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Manual of OP for Trade Remedy Investigations

but a complaining Member must demonstrate the existence of adverse
effects under Article 5 of that Agreement."
24.117. In Canada – Aircraft Credits and Guarantees, (DS-222) the Panel first
recalled the text of Article 3.1(a) and found that to "prove the existence of an
export subsidy within the meaning of this provision, a Member must establish (i)
the existence of a subsidy within the meaning of Article 1 of the SCM and (ii)
contingency of that subsidy upon export performance".

24.118. The Panel in Canada – Aircraft found that "the only logical basis"
for determining whether the financial contribution places the recipient in a more
advantageous position than it otherwise would have been "is the market".144
According to the Panel:

"[A] financial contribution will only confer a 'benefit', i.e., an advantage, if
it is provided on terms that are more advantageous than those that would
have been available to the recipient on the market."

24.119. In Mexico – Olive Oil (DS341) para 7.35, the European Communities
argued that Mexico had acted inconsistently with Article 13.1 because it did not
hold consultations between the date it sent the invitation to consult and the date
of initiation of the investigation. The Panel rejected the European Communities'
argument on the basis that Article 13.1 merely provides that the exporting Member
"shall be invited for consultations". The Panel stated that:

"the provision makes no explicit reference to consultations being held,
2
referring instead to an invitation to consult" . According to the Panel,
"the ordinary meaning of the obligation on the importing Member that
is considering initiating a countervailing duty investigation is to ask the
Member, the products of which may be subject to that investigation (the
exporting Member), to consultations. It then falls to the latter Member to
decide whether or not to accept the invitation" .
3
24.120. The Panel continued:

"We do not see a requirement in the text of Article 13.1 that the Members
involved must actually hold the referenced consultations. Indeed, if under
Article 13.1, the Member considering whether to initiate an investigation
2 Panel Report, Mexico-Olive Oil(DS341) para 7.35
3 Panel Report, Mexico-Olive Oil(DS341) para 7.35

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