of the General Agreement
on Tariffs and Trade (the "Decision on Consequences of Withdrawal from or Termination of the Tokyo Round SCM Code"),
SCM/187, 16 December 1994.

involving elements that occurred prior to the entry into force of the WTO Agreement. The Decision
on Transitional Co-Existence of the Tokyo Round SCM Code and the WTO Agreement expressly
recognizes the availability of WTO dispute resolution not only as an option, but as an immediate
pre-emptive choice in matters also covered by the Tokyo Round SCM Code. The Decision on
Consequences of Withdrawal from or Termination of the Tokyo Round SCM Code is permissive,
expressly recognizing the right of a signatory to the Tokyo Round SCM Code, that is also a WTO
Member, to choose under which regime it will vindicate its rights. The Philippines contends that it
has the procedural right to resort to the DSU to enforce its substantive WTO rights.
While Article 28 of the Vienna Convention recognizes that its limitations on non-retroactivity
may be qualified where "a different intention appears from the treaty or is otherwise established", the
Philippines argues that no such intention is indisputably established by Article 32.3 of the SCM Agreement
and the other provisions upon which the Panel relied. It was wrong for the Panel Report to vary the
plain meaning of the term, "this Agreement", in Article 32.3 of the SCM Agreement so as to refer
also to the GATT 1994.
In the Philippines' view, the context of Article 32.3 of the SCM Agreement does not warrant
inferring a reference to Article VI of the GATT 1994. Article 32.1 of the SCM Agreement confirms
that the reference in Article 32.3 of the SCM Agreement to "this Agreement" means only the SCM
Agreement. The omission in the SCM Agreement of note 2 to the preamble of the Tokyo Round SCM
Code does not support, and in fact undercuts, the Panel's non-separability finding. The presence of
cross-references from Articles 10 and 32.1 of the SCM Agreement to Article VI of the GATT 1994
does not make Article VI of the GATT 1994 so inseparable from the SCM Agreement as to negate
the rights of WTO Members to invoke Article VI of the GATT 1994 independently. Such a right to
choose existed under the pre-WTO regime despite similar cross-references in the Tokyo Round SCM
Code to Article VI of the GATT 1947. Furthermore, it was improper for the Panel to support its non-
separability finding with the broad argument that Article 7.1 of the DSU fosters an "integrated" dispute
settlement framework that "allows a panel to interpret provisions of covered agreements in the light
of the WTO Agreement as a whole".10
According to the Philippines, the object and purpose of Article 32.3 of the SCM Agreement
and the WTO Agreement also do not warrant interpreting the phrase "this Agreement" in Article 32.3
of the SCM Agreement to include Article VI of the GATT 1994.
10Panel Report, para. 242.

In the Philippines' view, the panel report in United States - Countervailing Duties on Fresh,
Chilled and Frozen Pork from Canada11 ("United States - Pork") offers persuasive guidance on the
separate applicability of Article VI of the GATT 1994. The panel in European Economic Community
- Payments and Subsidies Paid to Processors and Producers of Oilseeds and Related Animal-Feed
Proteins12 ("EEC - Oilseeds") in effect addressed the separability issue and resolved it in favour of
applying GATT 1947 separately from the Tokyo Round SCM Code. In addition, the Panel Report failed
to give due weight to the United States - Gasoline case as evidence that a complaining WTO Member
is not required to invoke all agreements that are potentially relevant to a dispute.
In the view of the Philippines, the unavailability of the SCM Agreement’ s definitions, or the
possibility of interpretations inconsistent therewith, when Article VI of the GATT 1994 is interpreted
independently, do not negate the right of WTO Members to invoke Article VI of the GATT 1994
independently in transitional situations where the SCM Agreement is inapplicable. In addition, when
independently applied, Article VI of the GATT 1994 can be properly interpreted in light of practice
under Article VI of the GATT 1947 that antedated, and/or was not dependent on, the Tokyo Round
SCM Code.
The Philippines further argues that it was not the intent of the original WTO Members to allow
prospective new WTO Members to use applications for investigations filed prior to their accession
to the WTO Agreement as a basis for insulating from the GATT 1994 any countervailing measures
that such prospective WTO Members may impose after their admission into the WTO. In addition,
the Panel's ruling could leave some WTO Members without any remedy for at least five years, until
such time as the "sunset" review provision in Article 21.3 of the SCM Agreement becomes effective.
If the Appellate Body reverses the Panel's conclusions that Articles I, II and VI of the GATT
1994 are inapplicable to this dispute, the Philippines requests that the Appellate Body adopt a procedure
for this appeal under Rule 16(1) of the Working Procedures for the resolution of the substantive merits
of the Philippines' claims. The Philippines incorporates its arguments made before the Panel and submits
that the subsidy and injury determinations of the Ordinance, and the countervailing measure based
thereon, are inconsistent with Articles I and II of the GATT 1994, and not justified by Articles VI:3
and VI:6(a) of the GATT 1994.
11BISD 38S/30, adopted 11 July 1991.
12BISD 37S/86, adopted 25 January 1990.

