WORLD TRADE
ORGANIZATIONWT/DS70/AB/RW
21 July 2000
(00-2989)
Original: English
CANADA – MEASURES AFFECTING THE EXPORT
OF CIVILIAN AIRCRAFT
RECOURSE BY BRAZIL TO ARTICLE 21.5 OF THE DSU
AB-2000-4
Report of the Appellate BodyWT/DS70/AB/RW
Page i
I. Introduc tion................................................................................................................. ................1
II. Arguments of the Participants  and the Third Particip ants ..........................................................3
A. Claims of Error by Appellant  – Brazil ..........................................................................3
B. Arguments  by Appellee – Canada ..................................................................................5
C.T h i r d  Participants ..........................................................................................................6
III. Issue Raised in this Appeal................................................................................................ .........8
IV. Technology Partnerships Canada.............................................................................................. ..8
V. Findings and Conclusions..................................................................................................... ....17WT/DS70/AB/RW
Page 1
WORLD TRADE ORGANIZATION
APPELLATE BODY
Canada – Measures Affecting the Export  of
Civilian Aircraft
Recourse by Brazil to Article 21.5 of the DSU
Brazil,  Appellant
Canada,   Appellee
European Communities,  Third Participant
United States,  Third ParticipantAB-2000-4
Present:Feliciano,  Presiding Member
Bacchus,  MemberEhlermann,  Member
I. Introduction
1. Brazil appeals certain issues of law and legal interpretation in the Panel Report, Canada –
Measures Affecting the Export of Civilian Aircraft, Recourse by Brazil to Article 21.5 of the DSU  (the
"Article 21.5 Panel Report").1  The Article 21.5 Panel was established to consider a complaint by
Brazil that certain measures taken by Canada to comply with the recommendations and rulings of theDispute Settlement Body (the "DSB"), in  Canada – Measures Affecting the Export of Civilian
Aircraft  ("Canada – Aircraft ")
2, were not consistent with Article 3.1(a) of the Agreement on Subsidies
and Countervailing Measures  (the " SCM Agreement ").
2. The original panel found,  inter alia , that "Canada Account debt financing since
1 January 1995 for the export of Canadian regional aircraft" and "[Technology Partnerships Canada]assistance to the Canadian regional aircraft industry [constitute] export subsidies inconsistent withArticle[s] 3.1(a) and 3.2 of the SCM Agreement" 
3.  The original panel concluded that "Canada shall
withdraw [these] subsidies … within 90 days." 4
                                                     
1WT/DS70/RW, 9 May 2000.
2The recommendations and rulings of the DSB resulted from the adoption, by the DSB, of the
Appellate Body Report in  Canada – Aircraft  and the original panel report in that dispute, as modified by the
Appellate Body Report (Appellate Body Report,  Canada – Aircraft , WT/DS70/AB/R, adopted 20 A ugust 1999;
original panel report,  Canada – Aircraft , WT/DS70/R, adopted 20 August 1999, as modified by the Appellate
Body Report).  The DSB recommended that Canada "withdraw" its prohibited export subsidies within 90 days,that is, by 18 November 1999.
3Original panel report,  Canada – Aircraft , para. 10.1.
4Ibid., para. 10.4.WT/DS70/AB/RW
Page 2
3. Before the Appellate Body, Canada appealed certain of the original panel's legal
interpretations relating to Technology Partnerships Canada ("TPC") assistance.  Canada did notappeal the original panel's findings relating to the Canada Account.  The Appellate Body upheld theoriginal panel's finding that TPC assistance to th e Canadian regional aircraft industry constitutes
export subsidies inconsistent with Articles 3.1(a) and 3.2 of the  SCM Agreement .
4. Canada took steps to implement the recommenda tions and rulings of the DSB with respect to
both the Canada Account and TPC.  Taking the view that these measures were not consistent with
Article 3.1(a) of the SCM Agreement , Brazil requested that the matter be referred to the original panel,
pursuant to Article 21.5 of the  Understanding on Rules and Proce dures Governing the Settlement of
Disputes  (the "DSU").
5  On 9 December 1999, in accordance with Article 21.5 of the DSU, the DSB
referred the matter to the original panel.  The Article 21.5 Panel Report was circulated to the Membersof the World Trade Organization (the "WTO") on 9 May 2000.
5. The Article 21.5 Panel concluded that:
… (1) Canada has implemented the 20 August 1999 DSB
recommendation that Canada withdraw TPC assistance to the
Canadian regional aircraft industry within 90 days, and that (2)
Canada has failed to implement the 20 August 1999 recommendation
of the DSB that Canada withdraw the Canada Account assistance to
the Canadian regional aircraft industry within 90 days.
6
6. On 22 May 2000, Brazil notified the DSB of its intention to appeal certain issues of law
covered in the Article 21.5 Panel Report and legal interpretations developed by the Article 21.5 Panel,pursuant to Article 4.8 of the  SCM Agreement  and paragraph 4 of Article 16 of the DSU, and filed a
Notice of Appeal pursuant to Rules 20 and 31(1) of the Working Procedures for Appellate Review
(the " Working Procedures ").  Brazil appeals the Article 21.5 Panel's findings relating to TPC;  the
Article 21.5 Panel's findings relating to the Canada Account are not appealed by Canada and,therefore, do not form part of this appeal.  On 29 May 2000, Brazil filed its appellant's submission.
 7
On 5 June 2000, Canada filed an appellee's submission.  8  On the same day, the European
Communities and the United States each filed a third participant's submission.  9
                                                     
