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Executive Summary of Qatar’s Appellee’s Submission (WT/DS567) -

Executive Summary of Qatar’s Appellee’s Submission  Before the World Trade Organization

Saudi Arabia — Measures Concerning the Protection of Intellectual Property Rights  (WT/DS567)

                                                                                                                                             

TABLE OF CONTENTS

I.  Introduction

II.  Saudi Arabia’s Appeal Should be Dismissed because it Failed to Detail any Valid Ground of Appeal in a Timely Appellant’s Submission

III.  The Panel Did Not Err in Finding that Saudi Arabia Failed to Provide Access to Civil Enforcement Procedures in Violation of Articles 42 and 41.1 of the TRIPS Agreement

IV.  The Panel Did Not Err in Finding That Saudi Arabia Failed to Apply Criminal Procedures and Penalties in Violation of Article 61 of the TRIPS Agreement

V.  The Panel Exceeded its Mandate and Made the Case for Saudi Arabia in Making Findings with Respect to the Application of Article 73(b)(iii) of the TRIPS Agreement


 

  1. INTRODUCTION

     

  2. Qatar’s Appellee’s Submission provides detailed responses to the errors that appear to be raised in the Notice of Appeal filed by Saudi Arabia on 28 July 2020.

  3. Section II, below, first explains that Saudi Arabia’s entire appeal must be rejected for failure to file its Appellant’s Submission on the same day as its Notice of Appeal.

  4. Next, as summarized in Section III, the Panel did not err in finding that certain Saudi measures violate Articles 42 and 41.1 of the Agreement on Trade Related Aspects of Intellectual Property Rights (“TRIPS Agreement”).  Section IV then explains that the Panel did not err in finding that certain Saudi measures violate Article 61 of the TRIPS Agreement.

  5. Finally, as summarized in Section V, contrary to its terms of reference and Articles 7.1 and 11 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (“DSU”), the Panel exceeded its mandate when deciding that Saudi Arabia’s invocation of the security exception covered all of the measures at issue, despite Saudi Arabia’s repeated statements to the contrary.  The Panel also made a case for Saudi Arabia that Saudi Arabia itself had deliberately eschewed.  The Appellate Body should therefore reverse the Panel’s decision that the “actions” subject to the Article 73(b)(iii) defence include Saudi Arabia’s anti-sympathy measures and the failure to apply criminal procedures, and, consequently, declare moot and of no legal effect all the Panel’s associated findings.

 

  1. SAUDI ARABIA’S APPEAL SHOULD BE DISMISSED BECAUSE IT FAILED TO DETAIL ANY VALID GROUND OF APPEAL IN A TIMELY APPELLANT’S SUBMISSION

     

  2. Rule 21(1) of the Working Procedures for Appellate Review (“Working Procedures”) states that the “appellant shall, on the same day as the date of the filing of a Notice of Appeal, file with the Secretariat a written submission prepared in accordance with paragraph 2 …”.[1]  Rule 18(1) requires that all documents be served on the other party.

  3. Saudi Arabia’s Notice of Appeal is dates 28 July 2020.  However, Saudi Arabia chose not to file an appellant’s submission.  It also failed to serve the Notice of Appeal on Qatar.

  4. Having waived the opportunity to file an appellant’s submission, the bare assertions in the Saudi Notice of Appeal do not provide a basis upon which the Appellate Body could reverse or modify any of the Panel’s findings.  Accordingly, pursuant to Rule 29 of the Working Procedures, Qatar requests that the Appellate Body dismiss Saudi Arabia’s appeal in its entirety.

 

  1. THE PANEL DID NOT ERR IN FINDING THAT SAUDI ARABIA FAILED TO PROVIDE ACCESS TO CIVIL ENFORCEMENT PROCEDURES IN VIOLATION OF ARTICLES 42 AND 41.1 OF THE TRIPS AGREEMENT

     

  2. Saudi Arabia has failed to demonstrate that the Panel erred under Article 11 of the

    DSU, or in the interpretation or application of the standard required for a complaining

    Member to demonstrate a prima facie case, when finding that Saudi Arabia violated Articles 42 and 41.1 of the TRIPS Agreement.[2]  

  3. Saudi Arabia’s appeals under Article 11 are not supported by any explanation or argument, and appear to amount to nothing more than assertions of disagreement with the Panel’s factual findings.  But mere disagreement by a party with the outcome of a panel’s assessment, or the weight a panel accords to the evidence, is not a basis for an Article 11 appeal.  In the absence of precise allegations of error justiciable under Article 11, the Appellate Body must reject Saudi Arabia’s appeal.