With respect to the point of appeal raised in Brazil's appellant's submission, the Philippines
argues that Brazil did not ask the Panel to refrain from considering whether or not Articles I and II
of the GATT 1994 are applicable to this dispute. On the contrary, Brazil requested the Panel to consider
the issue of the applicability or inapplicability of the GATT 1994. In any event, Articles I and II of
the GATT 1994 are covered by the terms of reference because they are "relevant provisions" within
the agreement "cited" by the Philippines.
B. Brazil
Brazil generally agrees with the Panel's findings and conclusions concerning the law applicable
to this dispute, but nevertheless appeals on one issue. Brazil claims that the issue of the applicability
of Articles I and II of the GATT 1994 was not within the terms of reference of the Panel in this dispute
and should not have been addressed by the Panel.
With respect to the points of appeal raised in the Philippines' appellant's submission, Brazil
considers it appropriate, and in accordance with principles of international law, that the Panel first
determined whether it had jurisdiction to consider the dispute before considering the substantive merits
of the Philippines’ claims. The question of whether the WTO Agreement applies to the substance of
the dispute is not merely a "defence" as claimed by the Philippines, but a fundamental jurisdictional
issue. While Brazil does not contest that the Philippines has the procedural right to resort to the DSU
to enforce its substantive WTO rights, Brazil asserts that the Panel properly found that this dispute
did not involve any substantive WTO rights. The Panel’ s conclusion that it did not have jurisdiction
is correct, and the Tokyo Round SCM Code constitutes the law applicable to this dispute.
In Brazil’ s view, the Panel properly applied the customary rules of interpretation of public
international law as set out in Articles 31 and 32 of the Vienna Convention to conclude that the WTO
Agreement did not apply to this dispute. The plain language of Article 32.3 of the SCM Agreement
prohibits the application of at least the SCM Agreement to this dispute, and the context of the WTO
Agreement indicates that Article 32.3 of the SCM Agreement prevents the application of any portion
of the WTO Agreement to this dispute. There are numerous indicia that the WTO Agreement and its
Multilateral Trade Agreements were intended to apply as a whole. Article II:2 of the WTO Agreement
states that the agreements and associated legal instruments included in Annexes 1, 2 and 3 --
encompassing both the GATT 1994 and the SCM Agreement -- are "integral parts" of the Agreement.

There is a unified dispute settlement mechanism that applies to disputes raised under the WTO Agreement,
the GATT 1994 and the other covered agreements. The general interpretative note to Annex 1A of
the WTO Agreement indicates that the GATT 1994 and the other agreements are to be considered
together. Article 10 of the SCM Agreement indicates that countervailing duties may only be imposed
in accordance with the provisions of Article VI of the GATT 1994 and the terms of the SCM Agreement.
As the Panel noted, several of the provisions of the SCM Agreement seek to interpretor provideguidance
on terms used in Article VI. As the Panel further observed, applying Article VI of the GATT 1994
separately from Article VI of the GATT 1994 and the SCM Agreement could lead to differing
interpretations of the benefits and obligations conferred by Article VI of the GATT 1994 as between
the same Members.
In Brazil's view, United States - Gasoline does not support the application of Article VI of
the GATT 1994 without reference to the SCM Agreement. The Agreement on Technical Barriers to
Trade, invoked in United States - Gasoline, does not purport to interpret any articles of GATT 1994,
nor does it contain any language similar to that of Article 10 of the SCM Agreement linking it to specific
articles of the GATT 1994.
Brazil asserts that the Panel's consideration of the Decision on Consequences of Withdrawal
from or Termination of the Tokyo Round SCM Code was consistent with the reference to a "subsequent
agreement" within the meaning of Article 31(3)(a) of the Vienna Convention. To the extent that
"subsequent practice" within the meaning of Article 31(3)(b) of the Vienna Convention has developed,
it supports the Panel's conclusion that Article VI of the GATT 1994 does not apply to this dispute.
Brazil further asserts that Article 28 of the Vienna Convention, as a "relevant rule of international law
applicable in the relations between the parties" referred to in Article 31(3)(c) of the Vienna Convention,
supports the Panel's conclusions on the law applicable to this dispute.
Brazil contends that the panel reports in United States - Pork and EEC - Oilseeds, invoked
by the Philippines, provide no guidance for this dispute. As the issue of applicable law was never
raised in United States - Pork, it therefore gives no indication of past practice on this issue. Moreover,
because the structure of the various agreements in this case differs from the structure of the agreements
in EEC - Oilseeds, that panel report provides no guidance on the interpretation of the WTO Agreement.
Should the Appellate Body find that the WTO Agreement applies, Brazil argues that it is not
appropriate for the Appellate Body to rule on the substantive issues in this dispute. The Appellate

