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WTO ANALYTICAL INDEX: DISPUTE SETTLEMENT UNDERSTANDING

Understanding on Rules and Procedures Governing the Settlement of Disputes

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> Appendix 1
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> Working Procedures for Appellate Review
> Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes
> Principles and Concepts of General International Law Related to Dispute Settlement
> Articles of Covered Agreements Invoked In Panel and Appellate Body Proceedings

  

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XII. Article 12    back to top

A. Text of Article 12

Article 12: Panel Procedures

1.     Panels shall follow the Working Procedures in Appendix 3 unless the panel decides otherwise after consulting the parties to the dispute.

 

2.     Panel procedures should provide sufficient flexibility so as to ensure high-quality panel reports, while not unduly delaying the panel process.

 

3.     After consulting the parties to the dispute, the panelists shall, as soon as practicable and whenever possible within one week after the composition and terms of reference of the panel have been agreed upon, fix the timetable for the panel process, taking into account the provisions of paragraph 9 of Article 4, if relevant.

 

4.     In determining the timetable for the panel process, the panel shall provide sufficient time for the parties to the dispute to prepare their submissions.

 

5.     Panels should set precise deadlines for written submissions by the parties and the parties should respect those deadlines.

 

6.     Each party to the dispute shall deposit its written submissions with the Secretariat for immediate transmission to the panel and to the other party or parties to the dispute. The complaining party shall submit its first submission in advance of the responding party’s first submission unless the panel decides, in fixing the timetable referred to in paragraph 3 and after consultations with the parties to the dispute, that the parties should submit their first submissions simultaneously. When there are sequential arrangements for the deposit of first submissions, the panel shall establish a firm time-period for receipt of the responding party’s submission. Any subsequent written submissions shall be submitted simultaneously.

 

7.     Where the parties to the dispute have failed to develop a mutually satisfactory solution, the panel shall submit its findings in the form of a written report to the DSB. In such cases, the report of a panel shall set out the findings of fact, the applicability of relevant provisions and the basic rationale behind any findings and recommendations that it makes. Where a settlement of the matter among the parties to the dispute has been found, the report of the panel shall be confined to a brief description of the case and to reporting that a solution has been reached.

 

8.     In order to make the procedures more efficient, the period in which the panel shall conduct its examination, from the date that the composition and terms of reference of the panel have been agreed upon until the date the final report is issued to the parties to the dispute, shall, as a general rule, not exceed six months. In cases of urgency, including those relating to perishable goods, the panel shall aim to issue its report to the parties to the dispute within three months.

 

9.     When the panel considers that it cannot issue its report within six months, or within three months in cases of urgency, it shall inform the DSB in writing of the reasons for the delay together with an estimate of the period within which it will issue its report. In no case should the period from the establishment of the panel to the circulation of the report to the Members exceed nine months.

 

10.     In the context of consultations involving a measure taken by a developing country Member, the parties may agree to extend the periods established in paragraphs 7 and 8 of Article 4. If, after the relevant period has elapsed, the consulting parties cannot agree that the consultations have concluded, the Chairman of the DSB shall decide, after consultation with the parties, whether to extend the relevant period and, if so, for how long. In addition, in examining a complaint against a developing country Member, the panel shall accord sufficient time for the developing country Member to prepare and present its argumentation. The provisions of paragraph 1 of Article 20 and paragraph 4 of Article 21 are not affected by any action pursuant to this paragraph.

 

11.     Where one or more of the parties is a developing country Member, the panel’s report shall explicitly indicate the form in which account has been taken of relevant provisions on differential and more favourable treatment for developing country Members that form part of the covered agreements which have been raised by the developing country Member in the course of the dispute settlement procedures.

 

12.     The panel may suspend its work at any time at the request of the complaining party for a period not to exceed 12 months. In the event of such a suspension, the time-frames set out in paragraphs 8 and 9 of this Article, paragraph 1 of Article 20, and paragraph 4 of Article 21 shall be extended by the amount of time that the work was suspended. If the work of the panel has been suspended for more than 12 months, the authority for establishment of the panel shall lapse.

 
B. Interpretation and Application of Article 12

1. General: panels’ margin of discretion and due process

(a) The panel’s margin of discretion with respect procedural issues

665.     In EC — Hormones, the Appellate Body held that panels enjoy a margin of discretion to deal with situations that “are not explicitly regulated”:

“[T]he 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.”(1092)

666.     In EC — Hormones, the Appellate Body stated that it agreed with the Panel’s exercise of its margin of discretion when it allowed the United States to participate in the second substantive meeting of the proceedings initiated by Canada in the same dispute.(1093)

667.     In India — Patents (US), the Appellate Body examined the Panel’s decision at the outset of the first substantive meeting — “that all legal claims would be considered if they were made prior to the end of that meeting; and this ruling was accepted by both parties”. The Appellate Body, in being called upon to determine whether the Panel had exceeded its terms of reference, stated:

“We do not find this statement … consistent with the letter and the spirit of the DSU. 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.”(1094)

668.     The Panel in EC — Tariff Preferences addressed the issue of the joint representation of India, the complaining party and Paraguay, a third party, by the same legal counsel, the Advisory Centre of WTO Law (AWCL). The Panel stated that “flowing from its terms of reference and from the requirement … pursuant to Article 12 of the DSU, to determine and administer its Working Procedures, the Panel has the inherent authority — and, indeed, the duty — to manage the proceeding in a manner guaranteeing due process to all parties involved in the proceeding and to maintain the integrity of the dispute settlement system.”(1095)

(b) Due process

(i) General

669.     In Thailand — Cigarettes (Philippines), the Appellate Body discussed the role of due process in WTO dispute settlement, recalling some of its prior jurisprudence:

“We note that Thailand couches its claim under Article 11 of the DSU as a “due process claim”. Due process is a fundamental principle of WTO dispute settlement.(1096) It informs and finds reflection in the provisions of the DSU.(1097) In conducting an objective assessment of a matter, a panel is “bound to ensure that due process is respected”.(1098) Due process is intrinsically connected to notions of fairness, impartiality, and the rights of parties to be heard and to be afforded an adequate opportunity to pursue their claims, make out their defences, and establish the facts in the context of proceedings conducted in a balanced and orderly manner, according to established rules. The protection of due process is thus a crucial means of guaranteeing the legitimacy and efficacy of a rules-based system of adjudication.”(1099)

(ii) Standard panel working procedures as a tool to ensure due process

670.     In EC — Bananas III, the Appellate Body indicated that issues including whether or not a claim had been specified in the request for establishment of a panel “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”.(1100)

671.     In India — Patents (US), the Appellate Body also pointed to the relevance of having standard panel working procedures that provide for appropriate factual discovery at an early stage in order to assist the requirements of due process:

“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.”(1101)

672.     Similarly, the Appellate Body in Argentina — Textiles and Apparel observed that “standard working procedures for panels would help to ensure due process and fairness in panel proceedings”:

“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.”(1102)

673.     In Thailand — Cigarettes (Philippines), the Appellate Body returned to the issue of due process and panel working procedures:

“Panel working procedures should both embody and reinforce due process. Article 12.1 of the DSU states that panels “shall” follow the working procedures set out in Appendix 3 to the DSU “unless the panel decides otherwise after consulting the parties to the dispute”. The working procedures adopted by a panel must conform to the DSU.(1103) As the Appellate Body has previously observed, the use by panels of detailed, standardized working procedures promotes fairness and the protection of due process.(1104) The inclusion by a panel in its working procedures of a rule that is inconsistent with due process would be a clear sign that such panel has failed to ensure the protection of due process. At the same time, even when the working procedures are themselves sound, a panel’s failure to adhere to those procedures may be pertinent to, albeit not necessarily determinative of, the issue of whether such panel has failed to ensure the protection of due process in a given instance.

 

We also recall that panel proceedings consist of two main stages, the first of which involves each party setting out its “case in chief, including a full presentation of the facts on the basis of submission of supporting evidence”, and the second designed to permit the rebuttal by each party of the arguments and evidence submitted by the other parties.(1105) Nonetheless, the submission of evidence may not always fall neatly into one or the other of these categories, in particular when panels themselves, in the exercise of their fact finding authority, seek to pursue specific lines of inquiry in their questioning of the parties. In this respect, we wish to reiterate that due process will best be served by working procedures that provide “for appropriate factual discovery at an early stage in panel proceedings”,(1106) and that “[d]ue process may be of particular concern in cases where a party raises new facts at a late stage of the panel proceedings.”(1107) Furthermore, when the particular circumstances of specific disputes present situations that are not explicitly regulated by their working procedures, panels, in the exercise of their control over the proceedings, and subject to the constraints of due process and the DSU, enjoy a margin of discretion to deal with such situations.”(1108),(1109)

(iii) Due process demands when identifying the measures and claims at issue

674.     The European Communities argued in EC — Computer Equipment that its right to due process during the course of the proceedings was violated because the term LAN equipment lacked precision in the request for establishment of a panel. The Appellate Body stated:

“We do not see how the alleged lack of precision of the terms, LAN equipment and PCs with multimedia capability, in the request for the establishment of a panel affected the rights of defence of the European Communities in the course of the panel proceedings. As the ability of the European Communities to defend itself was not prejudiced by a lack of knowing the measures at issue, we do not believe that the fundamental rule of due process was violated by the Panel.”(1110)

675.     In India — Patents (US), the Appellate Body noted that “the demands of due process that are implicit in the DSU make [the clear statement of the claims and the free disclosure of facts] especially necessary during consultations”.(1111)

676.     In Chile — Price Band System, the Appellate Body ruled that “[t]he requirements of due process and orderly procedure dictate that claims must be made explicitly in WTO dispute settlement”.(1112)

677.     Also in Chile — Price Band System, the Appellate Body, in the context of its analysis of whether an amendment to a measure after the request for establishment of a panel was part of the measure at issue, considered the importance for the “demands of due process” “that a complaining party should not have to adjust its pleadings throughout dispute settlement proceedings in order to deal with a disputed measure as a ‘moving target’“.(1113)

(iv) Right of response

678.     In Australia — Salmon, the Appellate Body warned panels to be careful to observe due process, when complying with the Article 12.2 requirement of flexibility in panel procedures, by providing parties with adequate opportunity to respond to evidence submitted:

“We note that Article 12.2 of the DSU provides that ‘[p]anel procedures should provide sufficient flexibility so as to ensure high-quality panel reports, while not unduly delaying the panel process.’ However, a panel must also be careful to observe due process, which entails providing the parties adequate opportunity to respond to the evidence submitted.”(1114)

679.     In Australia — Salmon, the Appellate Body further indicated that “[a] fundamental tenet of due process is that a party be provided with an opportunity to respond to claims made against it”. In this case, Australia had claimed that the Panel erred in failing to accord it an opportunity to submit a formal written rebuttal submission to respond to the oral statement made by Canada at the second meeting. The Appellate Body, noting that Australia had requested one week to respond to Canada’s oral statement and that the Panel had granted Australia’s request, dismissed the claim as follows:

“A fundamental tenet of due process is that a party be provided with an opportunity to respond to claims made against it. In this case, we believe that the Panel did accord Australia a proper opportunity to respond by allowing Australia to submit a third written submission. We cannot see how the Panel failed to accord due process to Australia by granting the extra time it had requested.”(1115)

680.     In Chile — Price Band System, the Appellate Body concluded that the Panel had made a finding on a claim not made by Argentina.(1116) Chile had claimed that, by making a finding on that claim, the Panel had deprived Chile of a fair right to response. The Appellate Body agreed with Chile and ruled that the Panel had acted inconsistently with Article 11 of the DSU by denying Chile the fair right of response and thus had denied it the due process rights to which it was entitled:

“There is, furthermore, the requirement of due process. As Argentina made no claim under the second sentence of Article 11:1 (b) of the GATT 1994, Chile was entitled to assume that the second sentence was not in issue in the dispute, and that there was no need to offer a defence against a claim under that sentence. We agree with Chile that, by making a finding on the second sentence — a claim that was neither made nor argued — the Panel deprived Chile of a ‘fair right of response’.(1117)

 

As we said in India — Patents, ‘… the demands of due process … are implicit in the DSU’.(1118) And, as we said in Australia — Salmon on the right of response, ‘[a] fundamental tenet of due process is that a party be provided with an opportunity to respond to claims made against it’.(1119) Chile contends that this fundamental tenet of due process was not observed on this issue.

 

As we said earlier, Article 11 imposes duties on panels that extend beyond the requirement to assess evidence objectively and in good faith, as suggested by Argentina. This requirement is, of course, an indispensable aspect of a panel’s task. However, in making ‘an objective assessment of the matter before it’. a panel is also duty bound to ensure that due process is respected. Due process is an obligation inherent in the WTO dispute settlement system. A panel will fail in the duty to respect due process if it makes a finding on a matter that is not before it, because it will thereby fail to accord to a party a fair right of response. In this case, because the Panel did not give Chile a fair right of response on this issue, we find that the Panel failed to accord to Chile the due process rights to which it is entitled under the DSU.”(1120)

681.     In Thailand — Cigarettes (Philippines), Thailand claimed that the Panel violated Thailand’s due process rights and acted inconsistently with Article 11 of the DSU by accepting and relying on certain evidence without affording Thailand the right to comment on that evidence. The Appellate Body found that the Panel had not failed to accord Thailand due process in the circumstances of that case, but underscored the importance of the right of response in WTO proceedings:

“As a general rule, due process requires that each party be afforded a meaningful opportunity to comment on the arguments and evidence adduced by the other party. This was expressly acknowledged by the Appellate Body in Australia — Salmon when it stated that “[a] fundamental tenet of due process is that a party be provided with an opportunity to respond to claims made against it”.(1121) At the same time, due process may also require a panel to take appropriate account of the need to safeguard other interests, such as an aggrieved party’s right to have recourse to an adjudicative process in which it can seek redress in a timely manner, and the need for proceedings to be brought to a close. These interests find reflection in the provisions of the DSU, including Article 3.3, which calls for “[t]he prompt settlement” of WTO disputes, as this is “essential to the effective functioning of the WTO and the maintenance of a proper balance between the rights and obligations of Members”. Likewise, Article 12.2 of the DSU provides that “[p]anel procedures should provide sufficient flexibility so as to ensure high-quality panel reports, while not unduly delaying the panel process”. Furthermore, “in the interests of due process, parties should bring alleged procedural deficiencies to the attention of a panel at the earliest possible opportunity”.(1122) Accordingly, ensuring due process requires a balancing of various interests, including systemic interests as well as those of the parties, and both general and case specific considerations. In our view, panels are best situated to determine how this balance should be struck in any given proceeding, provided that they are vigilant in the protection of due process and remain within the bounds of their duties under Article 11 of the DSU.

