Here it is on our web site. The big issues I was looking at are:
-- Is launch aid a program?
-- Can certain launch aid contracts at issue be considered "export subsidies"?
Here's what the Appellate Body said on each:
Is launch aid a program?
The Appellate Body's answer: The launch aid "program" is outside the terms of reference, so we we're not going to decide the substance of the issue:
780. On appeal, the United States argues that the Panel erred in finding that the United States had failed to demonstrate the existence of the alleged unwritten LA/MSF Programme. The United States requests the Appellate Body to reverse the Panel's finding and find that the alleged LA/MSF Programme "constitutes a specific subsidy, provided by France, Germany, Spain and the United Kingdom to Airbus, that causes adverse effects to the interests of the United States."
...
794. ... In the present case, ... we are unable to discern in the United States' panel request a challenge to an alleged LA/MSF Programme as a specific measure "separate from the individual instances of {LA/MSF}", and, as noted, a complainant's subsequent submissions during panel proceedings cannot cure such a defect in a panel request.
795. In the light of the above, we find that the alleged LA/MSF Programme was not within the Panel's terms of reference because it was not identified in the request for the establishment of a panel, as required by Article 6.2 of the DSU.
796. Having found that the alleged unwritten LA/MSF Programme was not within the Panel's terms of reference, we have no basis further to consider the arguments raised by the participants regarding the alleged LA/MSF Programme. Nor do we have a basis further to examine the Panel's finding that no such scheme or programme exists. ...
Are launch aid contracts export subsidies?
The Appellate Body's answer: Having reversed the Panel's legal interpretation, and come up with our own, we don't have enough facts to apply our legal interpretation and reach a conclusion on whether the launch aid contracts are export subsidies:
1414. ...
(j) [The Appellate Body] finds, as regards the alleged export subsidies granted under the German, Spanish, and UK A380 contracts, that the Panel erred in the interpretation of Article 3.1(a) and footnote 4 of the SCM Agreement, in paragraph 7.648 of the Panel Report, that, in order to find that the granting of a subsidy is in fact tied to anticipated exportation, a subsidy must be granted because of anticipated export performance; and consequently reverses the Panel's finding, in paragraph 7.689 of the Panel Report, that the United States had demonstrated that the German, Spanish, and UK A380 contracts amounted to prohibited export subsidies within the meaning of Article 3.1(a) and footnote 4 of the SCM Agreement; finds that a subsidy is de facto export contingent within the meaning of Article 3.1(a) and footnote 4 of the SCM Agreement if the granting of the subsidy is geared to induce the promotion of future export performance by the recipient; but finds there are insufficient factual findings by the Panel or undisputed facts on the Panel record to complete the legal analysis;
*******
With the caveat that I have spent only a few minutes reading this, and have looked only at the conclusion (not the reasoning) on the export subsidy issues, my reaction is the following. On both of these key issues, we are left with uncertainty. We don't know if launch aid is a program, and we don't know if particular launch aid contracts constitute export subsidies. The U.S. could bring a new complaint on these issues, but given the length of the current complaint, that seems unlikely. What this situation says to me is: We really, really need a remand procedure in WTO dispute settlement. In fact, now that Doha seems to be going nowhere, perhaps the WTO Members can focus on reforming dispute settlement procedures, including thinking about how to use remand. [ADDED: Of course, remand would only help on the export subsidy issue.]
The Appellate Body did note the following:
1417. We realize that, after five years of panel proceedings and almost ten months of appellate review, there are a number of issues that remain unresolved in this dispute. Some may consider that this is not an entirely satisfactory outcome. ...
I suspect that this is the feeling for many on the U.S. side of the case.
