Article 2 Scm Agreement
26. Norway has also argued that the requirement of exhaustion of local remedies is a narrow rule of international law applicable only to international decisions, unless an international agreement expressly provides otherwise. There is no rule of customary international law that requires the exhaustion of local remedies in any other type of international dispute settlement forum. For example, international arbitration conventions were not subject to the requirement of exhaustion of local remedies. In addition, international tribunals applying the doctrine of exhaustion of local remedies have adopted a flexible approach to their application, which requires only after careful consideration of the practical and political advantages and disadvantages. In particular, international law made the application of the exhaustion of local remedies subject to adequacy criteria and did not require such exhaustion where local remedies were inadequate and ineffective. 12 Norway did not have an adequate remedy before the courts of the United States for breach by the United States of its obligations under the GATT. U.S. law “does not provide for a significant legal obligation to comply with GATT law.” 13 A United States commercial law has expressly ordered that no provision of a trade agreement or the application of such a provision to a person or circumstance contrary to a law of the United States may take effect under the laws of the United States.
14 In addition, many courts in the United States have refused to give full legal effect to the General Convention. 15 It follows that there were no effective domestic remedies in the United States in the event of a breach by the United States of the Comprehensive Convention. 25. With regard to the doctrine of exhaustion of local remedies, Norway has put forward the following. First, the rule of exhaustion of local remedies in international law applied only to cases of diplomatic protection, as opposed to cases of “direct injury” to a State. In dispute settlement proceedings under the Agreement, a signatory did not bring an action on behalf of one of its nationals: the plea invoked in such proceedings was `direct prejudice` to a signatory in the form of nullification or impairment of the benefits accruing to that signatory or in the form of an obstacle to the attainment of any of the objectives of the agreement. Second, the text of the agreement contained no basis for the application of the doctrine of exhaustion of local remedies. Unlike many other international agreements, which provided for the exhaustion of local remedies, the agreement did not contain such a requirement. If the signatories had intended to include such a requirement (which would have radically changed the procedural steps outlined in the dispute settlement provisions of the agreement), they would have done so explicitly. Third, there was no GATT practice that recognized the local doctrine of therapeutic products.
The GATT body had even indicated the need to exhaust local remedies. As recent panel reports have shown, GATT practice was contrary to such a requirement. 11 Article 31(3)(a).b(a) of the Vienna Convention on the Law of Treaties provided that subsequent practice was to be taken into account when interpreting the provisions of an international agreement. In the case of the General Agreement, such a subsequent practice clearly did not require the exhaustion of local remedies. The Vienna Convention does not support the incorporation of tacit principles of international law. It allowed the parties to invoke additional means of interpretation of the contract when interpreting ambiguous provisions of a contract. However, it was one thing to use customary international law to interpret the ambiguous terms of an international agreement; it was quite another to incorporate into the agreement a change as important as the doctrine of local recourse. If this principle were to be required, the decision should be taken through reflection and negotiation by all signatories at the multilateral level. The Uruguay Round Agreements, including the World Trade Organization Agreement and the Agreements annexed thereto, referred to in Article 3511(d) of this Title, entered into force for the United States on 1 January 1995. See the note in section 3511 of this title. 5.5.2.
Material injury caused by the subsidised imports due to the effects of the subsidy 15. Norway requested the Panel to conclude that the imposition of the countervailing order on imports of fresh and chilled Atlantic salmon from Norway by the United States was inconsistent with the United States` obligations under the Agreement. Norway requested in particular the Panel to present a conclusion: 11. On 16 April 1990, the USITC adopted a positive provisional finding concerning the injury caused by the countervailing customs investigation on imports of fresh and chilled Atlantic salmon from Norway. 3 On 29 June 1990, an affirmative provisional subsidy finding by the Ministry of Commerce was published. 4 On the basis of that positive provisional finding, the Department of Commerce instructed the United States Customs Service to cease all imports of fresh and chilled Atlantic salmon from Norway which were imported on or after 29 September. June 1990 for consumption in the use of the tax and to require a cash deposit or a deposit of NOK 0.77 per kilogram for all imports of this product. based on the estimated net subsidy.
. 16. Norway first requested the Panel to recommend to the Committee that the United States revoke the Customs Countervailing Order for imports of fresh and chilled Atlantic salmon from Norway or that it be aligned without delay with the United States` obligations under the Agreement. At a later stage, Norway requested the Panel to recommend to the Committee that the United States request that the countervailing order be revoked and that all countervailing duties paid be refunded. Norway considered that this request was consistent with the Panel`s previous reports. 8 3 Fresh and chilled Atlantic salmon from Norway: Commission finding in investigation No 701 TA 302 (preliminary) under the Tariff Act 1930, as well as information received during the investigation, USITC Publication 2272, April 1990. 14. On 2 April 1991, the USITC adopted a Final Conclusion concerning the anti-dumping and countervailing duty investigations on imports of fresh and chilled Atlantic salmon from Norway (7), in which it concluded that an industry in the United States was affected by imports of fresh and chilled Atlantic salmon from Norway, sold by the Department of Commerce as well as by the Government of Norway and in the United States at a fair value less than fair value. (i) the initiation of the countervailing duty investigation was inconsistent with the requirements of Article 2(1) of the Agreement; 4. Calculation of the amount of grants (Article 4(2)) 7. The Panel made its findings to the parties on 23 October 1992. 1 18.
The United States also requested the Panel to decide that certain issues raised by Norway had not been properly negotiated before the Panel (see section IV below). (iii) the calculation of the amount of subsidies was incompatible with Article 4(2) of the Agreement; 5.4. Impact of the imports under investigation on domestic producers of like products (Articles 6(1) and 6. (3)) (i) The Ministry of Commerce found the existence of countervailable subsidies and was in compliance with the relevant provisions of Part I of the Agreement. 10 z.B. Gilmore Steel Corp.c. United States, 585 F. Supp. 670 (CIT 1984), aff`d sub nom. Oregon Steel Mills v. United States, 862 F.
2d 1541 (Fed. Cir. 1988) 20. The United States requested in advance that the issue raised by Norway regarding the applicant`s power to request the initiation of an investigation on behalf of the domestic industry concerned had not been duly referred to the Panel, as this issue had not been raised in the administrative proceedings before the investigative authorities in the United States. and that the issues raised by Norway regarding the alleged failure of the United States to conduct an analysis of “upstream subsidies” and the continued application of the countervailing duty order had not been duly referred to the Panel, as (1) they did not fall within the Panel`s jurisdiction and (2) they were not addressed during consultations and conciliation prior to the establishment of the Panel. . (2) Preliminary U.S. objections on issues not raised before investigating authorities 9. The countervailing duty investigation leading to the above findings was initiated by the Ministry of Commerce on 20 March 1990 following a request made on 28 February 1990 to initiate an investigation by the Atlantic Salmon Fair Trade Coalition, composed of domestic producers of fresh and chilled Atlantic salmon. Also on 20 March 1990, the Ministry initiated an anti-dumping duty investigation on these imports. 12. On 25 February 1991, the Ministry of Commerce adopted a final countervailing duty determination in this investigation.
5 The Ministry found that producers and exporters of fresh and chilled Atlantic salmon in Norway enjoyed benefits under six subsidy programmes within the meaning of Section 701 of the United States Tariff Act of 1930, as amended, and set the estimated net subsidy for all producers or exporters of fresh and chilled Atlantic salmon in Norway at NOK 0.71 per kilogram (2.27% ad valorem). .