 … As set out above, due process generally demands that each party be afforded a meaningful opportunity to comment on evidence adduced by the other party. At the same time, a number of different considerations will need to be factored into a panel’s effort to protect due process in a particular dispute, and these may include the need for a panel, in pursuing prompt resolution of the dispute, to exercise control over the proceedings in order to bring an end to the back and forth exchange of competing evidence by the parties. In the context of this dispute, there are several considerations that are germane to our assessment of Thailand’s claim under Article 11 of the DSU. These include: the conduct of the parties; the legal issue to which the evidence related and the circumstances surrounding the submission of the evidence relating to that issue; and the discretion afforded under the DSU to panels in their handling of the proceedings and appreciation of the evidence.”(1123)

682.     In the context of amicus curiae submissions, the Panel in US — Tuna II (Mexico) stated that “[w]here the Panel considered the information presented in and the evidence attached to the amicus curiae brief relevant, it has sought the views of the parties in accordance with the requirements of due process”.(1124) In the course of its analysis, the Panel reiterated that “insofar as the Panel deemed this information to be relevant for the purposes of its assessment, it invited Mexico to comment on it in order to take full account of Mexico’s right of response and defense in respect of due process considerations”.(1125)

2. Article 12.1: special and additional procedures in panel proceedings

(a) The panel’s discretion under Article 12.1

683.     In India — Patents (US), the Appellate Body found that the Panel exceeded its authority by ruling, at the first substantive meeting, that all legal claims would be considered if they were made prior to the end of that meeting. The Appellate Body stated that:

“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.”(1126)

684.     In EC — Hormones, the Panel decided to hold a joint meeting with the scientific experts in the two parallel disputes brought by the United States and Canada. The Appellate Body considered the Panel’s approach to be reasonable, and stated that:

“Although Article 12.1 and Appendix 3 of the DSU do not specifically require the Panel to grant this opportunity to the United States, we believe that this decision falls within the sound discretion and authority of the Panel, particularly if the Panel considers it necessary for ensuring to all parties due process of law. In this regard, we note that in European Communities — Bananas, the panel considered that particular circumstances justified the grant to third parties of rights somewhat broader than those explicitly envisaged in Article 10 and Appendix 3 of the DSU.”(1127)

685.     In US — Shrimp, the Appellate Body ruled that panels have the discretion to accept unsolicited amicus curiae briefs. The Appellate Body found support for this conclusion in Article 12.1:

“It is also pertinent to note that Article 12.1 of the DSU authorizes panels to depart from, or to add to, the Working Procedures set forth in Appendix 3 of the DSU, and in effect to develop their own Working Procedures, after consultation with the parties to the dispute. Article 12.2 goes on to direct that “[p]anel procedures should provide sufficient flexibility so as to ensure high-quality panel reports while not unduly delaying the panel process.” (emphasis added)

 

The thrust of Articles 12 and 13, taken together, is that the DSU accords to a panel established by the DSB, and engaged in a dispute settlement proceeding, ample and extensive authority to undertake and to control the process by which it informs itself both of the relevant facts of the dispute and of the legal norms and principles applicable to such facts. That authority, and the breadth thereof, is indispensably necessary to enable a panel to discharge its duty imposed by Article 11 of the DSU to “make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements__” (emphasis added)”(1128)

686.     The Panel in US/Canada — Continued Suspension stated that:

Article 12.1 of the DSU provides that “[p]anels shall follow the Working Procedures in Appendix 3 unless the panel decides otherwise after consulting the parties to the dispute.” In other words, the Panel has the possibility to depart from any provision of Appendix 3, its only obligation being to consult the parties to the dispute first.”(1129)

(b) Special and additional procedures to protect business confidential information (BCI)

687.     Panels have adopted additional procedures to protect BCI in a number of disputes. The Panel in Canada — Aircraft observed that Article 12.1 granted it the authority to do so:

“We note that procedures concerning the protection of confidential information are provided for in Article 18.2 of the DSU. We note, however, that Article 12.1 of the DSU effectively permits panels to adopt working procedures in addition to those set forth in the DSU, after consulting the parties to the dispute. 524 Given the sensitive nature of the BCI that could be submitted to the Panel in the present case, and given the agreement between the parties on the need for additional protection of such Business Confidential Information, the Panel decided to adopt special Procedures Governing Business Confidential Information that go beyond the protection afforded by Article 18.2 of the DSU. The Panel agreed with Canada that such Procedures should strike a balance between “reasonable access” to BCI, and the need to protect the integrity of such BCI.”(1130)

688.     For information on special and additional procedures adopted by panels regarding business confidential information (BCI), see Article 18 of the DSU.

(c) Special and additional procedures for open panel hearings

(i) General

689.     Several panels have opened their hearings to the public, pursuant to the authority to adopt special and additional procedures under Article 12.1 of the DSU. The Panel in US/Canada — Continued Suspension, the first panel to open its hearings to the public, explained that:

“The Panel thus is of the view that Article 12.1 entitles it to proceed with any adaptation of the working procedures contained in Appendix 3, as long as such an adaptation is not expressly prohibited by any provision of the DSU. Therefore, we need to examine whether there is any DSU provision that would explicitly prohibit the opening of panel meetings to public observation.”(1131)

690.     The Panel concluded that “it is entitled, under the particular circumstances of this case and pursuant to Article 12.1 of the DSU, to open its hearings for public observation”.(1132)

691.     For a table of panel hearings opened to the public, see Article 18 of the DSU.

(d) Special and additional procedures for third parties

692.     For a table of proceedings in which additional third party rights were requested, see Article 10 of the DSU.

(e) Special and additional procedure for separate briefing and argumentation on threshold issue

693. In US — Upland Cotton, the Panel decided to structure the proceeding into two stages. First, the Panel would determine whether measures raised in this dispute satisfied the conditions in Article 13 of the Agreement on Agriculture. To the extent that it was able to do so, it would defer its consideration of claims under Articles 3, 5 and 6 of the SCM Agreement and Article XVI of the GATT 1994 until after it had determined whether the measures raised in this dispute satisfied the conditions in Article 13.(1133)

3. Article 12.2: flexibility and undue delay

694.     In Australia — Salmon, the Appellate Body warned panels to be careful to observe due process(1134) when complying with Article 12.2 requirement of flexibility in panel procedures:

“We note that Article 12.2 of the DSU provides that ‘[p]anel procedures should provide sufficient flexibility so as to ensure high-quality panel reports, while not unduly delaying the panel process.’ However, a panel must also be careful to observe due process, which entails providing the parties adequate opportunity to respond to the evidence submitted.”(1135)

695.     In US — Cotton Yarn, the Panel declined a request by the United States to attach the parties’ full submissions to the Report. The Panel considered that, among other things, doing so would “unduly delay the process”:

“In the present dispute, this Panel at the outset declined to follow the attachment method. Using the attachment method would increase the Descriptive Part of the Report to approximately 400 single-spaced pages from the approximately 70 it now is. We do not consider this to be a viable approach. We are aware that the WTO dispute settlement system is struggling under the burden of massive translation requirements arising from the multi-hundred page Reports that result from the attachment method Using such a method here would also result in significant delays in issuing the Final Report. 165 We take note of Article 12.2 of the DSU, which provides that “[p]anel procedures should provide sufficient flexibility so as to ensure high-quality panel reports, while not unduly delaying the panel process” .166 Furthermore, while our responsibility is to decide the case before us, we also feel constrained not to take steps that would damage the dispute settlement system as a whole.”(1136)

4. Article 12.3: Panel’s timetable

696.     In US — Steel Safeguards, the Panel sent a letter to all parties including a series of preliminary rulings on organizational matters. Among other issues, the Panel referred to the timetable for its proceedings as follows:

“The Panel notes at the outset that this case is likely to impose a heavy burden on parties in terms of their obligations to make submissions as set out in the timetable for the proceedings, a copy of which is attached. As is noted at the end of the timetable, the Panel would like to emphasize that the calendar may be changed during the panel process. The Panel would also like to assure parties that it will do its utmost, within reason, to accommodate the parties’ concerns and requests in relation to the dead lines set out in the timetable. Some of the requests that have been made by the parties in this respect are already reflected in the attached timetable.”(1137)

5. Article 12.6

(a) Legal right to have a submission considered by the panel

697.     In US — Shrimp, the Appellate Body considered whether panels have the right to accept so-called amicus curiae briefs. In this context, the Appellate Body made a general statement on the issue of access to the dispute settlement process of the WTO. After noting that the access is limited to the Members of the WTO, the Appellate Body stated:

“[U]nder the DSU, only Members who are parties to a dispute, or who have notified their interest in becoming third parties in such a dispute to the DSB, have a legal right to make submissions to, and have a legal right to have those submissions considered by, a panel. Correctively, a panel is obliged in law to accept and give due consideration only to submissions made by the parties and the third parties in a panel proceeding. These are basic legal propositions; they do not, however, dispose of the issue here presented by the appellant’s first claim of error. We believe this interpretative issue is most appropriately addressed by examining what a panel is authorized to do under the DSU.”(1138)

(b) Meaning of the term “second written submission”

698.     In US — Steel Safeguards, the Panel sent a letter to all parties including a series of preliminary rulings on organizational matters. Among the issues, the Panel referred to the United States’ request to replace the reference to “rebuttal submissions” in paragraph 11 of its Working Procedures with the word “rebuttals”. This paragraph dealt with the timing of the submission of factual evidence.(1139) In support of this proposal, the United States made the argument that the word “submission” is ordinarily taken to mean written submissions. Hence, the reference to “rebuttal submissions” in paragraph 11 would restrict the application of the qualification in that paragraph to rebuttals made in writing and would not extend to rebuttals made orally. The complainants argued in response that the suggested amendment would allow, for example, new arguments and evidence to be adduced orally at the Panel’s second substantive meeting. The Panel disagreed and, recalling the comments made by the Appellate Body in the case Argentina — Textiles and Apparel,(1140) indicated that they had drafted paragraph 11 to ensure due process and that new evidence was not adduced at a late stage in the panel process, while simultaneously ensuring that all parties and the Panel were kept fully informed of all relevant evidence.

(c) “Any subsequent written submissions shall be submitted simultaneously”

699.     In US — FSC (Article 21.5 — EC), the respondent, the United States, requested that the Article 21.5 compliance panel deviate from Article 12.6 of the DSU, which provides that the sequential first written submissions are to be followed by simultaneous written rebuttals. The United States argued that the European Communities had new material from the submission of the United States to rebut in its rebuttal submission, while the United States had nothing new to respond to. The Panel denied the request on the following grounds:

“We recall that we adopted our working procedures after having heard the views of the parties, including their views on the issue of the timing of the filing of their rebuttal submissions. We do not believe that any development or consideration has since arisen that would require us to reconsider this aspect of our working procedures, particularly given the current advanced stage of the proceedings and the difficulties inherent in adjusting other aspects of the Panel’s schedule that such a change would necessitate.

 

We therefore deny this request by the United States to change the Panel’s schedule with respect to the timing for filing the parties’ second written submissions. We note that the United States, as well as the European Communities, if they wish, would be able to respond to, or comment on, the other party’s rebuttals in their oral statements at the substantive meeting.”(1141)

6. Article 12.7

(a) “basic rationale behind any findings and recommendations”

700.     In Korea — Alcoholic Beverages, the Appellate Body, although refraining from attempting to define the scope of the obligation in Article 12.7, considered that the Panel had not failed to set out the basic rationale for its findings and recommendations as required by Article 12.7 of the DSU because it had provided a “detailed and thorough” rationale for its findings:

“ Korea claims that the Panel has failed to fulfil its obligation under Article 12.7 of the DSU to set out the basic rationale behind its findings and recommendations. Korea maintains that “much” of the Panel Report contains contradictions and that it is vague.

 In this case, we do not consider it either necessary, or desirable, to attempt to define the scope of the obligation provided for in Article 12.7 of the DSU. It suffices to state that the Panel has set out a detailed and thorough rationale for its findings and recommendations in this case. The Panel went to some length to take account of competing considerations and to explain why, nonetheless, it made the findings and recommendations it did. The rationale set out by the Panel may not be one that Korea agrees with, but it is certainly more than adequate, on any view, to satisfy the requirements of Article 12.7 of the DSU. We, therefore, conclude that the Panel did not fail to set out the basic rationale for its findings and recommendations as required by Article 12.7 of the DSU.”(1142)

701.     Similarly, in Chile — Alcoholic Beverages the Appellate Body concluded that the Panel had set out a “basic rationale” for its finding and recommendation on the issue of “not similarly taxed”, as required by Article 12.7 of the DSU, because it had “identified the legal standard it applied, examined the relevant facts, and provided reasons for its conclusion that dissimilar taxation existed.”(1143)

702.     In Argentina — Footwear (EC), the Appellate Body, although not agreeing with all the Panel’s reasoning, considered that it had met its obligation under Article 12.7 because the Panel had “conducted extensive factual and legal analyses of the competing claims made by the parties, set out numerous factual findings based on detailed consideration of the evidence before the Argentine authorities as well as other evidence presented to the Panel, and provided extensive explanations of how and why it reached its factual and legal conclusions”.(1144)

703.     In Mexico — Corn Syrup (Article 21.5 — US), the Appellate Body analysed the term “basic rationale” and considered that Article 12.7 establishes a minimum standard for the reasoning that panels must provide in support of their findings and recommendations. The Appellate Body, however, indicated that it did not believe that it is either possible or desirable to determine, in the abstract, the minimum standard of reasoning that will constitute a “basic rationale” for the findings and recommendations made by a panel:

“In considering the scope of the duties imposed on panels under Article 12.7, we turn first to the dictionary meaning of ‘basic’. which includes both ‘fundamental; essential’ and ‘constituting a minimum … at the lowest acceptable level’.(1145) ‘Rationale’ means both ‘a reasoned exposition of principles; an explanation or statement of reasons’ and ‘the fundamental or underlying reason for or basis of a thing; a justification’.(1146) The ‘basic rationale’ which a panel must provide is directly linked, by the wording of Article 12.7, to the ‘findings and recommendations’ made by a panel. We, therefore, consider that Article 12.7 establishes a minimum standard for the reasoning that panels must provide in support of their findings and recommendations. Panels must set forth explanations and reasons sufficient to disclose the essential, or fundamental, justification for those findings and recommendations.