5WT/DS70/9 (23 November 1999).
6Article 21.5 Panel Report, para. 6.2.
7Pursuant to Rule 21(1) of the  Working Procedures .
8Pursuant to Rule 22 of the  Working Procedures .
9Pursuant to Rule 24 of the  Working Procedures .WT/DS70/AB/RW
Page 3
7. The oral hearing in the present appeal was held on 21 June 2000.  The participants and third
participants presented oral arguments and responded to questions put to them by the Members of theDivision hearing the appeal.
II. Arguments of the Participants and the Third Participants
A. Claims of Error by Appellant – Brazil
8. Brazil alleges that the Article 21.5 Panel erred in law by failing to observe the clear mandate
in its terms of reference
10 and the requirement in Article 21.5 of the DSU that it review the revised
TPC programme for its consistency with  Article 3.1(a) of the  SCM Agreement .  Instead, the
Article 21.5 Panel limited its review to whether the revised TPC was consistent with therecommendations and rulings of the DSB in the original dispute and concluded that "Canada hasimplemented the DSB recommendation  in respect of TPC assistance to the Canadian regional aircraft
industry." 
11 (emphasis added)  The Article 21.5 Panel also considered that its review was limited to
the specific "factual circumstances" detailed in the original panel report.12  In conducting its review in
this limited fashion, the Article 21.5 Panel rejected certain evidence and legal arguments, raised by
Brazil, that related to the consistency of the new measure with Article 3.1(a) of the  SCM Agreement .
In view of these errors, Brazil requests that the Appellate Body reverse the Article 21.5 Panel'sfindings and conclusions with respect to the revised TPC programme.
9. According to Brazil, Article 21.5 of the DSU requires a panel to conduct a four-part analysis:
(i) whether the parties disagree as to (ii) the existence or (iii) consistency with a covered agreement of(iv) measures taken to comply with the recommendations and rulings of the DSB.  Brazil considersthat the sole question in this appeal relates to elem ent (iii). The term "consistency" is defined as "[t]he
quality, state, or fact of being consistent; agreement ( with something, of things etc.); uniformity,
regularity."
13  The word "consistent" is defined as "[a]greeing in substance or form; congruous,
compatible ( with, []to), not contradictory; marked by uniformity or regularity."14  The ordinary
meaning of Article 21.5, therefore, requires an evaluation of a Member’s implementation measuresfor agreement or congruity with the covered agreements .  This could, in the view of Brazil, involve a
review of those measures for consistency with any provision of any covered agreement, subject only
to the original panel's terms of reference and the scope of the claim brought under Article 21.5.
                                                     
10WT/DS70/9 (23 November 1999).
11Article 21.5 Panel Report, para. 6.1.
12Ibid., para. 5.17.
13Brazil's appellant's submission, para. 16, citing  The New Shorter Oxford English Dictionary  (Fourth
Ed. 1993).
14Ibid.WT/DS70/AB/RW
Page 4
10. This interpretation, Brazil believes, is supported by the context of Article 21.5, namely the
overall implementation mechanism detailed in Articles 21 and 22 of the DSU.  Monitoringcompliance would become meaningless if Members could satisfy their implementation obligations by
adopting remedial measures that are inconsistent with their WTO obligations.  In that case, a Memberwould be able to shield its implementation measures from the "expedited" review envisioned inArticle 21.5
15 by tailoring measures around the specific "factual circumstances" addressed in the
original panel or Appellate Body decisions.  The implementing Member may also wish to establish
that its implementation measures are WTO-consistent.  The review by panels, under Article 21.5, of
implementation measures for consistency with the covered agreements also enhances one of the
central purposes of the DSU, namely prompt compliance with the recommendations and rulings of theDSB and prompt settlement of WTO disputes.
11. Brazil notes that other Article 21.5 panels have concluded that their mandate included the
determination of whether a Member's implementation measures were consistent with the coveredagreements, and not just with the specific recommendations and rulings of the DSB and the specificfactual circumstances of the original panel and Appellate Body reports.
16
12. By limiting its review under Article 21.5 of the DSU to whether the revised TPC programme
is consistent with the recommendations and rulings of the DSB, the Article 21.5 Panel rejected as
irrelevant evidence submitted by Brazil in support of one of its principal legal arguments.17  T h e
evidence rejected is evidence on the revised TPC’s c ontinued "specific targeting" of the aerospace and
regional aircraft industries.  The Article 21.5 Panel reasoned that the evidence and argument involved"factual circumstances which themselves were not part of our original ruling"
18 and that such,
therefore, were "not relevant to the present dispute, which concerns the issue of whether or not
                                                     