Body’ s authority is limited by paragraphs 6 and 13 of Article 17 of the DSU. Brazil further argues
that United States - Gasoline does not support the examination by the Appellate Body of these issues.
If, however, the Appellate Body considers it appropriate to address the substantive issues, Brazil
incorporatesby reference all itssubmissions, bothoraland written,to the Panel concerningthose issues.
If the Appellate Body decides that Article VI of the GATT 1994 applies, it must be interpreted on its
own without reference to the Tokyo Round SCM Code or the SCM Agreement.
C. European Communities
The European Communities supports the legal findings and conclusions of the Panel. The
European Communities asserts that the Panel correctly concluded that Article VI of the GATT 1994
is inapplicable to the measure in dispute and that the inapplicability of Article VI of the GATT 1994
also renders Articles I and II of the GATT 1994 inapplicable.
In the European Communities’ view, the Panel’ s findings are in conformity with the principles
of customary international law regarding the temporal application of treaty obligations, contained in
Article 28 of the Vienna Convention, which apply “ [u]nless a different intention appears from the treaty
or is otherwise established” . The Panel correctly considered the text of the relevant provisions in the
light of their context, and of the object and purpose of the WTO Agreement, to reach its legal conclusion
that Article VI of the GATT 1994 cannot be applied independently. It was, therefore, no longer
necessary for the Panel to resort to the subsidiary rule contained in Article 28 of the Vienna Convention.
In any case, the application of this subsidiary rule would also lead to the conclusion that Article VI
of the GATT 1994 does not apply in the present dispute.
According to the European Communities, the United States - Pork and EEC - Oilseeds panel
reports invoked by the Philippines are not relevant to this dispute, as the relationship of the GATT
1947 to the Tokyo Round SCM Code is different from the relationship of the SCM Agreement to the
GATT 1994. The transitional decisions do not support the independent application of Article VI of
the GATT 1994. Moreover, the independent application of Article III:4 of the GATT 1994 in United
States - Gasoline does not support the independent application of Article VI of the GATT 1994, as
the relationship between Article III of the GATT 1994 and the Agreement on Technical Barriers to
Trade is different from the relationship between Article VI of the GATT 1994 and the SCM Agreement.

D. United States
The United States disagrees with certain of the legal findings and conclusions of the Panel,
and requests that the Appellate Body take into consideration its arguments before the Panel as described
in paragraphs 211-224 of the Panel Report. The United States asserts that Article VI of the GATT
1994 is applicable to Brazil's countervailing duty measure and that, as of 1 January 1995, Brazil was
bound to levy countervailing duties consistently with the provisions of the GATT 1994. If the Appellate
Body considers the substantive merits of this dispute, it must do so under Article VI of the GATT 1994
alone, without reference to the Tokyo Round SCM Code. The United States submits that the panel
report in EEC - Oilseeds is instructive in this regard.
III. Issues Raised in this Appeal
The Philippines appeals from two legal findings and conclusions of the Panel. First, the
Philippines submits that the Panel erred in concluding that Article VI of the GATT 1994 cannot be
applied independently in transitional situations where the SCM Agreement is not applicable pursuant
to Article 32.3 of the SCM Agreement. Second, the Philippines claims that the Panel erred in finding
that the inapplicability of Article VI of the GATT 1994 also renders Articles I and II of the GATT
1994 inapplicable. Brazil appeals from the Panel's legal findings and conclusions concerning Articles I
and II of the GATT 1994. Brazil argues that the issue of the consistency of Brazil's countervailing
duty measure with its obligations under Articles I and II of the GATT 1994 was not within the terms
of reference of the Panel.
On the basis of the written submissions and oral statements made by the participants and third
participants, this appeal raises the following issues:
1. Whether Article VI of the GATT 1994 applies, independently of the SCM Agreement,
to a countervailing duty measure imposed as a result of an investigation initiated pursuant
to an application made before the entry into force of the WTO Agreement;
2. Whether a finding with respect to the applicability of Article VI of the GATT 1994
determines the applicability of Articles I and II of the GATT 1994; and

3. Whether the Philippines' claims under Articles I and II of the GATT 1994 were within
the terms of reference of the Panel.
IV. Applicability of Article VI of the GATT 1994
A. Background
This appeal deals with a countervailing duty investigation which was initiated pursuant to an
application filed with the Brazilian authorities on 17 January 1994. The investigation was initiated
on 21 June 1994, provisional countervailing duties were imposed on 23 March 1995, and definitive
countervailing duties were imposed on imports of desiccated coconut from the Philippines on 18 August
1995. The WTO Agreement entered into force for both parties to this dispute, Brazil and the Philippines,
on 1 January 1995.
With respect to the measure at issue in this appeal, we see a decision to impose a definitive
countervailing duty as the culminating act of a domestic legal process which starts with the filing of
an application by the domestic industry, includes the initiation and conduct of an investigation by an
investigating authority, and normally leads to a preliminary determination and a final determination.
A positive final determination that subsidized imports are causing injury to a domestic industry authorizes
the domestic authorities to impose a definitive countervailing duty on subsidized imports.
B. WTO Agreement: An Integrated System
The WTO Agreement is fundamentally different from the GATT system which preceded it.
The previous system was made up of several agreements, understandings and legal instruments, the
most significant of which were the GATT 1947 and the nine Tokyo Round Agreements, including the
Tokyo Round SCM Code. Each of these major agreements was a treaty with different membership,
an independent governing body and a separate dispute settlement mechanism.13 The GATT 1947 was
13Agreement on Technical Barriers to Trade, BISD 26S/8; Agreement on Implementation of Article VII of the GATT -
Protocol to the Agreement on Implementation of Article VII of the GATT, BISD 26S/116, 151; Agreement on Implementation
of Article VI of the GATT (the "Tokyo Round Anti-dumping Code"), BISD 26S/171; Agreement on Interpretation and
Application of Articles VI, XVI and XXIII of the General Agreement on Tariffs and Trade (the "Tokyo Round SCM Code"),
BISD 26S/56; Agreement on Import Licensing Procedures, BISD 26S/154; Agreement on Government Procurement, BISD
26S/33; Agreement on Trade in Civil Aircraft, BISD 26S/162; Arrangement Regarding Bovine Meat, BISD 26S/84; and
International Dairy Arrangement, BISD 26S/91. The Agreement on Import Licensing Procedures and the Agreement on
Trade in Civil Aircraft made reference to Articles XXII and XXIII of the GATT 1947 for dispute settlement. The Arrangement
Regarding Bovine Meat and the International Dairy Arrangement did not explicitly provide for dispute settlement.