 

In our view, the duty of panels under Article 12.7 of the DSU to provide a ‘basic rationale’ reflects and conforms with the principles of fundamental fairness and due process that underlie and inform the provisions of the DSU.(1147) In particular, in cases where a Member has been found to have acted inconsistently with its obligations under the covered agreements, that Member is entitled to know the reasons for such finding as a matter of due process. In addition, the requirement to set out a ‘basic rationale’ in the panel report assists such Member to understand the nature of its obligations and to make informed decisions about: (i) what must be done in order to implement the eventual rulings and recommendations made by the DSB; and (ii) whether and what to appeal. Article 12.7 also furthers the objectives, expressed in Article 3.2 of the DSU, of promoting security and predictability in the multilateral trading system and of clarifying the existing provisions of the covered agreements, because the requirement to provide ‘basic’ reasons contributes to other WTO Members’ understanding of the nature and scope of the rights and obligations in the covered agreements.

 

We do not believe that it is either possible or desirable to determine, in the abstract, the minimum standard of reasoning that will constitute a ‘basic rationale’ for the findings and recommendations made by a panel.(1148) Whether a panel has articulated adequately the ‘basic rationale’ for its findings and recommendations must be determined on a case-by-case basis, taking into account the facts of the case, the specific legal provisions at issue, and the particular findings and recommendations made by a panel. Panels must identify the relevant facts and the applicable legal norms. In applying those legal norms to the relevant facts, the reasoning of the panel must reveal how and why the law applies to the facts. In this way, panels will, in their reports, disclose the essential or fundamental justification for their findings and recommendations.(1149)

 

This does not, however, necessarily imply that Article 12.7 requires panels to expound at length on the reasons for their findings and recommendations. We can, for example, envisage cases in which a panel’s ‘basic rationale’ might be found in reasoning that is set out in other documents, such as in previous panel or Appellate Body reports — provided that such reasoning is quoted or, at a minimum, incorporated by reference. Indeed, a panel acting pursuant to Article 21.5 of the DSU would be expected to refer to the initial panel report, particularly in cases where the implementing measure is closely related to the original measure, and where the claims made in the proceeding under Article 21.5 closely resemble the claims made in the initial panel proceedings.”(1150)

704.     In Mexico — Corn Syrup (Article 21.5 — US), the Appellate Body further noted that for purposes of transparency and fairness to the parties, an Article 21.5 panel “should strive to present the essential justification for its findings and recommendations in its own report”:

“Having regard to these circumstances, we are of the view that the Panel Report, read together with the original panel report, leaves no doubt about the reasons for the Panel’s additional finding under Article 3.1 of the Anti-Dumping Agreement. We, therefore, find that the Panel did not fail to provide a “basic rationale” for that finding.

We wish to add that for purposes of transparency and fairness to the parties, even a panel proceeding under Article 21.5 of the DSU should strive to present the essential justification for its findings and recommendations in its own report. In this case, in particular, we consider that the Panel’s finding under Article 3.1 of the Anti-Dumping Agreement would have been better supported by a direct quotation from or, at least, an explicit reference to, the relevant reasoning set out in the original panel report.”(1151)

705.     In US — Steel Safeguards, the Appellate Body also considered that the Panel had complied with Article 12.7 by providing a detailed explanation on how the investigating authority had failed to provide a reasoned and adequate explanation:

“Based on our review of the Panel’s reasoning, it appears to us that the Panel considered in detail the evidence that was before the USITC, and provided detailed explanations of how and why it concluded that the USITC had failed to demonstrate, through a reasoned and adequate explanation, that the alleged ‘unforeseen developments’ resulted in increased imports of each product subject to a safeguard measure …

 

In our view, in making these statements, the Panel has sufficiently set out in its Reports the ‘basic rationale’ for its finding that the USITC failed to explain how, though ‘plausible’. the “unforeseen developments” identified in the report in fact resulted in increased imports of the specific products subject to the safeguard measures at issue.” (1152)

(b) Issuance of a brief report where a mutually agreed solution is reached

706.     The Panel in US — Shrimp (Ecuador) found that although the responding party did not contest any of the claims of the complaining party, the parties had not characterized their shared views on the substantive matter before the Panel as a “mutually agreed solution”, and, thus, Article 12.7 of the DSU did not apply.(1153)

707.     The Panel in US — Zeroing (Korea) noted that although the United States did not contest the claim of Korea, the parties neither agreed that there was no dispute, nor qualified their shared views as a “mutually agreed solution”.

708.     Hence, according to the Panel, Article 12.7 of the DSU was not applicable in the circumstances of the dispute.(1154)

(c) Business confidential information

709.     The Appellate Body on Japan — DRAMs (Korea) also clarified that a panel, when redacting confidential information from a report at the request of one or both of the parties, should bear in mind the rights of third parties and other WTO Members under, inter alia, Article 12.7 of the DSU, so that the public version of its report circulated to all WTO Members is understandable:

“a panel, in deciding to redact… [confidential] information from its report at the request of one or both of the parties, should bear in mind the rights of third parties and other WTO Members under various provisions of the DSU, such as Articles 12.7 of the DSU and 16. Accordingly, a panel must make efforts to ensure that the public version of its report circulated to all Members of the WTO is understandable.”(1155)

7. Articles 12.8 and 12.9: deadlines for Panel review

(a) General

710.     In US — Section 301 Trade Act, the Panel stated that most of the time-limits in the DSU are either minimum time-limits without ceilings, or “maximum time-limits that are, nonetheless, indicative only”. The Panel considered Articles 12.8, 12.9, 17.5 and 20 of the DSU to be examples of the latter, noting that:

Article 12.8 refers to six months “as a general rule” for the timeframe between panel composition and issuance of the final report to the parties. Article 12.9 provides that “[i]n no case should the period from the establishment of the panel to the circulation of the report to the Members exceed nine months” (emphasis added). Article 17.5 states that “[a]s a general rule, the proceedings [of the Appellate Body] shall not exceed 60 days”. It adds, however, that “[i]n no case shall the proceedings exceed 90 days”. However, even this seemingly compulsory deadline has been passed in three cases so far (United States —Restrictions on Imports of Cotton and Man-Made Fibre Underwear, DS24/AB/R, 91 days; European Communities — Measures Concerning Meat and Meat Products (Hormones) (”EC — Hormones”), DS26/AB/R and DS48/AB/R, 114 days; and US — Shrimp, op. cit., 91 days). Finally, Article 20 refers to 9 months— 12 months in case of an appeal — “as a general rule” for the period between panel establishment and adoption of report(s) by the DSB.”(1156)

711.     In EC — Bananas III (Article 21.5 — Ecuador II) / EC — Bananas III (Article 21.5 — US), the Appellate Body contrasted the language of Articles 12.8 and 12.9 with the language found in Article 21.5 of the DSU:

Article 21.5 provides that a panel shall circulate its report within 90 days after the date of referral of the matter to it. If an Article 21.5 panel considers that it cannot provide its report within that timeframe, it must notify the DSB, specifying the reasons for the delay together with an estimate of the period within which it will issue its report. By contrast, Articles 12.8 and 12.9 of the DSU prescribe that original panel proceedings “shall, as a general rule, not exceed six months” and “should” in no case exceed nine months.”(1157)

(b) Table showing the length of time taken in panel proceedings to date

712.     The following table provides information on the length of time taken in WTO proceedings to date from: (i) the date of the composition of a panel to the date of the issuance of the final report to the parties (Article 12.8 of the DSU); and (ii) the date of the establishment of a panel to the date of circulation to Members (Article 12.9 of the DSU).(1158) It is updated to 30 September 2011.