  4. In any event, the Panel’s findings were properly made.  The Panel engaged in a detailed assessment of the evidence and arguments submitted by both parties.  Based on this assessment, the Panel found that, by adopting anti-sympathy measures that had the effect of preventing beIN from obtaining Saudi legal counsel to enforce its IP rights through civil judicial procedures, Saudi Arabia acted inconsistently with Articles 42 and 41.1 of the TRIPS Agreement, which require Members to allow parties “to be represented by independent legal counsel” and “ensure that the enforcement procedures as specified in [Part III of the TRIPS Agreement] are available under their law”.[3]

  5. Saudi Arabia has failed to provide any support for its allegations that the Panel erred under Article 11 of the DSU in finding that Saudi Arabia imposed anti-sympathy measures banning expressions of sympathy toward Qatar.[4]  The Panel’s findings that the “antisympathy” measures – i.e., those measures announced on 6 June 2017 to the effect that expressions of sympathy for Qatar will be subject to imprisonment and a significant fine – exist are based on extensive evidence, including:[5]

    • Tweets and news reports by Saudi news outlets reporting that Saudi authorities would sanction persons expressing sympathy for Qatar with up to five years imprisonment and a 3 million riyal fine;

    • Text of Saudi Arabia’s 2007 Anti-Cyber Crime Law, providing for the same penalties identified in the tweet and news reports; and

    • Reports by international entities and organizations commenting on these antisympathy measures.

  6. Saudi Arabia has also failed to provide any support for its allegations that the Panel erred under Article 11 of the DSU in reaching certain specific factual findings and conclusions.[6]  The Panel’s findings that the anti-sympathy measures have, directly or indirectly, prevented beIN from obtaining Saudi legal counsel to enforce its IP rights are based on a thorough and objective analysis of the evidence and arguments on the record, including:[7]

    • Evidence that beIN approached several law firms in Saudi Arabia, all of which refused to act against beoutQ;

    • Letters from beIN to Saudi authorities explaining beIN’s inability to secure legal representation, and its understanding that this was based on a Government instruction;

    • A public statement by seven major football right holders confirming that, after reaching out to nine law firms, they have concluded that it is “not possible” to retain legal counsel which is “willing or able to act on [their] behalf”;[8]

    • Evidence that the General Commission of Audio and Visual Media transmitted the Circular prohibiting the distribution of beIN content and alluding to potential loss of

      “related intellectual property rights” directly to 39 right holders via email, which the Panel found to be “an action aimed at influencing these private entities in their arrangements with beIN”.[9]

    • Email exchanges between beIN and a Saudi law firm documenting an instance in which the Saudi Government pressured that law firm to act on behalf of beIN, reflecting the Saudi Government’s influence over the decisions of Saudi lawyers.

  7. Lastly, Saudi Arabia failed to offer any explanation or argumentation in support of its allegation that the Panel erred in the interpretation and application of the standard required to demonstrate a prima facie case, and failed to make an objective assessment of the matter under Article 11 of the DSU in applying that standard.[10]  Qatar understands Saudi Arabia to be alleging that the Panel somehow erred in determining and applying the burden and standard of proof.  The Panel made no such error.  

  8. The Panel identified the correct legal standard – the same legal standard identified by the Appellate Body and other panels – and correctly applied that standard to the facts.[11]  In so doing, the Panel conducted a thorough, objective assessment of the evidence and arguments before it, in line with Article 11 of the DSU.

 

  1. THE PANEL DID NOT ERR IN FINDING THAT SAUDI ARABIA FAILED TO APPLY CRIMINAL PROCEDURES AND PENALTIES IN VIOLATION OF ARTICLE 61 OF THE TRIPS AGREEMENT

     

  2. Saudi Arabia has failed to demonstrate that the Panel erred in the interpretation or application of Article 61 of the TRIPS Agreement, or under Article 11 of the DSU, when finding that Saudi Arabia violated Article 61 of the TRIPS Agreement.[12] 

  3. In particular, Saudi Arabia has failed to offer any explanation or argumentation in support of its allegations that the Panel committed those errors when finding that “Saudi Arabia was required to apply criminal procedures or penalties against beoutQ under the facts and circumstances of the dispute”.[13]  It is entirely unclear how Saudi Arabia believes the Panel erred in its interpretation or application of Article 61 of the TRIPS Agreement or under Article 11 of the DSU, as Saudi Arabia fails to identify any error with precision.  Accordingly, Saudi Arabia has failed to substantiate its allegations of error. 