15Australia – Measures Affecting Importation of Salmon, Recourse to Article 21.5 by Canada
("Australia – Salmon, Article 21.5 "), WT/DS18/RW, adopted 20 March 2000, para. 7.10.
16Australia – Salmon, Article 21.5 , para. 7.10; European Communities – Regime for the Importation,
Sale and Distribution of Bananas, Recourse to Article 21.5 by Ecuador , WT/DS27/RW/ECU, adopted
6 May 1999, para. 6.8.
17Before the Article 21.5 Panel, Brazil made four arguments with a view to establishing that the revised
TPC involves  de facto  export contingent subsidies that are inconsistent with Article 3.1(a) of the
 SCM Agreement . The four arguments that Brazil made were:  that the revised TPC programme "specifically
targeted" the Canadian regional aircraft industry for assistance because of its export-orientation; the nearness-to-the-market of the projects to be funded by the TPC;  the "implicit" inclusion of export performance in the new
TPC selection and assessment criteria; and, the absence of complete documentation for the revised TPC
programme and the failure to replace all of the documentation relating to the "old" TPC (Brazil's four argumentsare summarized in paragraph 5.15 of the Article 21.5 Panel Report and elaborated more fully in paragraphs 5.16,5.19, 5.27 and 5.35 of the Article 21.5 Panel Report).
18Article 21.5 Panel Report, para. 5.17.WT/DS70/AB/RW
Page 5
Canada has implemented the DSB recommendation  on TPC assistance to the Canadian regional
aircraft industry."19 (emphasis added)
13. Brazil recalls the importance, in the original panel report, of the export-orientation or export
propensity of the Canadian regional aircraft industry.20 This export-orientation is translated into
TPC’s funding priorities, which have also not changed with the revised TPC.  Since the inception ofthe programme, Brazil states, 65 per cent of TPC contributions have gone to the aerospace industry.Similarly, Canada has acknowledged that two-thirds of all contributions under the revised TPC will
go to that industry.  The economic significance of this specific targeting is considerable, since Canada
has slated available funds under the revised TPC to increase by 396 per cent between now and 2003.In sum, Brazil argued to the Article 21.5 Panel that where the overwhelming export orientation of anindustry has been repeatedly heralded by a government, and cited as its motivation for funding thatindustry, the continued specific targeting of that industry can serve as a fact from which an inferenceof  de facto  export contingency can be drawn. The Article 21.5 Panel’s erroneous interpretation of the
legal standard in Article 21.5, however, prevented it from making this analysis.
14. For these reasons, Brazil requests that the Appellate Body find the Article 21.5 Panel to have
been in error, and that it accordingly reverse the Article 21.5 Panel's findings and conclusions with
respect to the revised TPC. Brazil acknowledges the difficulty faced by the Appellate Body in
completing the Article 21.5 Panel’s analysis in this case, in which some facts are in dispute or are notthe subject of a specific factual finding by the Article 21.5 Panel.
B. Arguments  by Appellee – Canada
15. In this proceeding, Brazil claims that the Article 21.5 Panel did not make a determination as
to whether the amended TPC programme conforms with Article 3.1 (a) of the  SCM Agreement , and
that this alleged failure constitutes a legal error.  In Canada's view, Brazil's appeal is without merit.
The Article 21.5 Panel specifically found that Canada had complied with the DSB recommendations
regarding TPC assistance.  Since the DSB's recommendations in the original dispute included  a
recommendation for Canada to conform TPC assistance to its obligations under the  SCM Agreement ,
the Article 21.5 Panel did make the finding that, according to Brazil, the Article 21.5 Panel did notmake.
                                                     
19Article 21.5 Panel Report, para. 5.17.
20Original panel report,  Canada – Aircraft , supra , footnote 2, para. 9.325.WT/DS70/AB/RW
Page 6
16. Canada notes that Brazil devotes much time to arguing points that are not disputed by Canada
and, more significantly, are not inconsistent with the decision of the Article 21.5 Panel.  Canada doesnot dispute that the mandate of the Article 21.5 Panel was to assess whether Canada’s implementationmeasures comply with the recommendation of the DSB that Canada bring TPC into conformity with
Canada’s obligations under the  SCM Agreement .
17. Brazil's arguments that Canada had not eliminated TPC's alleged "targeting" of industries
with a propensity to export were rejected because the same allegations and arguments  had already
been considered in the original panel proceedings, where they were found not to form part of the basis
for the finding that TPC assistance was export contingent.  In rejecting Brazil's claims of "specifictargeting", the Article 21.5 Panel was not refusing to consider new facts; it was rejecting the need to
reconsider facts and contentions that had not changed.  Brazil’s argument was precisely that  nothing
had changed  regarding the alleged targeting.  The Article 21.5 Panel rejected that argument because
Brazil was presenting the same allegations that had not been, and continued not to be, a basis forfinding export contingency.  In fact, Brazil was asking the Article 21.5 Panel to reconsider, andperhaps overrule, the original panel and Appellate Body decisions on a point that Brazil did not appealduring the original proceedings before the Appellate Body.
18. Canada, therefore, requests that the Appellate Body reject Brazil's appeal as there is no basis
for Brazil's contention that the Article 21.5 Panel failed to assess whether Canada's "measures taken tocomply with the recommendations and rulings" of the DSB were in conformity with the
SCM Agreement .
C. Third  Participants
1. European Communities
19. The European Communities begins with comments on the agreement reached between Brazil
and Canada, in this dispute, inter alia , on the conduct of proceedings under Article 21.5 of the DSU.
The European Communities believes that, although parties may make agreements relating toprocedural issues in dispute settlement proceedings, such agreements may not affect the rights of third
parties.  In certain Article 21.5 disputes, parties have agreed bilaterally to dispense with formalconsultations under Article 4 of the DSU.  The European Communities considers this to beinconsistent with the DSU and prejudicial to third party rights.  While this issue was not raised before
the Article 21.5 Panel and is not the subject of an appeal, the European Communities considers that it
would be useful to all Members to have a ruling on this issue and would appreciate a statement fromthe Appellate Body to the effect that "the parties to  a dispute may not enter into agreements regardingWT/DS70/AB/RW
Page 7
the conduct of dispute settlement proceedings that prejudice the rights and interests of other Members,
in particular to participate as third parties." 21
20. The European Communities agrees with Brazil that monitoring compliance under Article 21.5
of the DSU should be meaningful and consistent w ith the DSU's objective of prompt settlement and
compliance.  The terms of reference of an Article 21.5 panel must be considered to include the"matter" before the original panel, as well as the additional question of whether that "matter" has beenproperly resolved (existence and consistency of implementation measures).  However, Article 21.5
does not allow an examination of claims that could have been – but were not – included in the original
panel's terms of reference.  Nor could an Article 21.5 review extend to any provision of any covered
agreement, subject only to the terms of reference and the scope of the claim brought underArticle 21.5.  For instance, it would be inappropriate for Brazil to argue, under Article 21.5 of theDSU, that the revised TPC programme was inconsistent with Article 5 of the  SCM Agreement .
21. In the present dispute, however, the Article 21.5 Panel was entitled to examine the
compatibility of the restructured TPC with Article 3.1(a) of the SCM Agreement .  In conducting this
examination, the Article 21.5 Panel was required to consider all the factual circumstances of theamended programme in order to ensure that the  de facto  export contingency had  in fact  been
removed.  The European Communities acknowledges that, in its substantive analysis, the Article 21.5
Panel compared the new factual situation with the ol d, rather than assessing the new factual situation
under the  SCM Agreement.   However, since the substance of Brazil’s complaint was that in reality
"nothing had changed" in the restructured TPC, it is perhaps understandable that the Article 21.5Panel considered that the questions of the existence of implementation of the DSB's recommendationsand rulings and of the conformity with the  SCM Agreement were very similar, if not the same.
22. The European Communities believes the Article 21.5 Panel correctly understood its mandate
under Article 21.5 of the DSU.  However, there are indications in its Report, notably inparagraph 5.17, that the Article 21.5 Panel may not have actually applied the appropriate legal
standard.  The European Communities, nonetheless, considers that the facts before the Article 21.5
Panel did not establish, as a legal matter, that the restructured TPC was inconsistent withArticle 3.1(a) of the  SCM Agreement .  Even if the Panel had taken the "specific targeting" into
account, this would not have altered the outcome of the case.  Canada is not precluded from limitingeligibility for a subsidy to certain sectors or from concentrating funding on certain industries.Moreover, the export-oriented nature of the regional aircraft industry cannot  by itself  justify such a
finding.
                                                     