administered by the CONTRACTING PARTIES, whereas the Tokyo Round SCM Code was administered
by the Tokyo Round Committee on Subsidies and Countervailing Duty Measures comprised of the
signatories to that Code.14 With respect to disputes brought under Article XXIII of the GATT 1947,
the CONTRACTING PARTIES were responsible for dispute settlement, including establishment of
panels, adoption of panel reports, surveillance of implementation of rulings and recommendations,
and authorization of suspension of concessions or other obligations. The Tokyo Round Committee
on Subsidies and Countervailing Measures was responsible for administering and monitoring dispute
settlement under Articles 12, 13, 17 and 18 of the Tokyo Round SCM Code.
As a result of the separate legal identity of the GATT 1947 and the Tokyo Round SCM Code,
a complaining party either had to bring a dispute under Article VI of the GATT 1947, in which case
it would invoke the dispute settlement provisions of Article XXIII of the GATT 1947, or alternatively,
under the provisions of the Tokyo Round SCM Code, in which case it would commence consultations
under that Code. Most disputes involving countervailing duty measures between 1979 and 1994 were
brought under the Tokyo Round SCM Code.15 In the United States - Pork case, notwithstanding that
both Canada and the United States were signatories to the Tokyo Round SCM Code, Canada chose
to bring the matter under the dispute settlement provisions of Article XXIII of the GATT 1947, relying
solely on its claims under Article VI of the GATT 1947.
Unlike the previous GATT system, the WTO Agreement is a single treaty instrument which
was accepted by the WTO Members as a "single undertaking". Article II:2 of the WTO Agreement
provides that the Multilateral Trade Agreements in Annexes 1, 2 and 3 are "integral parts" of the WTO
Agreement, binding on all Members. Annex 1A contains thirteen multilateral agreements relating to
trade in goods, including the GATT 1994 which was incorporated by reference into that Annex. A
general interpretative note was included in Annex 1A in order to clarify the legal relationship of the
GATT 1994 with the other agreements in Annex 1A. It provides that in the event of a conflict between
14By the end of 1994, the GATT 1947 had 128 contracting parties, whereas the Tokyo Round SCMCode had 24 signatories.
15Canadian Countervailing Duties on Grain Corn from the United States, BISD 39S/411, adopted 26 March 1992; United
States - Definition of Industry Concerning Wine and Grape Products, BISD 39S/436, adopted 28 April 1992; United States -
Measures Affecting Imports of Softwood Lumber from Canada, SCM/162, adopted 27 October 1993; Brazil - Imposition
of Provisional and Definitive Countervailing Duties on Milk Powder and Certain Types of Milk from the European Economic
Community, SCM/179, adopted 28 April 1994; United States - Imposition of Countervailing Duties on Imports of Fresh
and Chilled Atlantic Salmon From Norway, SCM/153, adopted 28 April 1994; United States - Countervailing Duties on
Non-Rubber Footwear from Brazil, SCM/94, adopted 13 June 1995; EEC - Subsidies on Exports of Wheat Flour, SCM/42,
21 March 1983, unadopted; EEC - Subsidies on Exports of Pasta Products, SCM/43, 19 May 1983, unadopted;
Canada - Imposition of Countervailing Dutieson Imports ofBoneless Manufacturing Beef fromthe EEC, SCM/85, 13 October
1987, unadopted; German Exchange Rate Scheme for Deutsche Airbus, SCM/142, 4 March 1992, unadopted; United
States - Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating
in France, Germany and the United Kingdom, SCM/185, 15 November 1994, unadopted.

a provision of the GATT 1994 and a provision of another agreement in Annex 1A, the latter shall prevail
to the extent of the conflict. Article II:4 of the WTO Agreement provides that the GATT 1994 "as
specified in Annex 1A ... is legally distinct from the General Agreement on Tariffs and Trade, dated
30 October 1947 ...".
The single undertaking is further reflected in the provisions of the WTO Agreement dealing
with original membership, accession, non-application of the Multilateral Trade Agreements between
particular Members, acceptance of the WTO Agreement, and withdrawal from it.16 Within this
framework, all WTO Members are bound by all the rights and obligations in the WTO Agreement and
its Annexes 1, 2 and 3.
The DSU provides an integrated dispute settlement mechanism applicable to disputes arising
under any of the "covered agreements". Article 2 of the DSU provides that the DSB has the "authority
to establish panels, adopt panel and Appellate Body Reports, maintain surveillance and implementation
of rulings and recommendations, and authorize suspension of concessions and other obligations under
the covered agreements". The "covered agreements" include the WTO Agreement, the Agreements
in Annexes 1 and 2, as well as any Plurilateral Trade Agreement in Annex 4 where its Committee
of signatories has taken a decision to apply the DSU.17 In a dispute brought to the DSB, a panel may
deal with all the relevant provisions of the covered agreements cited by the parties to the dispute in
one proceeding.18
C. GATT 1994 within the WTO Agreement
The WTO Agreement is a successor treaty to the GATT 1947, the Tokyo Round SCM Code
and the other agreements and understandings which formed the previous GATT system. Although
it is a new treaty which the WTO Members accepted definitively, Article XVI:1 of the WTO Agreement
provides as follows:
Except as otherwise provided under this Agreement or the Multilateral
Trade Agreements, the WTO shall be guided by the decisions,
procedures and customary practices followed by the CONTRACTING
PARTIES to GATT 1947 and the bodies established in the framework
of GATT 1947.
16WTO Agreement, Articles XI, XII, XIII, XIV and XV, respectively.
17DSU, Article 1 and Appendix 1.
18DSU, Article 7.