Prescribed Time-Period in Article 12.8 6 montns
Average to Date 10 months(1159) 26 days
Longest to Date 53 months 28 days
Shortest to Date 4 months 17 days
Prescribed Time-Period in Article 12.9 9 months
Average to Date 14 months 16 days
Longest to Date 60 months 6 days
Shortest to Date 6 months 11 days
WT/DS No. Dispute Short Title Article 12.8 Days from composition to final report to parties Article 12.9 Days from establishment to circulation to Members
WT/DS2, WT/DS4 US — Gasoline 8 months 21 days 9 months 19 days
WT/DS8, WT/DS10, WT/DS11 Japan — Alcoholic Beverages II 7 months 21 days 9 months 13 days
WT/DS18 Australia — Salmon 11 months 6 days 14 months 2 days
WT/DS22 Brazil — Desiccated Coconut 5 months 10 days 7 months 12 days
WT/DS24 US — Underwear 6 months 21 days 8 months 3 days
WT/DS26 EC — Hormones 11 months 28 days 14 months 29 days
WT/DS27 EC — Bananas III 10 months 22 days 12 months 14 days
WT/DS31 Canada — Periodicals 6 months 26 days 8 months 22 days
WT/DS33 US — Wool Shirts and Blouses 5 months 21 days 8 months 19 days
WT/DS34 Turkey — Textiles 9 months 15 days 14 months 18 days
WT/DS44 Japan — Film 13 months 13 days 17 months 15 days
WT/DS46 Brazil — Aircraft 4 months 17 days 8 months 21 days
WT/DS48 EC — Hormones 7 months 26 days 10 months 2 days
WT/DS50 India — Patents (US) 6 months 9 months 15 days
WT/DS54, WT/DS55, WT/DS59, WT/DS64 Indonesia — Autos 8 months 22 days 12 months 19 days
WT/DS56 Argentina — Textiles and Apparel 7 months 10 days 9 months
WT/DS58 US — Shrimp 11 months 21 days 14 months 19 days
WT/DS60 Guatemala — Cement I 12 months 17 days 14 months 29 days
WT/DS62, WT/DS67, WT/DS68 EC — Computer Equipment 7 months 15 days 11 months 10 days
WT/DS69 EC — Poultry 6 months 1 day 7 months 11 days
WT/DS70 Canada — Aircraft 4 months 17 days 8 months 21 days
WT/DS75, WT/DS84 Korea — Alcoholic Beverages 7 months 26 days 11 months 1 day
WT/DS76 Japan — Agricultural Products II 9 months 17 days months 9 days
WT/DS79 India — Patents (EC) 7 months 25 days 10 months 8 days
WT/DS87, WT/DS110 Chile — Alcoholic Beverages   18 months 27 days
WT/DS90 India — Quantitative Restrictions 9 months 20 days 16 months 18 days
WT/DS98 Korea — Dairy 7 months 18 days 10 months 28 days
WT/DS99 US — DRAMS 8 months 14 days 12 months 13 days
WT/DS103, WT/DS113 Canada — Dairy 7 months 5 days 13 months 21 days
WT/DS108 US — FSC - 12 months 15 days
WT/DS114 Canada —Pharmaceutical Patents - 13 months 16 days
WT/DS121 Argentina — Footwear (EC) 8 months 19 days 11 months 2 days
WT/DS122 Thailand — H-Beams   10 months 9 days
WT/DS126 Australia — Automotive Leather II 4 months 21 days 11 months 3 days
WT/DS132 Mexico — Corn Syrup 12 months 8 days 14 months 3 days
WT/DS135 EC — Asbestos 15 months 25 days 21 months 23 days
WT/DS136 US — 1916 Act 10 months 13 days 13 months 30 days
WT/DS138 US — Lead and Bismuth II 8 months 6 days 10 months 6 days
WT/DS139, WT/DS142 Canada — Autos 8 months 26 days 12 months 10 days
WT/DS141 EC — Bed Linen 7 months 10 days 12 months 3 days
WT/DS146, WT/DS175 India — Autos 12 months 19 days 16 months 23 days
WT/DS152 US — Section 301 Trade Act 8 months 20 days 9 months 20 days
WT/DS155 Argentina — Hides and Leather 9 months 16 days 16 months 22 days
WT/DS156 Guatemala — Cement II 11 months 13 months 2 days
WT/DS160 US — Section 110(5) Copyright Act 8 months 28 days 12 months 19 days
WT/DS161, WT/DS169 Korea — Various Measures on Beef 10 months 11 days 14 months 5 days
WT/DS162 US — Anti-Dumping Act of 1916 7 months 20 days 10 months 3 days
WT/DS163 Korea — Procurement 7 months 6 days 10 months 14 days
WT/DS165 US — Certain EC Products 6 months 11 days 13 months 1 day
WT/DS166 US — Wheat Gluten 9 months 2 days 12 months 5 days
WT/DS170 Canada — Patent Term 5 months 9 days 7 months 12 days
WT/DS174, WT/DS290 EC — Trademarks and Geographical Indications 9 months 27 days 17 months 13 days
WT/DS176 US — Section 211 Appropriations Act 8 months 6 days 10 months 10 days
WT/DS177, WT/DS178 US — Lamb 8 months 14 days 13 months 2 days
WT/DS179 US — Stainless Steel 8 months 19 days 13 months 3 days
WT/DS184 US — Hot-Rolled Steel 8 months 14 days 11 months 8 days
WT/DS189 Argentina — Ceramic Tiles 8 months 2 days 10 months 11 days
WT/DS192 US — Cotton Yarn 7 months 27 days 11 months 12 days
WT/DS194 US — Export Restraints 6 months 28 days 9 months 18 days
WT/DS202 US — Line Pipe   12 months 6 days
WT/DS204 Mexico —Telecoms 18 months 14 days 23 months 15 days
WT/DS206 US — Steel Plate 6 months 24 days 11 months 4 days
WT/DS207 Chile — Price Band System 10 months 17 days 13 months 20 days
WT/DS211 Egypt — Definitive Anti-Dumping Measures on Rebar from Turkey 11 months 7 days 13 months 18 days
WT/DS212 US — Countervailing Measures on Certain EC Products 7 months 14 days 10 months 21 days
WT/DS213 US — Carbon Steel 7 months 18 days 9 months 22 days
WT/DS217, WT/DS234 US — Offset Act (Byrd Amendment) 10 months 7 days 12 months 23 days
WT/DS219 EC — Tube or Pipe Fittings 15 months 6 days 19 months 10 days
WT/DS221 US — Section 129(c)(1) URAA 7 months 12 days 10 months 24 days
WT/DS222 Canada — Aircraft Credits and Guarantees 5 months 28 days 10 months 16 days
WT/DS231 EC — Sardines 8 months 11 days 10 months 5 days
WT/DS236 US — Softwood Lumber III   9 months 22 days
WT/DS238 Argentina — Preserved Peaches 8 months 12 months 26 days
WT/DS241 Argentina — Poultry Anti-Dumping Duties 9 months 11 days 12 months 5 days
WT/DS243 US — Textiles Rules of Origin 6 months 15 days 11 months 26 days
WT/DS244 US — Corrosion-Resistant Steel Sunset Review 10 months 5 days 14 months 22 days
WT/DS245 Japan — Apples 11 months 9 days 13 months 12 days
WT/DS246 EC — Tariff Preferences 7 months 22 days 10 months 3 days
WT/DS248, WT/DS249, WT/DS251, WT/DS252, WT/DS253, WT/DS254, WT/DS258, WT/DS259 US — Steel Safeguards 9 months 6 days 13 months 8 days
WT/DS257 US — Softwood Lumber IV 7 months 23 days 10 months 28 days
WT/DS264 US — Softwood Lumber V 12 months 2 days 15 months 5 days
WT/DS265, WT/DS266, WT/DS283 EC — Export Subsidies on Sugar 8 months 15 days 13 months 15 days
WT/DS267 US — Upland Cotton 12 months 29 days 15 months 20 days
WT/DS268 US — Oil Country Tubular Goods Sunset Review 9 months 11 days 13 months 26 days
WT/DS269, WT/DS286 EC — Chicken Cuts 8 months 23 days 18 months 23 days
WT/DS273 Korea — Commercial Vessels 16 months 2 days 19 months 13 days
WT/DS276 Canada — Wheat Exports and Grain Imports 8 months 28 days 8 months 25 days
WT/DS277 US — Softwood Lumber VI 7 months 21 days 10 months 15 days
WT/DS282 US — Anti-Dumping Measures on Oil Country Tubular Goods 15 months 16 days 21 months 21 days
WT/DS285 US — Gambling 8 months 5 days 15 months 19 days
WT/DS291, WT/DS292, WT/DS293 EC — Approval and Marketing of Biotech Products 26 months 6 days 37 months
WT/DS294 US — Zeroing (EC) 11 months 1 day 19 months 12 days
WT/DS295 Mexico — Anti-Dumping Measures on Rice 15 months 12 days 18 months 29 days
WT/DS296 US — Countervailing Duty Investigation on DRAMs 9 months 16 days 12 months 28 days
WT/DS299 EC — Countervailing Measures on DRAM Chips 12 months 25 days 16 months 24 days
WT/DS301 EC — Commercial Vesseb 8 months 27 days 13 months 3 days
WT/DS302 Dominican Republic — Import and Sale of Cigarettes 8 months 3 days 10 months 17 days
WT/DS308 Mexico — Taxes on Soft Drinks 11 months 20 days 15 months 1 day
WT/DS312 Korea — Certain Paper 8 months 18 days 13 months 1 day
WT/DS315 EC — Selected Customs Matters 10 months 4 days 13 months 25 days
WT/DS316 EC and certain member States — Large Civil Aircraft 53 months 28 days 60 months 6 days
WT/DS320, WT/DS321 US/Canada — Continued Suspension 30 months 28 days 37 months 28 days
WT/DS322 US — Zeroing (Japan) 15 months 6 days 18 months 22 days
WT/DS331 Mexico — Steel Pipes and Tubes - 14 months 21 days
WT/DS332 Brazil — Retreaded Tyres 13 months 7 days 16 months 22 days
WT/DS334 Turkey — Rice 10 months 12 days 18 months 13 days
WT/DS335 US — Shrimp (Ecuador) n/a 6 months 11 days
WT/DS336 Japan — DRAMS (Korea) 8 months 16 days 12 months 29 days
WT/DS337 EC — Salmon (Norway) 12 months 13 days 17 months 2 days
WT/DS339, WT/DS340, WT/DS342 China — Auto Parts 13 months 26 days 21 months 1 day
WT/DS341 Mexico — Olive Oil 18 months 12 days 19 months 20 days
WT/DS343 US — Shrimp (Thailand) 9 months 21 days 16 months 11 days
WT/DS344 US — Stainless Steel (Mexico) 11 months 15 days 14 months
WT/DS345 US — Customs Bond Directive 9 months 21 days 16 months 11 days
WT/DS350 US — Continued Zeroing India — Additional Import 16 months 5 days
WT/DS360 Duties China — Intellectual Property 8 months 21 days 11 months 25 days
WT/DS362 Rights China — Publications and 11 months 6 days 16 months 9 days
WT/DS363 Audiovisual Products 15 months 3 days 20 months 24 days
WT/DS366 Colombia — Ports of Entry 14 months 12 days 18 months 13 days
WT/DS367 Australia — Apples  26 months 26 days 31 months
WT/DS371 Thailand — Cigarettes (Philippines)  17 months 24 days 24 months 8 days
WT/DS375, WT/DS376, WT/DS377 EC and its member States — IT Products 18 months 7 days 23 months 2 days
WT/DS379 US — Anti-Dumping and Countervailing Duties (China) 16 months 26 days 21 months 10 days
WT/DS382 US — Orange Juice (Brazil) US — Anti-Dumping Measures 9 months, 11 days 18 months 6 days
WT/DS383 on PET Bags 4 months 27 days 10 months 8 days
WT/DS392 US — Poultry (China) 10 months 5 days 14 months 5 days
WT/DS397 EC — Fasteners (China) 9 months 24 days 13 months 16 days
WT/DS399 US — Tyres (China) 8 months 1 day 10 months 28 days
WT/DS402 US — Zeroing (Korea) 5 months 16 days 8 months 5 days

8. Article 12.10

(a) “the panel shall accord sufficient time for the developing country Member to prepare and present its argumentation”

713.     In India — Quantitative Restrictions, India requested additional time to prepare and present its first written submission, pursuant to Article 12.10 of the DSU. The Panel, “in light of this provision, and considering the administrative reorganization taking place in India as a result of the recent change in government,” decided to grant an additional period of time (10 days) to India.(1160)

714.     In Turkey — Rice, the Panel explicitly mentioned this provision and explained that, “during the Panel proceedings, the Panel took into account the respondent’s status as a developing country Member, a fact not contested by the complainant, when preparing and revising the timetable for the process.” The Panel added that  it had “attempted, inter alia, to accommodate, to the extent possible, Turkey’s requests for extensions of deadlines to submit responses to the questions posed by the Panel both after the first and second substantive meetings, as well as Turkey’s request for time to submit comments on the United States comments to the Panel’s interim report.”(1161)

715.     In Philippines — Distilled Spirits, the Panel recalled the terms of Article 12.10 and stated that “[d]uring the proceedings, we took into account the respondent’s status as a developing country Member, particularly when preparing the timetable for the process after having heard the views of the parties”.(1162)

9. Article 12.11

(a) Explicit indication in the panel’s report of how special and differential provisions were taken into account

716.     In India — Quantitative Restrictions, the Panel considered that “Article 12.11 of the DSU requires us to indicate explicitly the form in which account was taken of relevant provisions on special and differential treatment for developing country Members that form part of the covered agreements which have been raised by the developing country Member in the course of the dispute settlement procedures”. The Panel then noted that its analysis of Article XVIII:B of GATT 1994 which embodies the principle of special and differential treatment in relation to measures taken for balance-of-payments purposes, reflected its consideration of the relevant provisions on special and differential treatment.(1163)

717.     In US — Offset Act (Byrd Amendment), India and Indonesia argued that the Act undermined Article 15 of the Anti-Dumping Agreement on special and differential treatment for developing countries. The United States responded that Article 15 was not part of the terms of reference of the Panel as it had not been identified in any of the complaining parties’ requests for establishment of a panel. The Panel, although acknowledging that Article 15 was not mentioned in the request, noted that Article 12.11 of the DSU required it to explicitly indicate how it had taken into account the relevant special and differential provisions of the covered agreements which are raised by developing countries in the proceedings:

“We note that there is no reference to AD Article 15 in the various requests for establishment of this Panel. Generally, therefore, AD Article 15 would not fall within our terms of reference.(1164) However, we note that DSU Article 12.11 requires panels to “explicitly indicate the form in which account has been taken of relevant provisions on differential and more-favourable treatment for developing country Members that form part of the covered agreements which have been raised by the developing country Member in the course of the dispute settlement procedures” . Since we consider AD Article 15 to be relevant, and since that provision has been raised by developing country Members in the present proceedings, we are bound to consider that provision, even though it was not referred to in the various requests for establishment. In doing so, we note that certain developing country Members attach importance to price undertakings as a “constructive” alternative to anti-dumping duties.”(1165)

718.     In Mexico — Telecoms, the Panel explained the manner in which it had taken into account in its findings, pursuant to Article 12.11, the relevant GATS special and differenial provisions for developing country Members:

“The Panel notes that, pursuant to Article 12.11 of the DSU, it has taken into account in its findings GATS provisions on differential and more-favourable treatment for developing country Members. In particular, the Panel has examined Mexico’s arguments that commitments of such Members have to be interpreted in the light of Article IV of the GATS, paragraph 5 of the preamble to the GATS, and paragraph 5(g) of the Annex on Telecommunications The Panel emphasizes that its findings in no way prevent Mexico from actively pursuing the development objectives referred to in these provisions by extending telecommunications networks and services at affordable prices in a manner consistent with its GATS commitments.”(1166)

719.     In Turkey — Rice, the Panel referred to Article 12.10 and Article 12.11 and observed that:

“The Panel notes that, in the course of these Panel proceedings Turkey did not raise any specific provisions on differential and more-favourable treatment for developing country Members that require particular consideration, nor do we find these specialized provisions relevant for the resolution of the specific matter brought before this Panel.”(1167)

10. Other issues

(a) Requests for preliminary rulings

720.     Panel working procedures typically contain the following provision:

“A party shall submit any request for preliminary ruling not later than its first written submission to the Panel. If the complaining party requests such a ruling, the respondent shall submit its response to the request in its first written submission. If the respondent requests such a ruling, the complaining party shall submit its response to the request prior to the first substantive meeting of the Panel, at a time to be determined by the Panel in light of the request. Exceptions to this procedure will be granted upon a showing of good cause.”

(b) Timing for the filing of submissions with the WTO Dispute Settlement Registrar

721.     In US — Steel Safeguards, the Panel sent a letter to all parties including a series of preliminary rulings on organizational matters. Among the issues, the Panel referred to the timing for the filing of the parties written submissions with the WTO Dispute Settlement Registrar. The Panel decided to require parties to file their written submissions with the Registrar by 5:30 p.m. on the deadlines established by the Panel, except for those deadlines falling on a Friday in which case the submissions should be filed by 5:00 p.m. The Panel considered that, in exceptional circumstances, when it was not possible to comply with these time deadlines, the parties could agree upon an alternative arrangement with the Secretary to the Panel.(1168)

(c) Private counsel and composition of delegations

722.     Panel working procedures now typically contain the following provision:

“The parties and third parties to the dispute have the right to determine the composition of their own delegations. The parties and third parties shall have the responsibility for all members of their delegations and shall ensure that all members of their delegations act in accordance with the rules of the DSU and the Working Procedures of this Panel, particularly in regard to confidentiality of the proceedings. The parties and third parties shall provide, in advance of each meeting with the Panel, lists of the members of their delegations to such meeting.”