21European Communities' third participant's submission, para. 15.WT/DS70/AB/RW
Page 8
2. United States
23. In its submission, the United States avers that it "has a strong interest in the systemic
implications of the issues presented in this appeal."  22  However, the United States does not make
specific arguments on the substantive issues involved.  As a result, no arguments by the United Statesare summarized here.
III. Issue Raised in this Appeal
24. This appeal raises the issue of whether the Article 21.5 Panel erred in finding that Canada had
"implemented the recommendation of the DSB concerning TPC assistance to the Canadian regionalaircraft industry"
23, in particular, by declining to examine Brazil's argument that the revised TPC
programme is inconsistent with Article 3.1(a) of the  SCM Agreement  on the ground that that industry
is "specifically targeted" for TPC assistance because of its export-orientation.
IV. Technology Partnerships Canada
25. The original panel found, for the reasons enumerated in paragraph 9.340 of the original panel
report, that TPC assistance to the Canadian regional aircraft industry involved subsidies that were
contingent, in fact, upon export performance and, t hus, inconsistent with Article 3.1(a) of the
SCM Agreement .24  The Article 21.5 Panel summarized, as follows, the steps taken by Canada to
implement the recommendations and rulings of the DSB regarding TPC:
5.3 Canada has taken two types of action in order to implement
the recommendation of the DSB concerning TPC assistance to the
Canadian regional aircraft industry.  First, Canada has terminatedexisting TPC activities in the Canadian regional aircraft sector.  Thus,
Canada (1) has cancelled funding under five TPC transactions
identified by Canada, (2) has withdrawn approvals-in-principle for
two new TPC funding projects in the regional aircraft sector, and (3)
has closed all TPC files in the regional aircraft sector.
5.4 Second, Canada has restructured the TPC programme and
documentation so that, in its opinion, most of the factual
considerations forming the basis for the Panel's finding of de facto
export contingency no longer apply.  According to Canada, the only
factual consideration still applicable is the export orientation of the
Canadian regional aircraft industry.
                                                     
22United States' third participant's submission, p. 1.
23Article 21.5 Panel Report, para. 5.42.
24Original panel report,  Canada – Aircraft , supra , footnote 2, para. 9.348.WT/DS70/AB/RW
Page 9
26. Brazil's complaint, in the Article 21.5 proceedings, regarding TPC was limited to the second
type of action taken by Canada to comply with the recommendations and rulings of the DSB, namely
the restructuring of the TPC programme.  Brazil does not disagree with the manner in which Canadahas terminated existing TPC activities in the Canadian regional aircraft sector, and the Article 21.5Panel did not examine those termination measures.
27. Before the Article 21.5 Panel, Brazil made four different arguments to establish that the
revised TPC programme involves  de facto  export contingent subsidies that are inconsistent with
Article 3.1(a) of the SCM Agreement .
25 The Panel considered each of these arguments in turn.  For the
reasons quoted below, the Article 21.5 Panel declined to examine the substance of the first of the fourarguments made by Brazil, namely that the revised TPC programme "specifically targeted" theCanadian regional aircraft industry for assistance because of its export-orientation:
… the "specific targeting" concept (in those or other words) did not
form part of our reasoning regarding contingency in fact on export
performance in that dispute . … That is, of the factual considerations
enumerated by us at para. 9.340 of our Report, none  concerned the
alleged targeting of the Canadian aerospace industry generally, or the
Canadian regional aircraft industry in particular, by TPC, none
concerned the amount of total TPC funding directed at the Canadian
aerospace or regional aircraft industries, and none  concerned the fact
that the aerospace or regional aircraft industries were eligible for TPC
assistance. … Indeed, we consider that the question of whether TPCassistance is "specifically targeted" to the aerospace and regional
aircraft industries is not relevant to the present dispute, which
concerns the issue of whether or not Canada has implemented the
DSB recommendation  on TPC assistance to the Canadian regional
aircraft industry.
26 (italics added)
28. The Article 21.5 Panel next stated that the recommendations and rulings of the DSB:
… cannot have required Canada to take implementation action to
ensure that TPC assistance is not "specifically targeted" at the
aerospace and regional aircraft industries, because such alleged
"specific targeting" did not form part of the basis for the finding of defacto export contingency that gave rise to that recommendation .
27
(emphasis added)
                                                     