The GATT 1994 was incorporated by reference into Annex 1A of the WTO Agreement. The
reference language includes the provisions of the GATT 1947, as rectified, amended or modified before
the entry into force of the WTO Agreement; the provisions of legal instruments that entered into force
under the GATT 1947 prior to the entry into force of the WTO Agreement, such as protocols and
certifications relating to tariff concessions, protocols of accession (excluding the provisions concerning
provisional application and "grandfather rights"), decisions on waivers granted under Article XXV
of the GATT 1947 and other decisions of the CONTRACTING PARTIES to the GATT 1947; as well
as the Understandings which amended specific articles of the GATT 1947 as a result of the Uruguay
Round Multilateral Trade Negotiations. In many ways, therefore, the provisions of the GATT 1994
differ from the provisions of the GATT 1947.
The relationship between the GATT 1994 and the other goods agreements in Annex 1A is
complex and must be examined on a case-by-case basis. Although the provisions of the GATT 1947
were incorporated into, and became a part of the GATT 1994, they are not the sum total of the rights
and obligations of WTO Members concerning a particular matter. For example, with respect to subsidies
on agricultural products, Articles II, VI and XVI of the GATT 1994 alone do not represent the total
rightsand obligations of WTO Members. The Agreement onAgriculture and the SCMAgreement reflect
thelateststatementof WTOMembers astotheirrightsandobligationsconcerningagriculturalsubsidies.
The general interpretative note to Annex 1A was added to reflect that the other goods agreements in
Annex 1A, in many ways, represent a substantial elaboration of the provisions of the GATT 1994,
and to the extent that the provisions of the other goods agreements conflict with the provisions of the
GATT 1994, the provisions of the other goods agreements prevail. This does not mean, however,
that the other goods agreements in Annex 1A, such as the SCM Agreement, supersede the GATT 1994.
As the Panel has said:
... the question for consideration is not whether the SCM Agreement
supersedes Article VI of GATT 1994. Rather, it is whether Article VI
creates rules which are separate and distinct from those of the SCM
Agreement, and which can be applied without reference to that
Agreement, or whether Article VI of GATT 1994 and the SCM
Agreement represent an inseparable package of rights and disciplines
that must be considered in conjunction.19
19Panel Report, para. 227.

D. Principle of Non-Retroactivity of Treaties
The fundamental question in this case is one of the temporal application of one set of international
legal norms, or the successor set of norms, to a particular measure taken during the period of co-existence
of the GATT 1947 and the Tokyo Round SCM Code with the WTO Agreement. Article 28 of the Vienna
Convention contains a general principle of international law concerning the non-retroactivity of treaties.
It provides as follows:
Unless a different intention appears from the treaty or is otherwise
established, its provisions do not bind a party in relation to any act
or fact which took place or any situation which ceased to exist before
the date of the entry into force of the treaty with respect to that party.
Article 28 states the general principle that a treaty shall not be applied retroactively "unless
a different intention appears from the treaty or is otherwise established". Absent a contrary intention,
a treaty cannot apply to acts or facts which took place, or situations which ceased to exist, before the
date of its entry into force. Article 32.3 of the SCM Agreement is an express statement of intention
which we will now examine.
E. Interpretation of Article 32.3 of the SCM Agreement
1. Text
Article 32.3 of the SCM Agreement reads as follows:
... the provisions of this Agreement shall apply to investigations, and
reviews of existing measures, initiated pursuant to applications which
have been made on or after the date of entry into force for a Member
of the WTO Agreement.
Examination of the ordinary meaning of this provision alone could lead us to the conclusion
that the term, "this Agreement", in Article 32.3 means the SCM Agreement. However, it is necessary
alsoto considerthis provision in itscontext and inlight of the objectand purpose of the WTO Agreement.

2. Context
The relationship between the SCM Agreement and Article VI of the GATT 1994 is set out in
Articles 10 and 32.1 of the SCM Agreement. Article 10 reads as follows:
Application of Article VI of GATT 1994
Members shall take all necessary steps to ensure that the imposition
of a countervailing duty36 on any product of the territory of any
Member imported into the territory of another Member is in accordance
with the provisions of Article VI of GATT 1994 and the terms of this
Agreement. Countervailing duties may only be imposed pursuant to
investigationsinitiatedandconductedinaccordancewiththeprovisions
of this Agreement and the Agreement on Agriculture.
_____________36The term "countervailing duty" shall be understood to mean a special duty levied
for the purpose of offsetting any subsidy bestowed directly or indirectly upon the
manufacture, production or export of any merchandise, as provided for in paragraph 3
of Article VI of GATT 1994.
Article 32.1 reads as follows:
No specific action against a subsidy of another Member can be taken
except inaccordance withthe provisionsof GATT 1994,as interpreted
by this Agreement.56
_____________56This paragraph is not intended to preclude action under other relevant provisions
of GATT 1994, where appropriate.
From readingArticle10, itisclear thatcountervailingdutiesmay onlybe imposedinaccordance
with Article VI of the GATT 1994 and the SCM Agreement. A countervailing duty being a specific
action against a subsidy of another WTO Member, pursuant to Article 32.1, it can only be imposed
"in accordance with the provisions of GATT 1994, as interpreted by this Agreement". The ordinary
meaning of these provisions taken in their context leads us to the conclusion that the negotiators of
the SCM Agreement clearly intended that, under the integrated WTO Agreement, countervailing duties
may only be imposed in accordance with the provisions of Part V of the SCM Agreement and Article
VI of the GATT 1994, taken together. If there is a conflict between the provisions of the SCM
Agreement and Article VI of the GATT 1994, furthermore, the provisions of the SCM Agreement would
prevail as a result of the general interpretative note to Annex 1A.