  4. In any event, the Panel’s findings were properly made.  The Panel correctly interpreted Article 61 of the TRIPS Agreement, in line with Article 31 of the Vienna Convention on the Law of Treaties, looking to its ordinary meaning, in context, and in light of the object and purpose of Article 61 and the TRIPS Agreement as a whole.[14]  The Panel properly found that the obligation to apply criminal procedures and penalties to cases of wilful copyright piracy on a commercial scale is not “automatically discharged” by simply having laws on the books, without regard to how that written law is “applied in practice”.15  

  5. The Panel then correctly applied the legal standard to the facts at hand.[15]  The Panel concluded that Saudi Arabia violated its obligation under Article 61 of the TRIPS Agreement to “provide for criminal procedures and penalties to be applied at least in cases of wilful … copyright piracy on a commercial scale”, by (i) failing to provide for criminal procedures and penalties to be applied to the operations of beoutQ, in the face of extensive evidence that beoutQ is operated by individuals or entities subject to the criminal jurisdiction of Saudi Arabia, and engaged in wilful copyright piracy on a commercial scale, and (ii) actively promoting public gatherings screening beoutQ’s pirated broadcasts of 2018 World Cup matches.

  6. Saudi Arabia also failed to support its assertion that the Panel erred under Article 11 of the DSU when finding that “Qatar established a prima facie case that beoutQ was operated by individuals or entities subject to the criminal jurisdiction of Saudi Arabia”.[16]  

  7. Saudi Arabia’s allegations amount to nothing more than assertions of disagreement with the Panel’s factual findings.  Mere disagreement by a party with the outcome of a panel’s assessment or the weight a panel accords to the evidence is not a basis for an Article 11 appeal.  In the absence of precise allegations of error justiciable under Article 11, the Appellate Body must reject Saudi Arabia’s appeal.

  8. In any event, the Panel’s findings were properly made.  The Panel engaged in a detailed assessment of the evidence and arguments submitted by both Qatar and Saudi Arabia concerning Saudi involvement in the beoutQ piracy operation.  In particular, the Panel relied on four categories of evidence presented to Saudi authorities by beIN and third party right holders, together with additional corroborating evidence submitted to the Panel by Qatar.  Specifically, the Panel considered evidence (i) establishing that beoutQ was promoted by prominent Saudi nationals; (ii) demonstrating that beoutQ targets the Saudi market; (iii) proving that beoutQ’s broadcasts are transmitted via Arabsat, an intergovernmental organization and satellite operator whose largest shareholder is the Saudi Government and whose CEO is a Saudi national; and (iv) confirming that beoutQ has received assistance from Saudi Selevision Company LLC, a Saudi-based content distributor.[17]  

  9. On the basis of this evidence, considered together, and “recalling the applicable standard of proof and evidentiary principles in WTO dispute settlement”, the Panel found that “Qatar has established a prima facie case that beoutQ is operated by individuals or entities subject to the criminal jurisdiction of Saudi Arabia”.[18] 

 

  1. THE PANEL EXCEEDED ITS MANDATE AND MADE THE CASE FOR SAUDI ARABIA IN MAKING FINDINGS WITH RESPECT TO THE APPLICATION OF ARTICLE 73(B)(III) OF THE TRIPS AGREEMENT

  1. Saudi Arabia identifies, as the target of its final ground of appeal, “the Panel’s decision to make a ruling on the requirements for invoking Article 73(b)(iii) of the TRIPS Agreement in relation to the inconsistency with Article 61 of the TRIPS Agreement resulting from Saudi Arabia’s non-application of criminal procedures and penalties to beoutQ”, “such conclusion” and “all associated findings”.[19]  Qatar agrees that Saudi Arabia did not invoke Article 73(b)(iii) of the TRIPS Agreement in defence of any of the measures found by the Panel to violate the substantive provisions of the TRIPS Agreement. 