723.     In EC — Bananas III, the Panel did not allow the presence of private lawyers at the first substantive meeting.(1169) The Appellate Body, however, allowed their presence in the oral hearing and to that effect it issued a preliminary ruling indicating that nothing in the WTO Agreement, the DSU or its Working Procedures prevented a Member from admitting whomever it deems fit to become part of its delegation to Appellate Body proceedings. Accordingly, the Appellate Body held that a Member could include private counsel in its delegation to an Appellate Body hearing:

“[W]e can find nothing in the Marrakesh Agreement Establishing the World Trade Organization (the ‘WTO Agreement), the DSU or the Working Procedures, nor in customary international law or the prevailing practice of international tribunals, which prevents a WTO Member from determining the composition of its delegation in Appellate Body proceedings. Having carefully considered the request made by the government of Saint Lucia, and the responses dated 14 July 1997 received from Canada; Jamaica; Ecuador, Guatemala, Honduras, Mexico and the United States, we rule that it is for a WTO Member to decide who should represent it as members of its delegation in an oral hearing of the Appellate Body.”(1170)

724.     In its Report, the Appellate Body in EC — Bananas III further justified its preliminary ruling as follows:

“We note that there are no provisions in the Marrakesh Agreement Establishing the World Trade Organization (the ‘WTO Agreement), in the DSU or in the Working Procedures that specify who can represent a government in making its representations in an oral hearing of the Appellate Body. With respect to GATT practice, we can find no previous panel report which speaks specifically to this issue in the context of panel meetings with the parties. We also note that representation by counsel of a government’s own choice may well be a matter of particular significance — especially for developing-country Members — to enable them to participate fully in dispute settlement proceedings. Moreover, given the Appellate Body’s mandate to review only issues of law or legal interpretation in panel reports, it is particularly important that governments be represented by qualified counsel in Appellate Body proceedings.”(1171)

725.     In Indonesia — Autos, the Panel applied the same principle to the presence of private lawyers before panels:

“I wish to inform the parties that having carefully reviewed the letters received in the preliminary matter before us, and having heard the arguments of the parties, the Panel does not agree with the United States’ request to exclude from meetings of the Panel certain persons nominated by the Government of Indonesia as members of its delegation. We conclude that it is for the Government of Indonesia to nominate the members of its delegation to meetings of this Panel, and we find no provision in the WTO Agreement or the DSU, including the standard rules of procedure included therein, which prevents a WTO Member from determining the composition of its delegation to WTO panel meetings. Nor does past practice in GATT and WTO dispute settlement point us to a different conclusion in this case. In particular, we note that unlike in this present case, the working procedures of the Bananas III Panel contained a specific provision requiring the presence only of government officials.

 

We would like to emphasize that all members of parties’ delegations — whether or not they are government employees — are present as representatives of their governments, and as such are subject to the provisions of the DSU and of the standard working procedures, including Articles 18.1 and 18.2 of the DSU and paragraphs 2 and 3, of those procedures. In particular, parties are required to treat as confidential all submissions to the Panel and all information so designated by other Members; and, in addition, the Panel meets in closed session. Accordingly, we expect that all delegations will fully respect those obligations and will treat these proceedings with the utmost circumspection and discretion. I would ask the four Heads of Delegation to confirm that all members of their delegations are present as representatives of their governments, and as such will abide by all of the applicable provisions; and therefore that the governments are responsible for the actions of their representatives.”(1172),(1173)

726.     In Korea — Alcoholic Beverages, Korea requested the Panel to issue a preliminary ruling with respect to permission to have private counsel attend the Panel meetings and address the Panel. In Korea’s view, in order to fully defend its interests and match the much greater resources of the complaining parties, it had to retain the services of expert counsel with long standing experience in matters of international economic law and international economics. The European Communities had no problem with the presence of private counsel provided that Korea assumed full responsibility for any breach of confidentiality which may result from the presence at the Panel meetings of non-governmental persons. The United States, however, indicated, among other things, that the established practice applied in disputes under the GATT 1947 system excluded the routine presence of private lawyers in panel proceedings and asked the Panel that, in the event that it decided to accept Korea’s request, to impose appropriate safeguards with respect to those persons. The Panel accepted the presence of private counsel as follows:

“Having considered the request of Korea for the right to use private counsel at the panel meetings, and the responses the European Communities and the United States, we decided to permit the appearance of private counsel before the Panel and to allow them to address arguments to the Panel in this case. In our view, it is appropriate to grant such a request in order to ensure that Korea has every opportunity to fully defend its interests in this case. However, such permission is granted based on the representations by Korea that the private counsel concerned are official members of the delegation of Korea, that they are retained by and responsible to the Government of Korea, and that they will fully respect the confidentiality of the proceedings and that Korea assumes full responsibility for confidentiality of the proceedings on behalf of all members of its delegation, including non-government employees.

 

We note that written submissions of the parties which contain confidential information may, in some cases, be provided to non-government advisors who are not members of an official delegation at a panel meeting. The duty of confidentiality extends to all governments that are parties to a dispute and to all such advisors regardless of whether they are designated as members of delegations and appear at a panel meeting.

 

The United States offered several suggestions for new rules and procedures in regard to these questions. However, in our view, the broader question of establishing further rules on confidentiality and possibly rules of conduct specifically directed at the role of non-governmental advisors generally is a matter more appropriate for consideration by the Dispute Settlement Body and is not within the terms of reference of this Panel.”(1174)

727.     In Brazil — Aircraft (Article 21.5 — Canada II), the Panel’s Working procedures included a paragraph 13 providing that the parties and third parties had the right to determine the composition of their own delegations:

“The parties and third parties to this proceeding have the right to determine the composition of their own delegations. Delegations may include, as representatives of the government concerned, private counsel and advisers. The parties and third parties shall have responsibility for all members of their delegations and shall ensure that all members of their delegations, as well as any other advisors consulted by a party or third party, act in accordance with the rules of the DSU and the working procedures of this Panel, particularly in regard to confidentiality of the proceedings. Parties shall provide a list of the participants of their delegation before or at the beginning of the meeting with the Panel.”(1175)

(d) Admissibility of new evidence

728.     Panel working procedures typically contain the following provision:

“Each party shall submit all factual evidence to the Panel no later than during the first substantive meeting, except with respect to evidence necessary for purposes of rebuttal, answers to questions or comments on answers provided by the other party. Exceptions to this procedure will be granted upon a showing of good cause. The other party shall be accorded a period of time for comment, as appropriate, on any new factual evidence submitted after the first substantive meeting.”

729.     In Canada — Aircraft Credits and Guarantees (Article 22.6 — Canada), Canada requested the Arbitrator to reject certain evidence presented by Brazil on the grounds of its late submission (at the end of the substantive meeting). The Arbitrator after referring to the working procedures and the existing jurisprudence in this area, accepted Canada’s objection and rejected Brazil’s new evidence:

“We recall that paragraph (d) of our Working Procedures provides that:

 

‘(d) the parties shall submit all factual evidence to the Arbitrators no later than the first written submissions to the Arbitrators, except with respect to evidence necessary for purposes of rebuttals or answers to questions. Exceptions to this procedure will be granted upon a showing of good cause. In such cases, the other party shall be accorded a period of time for comment, as appropriate;’

 

The purpose of paragraph (d), which is also found, mutatis mutandis, in most panel and Article 21.5 DSU compliance panel working procedures, is to ensure that parties are given sufficient opportunities to comment on any piece of evidence submitted in the course of the proceedings. paragraph (d) clearly states the circumstances in which evidence may be submitted after the first written submission. First, additional evidence may be submitted for the purpose of rebuttals or answers to questions. Second, the Arbitrator may allow new evidence to be submitted at a later time, upon a showing of good cause. In all events, paragraph (d) requires that the other party shall be accorded a period of time for comment, as appropriate.

 

We recall that in Argentina — Measures Affecting imports of Footwear, Textiles, Apparel and Other Items,(1176) the Panel was confronted with a situation of evidence submitted late in the proceedings.(1177) The Panel considered that due process required that it accept the evidence submitted by the United States on the understanding that Argentina would have a period of time to provide further comments on the additional pieces of evidence. The Appellate Body upheld the Panel’s reasoning, confirming that the Panel enjoyed a certain amount of discretion in its dealing with evidence and stating that Argentina had not requested more time to comment.(1178)

 

… In this case, Canada requests that the Arbitrator reject the evidence, since Brazil showed no good cause for submitting late a piece of information that had been available to it for some time.(1179) Brazil responds that Exhibits BRA-76 and 77 were submitted as part of its reply to question No. 2 of the Arbitrator to both parties. However, nowhere do we find any reference to these exhibits in Brazil’s reply of 1 November 2002. Assuming the evidence was for purposes of rebuttal, we see no particular reason why it could not have been submitted together with Brazil’s oral statement at our meeting rather than with its closing statement. By delaying the presentation of this evidence until its closing statement, Brazil’s position as respondent gave it a procedural advantage since it spoke last, and it was not foreseen in the Working Procedures that Canada could reply at that point. This makes such a late submission of evidence even less acceptable. Intentionally submitting evidence at a time where the other party is normally no longer in a position to comment as in this case not only adversely affects the interests of that party, it also affects due process in general and can generate delays in the work of panels and Arbitrators, thus making it more difficult for them to meet the deadlines contained in the WTO Agreement. Hence, we felt it more appropriate to exclude such evidence rather than to allow Canada to respond, the more so as Canada had expressly requested the Arbitrator to reject such evidence. As a result, we decided not to take into account the evidence submitted by Brazil in Exhibits BRA-76 and 77.”(1180)

(e) Admissibility of new arguments

730.     In Canada — Aircraft Credits and Guarantees (Article 22.6 — Canada), Brazil had advanced new arguments in its concluding remarks at the first substantive meeting. Canada thus presented an additional submission to the Arbitrator to respond to those arguments. The Arbitrator decided to accept this additional submission on the following grounds:

“[Canada’s additional] submission should not be treated as a reply to new evidence, but as a new submission of arguments which is not foreseen in the Working Procedures. A strict interpretation of our Working Procedures should lead us to disregard Canada’s additional submission. However, we note that Brazil developed a rather new line of argumentation in its concluding remarks. It was in the interest of due process and of the information of the Arbitrator to hear what Canada had to say about it, if it wished to do so. We also note that, even if Canada decided to reply to Brazil’s arguments, Brazil’s right-as respondent-to speak last was preserved by the opportunity given to parties to comment on each other’s replies to the questions of the Arbitrator. We saw no reason to formally intervene in that process as long as due process was ultimately respected. We also do not believe that our passivity in this respect could lead to an endless exchange of arguments since the comments on the replies to the questions were the last opportunity for parties to express their views, as provided by the Arbitrator at its hearing with the parties.

 

For these reasons we decide to accept Canada’s comments on Brazil’s concluding statement and Brazil’s remarks on those comments.”(1181)

(f) Admissibility of new defences

731.     In Canada — Aircraft, Brazil argued that a good faith interpretation of the DSU requires a party making an affirmative defence to set forth the grounds for that affirmative defence in its first written submission to the panel. The Panel disagreed:

“As noted above, there is nothing in the DSU, or in the Appendix 3 Working Procedures, to prevent a party submitting new evidence or allegations after the first substantive meeting. We can see no basis in the DSU to treat the submission of affirmative defences after the first substantive meeting any differently. Thus, although it is desirable that affirmative defences, as with any claim, should be submitted as early as possible, there is no requirement that affirmative defences should be submitted before the end of the first substantive meeting with the parties. Provided that due process is respected, we see nothing to prohibit the submission of affirmative defences after the first substantive meeting with the parties.”(1182)

(g) Executive summaries

732.     Panel working provisions typically contain the following provision:

“The parties shall submit executive summaries of their written submissions and oral statements within one week of the original submission or statement concerned. The executive summaries of the written submissions to be provided by each party shall not exceed 10 pages in length each and the executive summaries of the oral statements shall not exceed 5 pages in length each. The third parties shall submit executive summaries of their written submissions and oral statements within one week from the date of the third party session of the first substantive meeting of the Panel. The summary to be provided by each third party shall incorporate its written submission and oral statement and shall not exceed 5 pages in total. Paragraph 17 shall apply to the service of executive summaries. The executive summaries will not in any way serve as a substitute for the submissions of the parties and third parties in the Panel’s examination of the case. However, the Panel intends to use them for the purpose of preparing the descriptive part of its report, subject to any modifications deemed appropriate by the Panel. The replies of the parties and third parties to questions, and the parties’ comments on each other’s replies to questions, will not be attached to the Panel report as annexes. They will be reflected in the findings section of the Panel report where relevant.”

733.     In US — Line Pipe, the Working Procedures of the Panel requested the parties to present executive summaries of the claims and arguments contained in their written submissions and oral presentations.(1183) The parties presented various arguments in connection with the issue of confidential information. Those arguments were summarized in the parties’ executive summaries of their submissions and oral statements and were included in the relevant sections of the Panel’s report. In its comments on the descriptive part of the report, Korea requested the Panel to include as an annex to the Panel report, a copy of their non-summarized closing oral statement made at the second substantive meeting, addressing the issue of confidential information and use of judicial economy. The Panel declined Korea’s request on the grounds that Korea’s closing statement formed part of their oral statement at the second substantive meeting and that, accordingly, any arguments presented therein should have been included in its executive summary of that oral statement. Nevertheless, the Panel clarified that all the communications and submissions of the parties formed part of the record of this proceeding, and were duly considered by the Panel.(1184)

734.     In EC — Tube or Pipe Fittings, the Panel’s Working Procedures requested the parties to submit an executive summary of the claims and arguments contained in their written submissions and oral presentations.(1185) In its comments on the descriptive part of the Panel Report, Brazil requested that the complete text of its first and second submissions, rather than Brazil’s executive summaries thereof, be included in Annexes A and C respectively of the Report. The Panel rejected this request as follows:

“This paragraph [of the Working Procedures] makes it clear that we are to use the executive summaries only for the purpose of assisting us in drafting a concise arguments section of the Panel Report so as to facilitate timely translation and circulation of the Panel Report to the Members. The rationale of this paragraph is to facilitate our production of a concise and timely descriptive part and to not attach the entire written submissions and statements of the parties. We find no substantiation for Brazil’s assertion that other panels that have adopted a similar paragraph in their working procedures have also nevertheless attached the parties’ entire written submissions to their reports. Indeed, this would seem to us to defeat the purpose of adopting the ‘executive summary approach’ in the first place.

 

Second, the attachment of executive summaries to our report also leaves the parties in control of the contents of the executive summaries and enables them to set forth their most important arguments as they wish to set these forth. Each party has the obligation and the discretion to ensure that its own executive summaries of its own submissions accurately reflects its claims and arguments. Neither party requested us to increase the page limits referred to in our Working Procedures.

