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ON THIS PAGE:
> EC — Bananas III, paras. 143-144
> EC — Hormones, para. 148
> EC — Hormones, footnote 138 to para. 152
> India — Patents (US), para. 92
> India — Patents (US), para. 95
> Argentina — Textiles and Apparel, para. 79 and footnote 68
> US — FSC (Article 21.5 — EC), para. 240
> US — FSC (Article 21.5 — EC), para. 247
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W.3.1 EC — Bananas III, paras. 143-144
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(WT/DS27/AB/R)
… Article 6.2 of the DSU requires that the claims,
but not the arguments, must all be specified sufficiently in the
request for the establishment of a panel in order to allow the defending
party and any third parties to know the legal basis of the complaint. If
a claim is not specified in the request for the establishment of
a panel, then a faulty request cannot be subsequently “cured” by a
complaining party’s argumentation in its first written submission to
the panel or in any other submission or statement made later in the
panel proceeding.
We note, in passing, that this kind of issue
could be decided early in panel proceedings, without causing prejudice
or unfairness to any party or third party, if panels had detailed,
standard working procedures that allowed, inter alia, for
preliminary rulings.
W.3.2 EC — Hormones, para. 148
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(WT/DS26/AB/R, WT/DS48/AB/R)
… The rules and procedures set forth in
Appendix 4 of the DSU apply in situations in which expert review groups
have been established. However, this is not the situation in this
particular case. Consequently, once the panel has decided to request the
opinion of individual scientific experts, there is no legal obstacle to
the panel drawing up, in consultation with the parties to the dispute, ad
hoc rules for those particular proceedings.
W.3.3 EC — Hormones, footnote 138 to para. 152 back to top
(WT/DS26/AB/R, WT/DS48/AB/R)
… the DSU, and in particular its Appendix 3,
leave panels a margin of discretion to deal, always in accordance with
due process, with specific situations that may arise in a particular
case and that are not explicitly regulated. Within this context, an
appellant requesting the Appellate Body to reverse a panel’s ruling on
matters of procedure must demonstrate the prejudice generated by such
legal ruling.
W.3.4 India — Patents (US), para. 92
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(WT/DS50/AB/R)
… Although panels enjoy some discretion in
establishing their own working procedures, this discretion does not
extend to modifying the substantive provisions of the DSU. To be sure,
Article 12.1 of the DSU says: “Panels shall follow the Working
Procedures in Appendix 3 unless the panel decides otherwise after
consulting the parties to the dispute”. Yet that is all that it
says. Nothing in the DSU gives a panel the authority either to disregard
or to modify other explicit provisions of the DSU. The jurisdiction of a
panel is established by that panel’s terms of reference, which are
governed by Article 7 of the DSU. A panel may consider only those claims
that it has the authority to consider under its terms of reference. …
W.3.5 India — Patents (US), para. 95
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(WT/DS50/AB/R)
It is worth noting that, with respect to
fact-finding, the dictates of due process could better be served if
panels had standard working procedures that provided for appropriate
factual discovery at an early stage in panel proceedings.
W.3.6 Argentina — Textiles and Apparel,
para. 79 and footnote 68
(WT/DS56/AB/R, WT/DS56/AB/R/Corr.1)
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Article 11 of the DSU does not establish time
limits for the submission of evidence to a panel. Article 12.1 of the
DSU directs a panel to follow the Working Procedures set out in Appendix
3 of the DSU, but at the same time authorizes a panel to do otherwise
after consulting the parties to the dispute. The Working Procedures in
Appendix 3 also do not establish precise deadlines for the presentation
of evidence by a party to the dispute.68
It is true that the
Working Procedures “do not prohibit” submission of additional
evidence after the first substantive meeting of a panel with the
parties. It is also true, however, that the Working Procedures in
Appendix 3 do contemplate two distinguishable stages in a proceeding
before a panel. …
W.3.7 US — FSC (Article 21.5 — EC), para. 240 back to top
(WT/DS108/AB/RW)
… We observe, first, that the DSU and, in
particular, paragraphs 5, 6 and 7 of Appendix 3 to the DSU, “contemplate
two distinguishable stages in a proceeding before a panel.” The “first
stage” comprises the first written submissions by the parties and the
first meeting of the panel, while the “second stage” consists of the
second written submissions — or “rebuttal” submissions — and the
second meeting with the panel. However, no provision of the DSU
explicitly requires panels to hold two meetings with the parties, or to
oblige the parties to submit two written submissions.
W.3.8 US — FSC (Article 21.5 — EC), para. 247 back to top
(WT/DS108/AB/RW)
… The DSU allows panels the flexibility, in
determining their procedures, to request more than one submission in
advance of the first meeting, and the DSU also allows for the
possibility that panels may, ultimately, hold only one meeting. …
68. As we have observed
in two previous Appellate Body Reports, we believe that detailed,
standard working procedures for panels would help to ensure due process
and fairness in panel proceedings. See European Communities — Regime
for the Importation, Sale and Distribution of Bananas, adopted 25
September 1997, WT/DS27/AB/R, para. 144; India — Patent Protection
for Pharmaceutical and Agricultural Chemical Products, adopted 16
January 1998, WT/DS50/AB/R, para. 95. back to text
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