We turn to the omission of note 2 to the preamble of the Tokyo Round SCM Code from the
SCM Agreement. That note reads:
Wherever in this Agreement there is reference to "the terms of this
Agreement" or the "articles" or "provisions of this Agreement" it shall
be taken to mean, as the context requires, the provisions of the General
Agreement as interpreted and applied by this Agreement.
This note related to a provision in the preamble to the Tokyo Round SCM Code which
demonstrated the Tokyo Round signatories' desire "to apply fully and to interpret the provisions of
Articles VI, XVI and XXIII" of the GATT 1947. The preamble was not retained in the new text of
the SCM Agreement. Consequently, the note also disappeared. The SCM Agreement contains a set
of rights and obligations that go well beyond merely applying and interpreting Articles VI, XVI and
XXIII of the GATT 1947. The title to the SCM Agreement was also modified in this respect. Like
the Panel, "we do not consider that the exclusion of this provision from the SCM Agreement sheds
much light on the question before us".20
If Article 32.3 is read in conjunction with Articles 10 and 32.1 of the SCM Agreement, it becomes
clear that the term "this Agreement" in Article 32.3 means "this Agreement and Article VI of the GATT
1994". We agree with the Panel that:
Article VI of GATT 1947 and the Tokyo Round SCM Code represent,
as among Code signatories, a package of rights and obligations
regarding the use of countervailing measures, and Article VI of GATT
1994 and the SCM Agreement represent a new and different package
of rights and obligations, as among WTO Members, regarding the use
of countervailing duties. Thus, Article VI and the respective SCM
Agreements impose obligations on a potential user of countervailing
duties, in the form of conditions that have to be fulfilled in order to
impose a duty, but they also confer the right to impose a countervailing
duty when those conditions are satisfied. The SCM Agreements do
not merely impose additional substantive and procedural obligations
on a potential user of countervailing measures. Rather, the SCM
Agreements and Article VI together define, clarify and in some cases
modify the whole package of rights and obligations of a potential user
of countervailing measures.21
20Panel Report, para. 236, note 62.
21Panel Report, para. 246; we understand the Panel's reference to "SCM Agreements" in this paragraph to mean the
SCM Agreement and the Tokyo Round SCM Code.

3. Object and Purpose of the WTO Agreement
The fact that Article VI of the GATT 1947 could be invoked independently of the Tokyo Round
SCM Code under the previous GATT system22 does not mean that Article VI of GATT 1994 can be
applied independently of the SCM Agreement in the context of the WTO. The authors of the new WTO
regime intended to put an end to the fragmentation that had characterized the previous system. This
can be seen from the preamble to the WTO Agreement which states, in pertinent part:
Resolved, therefore, to develop an integrated, more viable and durable
multilateral trading system encompassing the General Agreement on
Tariffs and Trade, the results of past trade liberalization efforts, and
all of the results of the Uruguay Round of Multilateral Trade
Negotiations.
Article II:2 of the WTO Agreement also provides that the Multilateral Trade Agreements are
"integral parts" of the WTO Agreement, "binding on all Members". The single undertaking is further
reflected in the articles of the WTO Agreement on original membership, accession, non-application,
acceptance and withdrawal. Furthermore, the DSU establishes an integrated dispute settlement system
which applies to all the "covered agreements", allowing all the provisions of the WTO Agreement relevant
to a particular dispute to be examined in one proceeding.
The Appellate Body sees Article 32.3 of the SCM Agreement as a clear statement that for
countervailing duty investigations or reviews, the dividing line between the application of the GATT
1947 system of agreements and the WTO Agreement is to be determined by the date on which the
application was made for the countervailing duty investigation or review. Article 32.3 has limited
application only in specific circumstances where a countervailing duty proceeding, either an investigation
or a review, was underway at the time of entry into force of the WTO Agreement. This does not mean
that the WTO Agreement does not apply as of 1 January 1995 to all other acts, facts and situations
which come within the provisions of the SCM Agreement and Article VI of the GATT 1994. However,
the Uruguay Round negotiators expressed an explicit intention to draw the line of application of the
new WTO Agreement to countervailing duty investigations and reviews23 at a different point in time
22As demonstrated by the United States - Pork panel.
23There is an identical provision to Article 32.3 of the SCM Agreement contained in Article 18.3 of the Agreement on
Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the "Anti-dumping Agreement"). Similarly,
there are mirror transitional decisions approved by the Tokyo Round Committee on Anti-dumping Measures, in the Decision
on Transitional Co-Existence of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and
Trade and the Marrakesh Agreement Establishing the World Trade Organization, ADP/131, 16 December 1994; and the
Decision on Consequences of Withdrawal from or Termination of the Agreement on Implementation of Article VI of the
General Agreement on Tariffs and Trade, ADP/132, 16 December 1994.

