Decisions of the Appellate Body of the World Trade Organization

Canada-Measures Affecting the Export of Civilian Aircraft Recourse by Brazil to Article 21.5 of the DSU

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Joel P. Trachtman

WTO Appellate Body Report: Canada-Measures Affecting the Export of Civilian Aircraft Recourse by Brazil to Article 21.5 of the DSU, AB-2000-4 WT/DS70/AB/RW (00-2989), adopted by Dispute Settlement Body, 4 August 2000. Brazil, Appellant, Canada, Appellee; European Communities and United States, Third Participants. Division: Feliciano, Bacchus, and Ehlermann. Major Topics Addressed by Appellate Body: Export Subsidies Under Article 3.1(a) of the Agreement on Subsidies and Countervailing Measures; Scope of Review in Article 21.5 Proceedings.

1. Abstract

In this appeal, Brazil argued that the Article 21.5 Panel erred by finding that Canada had properly implemented the recommendation of the DSB concerning certain assistance by Technology Partnerships Canada ("TPC"). Brazil argued that the Panel should have examined more broadly whether the revised TPC program is consistent with Article 3.1(a) of the Agreement on Subsidies and Countervailing Measures ("SCM Agreement"), on the ground that the Canadian regional aircraft industry is specifically targeted for TPC assistance because of its export orientation. The Appellate Body agreed that the role of the Article 21.5 Panel in this case was to examine whether Canada's revised TPC program involved prohibited export subsidies within the meaning of Article 3.1(a) of the SCM Agreement. However, the Appellate Body found that the fact that the revised program targeted an export-oriented industry was not enough, by itself, to bring it within the prohibition of Article 3.1(a), and that Brazil did not meet its burden of proof of non-compliance.

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