25Brazil's four arguments are identified, supra , in footnote 17 of this Report.  These four arguments are
also summarized in paragraph 5.15 of the Article 21.5 Panel Report and elaborated more fully in paragraphs5.16, 5.19, 5.27 and 5.35 of the Article 21.5 Panel Report.
26Article 21.5 Panel Report, para. 5.17.
27Ibid.WT/DS70/AB/RW
Page 10
29. The Article 21.5 Panel then held, as regards this argument of Brazil, that:
… we do not consider it necessary to examine Brazil's argument that
"nothing has changed" because TPC assistance continues to
"specifically target" the Canadian  aerospace and regional aircraft
industries.28
30. The Article 21.5 Panel went on to examine the merits of Brazil's three other arguments and
rejected each of them.  The Article 21.5 Panel, therefore, concluded that it was "unable to acceptBrazil's claim that Canada has not implemented the recommendation of the DSB concerning TPCassistance to the Canadian regional aircraft industry." 
29
31. Brazil's present appeal is limited to the Article 21.5 Panel's treatment of its argument relating
to the "specific targeting" of the Canadian regional aircraft industry because of its export-orientation.
30  On appeal, Brazil submits that the Article 21.5 Panel erred by failing to examine the
revised TPC programme for its consistency with Article 3.1(a) of the  SCM Agreement , as required by
Article 21.5 of the DSU and by the Article 21.5 Panel's terms of reference.31  Instead, Brazil asserts
that the Article 21.5 Panel limited its review to an examination only of whether Canada had amendedthe TPC programme to make it consistent with "the recommendations and rulings of the DSB".
32
Brazil contends that in so doing, the Article 21.5 Panel erred by confining itself to the original panel'sfindings in  Canada – Aircraft  and by declining to consider Brazil's "specific targeting" argument.
32. Article 4.7 of the SCM Agreement  provides:
If the measure in question is found to be a prohibited subsidy, the panel
shall recommend that the subsidizing Member  withdraw the subsidy
without delay. … (emphasis added)
33. Pursuant to this provision, the recommendations and rulings of the DSB in the original
proceedings required Canada to "withdraw" the measure "found to be a prohibited export subsidy".As we have already noted, the Article 21.5 Panel's terms of reference embrace only the measurestaken by Canada with a view to restructuring the TPC programme, which was found to involve
                                                     
28Article 21.5 Panel Report, para. 5.18.
29Ibid., para. 5.42.
30Brazil's appellant's submission, para. 12, and statement by Brazil at the oral hearing in response to
questioning.  Brazil appeals the Article 21.5 Panel's treatment of Brazil's "first category of evidence", whichrelated to the fact that "industries eligible for 'new' TP C assistance remain specifically targeted because of their
export orientation and the expectation that that export orientation will continue" (Brazil's appellant's submission,para. 9).
31WT/DS70/9 (23 November 1999).
32Article 21.3 of the DSU.WT/DS70/AB/RW
Page 11
prohibited export subsidies.33  As such, the present proceedings involve only the measures taken by
Canada for the purpose of "withdrawing" the prohibi ted export subsidies through the restructuring of
the TPC programme.  We are, therefore, not asked, in this appeal, to address any other aspect ofCanada's obligation, under Article 4.7 of the  SCM Agreement , to "withdraw" the measures found to
be prohibited export subsidies.
34. Canada restructured the TPC programme by amending TPC's operating documentation, with
effect from 18 November 1999.  In that respect, Canada introduced, inter alia , the following new TPC
documents: "Special Operating Agency Framework Document"; "Terms and Conditions";
"Investment Application Guide"; and, "Investment Decision Document". The new TPC "Terms andConditions" document states that the "granting of co ntributions will not be contingent, either in law or
in fact, upon actual or anticipated export performance" (Section 6.1).  This is repeated in the TPCInvestment Application Guide (Section 5).  Section 5 of that Guide also states that "administeringofficials will not request or consider information concerning the extent to which applicant or recipiententerprises do or may export."
35. The subject-matter of these proceedings is determined by Article 21.5 of the DSU, as well as,
of course, by the Panel's terms of reference.  Article 21.5 of the DSU stipulates:
Where there is disagreement as to the existence or consistency with a
covered agreement of measures taken to comply with the
recommendations and rulings such dispute shall be decided through
recourse to these dispute settlement procedures, including whereverpossible resort to the original panel. …
36. Proceedings under Article 21.5 do not concern just any measure of a Member of the WTO;
rather, Article 21.5 proceedings are limited to those "measures taken to comply  with the
recommendations and rulings" of the DSB.  In our view, the phrase "measures taken to comply" refers
to measures which have been, or which should be, adopted by a Member to bring about compliance with
the recommendations and rulings of the DSB.  In pr inciple, a measure which has been "taken to comply
with the recommendations and rulings" of the DSB will  not be the same measure as the measure which
was the subject of the original dispute, so that, in  principle, there would be two separate and distinct
measures
34:  the original measure which  gave rise to  the recommendations and rulings of the DSB, and
the "measures taken to comply" which are – or should be – adopted to  implement  those
recommendations and rulings.  In these Article 21.5 proceedings, the measure at issue is a new measure,
                                                     