from that for other general measures.24 Because a countervailing duty is imposed only as a result of
a sequence of acts, a line had to be drawn, and drawn sharply, to avoid uncertainty, unpredictability
and unfairness concerning the rights of states and private parties under the domestic laws in force when
the WTO Agreement came into effect.
We agree with the Philippines that the transitional decisions approved by the Tokyo Round
Subsidies and Countervailing Measures Committee and the CONTRACTING PARTIES25 do not modify
the scope of rightsand obligationsunderthe WTO Agreement. We believe, however, thattheycontribute
to understanding the significance of Article 32.3 of the SCM Agreement as a transitional rule. The
Decision on Transitional Co-Existence of the GATT 1947 and the WTO Agreement and the Decision
on Transitional Co-Existence of the Tokyo Round SCM Code and the WTO Agreement provide for
the legal termination of the GATT 1947 and the Tokyo Round SCM Code one year after the date of
entry into force of the WTO Agreement, i.e. by 31 December 1995. They also permit WTO Members,
during the period of co-existence of the GATT 1947 and the Tokyo Round SCM Code with the WTO
Agreement, to bring their disputes under the DSU where the measure in issue is one to which the WTO
Agreement applies.
The Decision on Consequences of Withdrawal from or Termination of the Tokyo Round SCM
Code, adopted by the Tokyo Round Subsidies and Countervailing Measures Committee, extended dispute
settlement under the Tokyo Round SCM Code for two years, one year beyond the legal termination
of the Tokyo Round SCM Code. The Tokyo Round Committee on Subsidies and Countervailing Measures
was to remain in operation by agreement of the signatories to the Tokyo Round SCM Code until
31 December 1996, to deal with disputes arising out of countervailing duty investigations or reviews
initiated pursuant to applications made prior to 1 January 1995. Signatories to the Tokyo Round SCM
Code agreed to make their best efforts to expedite domestic investigations and dispute settlement
procedures to permit the Tokyo Round Subsidies and Countervailing Measures Committee to consider
24In its appellant's submission dated 9 January 1997, at p. 37, para. 59, the Philippines argues that in United
States - Gasoline, both the panel and the Appellate Body assessed the pre-WTO domestic regulatory process that led to the
imposition of the United States' environmental measure at issue in that dispute. We note that, in that case, there was no
issue with respect to the temporal application of the measure in dispute, nor did the panel or the Appellate Body examine
the applicability of the Agreement on Technical Barriers to Trade.
25The Decision on Transitional Co-Existence of the GATT 1947 and the WTO Agreement (PC/12-L/7583, 13 December
1994) was adopted by the CONTRACTING PARTIES to the GATT 1947 (6SS/SR/1); the Decision on Transitional Co-
Existence of the Tokyo Round SCM Code and the WTO Agreement (SCM/186, 16 December 1994) was adopted by the
Tokyo Round Committee on Subsidies and Countervailing Measures and noted by the CONTRACTING PARTIES (6SS/SR/1)
and the WTO Committee on Subsidies and Countervailing Measures (G/SCM/M/1). The Decision on Consequences of
Withdrawal from or Termination of the Tokyo Round SCM Code (SCM/187, 16 December 1994) was adopted by the Tokyo
Round Committee on Subsidies and Countervailing Measures and noted by the CONTRACTING PARTIES (6SS/SR/1) and
the WTO Committee on Subsidies and Countervailing Measures (G/SCM/M/1).

covered disputes within this two-year period. This Decision avoided the application of Article 70 of
the Vienna Convention, which provides that the termination of a treaty releases the parties from any
obligation further to perform the treaty.
Like the Panel, "we are hesitant, in interpreting the WTO Agreement, to give great weight
to the effect of decisions that had not yet been taken at the time the WTO Agreement was signed".26
We agree with the Panel's statement that:
The availability of Article VI of GATT 1994 as applicable law in this
dispute is a matter to be determined on the basis of the WTO
Agreement, rather than on the basis of a subsequent decision by the
signatories of the Tokyo Round SCM Code taken at the invitation of
the Preparatory Committee.27
While we agree with the Panel that these transitional decisions are of limited relevance in
determining whether Article VI of the GATT 1994 can be applied independently of the SCM Agreement,
they reflect the intention of the Tokyo Round SCM Code signatories to provide a forum for dispute
settlement arising out of disputes under the Tokyo Round SCM Code for one year after its legal
termination date. At the time the Tokyo Round SCM Code signatories agreed to these decisions, they
were fully cognizant of the implications of the operation of Article 32.3 of the SCM Agreement.
We agree with the Panel that the complaining party in this dispute, the Philippines, had legal
options available to it, and, therefore, was not left without a right of action as a result of the operation
of Article 32.3 of the SCM Agreement. Until 31 December 1995, the GATT 1947 continued to co-exist
with the WTO Agreement, and dispute settlement was available to the Philippines pursuant to
Articles VI and XXIII of the GATT 1947. Until 31 December 1996, as a result of the Decision on
Consequences of Withdrawal from or Termination of the Tokyo Round SCM Code approved by the
signatories to the Tokyo Round SCM Code, dispute settlement was available under the provisions of
the Tokyo Round SCM Code. Within a reasonable period of time after the definitive countervailing
duty was imposed, the Philippines had the right to request a review pursuant to Article 21.2 of the
SCM Agreement -- a right which remains available to the Philippines today.
26Panel Report, para. 270.
27Panel Report, para. 272.

