Decisions of the Appellate Body of the World Trade Organization

United States-Definitive Safeguard Measures on Imports of Wheat Gluten from the European Communities

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Joel P. Trachtman

WTO Appellate Body Report: United States-Definitive Safeguard Measures on Imports of Wheat Gluten from the European Communities, AB-2000-10 WT/DS166/AB/R (00-5593), adopted by Dispute Settlement Body, 19 January 2001. United States, Appellant/Appellee, European Communities, Appellant/Appellee, Australia, Canada and New Zealand, Third Participants. Division: Lacarte-Mur_, Abi-Saab, and Taniguchi. Major Topics Addressed by Appellate Body: Article XIX of GATT; Causation under Article 4.2 of the Agreement on Safeguards, MFN Nature of Measure under Article 2 of the Agreement on Safeguards; Notification and Consultation under Articles 8 and 12 of the Agreement on Safeguards; Standard of Deference to National Determination under Article 11 of the Dispute Settlement Understanding.

1. Abstract

This case examined two important issues relating to safeguards: the standard of causation of serious injury and the extent to which safeguard measures may be imposed selectively, excluding members of a customs union or free trade area, as opposed to on an MFN basis. Importantly, the Appellate Body found that increased imports need not be the sole cause of serious injury under the Agreement on Safeguards. However, the Appellate Body found that the U.S. had violated Article 4.2 of the Agreement, by failing to evaluate certain "relevant factors" required to be evaluated thereunder. The Appellate Body also found that the U.S., having included Canada in its investigation, could not exclude Canada from its safeguards measure.

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