33WT/DS70/9 (23 November 1999).  In the document requesting recourse to Article 21.5, Brazil
identified the "new terms and conditions and a new administrative framework for the [TPC] program".
34We recognize that, where it is alleged that there exist  no "measures taken to comply", a panel may
find that there is  no new measure.WT/DS70/AB/RW
Page 12
the revised  TPC programme, which became effective on 18 November 1999 and which Canada presents
as a "measure taken to comply with the recommendations and rulings" of the DSB.
37. Brazil asserts that this revised TPC programme is not "consistent" with Article 3.1(a) of the
SCM Agreement , and Canada agrees that the Article 21.5 Panel was entitled to examine the revised TPC
programme for its "consistency" with Canada's obligations under Article 3.1(a).35  We agree with the
parties that the "consistency" of the revised TPC programme with Article 3.1(a) of the SCM Agreement  is the relevant issue.  Furthermore, in our view, the obligation of the Article 21.5
Panel, in reviewing "consistency" under Article 21.5 of the DSU, was to examine whether the new
measure – the revised TPC programme – was "in conformity with", "adhering to the same principlesof" or "compatible with" Article 3.1(a) of the  SCM Agreement .
36  In short, both the DSU and the
Article 21.5 Panel's terms of reference required the Article 21.5 Panel to determine whether therevised TPC programme involved prohibited export subsidies within the meaning of Article 3.1(a) ofthe  SCM Agreement .
38. We add also that the examination of "measures taken to comply" is based on the relevant facts
proved, by the complainant, to the Article 21.5 panel, during the panel proceedings.  Therefore, the"minimum implementation standard" that the Article 21.5 Panel expressed and which, it said, was
"effectively" agreed between the parties, should be viewed with caution.
37  The Article 21.5 Panel said
that Canada's implementation should " ' ensure ' that  future  TPC assistance to the Canadian regional
aircraft industry will not be  de facto  contingent on export performance."38 (emphasis added)  The use
in this standard of the words "ensure" and "future", if taken too literally, might be read to mean thatthe Panel was seeking a strict guarantee or absolute assurance as to the  future  application of the
revised TPC programme.  A standard which, if so read, would, however, be very difficult, if not
impossible, to satisfy since no one can predict how unknown administrators would apply, in the
unknowable future, even the most conscientiously crafted compliance measure.
                                                     
35We note that the claim made by Brazil relating to the revised TPC programme, in this Article 21.5
dispute, is the same  as the claim made by Brazil in the original proceedings in relation to the TPC programme as
previously constituted.  In both cases, Brazil complained that the measure at issue was inconsistent withArticle 3.1(a) of the  SCM Agreement .  These proceedings do not, therefore, involve a claim under a provision of
the  SCM Agreement , or, even, a claim under a covered agreement, that was not examined in the original
proceedings in  Canada - Aircraft .
36See the dictionary meanings of "consistency" and "consistent" in  The New Shorter Oxford English
Dictionary  (Clarendon Press, 1993), Vol. I, p. 486 and  The Concise Oxford Dictionary  (Clarendon Press,
1995), p. 285.  The dictionary meaning of "consistency" includes the "quality" or "state" of "being consistent".
37Article 21.5 Panel Report, para. 5.12.
38Ibid.WT/DS70/AB/RW
Page 13
39. In conducting its review under Article 21.5 of the DSU, the Article 21.5 Panel declined to
examine Brazil's argument that "the Canadian regional aircraft industry continues to be 'specificallytargeted' for TPC assistance because of its undisputed export orientation."
39  The Article 21.5 Panel
stated that this argument "did not form part" of the reasoning of the original panel and was "notrelevant to the present dispute, which concerns the issue of whether or not Canada has implemented
the DSB recommendation …".
40 (emphasis added)
40. We have already noted that these proceedings, under Article 21.5 of the DSU, concern the
"consistency" of the revised TPC programme with Article 3.1(a) of the SCM Agreement .41  Therefore,
we disagree with the Article 21.5 Panel that the scope of these Article 21.5 dispute settlement
proceedings is limited to "the issue of whether or not Canada has implemented the DSB
recommendation ".  The recommendation of the DSB was that the measure found to be a prohibited
export subsidy must be withdrawn within 90 days of the adoption of the Appellate Body Report andthe original panel report, as modified – that is, by 18 November 1999.  That recommendation to"withdraw" the prohibited export subsidy did not, of course, cover the new measure – because the new
measure did not exist when the DSB made its recommendation.  It follows then that the task of theArticle 21.5 Panel in this case is, in fact, to determine whether the new measure – the revised TPC
programme – is consistent with Article 3.1(a) of the  SCM Agreement .
41. Accordingly, in carrying out its review under Article 21.5 of the DSU, a panel is not confined
to examining the "measures taken to comply" from the perspective of the claims, arguments andfactual circumstances that related to the measure that was the subject of the original proceedings.Although these may have some relevance in proceedings under Article 21.5 of the DSU, Article 21.5proceedings involve, in principle, not the original measure, but rather a new and different measurewhich was not before the original panel.  In addition, the relevant facts bearing upon the "measuretaken to comply" may be different from the relevant  facts relating to the measure at issue in the
original proceedings.  It is natural, therefore, that the claims, arguments and factual circumstances
which are pertinent to the "measure taken to comply" will not, necessarily, be the same as those which
were pertinent in the original dispute.  Indeed, th e utility of the review envisaged under Article 21.5 of
the DSU would be seriously undermined if a panel were restricted to examining the new measurefrom the perspective of the claims, arguments and factual circumstances that related to the originalmeasure, because an Article 21.5 panel would then be unable to examine fully the "consistency with acovered agreement of the measures taken to comply", as required by Article 21.5 of the DSU.
                                                     
