On October 3, 2016, Turkey had challenged a permanent anti-dumping duty of 11% on certain hot-rolled steel imports from Turkey, requesting consultations with Morocco regarding imposition of the definitive antidumping measure. In essence, Turkey argued that the duties imposed were inconsistent with the World Trade Organization's ("WTO") rules since (i) the related investigation did not comply with the 18-month deadline rule, (ii) the Moroccan authorities did not provide the Turkish exporters the opportunity to explain the alleged discrepancies and disregarded evidence, and (iii) the Moroccan authorities did not disclose essential facts with respect to its decision to use the facts available. Turkey also claimed that the measures were inconsistent with Articles I:1, X:1, :1, X:1, X:2, :1, X:1, X:2, X:3(a) and XI: 1 of the General Agreement on Tariffs and Trade ("GATT") and Articles 3.2 and 3.3 of the Import Licensing Agreement. Accordingly, consultations were held on November 18 and 28, 2016, but the parties failed to resolve the dispute.
On January 12, 2017, Turkey requested the establishment of a panel, while Morocco remained willing to move forward with the consultations and requested the continuation of the consultations. Following the Dispute Settlement Body's ("DSB") deferral of establishment of a panel on January 25, 2017, Turkey requested for the second time establishment of a panel to examine its complaint. On May 17, 2017, the Director- General composed the panel. China, Egypt, the European Union, India, Japan, Kazakhstan, Korea, the Russian Federation, Singapore and the United States reserved their third-party rights to participate in the panel proceedings.
On October 31, 2018, the WTO circulated the panel report on the case brought by Turkey. The panel ("Panel") found that the delay in conclusion of the investigation by the Moroccan authorities violated the relevant provisions of GATT, since the investigation had been launched on January 21, 2013, and concluded on August 12, 2014, while disagreeing with Morocco's argument that the delay was intended to allow the Turkish producers to prepare their responses. The Panel also found that the relevant measures were inconsistent with WTO rules. Lastly, the Panel stated in its report that the Moroccan authorities had failed to disclose the data used to calculate the dumping rate, concluding that Morocco had, in fact, acted inconsistently with GATT, and recommending the measures to be brought into line with the relevant agreements. On October 31, 2018, the Panel report was circulated to WTO members.
On November 20, 2018, Morocco appealed the DSB's decision to the Appellate Body with regard to certain legal interpretation issues concerning the Panel report. However on January 15, 2019, the Appellate Body informed the DSB that it would not be able to conform to the time periods specified in Article 17.5 of the Understanding on Rules and Procedures Governing the Settlement of Disputes ("DSU") (including the 90-day period that should not be exceeded) in its review. The stated reasons included the fact (i) that the appealed issues were fairly complex, and (ii) that the Appellate Body had a heavy workload in terms of pending appeals. The consequences of the Appellate Body's non-conformity with the 90-day period remained unresolved, although certain solutions have been suggested by various members in the past.
Following these developments, on December 4, 2019, Morocco withdrew its appeal indicating that the anti-dumping measure which gave rise to the dispute between Morocco and Turkey had expired on September 26, 2019, by also noting that Morocco still believes the Panel's findings to be flawed, and requested the Appellate Body to include the reason of its withdrawal decision if the Appellate Body eventually issues a report. Working Procedures for Appellate Review does not clearly specify whether the Appellate Body is required to draft and circulate a report in cases where it has not provided any legal opinion on the case. Nonetheless, Turkey advised on December 4, 2019, that the Appellate Body should issue an Appellate Body Report, in line with its past practices in similar cases. Subsequently, the Appellate Body circulated its report to members on December 10, 2019, without addressing the legal issues regarding the Panel's decision raised by Morocco in its appeal, but rather summarizing the history of the dispute and Morocco's reasons for withdrawing its appeal
This article was first published in Legal Insights Quarterly by ELIG Gürkaynak Attorneys-at-Law in March 2020. A link to the full Legal Insight Quarterly may be found here
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