 

Third, we adopted these Working Procedures after hearing the views of the parties, at which time Brazil expressed no objection to the formulation in paragraph 16 of the Working Procedures. We decided at the outset to follow the ‘executive summaries approach’ for these Panel proceedings. Having adopted this approach at the outset, we do not consider that it would beneficial, at this rather advanced stage in the proceedings, to adopt Brazil’s suggested approach of attaching its full first and second submissions. Our adoption of such an approach at this stage would result in significant further delays in issuing our Report, particularly in view of the lengthy nature of these submissions (totalling over 370 pages). This would impose a considerable translation burden, adding to the burden already being borne due to the operation of the WTO dispute settlement system generally. There would also be an incongruity if the full EC submissions were not also attached, which, if we were to address by taking the requisite procedural steps and then by annexing the EC submissions, would augment the translation burden. We find particularly salient, in this respect, Article 12.2 of the DSU, which provides:

 

“Panel procedures should provide sufficient flexibility so as to ensure high-quality panel reports, while not unduly delaying the panel process.” (emphasis added)

 

Fourth, as our Working Procedures also make clear, in no way are the executive summaries to substitute for the parties’ submissions. In the course of our examination of the parties’ claims and arguments in these proceedings, we have read and analyzed with great care the full written and oral submissions of the parties and the exchanges of questions and answers relating thereto. Our findings and conclusions in this Panel Report are based upon these full written and oral submissions and questions and answers. They form an integral part of the record before the Panel in this case. We therefore believe that we have adhered to both the letter and spirit of our Working Procedures and do not believe that any prejudice has arisen to Brazil in the course of these proceedings from annexing executive summaries of its first and second written submissions.

 

Fifth, we recall that Article 18.2 of the DSU, as also reflected in paragraph 3 of our Working Procedures, states that nothing in the DSU shall preclude a party to a dispute from disclosing statements of its own positions to the public. There is therefore nothing precluding Brazil from making its full first and second submissions generally and publicly available (subject, of course, to the requirements of maintaining the confidentiality of the EC’s submissions in Article 18.2 of the DSU and paragraph 3 of our Working Procedures).”(1186),(1187)

735.     In US — Steel Safeguards, the Panel sent a letter to all parties including a series of preliminary rulings on organizational matters. Among the issues considered, the Panel referred to the executive summaries requested in paragraph 5 of the Panel’s Working Procedures, as follows:

“In relation to the requirement contained in paragraph 5 of the Working Procedures to submit executive summaries, on the basis of discussions with the parties, the Panel has decided to allow the United States to submit executive summaries that should not exceed 30 pages. The first 15 pages should deal with the common claims raised by the complainants. The additional 15 pages would allow the United States to deal with specific claims made individually by one or more of the complainants but which are not common to all the complainants.”(1188)

  

XIII. Article 13    back to top

A. Text of Article 13

Article 13: Right to Seek Information

1.     Each panel shall have the right to seek information and technical advice from any individual or body which it deems appropriate. However, before a panel seeks such information or advice from any individual or body within the jurisdiction of a Member it shall inform the authorities of that Member. A Member should respond promptly and fully to any request by a panel for such information as the panel considers necessary and appropriate. Confidential information which is provided shall not be revealed without formal authorization from the individual, body, or authorities of the Member providing the information.

 

2.     Panels may seek information from any relevant source and may consult experts to obtain their opinion on certain aspects of the matter. With respect to a factual issue concerning a scientific or other technical matter raised by a party to a dispute, a panel may request an advisory report in writing from an expert review group. Rules for the establishment of such a group and its procedures are set forth in Appendix 4.

 
B. Interpretation and Application of Article 13

1. Article 13.1

(a) “right to seek information and technical advice from any individual or body”

(i) General

736.     In US — Shrimp, the Appellate Body underscored the comprehensive nature of a panel’s authority under Article 13:

“The comprehensive nature of the authority of a panel to “seek” information and technical advice from “any individual or body” it may consider appropriate, or from “any relevant source”, should be underscored. This authority embraces more than merely the choice and evaluation of the source of the information or advice which it may seek. A panel’s authority includes the authority to decide not to seek such information or advice at all. We consider that a panel also has the authority to accept or reject any information or advice which it may have sought and received, or to make some other appropriate disposition there of. It is particularly within the province and the authority of a panel to determine the need for information and advice in a specific case, to ascertain the acceptability and relevancy of information or advice received, and to decide what weight to ascribe to that information or advice or to conclude that no weight at all should be given to what has been received.”(1189)

737.     In US/Canada — Continued Suspension, the Appellate Body drawing from its conclusion in Japan — Agricultural Products II delineated the Panel’s authority to seek information:

“Panels are understood to have “significant investigative authority”(1190) under Article 13 of the DSU and Article 11.2 of the SPS Agreement and broad discretion in exercising this authority.”(1191)

(ii) Amicus curiae briefs

Discretion to accept unsolicited amicus curiae briefs

738.     In US — Shrimp, the Panel received a brief from three non-governmental organizations. The complaining parties in the dispute requested the Panel not to consider the contents of the briefs submitted by the organizations while the United States urged the Panel to take into account any relevant information in the two briefs that the Panel acknowledged receiving. The Panel found that “[accepting non-requested information from non-governmental sources would be, in our opinion, incompatible with the provisions of the DSU as currently applied. We therefore informed the parties that we did not intend to take these documents into consideration.”(1192) The Appellate Body found that the Panel had erred in its legal interpretation of Article 13 of the DSU and held that accepting non-requested information from non-governmental sources was not incompatible with the provisions of the DSU. The Appellate Body began by emphasizing the “comprehensive nature” of a panel’s authority to seek information in the context of a dispute:

“The comprehensive nature of the authority of a panel to “seek” information and technical advice from “any individual or body” it may consider appropriate, or from “any relevant source”, should be underscored. This authority embraces more than merely the choice and evaluation of the source of the information or advice which it may seek. A panel’s authority includes the authority to decide not to seek such information or advice at all. We consider that a panel also has the authority to accept or reject any information or advice which it may have sought and received, or to make some other appropriate disposition thereof. It is particularly within the province and the authority of a panel to determine the need for information and advice in a specific case, to ascertain the acceptability and relevancy of information or advice received, and to decide what weight to ascribe to that information or advice or to conclude that no weight at all should be given to what has been received.

 

The thrust of Articles 12 and 13, taken together, is that the DSU accords to a panel established by the DSB, and engaged in a dispute settlement proceeding, ample and extensive authority to undertake and to control the process by which it informs itself both of the relevant facts of the dispute and of the legal norms and principles applicable to such facts. That authority, and the breadth thereof, is indispensably necessary to enable a panel to discharge its duty imposed by Article 11 of the DSU to make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements … (emphasis added)”(1193)

739.     In US — Shrimp, the Appellate Body held that the word “seek” in the phrase “seek information” should not be given an excessively “formal and technical” reading. The Appellate Body opined that given the breadth of a panel’s mandate to seek information without “unduly delaying the panel process”, “for all practical and pertinent purposes, the distinction between “requested” and “non-requested” information vanishes”:

“That the Panel’s reading of the word “seek” is unnecessarily formal and technical in nature becomes clear should an “individual or body” first ask a panel for permission to file a statement or a brief. In such an event, a panel may decline to grant the leave requested. If, in the exercise of its sound discretion in a particular case, a panel concludes inter alia that it could do so without “unduly delaying the panel process”, it could grant permission to file a statement or a brief, subject to such conditions as it deems appropriate. The exercise of the panel’s discretion could, of course, and perhaps should, include consultation with the parties to the dispute. In this kind of situation, for all practical and pertinent purposes, the distinction between “requested” and “non-requested” information vanishes.

 

A panel has the discretionary authority either to accept and consider or to reject information and advice submitted to it, whether requested by a panel or not. The fact that a panel may motu proprio have initiated the request for information does not, by itself, bind the panel to accept and consider the information which is actually submitted. The amplitude of the authority vested in panels to shape the processes of fact-finding and legal interpretation makes clear that a panel will not be deluged, as it were, with non-requested material, unless that panel allows itself to be so deluged.

 

Moreover, acceptance and rejection of the information and advice of the kind here submitted to the Panel need not exhaust the universe of possible appropriate dispositions thereof. The Panel suggested instead, that, if any of the parties wanted “to put forward these documents, or parts of them, as part of their own submissions to the Panel, they were free to do so.” In response, the United States then designated Section III of the document submitted by CI EL/CMC as an annex to its second submission to the Panel, and the Panel gave the appellees two weeks to respond. We believe that this practical disposition of the matter by the Panel in this dispute may be detached, as it were, from the legal interpretation adopted by the Panel of the word “seek” in Article 13.1 of the DSU. When so viewed, we conclude that the actual disposition of these briefs by the Panel does not constitute either legal error or abuse of its discretionary authority in respect of this matter. The Panel was, accordingly, entitled to treat and take into consideration the section of the brief that the United States appended to its second submission to the Panel, just like any other part of the United States pleading.

 

We find, and so hold, that the Panel erred in its legal interpretation that accepting non-requested information from non-governmental sources is incompatible with the provisions of the DSU. At the same time, we consider that the Panel acted within the scope of its authority under Articles 12 and 13 of the DSU in allowing any party to the dispute to attach the briefs by non-governmental organizations, or any portion thereof, to its own submissions.”(1194)

740.     In US — Lead and Bismuth II, the Appellate Body recognized that it also had the authority to accept amicus curiae briefs, albeit on a different legal basis.(1195) In US — Lead and Bismuth II, the Appellate Body considered that as long as it acts consistently with the provisions of the DSU and the covered agreements, the Appellate Body also has the legal authority pursuant to Article 17.9 of the DSU to decide whether or not to accept and consider any information that it believes is relevant and useful in an appeal:

“In considering this matter, we first note that nothing in the DSU or the Working Procedures specifically provides that the Appellate Body may accept and consider submissions or briefs from sources other than the participants and third participants in an appeal. On the other hand, neither the DSU nor the Working Procedures explicitly prohibit[s] acceptance or consideration of such briefs… [Article 17.9] makes clear that the Appellate Body has broad authority to adopt procedural rules which do not conflict with any rules and procedures in the DSU or the covered agreements. Therefore, we are of the opinion that as long as we act consistently with the provisions of the DSU and the covered agreements, we have the legal authority to decide whether or not to accept and consider any information that we believe is pertinent and useful in an appeal.”(1196)

741.     In US — Lead and Bismuth II, the Appellate Body drew a distinction between, on the one hand, parties and third parties to a dispute, which have a legal right to participate in panel and Appellate Body proceedings, and, on the other hand, private individuals and organizations, which are not Members of the WTO, and which, therefore, do not have a legal right to participate in dispute settlement proceedings:

“We wish to emphasize that in the dispute settlement system of the WTO, the DSU envisages participation in panel or Appellate Body proceedings, as a matter of legal right, only by parties and third parties to a dispute. And, under the DSU, only Members of the WTO have a legal right to participate as parties or third parties in a particular dispute.…

 

Individuals and organizations, which are not Members of the WTO, have no legal right to make submissions to or to be heard by the Appellate Body. The Appellate Body has no legal duty to accept or consider unsolicited amicus curiae briefs submitted by individuals or organizations, not Members of the WTO. The Appellate Body has a legal duty to accept and consider only submissions from WTO Members which are parties or third parties in a particular dispute.”(1197)

742.     The Appellate Body on US — Lead and Bismuth II further explained that participation by private individuals and organizations is dependent upon the Appellate Body permitting such participation if it finds it useful to do so:

“[W]e have the legal authority under the DSU to accept and consider amicus curiae briefs in an appeal in which we find it pertinent and useful to do so. In this appeal, we have not found it necessary to take the two amicus curiae briefs filed into account in rendering our decision.”(1198)

Discretion to accept amicus curiae brief from a WTO Member 

743.     In EC — Sardines, the Appellate Body received for the first time an amicus curiae brief from a WTO Member, Morocco, that had not exercised its third-party rights at the panel stage of the proceedings. The Appellate Body found that it was entitled to accept the amicus curiae brief submitted by Morocco, and to consider it. However, the Appellate Body emphasized that, in accepting the brief filed by Morocco in this appeal, it was not suggesting that each time a Member files such a brief it was required to accept and consider it. The Appellate Body indicated that it could well exercise its discretion to reject an amicus curiae brief if, by accepting it, this would interfere with the “fair, prompt and effective resolution of trade disputes”:

“As we explained in US — Lead and Bismuth II, the DSU gives WTO Members that are participants and third participants a legal right to participate in appellate proceedings.(1199) In particular, WTO Members that are third participants in an appeal have the right to make written and oral submissions. The corollary is that we have a duty, by virtue of the DSU, to accept and consider these submissions from WTO Members. By contrast, participation as amici in WTO appellate proceedings is not a legal right, and we have no duty to accept any amicus curiae brief. We may do so, however, based on our legal authority to regulate our own procedures as stipulated in Article 17.9 of the DSU. The fact that Morocco, as a sovereign State, has chosen not to exercise its right to participate in this dispute by availing itself of its third-party rights at the panel stage does not, in our opinion, undermine our legal authority under the DSU and our Working Procedures to accept and consider the amicus curiae brief submitted by Morocco.