39Article 21.5 Panel Report, para. 5.16.
40Ibid., para. 5.17.
41Supra , para. 37.WT/DS70/AB/RW
Page 14
42. Consequently, in these proceedings, the task of the Article 21.5 Panel was not limited solely
to determining whether the revised TPC programme had been rid of those aspects of the originalmeasure – the TPC programme, as previously constituted – that had been identified in the originalproceedings, in the context of all of the facts, as not being consistent with Canada's WTO obligations.Rather, the Article 21.5 Panel was obliged to examine the revised TPC programme for its consistencywith Article 3.1(a) of the SCM Agreement .  The fact that Brazil's argument in these Article 21.5
proceedings "did not form part" of the original panel's reasoning relating to the previous  TPC
programme does not necessarily mean that this argument is "not relevant" to the Article 21.5
proceedings, which relate to the revised  TPC programme.  In our view, the Article 21.5 Panel should
have examined the merits of Brazil's argument as it relates to the revised  TPC programme.  We
conclude, therefore, that the Article 21.5 Panel erred by declining to examine Brazil's argument thatthe revised TPC programme "specifically targeted" the Canadian regional aircraft industry forassistance because of its export-orientation.
42
43. With a view to resolving this dispute, and considering that the undisputed facts on the record
are adequate for this purpose, we believe that we should complete the Article 21.5 Panel's analysis byexamining this argument.  In so doing, we observe that the essence of Brazil's argument is that the
Canadian regional aircraft industry is "specifically targeted" for assistance in two different ways under
the revised TPC programme.
44. First, Brazil notes that the "Eligible Areas" for TPC assistance include "Aerospace and
Defence", and that these industrial sectors are the sole such sectors to be identified expressly aseligible for TPC assistance.  The other two "Eligible Areas" are "Environmental Technologies" and"Enabling Technologies", which could involve projec ts drawn from any industrial sector, including
"Aerospace and Defence".  In Brazil's view, the express identification of "Aerospace and Defence" as"Eligible Areas" puts these industrial sectors, which include the Canadian regional aircraft industry, ina privileged position and represents "specific targeting" of the Canadian regional aircraft industry.
Second, Brazil maintains that the Canadian regional aircraft industry is also "specifically targeted", in
practice, through the allocation of TPC funding assistance.  According to Brazil, 65 per cent of TPCfunding has, in the past, "gone to the [Canadian] aerospace industry".
43
45. Brazil maintains that the reason for these two types of "targeting" is the high export-
orientation of the industry.  In support of this argument, Brazil relies on a series of statements madeby Canadian Government Ministers, Members of Pa rliament, other government officials, and by the
                                                     
42Article 21.5 Panel Report, para. 5.18.
43Brazil's first submission to the Article 21.5 Panel, para. 21 (Article 21.5 Panel Report, p. 50).WT/DS70/AB/RW
Page 15
TPC itself, regarding the objectives of TPC.44  Brazil acknowledges that the statements it relies upon
were made in connection with the old TPC programme, as previously  constituted.  Brazil argues,
nevertheless, that the "specific targeting" is a fa ct that tends to establish that the revised TPC
programme involves subsidies which are  de facto export contingent.
46. Canada does not contest any of the factual assertions made by Brazil in presenting its
"specific targeting" argument.  However, Canada emphasizes that the statements Brazil relies uponwere made in relation to the old TPC programme, not to the revised  programme.  Canada also states
that no TPC assistance has been granted or committed under the revised  TPC programme to the
Canadian regional aircraft industry.  In other words, Canada asserts that there have been, thus far, notransactions involving the Canadian regional aircraft industry under this new measure.  Brazil doesnot contest this assertion.
47. It is worth recalling that the granting of a subsidy is not, in and of itself, prohibited under the
SCM Agreement .  Nor does granting a "subsidy", without more, constitute an inconsistency with that
Agreement.  The universe of subsidies is vast.  Not all subsidies are inconsistent with theSCM Agreement .  The only "prohibited" subsidies are those identified in Article 3 of the
SCM Agreement ;  Article 3.1(a) of that Agreement prohibits those subsidies that are "contingent, in
law or in fact, upon export performance".  We have stated previously that "a subsidy is prohibited
under Article 3.1(a) if it is 'conditional' upon export performance, that is, if it is 'dependent for itsexistence on' export performance."
45  We have also emphasized that a "relationship of conditionality
or dependence", namely that the granting of a subsidy should be "tied to" the export performance, liesat the "very heart" of the legal standard in Article 3.1(a) of the  SCM Agreement .
46
48. To demonstrate the existence of this "relationship of conditionality or dependence", we have
also stated that it is not sufficient to show that a subsidy is granted in the knowledge, or with the
anticipation, that exports will result.47  Such knowledge or anticipation does not, taken alone,
demonstrate that the granting of the subsidy is "contingent upon" export performance. The second
                                                     