  2. The Panel’s relevant decision is found in Section 7.4.3.3.2 of the Panel Report

    (concluding with paragraph 7.278), where the Panel determined that “the invocation of Article 73 was an invocation of the security exception in respect of, and which applied to, the entire matter before the Panel”[20] and “the ‘actions’ covered by Saudi Arabia’s invocation of Article 73(b)(iii) of the TRIPS Agreement include the anti-sympathy measures and the nonapplication of criminal procedures and penalties to beoutQ” (the “decision”).[21]  

  3. Although Saudi Arabia made certain assertions to the Panel about national security, those assertions were expressed as a justification for Saudi Arabia’s severance of diplomatic relations with Qatar (i.e., a policy that is distinct from the specific measures at issue in the dispute).  Saudi Arabia repeatedly and expressly clarified that the relevant measures at issue were “unrelated” to the “real dispute” that engaged its security interests.[22][23]  In so doing, Saudi Arabia clarified that it was not invoking the Article 73(b)(iii) exception with respect to the measures eventually found to violate Articles 42, 41.1 and 61 of the TRIPS Agreement.

  4. In reaching the decision that Saudi Arabia now appeals, contrary to the terms of reference assigned by the DSB and inconsistently with Articles 7.1 and 11 of the DSU, the Panel exceeded its mandate in respect of the application of Article 73(b)(iii) of the TRIPS Agreement.  In applying a defence Saudi Arabia expressly declined to invoke, the Panel also made the case for Saudi Arabia.  As such, the Panel’s decision is in error, and should be reversed in its entirety.  In this regard, no distinction can be made between the Panel’s single decision as it relates to the measures violating Article 61, on the one hand, and those violating Articles 42 and 41.1, on the other.  

  5. The Appellate Body should also declare moot and of no legal effect all of the Panel’s associated findings concerning the application of Article 73(b)(iii) in respect of the measures found to violate Articles 42, 41.1 and 61 of the TRIPS Agreement.

  6. Specifically, the Appellate Body should declare moot and of no legal effect: (i) the

    Panel’s finding concerning the whether the anti-sympathy measures (found to violate Articles 42 and 41.1) and Saudi Arabia’s failure to apply criminal procedures and penalties (found to violate Article 61) were “taken in time of war or other emergency in international relations”; (ii) the Panel’s finding that the requirements of Article 73(b)(iii) are met in relation to the anti-sympathy measures; and (iii) the Panel’s finding that the requirements of Article 73(b)(iii) are not met in relation to Saudi Arabia’s failure to apply criminal procedures and penalties.[24] 

  7. Because both parties raise an issue of jurisdiction concerning the Panel’s decision to proceed to apply the defence in Article 73(b)(iii) in connection with those measures, the Appellate Body should address this fundamental error notwithstanding the deficiency in the Saudi appeal set out in Section II, above.    

     

    2661 words (Qatar’s Appellee’s Submission is 27,771 words)

     


[1] Emphasis added.

[2] Saudi NOA, Section I.

[3] See Panel Report, paras. 7.39-7.40, 7.48-7.73, 7.182-7.199.

[4] Saudi NOA, para. 8.

[5] Panel Report, Section 7.2.3.2.1.2.

[6] Saudi NOA, paras. 9-10.

[7] Panel Report, Sections 7.2.3.2.1.3-7.2.3.2.1.4. 

[8] Panel Report, paras. 7.60-7.65, 7.70-7.71.

[9] Panel Report, paras. 7.68-7.69. 

[10] Saudi NOA, para. 11.

[11] Panel Report, paras. 7.39-7.40 and Section 7.2.3.2.1.

[12] Saudi NOA, Section II.

[13] Saudi NOA, para. 13.

[14] Panel Report, Section 7.3.3.3.1. 15 Panel Report, para. 7.207.

[15] Panel Report, Section 7.3.3.3.2.

[16] Saudi NOA, para. 14.

[17] Panel Report, Section 7.2.3.3.

[18] Panel Report, para. 7.155.

[19] Saudi NOA, para. 15 (footnotes omitted, emphasis added).

[20] Panel Report, para. 7.274.

[21] Panel Report, para. 7.278.  This decision comprises an essential premise in the reasoning underlying the summary conclusions in paras. 7.294 and 8.1.c.ii cited by Saudi Arabia in footnote 19 of its Notice of Appeal.

[22] Saudi Arabia’s Opening Statement, paras. 3, 4, 5, 17; see also Saudi Response to Panel Question 30, paras.

[23] , 57-58; Saudi Arabia’s Second Written Submission, para. 56.

[24] Panel Report, paras. 7.256-7.270, 7.279-7.293, 7.294 and 8.1.c.