 

Therefore, we find that we are entitled to accept the amicus curiae brief submitted by Morocco, and to consider it. We wish to emphasize, however, that, in accepting the brief filed by Morocco in this appeal, we are not suggesting that each time a Member files such a brief we are required to accept and consider it. To the contrary, acceptance of any amicus curiae brief is a matter of discretion, which we must exercise on a case-by-case basis. We recall our statement that:

 

The procedural rules of WTO dispute settlement are designed to promote … the fair, prompt and effective resolution of trade disputes.(1200)

 

Therefore, we could exercise our discretion to reject an amicus curiae brief if, by accepting it, this would interfere with the “fair, prompt and effective resolution of trade disputes.” This could arise, for example, if a WTO Member were to seek to submit an amicus curiae brief at a very late stage in the appellate proceedings, with the result that accepting the brief would impose an undue burden on other participants.”(1201)

Due process with respect to amicus curiae briefs

744.     In US — Tuna II (Mexico), the Panel received an received an unsolicited amicus curiae brief from Humane Society International and American University’s Washington College of Law. The Panel stated that “[w]here the Panel considered the information presented in and the evidence attached to the amicus curiae brief relevant, it has sought the views of the parties in accordance with the requirements of due process”.(1202) In the course of its analysis, the Panel reiterated that “insofar as the Panel deemed this information to be relevant for the purposes of its assessment, it invited Mexico to comment on it in order to take full account of Mexico’s right of response and defense in respect of due process considerations”.(1203)

WT/DS No. Proceeding Case Number of submissions received Reference
DS58 Panel US — Shrimp 2 Panel Report, US — Shrimp, para. 7.8
DS58 Appellate Body US — Shrimp 4 Appellate Body Report, US — Shrimp, paras. 89-110
DS58 Article 21.5 Panel US — Shrimp (Article 21.5 — Malaysia) 2 Panel Report, US — Shrimp (Article 21.5 — Malaysia), para. 5.16
DS58 Appellate Body US — Shrimp (Article 21.5 — Malaysia) 2 Appellate Body Report, US — Shrimp (Article 21.5 — Malaysia), paras. 77-78
DS138 Panel US — Lead and Bismuth II 1 Panel Report, US — Lead and Bismuth II, para. 6.3
DS138 Appellate Body US — Lead and Bismuth II 2 Appellate Body Report, US — Lead and Bismuth II, paras. 39-42
DS18 Article 21.5 Panel Australia — Salmon (Article 21.5 — Canada) 1 Panel Report, Australia — Salmon (Article 21.5 — Canada), paras. 7.8-7.9
DS160 Panel US — Section 110(5) Copyright Act 1 Panel Report, US — Section 110(5) Copyright Act, para. 6.8
DS122 Appellate Body Thailand — H-Beams 1 Appellate Body Report, Thailand — H-Beams, para.
DS135 Panel EC — Asbestos 5 74 Panel Report, EC — Asbestos, paras. 8.12-8.14
DS135 Appellate Body EC — Asbestos 17 Appellate Body Report, EC — Asbestos, paras. 51-56
DS141 Panel EC — Bed Linen 1 Panel Report, EC — Bed Linen, para. 6.1
DS231 Appellate Body EC — Sardines 2 Appellate Body Report, EC — Sardines, paras. 167-169
DS212 Appellate Body US — Countervailing Measures on Certain EC Products 1 Appellate Body Report, US — Countervailing Measures on Certain EC Products, paras. 10 and 76
DS236 Panel US — Softwood Lumber III 4 Panel Report, US — Softwood Lumber III, para. 7.2
DS257 Panel US — Softwood Lumber IV 3 Panel Report, US — Softwood Lumber IV, footnote 75
DS277 Panel US — Softwood Lumber VI 1 Panel Report, US — Softwood Lumber VI, footnote 75
DS257 Appellate Body US — Softwood Lumber IV 2 Appellate Body Report, US — Softwood Lumber IV, para. 9
DS248 Appellate Body US — Steel Safeguards 1 Appellate Body Report, Appellate Body Report, US —
DS249 Steel Safeguards, para. 268
DS251
DS252
DS253
DS254
DS258
DS259
DS265 Panel EC — Export Subsidies on Sugar 1 Panel Report, EC — Export Subsidies on Sugar, paras. 76-85
DS266
DS283
DS265 Appellate Body EC — Export Subsidies on Sugar 1 Appellate Body Report, EC — Export Subsidies on Sugar, para. 9
DS266
DS283
DS269 Appellate Body EC — Chicken Cuts 1 Appellate Body Report, EC — Chicken Cuts, para. 12
DS286
DS308 Appellate Body Mexico — Taxes on Soft Drinks 1 Appellate Body Report, Mexico — Taxes on Soft Drinks, para. 8
DS294 Panel US — Zeroing (EC) 1 Panel Report, US — Zeroing (EC), para. 1.7
DS315 Panel EC — Selected Customs Matters 1 Panel Report, EC — Selected Customs Matters, footnote 209
DS291 Panel EC — Marketing and Approval of Biotech Products 3 Panel Report, EC — Marketing and Approval of Biotech Products, paras. 7.10-7.11
DS292
DS293
DS332 Panel Brazil — Retreaded Tyres 3 Panel Report, Brazil — Retreaded Tyres, paras. 1.8-1.9
DS332 Appellate Body Brazil — Retreaded Tyres 2 Appellate Body Report, Brazil — Retreaded Tyres, para. 7
DS337 Panel EC — Salmon 3 Panel Report, EC — Salmon, paras.1.12-1.13
DS339 Appellate Body China — Auto Parts 1 Appellate Body Report, China — Auto Parts, para. 11
DS340
DS342
DS316 Panel EC and certain member States — Large Civil Aircraft 1 Panel Report, EC and certain member States — Large Civil Aircraft, footnote 7
DS367 Panel Australia — Apples 1 Panel Report, Australia — Apples, para. 1.17
DS371 Panel Thailand — Cigarettes (Philippines) 1 Report, Thailand — Cigarettes (Philippines), para. 2.5
DS379 Appellate Body China — Anti-Dumping and Countervailing Duties (China) 1 Appellate Body Report, China — Anti-Dumping and Countervailing Duties (China), para. 18
DS381 Panel US — Tuna II (Mexico) 1 Panel Report, US — Tuna II (Mexico), paras. 7.1-7.9

Table of proceedings in which amicus curiae submissions were received

745.         The following table provides information on WTO dispute settlement proceedings in which amicus curiae submissions were submitted to panels or the Appellate Body. It is updated to 30 September 2011.

(iii) Discretion to seek information from the parties

746.         In Australia — Automotive Leather II, the Panel noted that “it is a common feature of panel proceedings for panelists to question parties about the facts and arguments underlying their positions.”(1204)

747.         In Canada — Aircraft, Canada argued that the Panel should not have sought certain information from Canada in the absence of Brazil having made a prima facie case. The Appellate Body stated that:

“[A] panel is vested with ample and extensive discretionary authority to determine when it needs information to resolve a dispute and what information it needs. A panel may need such information before or after a complaining or a responding Member has established its complaint or defence on a prima facie basis. A panel may, in fact, need the information sought in order to evaluate evidence already before it in the course of determining whether the claiming or the responding Member, as the case may be, has established a prima facie case or defence”.(1205)

748.         In Thailand — H-Beams, Thailand argued that the claims of Poland were not sufficiently clear, and that the Panel, therefore, overstepped the limits of its authority in asking questions of the parties. The Appellate Body stated:

“[W]e have previously stated that panels are entitled to ask questions of the parties that they deem relevant to the consideration of the issues before them. In our Report in Canada — Measures Affecting the Export of Civilian Aircraft, we dismissed the view that a panel has no authority to ask a question relating to claims for which the complaining party had not first established a prima facie case, and stated that such an argument was “bereft of any textual or logical basis”.”(1206)

749.     In US — Upland Cotton, Brazil requested that the United States submit information that would permit the calculation of the precise amount of contract payments made to producers of upland cotton and asked the Panel to require this information pursuant to Article 13.1 of the DSU. The United States noted that panels must take care not to use the information gathered under its authority to relieve a complaining party from its burden of establishing a prima facie case of WTO inconsistency based on specific legal claims asserted by it, such that the Panel could not relieve Brazil of its burden of advancing and establishing claims and arguments relating to the key issue in the serious prejudice claim of the value of decoupled payments benefiting upland cotton.(1207) The Panel stated:

“The Panel wishes to point out that it has used its powers under Article 13 of the DSU to evaluate Brazil’s arguments. The support delivered to upland cotton by these four types of payments is a central issue in this dispute. Brazil presented USDA data in its first written submission which measured support in accordance with payment formulae in the measures themselves. The Panel has relied on that data. Brazil later proposed a methodology using the then available data which relied on a particular assumption. Data that could prove or disprove that assumption was in the control of the United States but not available to Brazil or to the Panel. Brazil had already explained the problems caused by the aggregation of data.(1208) At the Panel’s request, Brazil explained the methodology which it would apply to the unavailable data, which showed the Panel that it was both necessary and appropriate to use its powers under Article 13 of the DSU to access the data in a suitable format that would permit Brazil to run its methodology. At that stage, it was not clear to the Panel what the data would show, nor what the results of Brazil’s methodology would be. This was an information gathering exercise on the Panel’s part, in order for it to carry out its function. Any suggestion that a panel “makes the complainant’s case”, when it merely exercises its powers under the DSU, is entirely inaccurate. The DSU contains extensive provisions about the effective way for panels to gather facts and information, and how to assess those facts (including by way of commissioning advisory reports).(1209) It is a central feature of any system of redress, be that judicial, arbitral or otherwise, that evidence be obtained and analysed, and that the parties have equal opportunities to present their cases by using or contradicting that evidence, including by presenting their own evidence.”(1210)

750.     In EC — Bananas III (Article 21.5 — US), the Panel stated that “[u]nder Article 13 of the DSU the Panel has a broad right to seek information and may take into account evidence even if not provided by any of the parties”.(1211)

751.     In US — Continued Zeroing, the Panel clarified the extent of its authority to seek information:

“[W]e consider that it would be inappropriate for a panel to exercise its authority to seek information based on its own judgement as to what information is necessary for a party to prove its case, as opposed to seeking information in order to elucidate its understanding of the facts and issues in the dispute before it.”(1212)

(iv) Discretion to seek information from non-parties

752.        In Turkey — Textiles, the Panel asked to the European Communities, which was not party to the dispute, to provide factual and legal information relevant to the case, pursuant to Article 13.2 of the DSU.(1213)

(v) Other international intergovernmental organizations

General

753.     In India — Quantitative Restrictions, the Panel consulted with the IMF on India’s balance-of-payments situation. In this context, the question arose whether in the light of Article XV:2, which speaks of consultations between the CONTRACTING PARTIES and the IMF, a panel could engage in such consultations with the IMF. The United States, the complaining party, opined that the terms of Article XV:2 of GATT 1994, read as per paragraph 2(b) of the Incorporation Clause of GATT 1994 in Annex 1A of the WTO Agreement, require the WTO to consult with the IMF in specific matters, and the WTO, by definition, includes panels. India, in contrast, argued that to interpret the terms of Article XV to refer to panels meant to ignore the division of functions between the different bodies of the WTO, and that only the General Council and the BOP Committee were covered by this provision. The Panel stated:

Article 13.1 of the DSU entitles the Panel to consult with the IMF in order to obtain any relevant information relating to India’s monetary reserves and balance-of-payments situation which would assist us in assessing the claims submitted to us.

 

… We do not find it necessary for the purposes of this case to decide the extent to which Article XV:2 may require panels to consult with the IMF or consider as dispositive specific determinations of the IMF. As will be seen in Section V.G infra, we accept in the circumstances of this case certain assessments of the IMF. In this regard, however, we note that whether or not the provisions of Article XV:2 extend to panels, the Panel has the responsibility of making an objective assessment of the facts of the case and the conformity with GATT 1994, as incorporated into the WTO Agreement, of the Indian measures at issue, in accordance with Article 11 of the DSU.” (1214)

754.     In EC — Sardines, the Appellate Body found that the Panel did not err in deciding not to seek information from the Codex Commission. The Appellate Body stated that:

Article 13.2 of the DSU provides that” [p]anels may seek information from any relevant source and may consult experts to obtain their opinion on certain aspects of the matter.” This provision is clearly phrased in a manner that attributes discretion to panels, and we have interpreted it in this vein. Our statements in EC — Hormones, Argentina — Measures Affecting Imports of Footwear, Textiles, Apparel and Other Items (“Argentina — Textiles and Apparel”),(1215) and US — Shrimp, all support the conclusion that, under Article 13.2 of the DSU, panels enjoy discretion as to whether or not to seek information from external sources.(1216) In this case, the Panel evidently concluded that it did not need to request information from the Codex Commission, and conducted itself accordingly. We believe that, in doing so, the Panel acted within the limits of Article 13.2 of the DSU. A contravention of the duty under Article 11 of the DSU to make an objective assessment of the facts of the case cannot result from the due exercise of the discretion permitted by another provision of the DSU, in this instance Article 13.2 of the DSU.”(1217)

 

DSNo. Case Name and Reference Intergovernmental organization(s) consulted Agreement(s)
DS90 India — Quantitative Restrictions, paras. 5.11-5.13 International Monetary Fund GATT 1994
DS160 US — Section 110(5) Copyright Act, paras. 1.7 and 4.1 World Intellectual Property Organization TRIPS Agreement
DS176 US — Section 211 Appropriations Act, paras. 1.8 and 8.11-8.13 World Intellectual Property Organization TRIPS Agreement
DS174, DS290 EC — Trademarks and Geographical Indications, paras. 2.8-2.9 World Intellectual Property Organization TRIPS Agreement
DS269, DS286 EC — Chicken Cuts, paras. 7.52-7.59 World Customs Organization GATT 1994
DS285 US — Gambling (Article 22.6 — US), paras. 2.32-235 International Monetary Fund Eastern Caribbean Central Bank DSU
DS291, DS292, DS293 EC — Approval and Marketing of Biotech Products, paras. 7.31-7.32 Convention on Biological Diversity
Codex Alimentarius
Food and Agriculture Organization
International Plant Protection Convention
World Organization for Animal Health
United Nations Environmental Programme
World Health Organization
SPS Agreement
DS302 Dominican Republic — Import and Sale of Cigarettes, para. 1.8 International Monetary Fund GATT 1994
WT/L/616 EC — The ACP-EC Partnership Agreement, para. 11 Food and Agriculture Organization Doha Waiver
DS321 US/Canada — Continued Suspension, para. 1.7 Codex Alimentarius Commission
Joint FAO/WHO Expert Committee on Food
Additives (JECFA) International Agency for Research on Cancer
SPS Agreement
DS342 China — Autos Parts, paras. 2.5-2.6 World Customs Organization GATT 1994
DS362 China — Intellectual Property Rights, paras. 2.7-2.9 World Intellectual Property Organization TRIPS Agreement
DS375, DS376, DS377 EC — IT Products, para. 2.3 World Customs Organization GATT 1994

Table of proceedings in which information was sought from other international intergovernmental organizations

755.        Panels have sometimes consulted other international intergovernmental organizations (IGOs) based on the “right to seek information” under Art. 13.1 of the DSU. The following table provides information on panel proceedings and arbitrations in which such information was sought. It is updated to 30 September 2011.

