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Making Sense of the Arbitrator's Ruling in DS 316, EC and Certain Member States – Measures Affecting Trade in Large Civil Aircraft (Article 22.6-EC): A Jigsaw Puzzle with (at Least) a Couple Missing Pieces

Published online by Cambridge University Press:  26 July 2021

Petros C. Mavroidis  and
Kamal Saggi
Petros C. Mavroidis*
Affiliation:
Columbia Law School, New York City, NY, USA
Kamal Saggi
Affiliation:
Vanderbilt University, Nashville, TN, USA
*
*Corresponding author: Email: [email protected]
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Abstract

‘The US won a $7.5 Billion award from the World Trade Organization against the European Union, who has for many years treated the USA very badly on Trade due to Tariffs, Trade Barriers, and more. This case going on for years, a nice victory’, tweeted President Trump on 3 October 2019. The United States (US) won not only the highest amount of retaliation ever adjudicated in the history of the WTO but also an ongoing right to retaliate on an annual basis until such time as the EU had complied by either removing the subsidies it granted Airbus or somehow neutralizing their adverse effects on Boeing. In light of the facts of the case, this ruling has two major shortcomings. First, in sharp contrast with the statutory language and practice until now, the Arbitrator effectively introduced a permanent liability rule into the WTO system through the backdoor. Second, given the way the decision and the associated award has been written, it is simply impossible for the EU to comply because (a) the contested subsidies are no longer in existence and (b) no guidance has been provided on how the EU might go about removing their adverse effects on Boeing if it sought to achieve compliance. Thus, in all likelihood, the EU is saddled with a ruling that obligates it to cough up an annual sum of $7.5 billion USD for an indefinite time period.

Keywords

K40AirbusretaliationWTO
Type
Original Article
Information
World Trade Review , Volume 20 , Special Issue 4: WTO Case Law , October 2021 , pp. 450 - 465
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press

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Footnotes

Columbia Law School and Vanderbilt University respectively. For helpful comments, we would like to thank Henrik Horn, Doug Irwin, Kirtikumar Mehta, Damien J. Neven, and Isabelle Van Damme.

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