44Brazil's first submission to the Article 21.5 Panel, para. 19 (Article 21.5 Panel Report, p. 49).
45Appellate Body Report,  Canada – Certain Measures Affecting the Automotive Industry  ("Canada –
Automotive Industry "), WT/DS139/AB/R, WT/DS142/AB/R, adopted 19 June 2000, para. 123.  See also
Appellate Body Report,  Canada – Aircraft , supra , footnote 2, para. 166.
46Appellate Body Report,  Canada – Aircraft , supra , footnote 2, para. 171;  Appellate Body Report,
Canada – Automotive Industry , supra , footnote 45, para. 107.  We note that, in our Report, in  Canada –
Aircraft , we said that the distinction between  de facto  and  de jure contingency lies in the "evidence [that] may
be employed to prove that a subsidy is export contingent" ( supra , footnote 2, para. 167).  While  de jure
contingency must be demonstrated on the basis of the "words of the relevant … legal instrument",  de facto
contingency "must be inferred  from the total configuration of the facts constituting and surrounding the granting
of the subsidy" (Appellate Body Report,  Canada – Aircraft , supra , footnote 2, para. 167).
47Appellate Body Report,  Canada – Aircraft , supra , footnote 2, para. 172.WT/DS70/AB/RW
Page 16
sentence of footnote 4 of the  SCM Agreement  stipulates, in this regard, that the " mere fact  that a
subsidy is granted to enterprises which export shall not  for that reason alone  be considered to be an
export subsidy…". (emphasis added)  That fact, by itself, does not, therefore, compel the conclusionthat there is a "relationship of conditionality or dependence", such that the granting of a subsidy is"tied to" export performance.  However, we have also said that the export-orientation of a recipient"may be taken into account as a relevant fact, provided it is one of several facts which are considered
and is not the only fact supporting a finding" of export contingency.48 (underlining added)
49. Recalling all this, at its core, we see Brazil's argument about "specific targeting" essentially as
a contention that the SCM Agreement  precludes the two types of targeting Brazil identifies simply
because of the high export-orientation of the Canadian regional aircraft industry.  However, in ourview, the fact that an industrial sector has a high export-orientation is not, by itself, sufficient topreclude that sector from being expressly identified as an eligible or privileged recipient of subsidies.Nor does the high export-orientation of an industry limit, in principle, the amount of subsidies thatmay be granted to that industry.  As we have said, granting subsidies, in itself, is not prohibited.Under Article 3.1(a) of the  SCM Agreement , the subsidy must be export contingent  to be prohibited.
The two "targeting" factors may very well be relevant to an inquiry under Article 3.1(a) of the
 SCM Agreement , but they do not necessarily provide conclusive evidence that the granting of a
subsidy is " contingent ", "conditional " or " dependent " upon export performance.  In these proceedings,
we do not see the two "targeting" factors, by themselves, as adequate proof of prohibited exportcontingency .
50. Moreover, the evidence that Brazil relies upon in seeking to demonstrate that the Canadian
regional aircraft industry is "specifically targeted" because of  its high export-orientation relates to the
TPC as previously  constituted, and not to the revised  TPC programme.
49  In particular, Brazil relies
upon evidence of the high proportion of TPC funding allocated to the Canadian regional aircraftindustry under the  old TPC programme and on statements made in connection with that programme
by Canadian Government Ministers, Members of Parl iament, officials, and by TPC itself.  The burden
of explaining the relevance of the evidence, in proving the claim made, naturally rests on whoeverpresents that evidence.  Brazil has not offered any convincing explanation as to why the evidencerelating to the old TPC programme continues to be relevant to the revised  TPC programme.  We do
not believe we should simply assume that this partic ular evidence is relevant in respect of the revised
TPC programme.
                                                     
48Appellate Body Report,  Canada – Aircraft , supra , footnote 2, para. 173.
49As we have noted, supra , in paragraph 46, Canada asserts that no funding has been granted to the
Canadian regional aircraft industry under the revised TPC programme, and Brazil does not contest this assertion.WT/DS70/AB/RW
Page 17
51. For all these reasons, we find that Brazil has not sufficiently established that the Canadian
regional aircraft industry is "specifically targeted" because of  its high export-orientation.
52. We conclude that Brazil has failed to establish that the revised TPC programme is
inconsistent with Article 3.1(a) of the  SCM Agreement .  We also conclude that Brazil has failed to
establish that Canada has not implemented the recommendations and rulings of the DSB.  The
outcome of the present proceedings does not, of course, preclude possible subsequent disputeresolution proceedings regarding the WTO-consistency of the revised TPC programme, or of specific
instances of assistance actually granted under that programme.
V. Findings and Conclusions
53. For the reasons set out in this Report, the Appellate Body finds that the Article 21.5 Panel
erred by declining to examine Brazil's argument that the revised TPC programme is inconsistent withArticle 3.1(a) of the  SCM Agreement  on the ground that the Canadian regional aircraft industry is
"specifically targeted" for TPC assistance because of its export-orientation.  However, the AppellateBody finds that Brazil has failed to establish that the revised TPC programme is inconsistent withArticle 3.1(a) of the  SCM Agreement  and, accordingly, that Brazil has failed to establish that Canada
has not implemented the recommendations and rulings of the DSB.WT/DS70/AB/RW
Page 18
Signed in the original at Geneva this 12th day of July 2000 by:
_________________________
Florentino Feliciano
Presiding Member
_________________________ _________________________
James Bacchus Claus-Dieter Ehlermann
Member Member