Any WTO Member, which was not a signatory to the Tokyo Round SCM Code, had a right
of action under Articles VI and XXIII of the GATT 1947 until 31 December 1995, and, like the
Philippines, has a continuing right to request a review under Article 21.2 of the SCM Agreement.
We believe that the situation of a prospective Member of the WTO, which accedes under the
provisions of Article XII of the WTO Agreement, is different from that of former contracting parties
to the GATT 1947 or signatories to the Tokyo Round SCM Code because those agreements did not
apply previously toits trading relationswith other states. Article XII:1 of the WTO Agreement provides,
furthermore, that a state may accede "on terms to be agreed between it and the WTO".
In light of the above, we believe that it is not necessary to determine whether applying Article
VI of the GATT 1994 independently of the SCM Agreement would be more onerous than applying
them together.
V. Applicability of Articles I and II of the GATT 1994
We have concluded that, as a result of the integrated nature of the WTO Agreement and the
specific language in Articles 10 and 32.1 of the SCM Agreement, the provisions of the SCM Agreement
relating to countervailing duty investigations are not separable from the rights and obligations of the
GATT 1994 or the WTO Agreement taken as a whole. We find, therefore, that the Panel did not err
in concluding at paragraphs 280 and 281 of the Panel Report that the applicability of Article VI of
the GATT 1994 to the countervailing duty investigation which is the subject of this dispute, also
determines the applicability of Articles I and II of the GATT 1994 to that investigation. In the same
manner as the Panel found that "the measures are neither ‘ consistent’ nor ‘ inconsistent’ with Article VI
of GATT 1994; rather, they are simply not subject to that Article",28 we believe that the measures
here are neither "consistent" nor "inconsistent" with Articles I and II of the GATT 1994, because those
Articles are also not applicable law for the purposes of this dispute.
VI. Terms of Reference
Brazil argues in its appellant's submission that the issue of consistency of its countervailing
duty measures with Articles I and II of the GATT 1994 is not within the terms of reference of the Panel,
28Panel Report, para. 280, note 71.

and, therefore, should not have been addressed by the Panel.29 In this appeal, the parties to the dispute,
the Philippines and Brazil, agreed on the following special terms of reference pursuant to Article 7.3
of the DSU:
To examine, in the light of the relevant provisions in GATT 1994 and
the Agreement on Agriculture, the matter referred to the DSB by the
Philippines in document WT/DS22/5, taking into account the
submission made by Brazil in document WT/DS22/3 and the record
of discussions at the meeting of the DSB on 21 February 1996, and
to make such findings as will assist the DSB in making the
recommendations or in giving the rulings provided for in those
agreements.30
A panel's terms of reference are important for two reasons. First, terms of reference fulfil
an important due process objective -- they give the parties and third parties sufficient information
concerning the claims at issue in the dispute in order to allow them an opportunity to respond to the
complainant's case. Second, they establish the jurisdiction of the panel by defining the precise claims
at issue in the dispute.
We agree, furthermore, with the conclusions expressed by previous panels under the GATT
1947, as well as under the Tokyo Round SCM Code and the Tokyo Round Anti-dumping Code, that
the "matter" referred to a panel for consideration consists of the specific claims stated by the parties
to the disputeinthe relevant documents specified in the terms of reference.31 We agree withthe approach
taken in previous adopted panel reports that a matter, which includes the claims composing that matter,
does notfall withina panel’ sterms of reference unlessthe claims are identifiedin the documents referred
to or contained in the terms of reference.
In the present case, because we agree with the conclusions of the Panel concerning applicable
law, we believe it is not necessary to determine whether the Philippines' claims under Articles I and
II of the GATT 1994 were within the Panel's terms of reference.
29Brazil's appellant's submission, dated 14 January 1997, p. 1, para. 2.
30WT/DS22/6, 18 April 1996.
31United States - Denial of Most-Favoured-Nation Treatment as to Non-Rubber Footwear from Brazil, BISD 39S/128,
adopted 19 June 1992, para. 6.2; EC - Imposition of Anti-dumping Duties on Imports of Cotton Yarn from Brazil, ADP/137,
adopted 30 October 1995, para. 456; United States - Imposition of Countervailing Duties on Imports of Fresh and Chilled
Atlantic Salmon from Norway, SCM/153, adopted 28 April 1994, para. 212; United States - Imposition of Anti-Dumping
Duties on Imports of Fresh and Chilled Atlantic Salmon from Norway, ADP/87, adopted 26-27 April 1994, para. 336.

VII. Findings and Conclusions
For the reasons set out in this Report, the Appellate Body upholds the legal findings and
conclusions of the Panel.
The Appellate Body recommends that the Dispute Settlement Body make a ruling consistent
with the legal findings and conclusions in the Panel Report and this Report.

Signed in the original at Geneva this 14th day of February 1997 by:
Said El-Naggar
Presiding Member
_______________________ _______________________
Claus-Dieter Ehlermann Julio Lacarte-Muró
Member Member