Overview of WTO Jurisprudence in 2016

Abstract

This article presents an overview of the World Trade Organization (WTO) disputes resolved in 2016. As common in WTO dispute settlement, a large proportion of the case law concerns trade remedies, in particular anti-dumping measures. In that category of disputes, 2016 saw decisions in the US – Washing Machines and US – Anti-Dumping Methodologies disputes, which concerned in particular the controversial “targeted dumping” methodology under Article 2.4.2 of the Anti-Dumping Agreement, including the use of the controversial “zeroing” methodology; EU – Biodiesel, which concerned a controversial cost calculation methodology, variations of which will likely re-appear before WTO dispute settlement panels in the future, because this methodology targets in particular China; the compliance (Article 21.5 DSU) panel in EC – Fasteners (21.5); and the panel report in EU – Fatty Alcohols, at whose core were questions concerning the treatment of payments between related parties.

Beyond trade remedies, 2016 saw the Appellate Body Report in Argentina – Financial Services, a long-awaited addition to the still disappointingly slim body of jurisprudence under the General Agreement on Trade in Services (GATS); the Appellate Body Report in Colombia – Textiles, a dispute brought by Panama against its larger neighbor; the panel report in Russia – Tariff Treatment, the first adopted panel report with findings of violation by Russia, which was not appealed; the panel and Appellate Body Reports in India – Solar Panels, a dispute that concerned manifestly WTO-inconsistent local content requirements measures by India, but that addressed for the first time a hitherto obscure sub-paragraph of Article XX of the GATT 1994; the panel report in Russia – Pigs, an SPS dispute that featured, among other things, interesting findings on the regionalization obligation under Article 6 of the SPS Agreement and that was largely upheld by the Appellate Body on appeal in 2017; two panel reports in the on-going civil aircraft subsidization saga between the EU and the US, EC – Aircraft (21.5) and US – Tax Incentives (DS487) both of which were appealed (the appeal in US – Tax Incentives was issued in September 2017, the appeal in EC – Aircraft (21.5) is expected to be released in 2018); and the panel report in the Indonesia – Import Licensing Regimes, a dispute brought by the United States and New Zealand against a broad array of Indonesian measures on horticultural products.