## Facts

- The European Communities challenged Sections 301–310 of the U.S. Trade Act of 1974, which authorize the U.S. Trade Representative (USTR) to investigate foreign trade measures and, in some circumstances, recommend or take retaliatory action.
- The challenge was to the statutory regime “as such,” not to any particular U.S. retaliatory measure in a specific dispute.
- The EC argued that the statute’s structure and deadlines—especially Section 304’s determination and action timelines—compelled unilateral findings of WTO violations and unilateral suspension of concessions.
- The United States relied on interpretive and administrative materials, including the Statement of Administrative Action (SAA) and USTR practice, stating that for WTO-covered matters the United States would base Section 301 determinations on WTO dispute settlement outcomes and impose retaliation only with WTO authorization.
- The Panel treated the statute together with the SAA, implementing regulations, and official U.S. assurances as the operative domestic “legal regime” for purposes of the WTO consistency analysis.

## Issues

1. Whether Sections 301–310 are “mandatory” legislation that requires WTO-inconsistent action, or “discretionary” legislation that merely permits action that might be applied inconsistently in particular cases.
2. Whether the statutory timelines and authorities, on their face, breach DSU Article 23 by compelling unilateral determinations of WTO violations and/or unilateral suspension of concessions without authorization.
3. Whether maintaining the Section 301 regime violates Article XVI:4 of the WTO Agreement requiring Members to ensure conformity of domestic law with WTO obligations.

## Decision

- The Panel found no WTO violation “as such” because, as interpreted through the SAA, regulations, and binding U.S. undertakings, the regime did not mandate action inconsistent with DSU Article 23.
- The Panel emphasized that DSU Article 23 strictly bars unilateral determinations of WTO violations and unilateral retaliation; any future Section 301 use that bypassed DSU procedures would breach WTO obligations.
- The Panel concluded the United States, as a matter of its combined legal regime, had legally committed to channel WTO-related Section 301 disputes through DSU procedures and to condition determinations and retaliation on WTO outcomes and authorization.
- The Panel therefore did not find a violation of Article XVI:4 based solely on maintaining the regime, given its WTO-consistent interpretation and application commitments.

## Legal Principles

- DSU Article 23 is a central rule requiring Members to seek redress of WTO violations only through DSU procedures and prohibiting unilateral determinations and unilateral suspension of concessions regarding WTO rights.
- A WTO “as such” challenge to domestic legislation turns on whether the measure mandates WTO-inconsistent action; legislation that merely permits such action generally requires proof of inconsistent application.
- In assessing domestic law for WTO conformity, a panel may consider binding interpretive instruments and administrative commitments that define how the statute must be applied.
- Domestic statutory deadlines do not establish a DSU Article 23 breach if, as a matter of the Member’s legal regime, those timelines operate subject to compliance with DSU processes and authorization requirements.

## Conclusion

The Panel declined to condemn Section 301 on its face, holding that the United States’ binding interpretive framework and undertakings prevented the statute from requiring unilateral WTO violation determinations or retaliation, while reaffirming that DSU Article 23 bars unilateralism and would be violated by any future Section 301 use that circumvents WTO dispute settlement.


United States—Sections 301–310 of the Trade Act of 1974, WT/DS152/R (WTO Panel 2000)