(vi) Discretion not to seek information

756.     In Argentina — Textiles and Apparel, Argentina argued on appeal that the Panel had failed to make “an objective assessment of the matter” because it had not acceded to the request of the parties in seeking information from, and consulting with, the IMF concerning certain aspects of the statistical tax. The Appellate Body held that “[j]ust as a panel has the discretion to determine how to seek expert advice, so also does a panel have the discretion to determine whether to seek information or expert advice at all”:

“The DSU gives panels different means or instruments for complying with Article 11; among these is the right to “seek information and technical advice” provided in Article 13 of the DSU.

 Pursuant to Article 13.2 of the DSU, a panel may seek information from any relevant source and may consult experts to obtain their opinions on certain aspects of the matter at issue. This is a grant of discretionary authority: a panel is not duty-bound to seek information in each and every case or to consult particular experts under this provision. We recall our statement in EC Measures Concerning Meat and Meat Products (Hormones) that Article 13 of the DSU enables a panel to seek information and technical advice as it deems appropriate in a particular case, and that the DSU leaves “to the sound discretion of a panel the determination of whether the establishment of an expert review group is necessary or appropriate.” Just as a panel has the discretion to determine how to seek expert advice, so also does a panel have the discretion to determine whether to seek information or expert advice at all.

 

In this case, we find that the Panel acted within the bounds of its discretionary authority under Articles 11 and 13 of the DSU in deciding not to seek information from, nor to consult with, the IMF.”(1218)

757.     The Appellate Body in EC — Sardines rejected the claim of the European Communities that the Panel had failed to conduct “an objective assessment of the facts of the case”, as required by Article 11 of the DSU. The European Communities had alleged impropriety in relation to the Panel’s decision not to seek information from the Codex Commission:

Article 13.2 of the DSU provides that “[p]anels may seek information from any relevant source and may consult experts to obtain their opinion on certain aspects of the matter.” This provision is clearly phrased in a manner that attributes discretion to panels, and we have interpreted it in this vein. Our statements in EC — Hormones, Argentina — Measures Affecting Imports of Footwear, Textiles, Apparel and Other Items (“Argentina — Textiles and Apparel”),(1219) and US — Shrimp, all support the conclusion that, under Article 13.2 of the DSU, panels enjoy discretion as to whether or not to seek information from external sources.(1220) In this case, the Panel evidently concluded that it did not need to request information from the Codex Commission, and conducted itself accordingly. We believe that, in doing so, the Panel acted within the limits of Article 13.2 of the DSU. A contravention of the duty under Article 11 of the DSU to make an objective assessment of the facts of the case cannot result from the due exercise of the discretion permitted by another provision of the DSU, in this instance Article 13.2 of the DSU.”(1221)

758.     In US — Carbon Steel, the Appellate Body stated that:

“We also wish to underline that although panels enjoy a discretion, pursuant to Article 13 of the DSU, to seek information “from any relevant source”, Article 11 of the DSU imposes no obligation on panels to conduct their own fact-finding exercise, or to fill in gaps in the arguments made by parties. In consequence, given that the European Communities itself had submitted no evidence — other than the text of the provision — on this point, the Panel did not act inconsistently with Article 11 in refraining from seeking additional information on its own initiative.”(1222)

759.     In US — Continued Zeroing, the Appellate Body found that the Panel did not act inconsistently with Article 13 when it did not seek certain information requested by the European Communities:

Article 13 of the DSU gives panels “the right to seek information and technical advice from any individual or body which it deems appropriate”. The Appellate Body has explained that this is a discretionary authority that panels may exercise in seeking information “from any relevant source”. The Appellate Body has also explained that, while panels have “broad authority to pose such questions to the parties as it deems relevant for purposes of considering the issues that are before it”, such authority cannot be used “to make the case for a complaining party”.

 

The European Communities claims it explained to the Panel that the USDOC does not disclose a complete listing of all transactions and comparisons made in each periodic review. As a result, the European Communities posited to the Panel that, “should the Panel consider further corroboration appropriate, the Panel should request the United States to provide copies of the detailed margin calculations for each of the seven administrative reviews at issue.” We do not consider that the Panel acted inconsistently with Article 13 of the DSU when it did not seek such information. As noted, a panel’s authority to request information under Article 13 of the DSU is discretionary, and there is therefore no error that can be attributed to the Panel for its conduct in respect of that Article.”(1223)

760.     In US — Large Civil Aircraft (2nd Complaint), the European Communities requested the Panel to exercise its authority to seek information under Article 13 of the DSU. However, the Panel concluded that it did not consider it necessary or appropriate “to use its discretion under Article 13 of the DSU to remedy the parties“ inability to reach agreement on the initiation of an Annex V procedure, or to remedy the parties” inability to reach agreement on a means for transferring the information obtained during the DS317 Annex V procedure to the present Panel”.(1224)

(b) “A Member should respond promptly and fully to any request by a panel for such information as the panel considers necessary and appropriate”

761.        The Appellate Body on Canada — Aircraft addressed the issue of the authority of a panel to request a party to a dispute to submit information concerning that dispute. The Appellate Body stated:

“It is clear from the language of Article 13 that the discretionary authority of a panel may be exercised to request and obtain information, not just “from any individual or body” within the jurisdiction of a Member of the WTO, but also from any Member, including a fortiori a Member who is a party to a dispute before a panel. This is made crystal clear by the third sentence of Article 13.1, which states: A Member should respond promptly and fully to any request by a pane! for such information as the pane! considers necessary and appropriate.’”(1225)

762.     In Canada — Aircraft, Canada argued in its appeal that it was not legally bound to comply with the Panel’s request to provide information relating to the disputed financing of the subject transaction. The Appellate Body held:

“[W]e are of the view that the word “should“ in the third sentence of Article 13.1 is, in the context of the whole of Article 13, used in a normative, rather a merely exhortative, sense. Members are, in other words, under a duty and an obligation to ”respond promptly and fully” to requests made by panels for information under Article 13.1 of the DSU.”(1226)

763.     In US — Wheat Gluten, the Appellate Body found that the conduct of the parties when confronted with a request for information pursuant to Article 13.1 of the DSU from a panel may be relevant:

“Where a party refuses to provide information requested by a panel under Article 13.1 of the DSU, that refusal will be one of the relevant facts of record, and indeed an important fact, to be taken into account in determining the appropriate inference to be drawn”.(1227)

(c) “Confidential information which is provided shall not be revealed without formal authorization”

764.     In US — Section 110(5) Copyright Act, the Arbitrators decided to seek additional information from United States collective management organizations. One such organization submitted some of the information requested but attached a number of conditions concerning the use of that information, in particular the obligation for the Arbitrators to submit “any proposed public document” to its counsel in order for it to confirm that the confidentiality of the information submitted had been effectively protected. The Arbitrators understood that the term “any proposed public document” could actually apply to their Award. Therefore, pursuant to their Working Procedures and to general practice under public international law, the Arbitrators considered that “such a condition was incompatible with the confidentiality of their deliberations, which extends to the content of their report until it is made public”. The Arbitrators also feared that such conditions, if they were to be accepted, could make access to evidence more difficult in future cases under the DSU. As a result, they decided not to use the information submitted.(1228)

2. Article 13.2: consultation with scientific experts

(a) Discretion to consult with individual experts rather than expert review group pursuant to Appendix 4

765.        In EC — Hormones, the Panel elected to seek advice from individual experts, rather than establish an expert review group pursuant to Appendix 4 of the DSU. The Panel did so in order to leave open the possibility of receiving a range of opinions from the experts in their individual capacity. The Appellate Body confirmed that a panel has the discretion to consult with individual scientific experts and may establish ad hoc rules for such consultations:

“Both Article 11.2 of the SPS Agreement and Article 13.2 of the DSU require panels to consult with the parties to the dispute during the selection of the experts. However, it is not claimed by any of the participants in this appeal that the Panel did not consult with them when appointing the experts. Moreover, it is uncontested that the experts have been selected in accordance with procedures on which all the participants have previously agreed. It is similarly uncontested that, among the experts consulted by the Panel, there are nationals from each of the parties to the dispute. 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.”(1229)

(b) Panel may not use authority to consult with experts to make a case for a party

766.     In Japan — Agricultural Products II, the Appellate Body held that while a panel had a broad and “comprehensive authority” to engage in fact-finding under Article 13 of the DSU, it could not use this authority so as to effectively relieve the complaining party of making a prima facie case of inconsistency:

Article 13 of the DSU allows a panel to seek information from any relevant source and to consult individual experts or expert bodies to obtain their opinion on certain aspects of the matter before it. In our Report in United States — Import Prohibition of Certain Shrimp and Shrimp Products (‘United States — Shrimp’), we noted the “comprehensive nature” of this authority, and stated that this authority is “indispensably necessary” to enable a panel to discharge its duty imposed by Article 11 of the DSU to “make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements …

 

Furthermore, we note that the present dispute is a dispute under the SPS Agreement. Article 11.2 of the SPS Agreement explicitly instructs panels in disputes under this Agreement involving scientific and technical issues to “seek advice from experts’.

 

Article 13 of the DSU and Article 11.2 of the SPS Agreement suggest that panels have a significant investigative authority. However, this authority cannot be used by a panel to rule in favour of a complaining party which has not established a prima facie case of inconsistency based on specific legal claims asserted by it. A panel is entitled to seek information and advice from experts and from any other relevant source it chooses, pursuant to Article 13 of the DSU and, in an SPS case, Article 11.2 of the SPS Agreement, to help it to understand and evaluate the evidence submitted and the arguments made by the parties, but not to make the case for a complaining party.

 

In the present case, the Panel was correct to seek information and advice from experts to help it to understand and evaluate the evidence submitted and the arguments made by the United States and Japan with regard to the alleged violation of Article 5.6. The Panel erred, however, when it used that expert information and advice as the basis for a finding of inconsistency with Article 5.6, since the United States did not establish a prima facie case of inconsistency with Article 5.6 based on claims relating to the “determination of sorption levels”. The United States did not even argue that the “determination of sorption levels” is an alternative measure which meets the three elements under Article 5.6.”(1230)

(c) Panel may not delegate legal characterization to experts

767.     In Australia — Apples, the Appellate Body noted that the Panel asked the experts whether restricting to mature, symptomless apples would achieve Australia’s appropriate level of protection. In this regard, the Appellate Body expressed certain reservations about the Panel having done so, because that was the question that the Panel was entrusted to answer according to Article 5.6 of the SPS Agreement. The Appellate Body clarified that experts may assist a panel in assessing the level of risk related to an SPS measure and potentially alternative available measures. However, the Appellate Body found that:

“[W]hether or not an alternative measure’s level of risk achieves a Member’s appropriate level of protection is a question of legal characterization, the answer to which will determine the consistency or inconsistency of a Member’s measure with its obligation under Article 5.6. Answering this question is not a task that can be delegated to scientific experts”(1231)

 

DS Case Agreement (s) Reference Individual experts or expert review group under Appendix 4 of the DSU
DS18 Australia — Salmon SPS Agreement Panel Report, Australia — Salmon, paras. 6.1-6.6 Individual experts
DS18 Australia — Salmon (Article 21.5-Canada) SPS  Agreement Panel Report, Australia — Salmon (Article 21.5-Canada), paras. 6.1-6.5 Individual experts
DS26
DS48
EC — Hormones SPS Agreement Panel Reports, EC — Hormones, paras. 8.7-8.8 Individual experts
DS58 US — Shrimp GATT 1994 Panel Report, US — Shrimp, paras. 7.9-7.10 Individual experts
DS76 Japan — Agricultural Products II SPS  Agreement Panel Report, Japan — Agricultural Products II, paras. 6.1-6.4 Individual experts
DS135 EC — Asbestos GATT 1994 Panel Report, EC — Asbestos, para. 8.10 Individual experts
DS245 Japan — Apples SPS Agreement Panel Report, Japan — Apples, paras. 6.1-6.4 Individual experts
DS291
DS292
DS293
EC — Approval and Marketing of Biotech Products SPS Agreement Panel Report, EC — Approval and Marketing of Biotech Products, paras. 7.12-7.30 Individual experts
DS320
DS321
US/Canada — Continued Suspension SPS Agreement Panel Reports, US — Continued Suspension, paras. 7.55-7.75, and Canada — Continued Suspension, paras. 7.53-7.73 Individual experts
DS367 Australia — Apples SPS Agreement Panel Report, Australia — Apples, paras. 1.21-1.40 Individual experts

(d) Table of proceedings in which panels consulted with scientific experts

768.     The following table provides information on panel proceedings involving consultations with scientific experts. It us updated to 30 September 2011.

 

XIV. Article 14    back to top

A. Text of Article 14

Article 14: Confidentiality

1.     Panel deliberations shall be confidential.

 

2.     The reports of panels shall be drafted without the presence of the parties to the dispute in the light of the information provided and the statements made.

 

3.     Opinions expressed in the panel report by individual panelists shall be anonymous.

 
B. Interpretation and Application of Article 14

1. Article 14.1: confidentiality of deliberations

769.     In Brazil — Aircraft (Article 21.5 — Canada II), Brazil argued that Canada acted inconsistently with Article 14 of the DSU by sharing a copy of Brazil’s oral statement with certain private parties. The Panel rejected Brazil’s objection for various reasons, and noted that “[c]ontrary to Brazil, we do not think that Article 14 of the DSU is relevant to the issue before us. Article 14 focuses on panels and their obligations in respect of confidentiality; it does not address itself to the obligations of the parties in respect of confidentiality.”(1232)

770.     In US/Canada — Continued Suspension, the Panel opened its hearings to the public at the request of the disputing parties. In the course of reviewing the provisions of the DSU pertaining to confidentiality, the Panel made the following observations on Article 14.1, and in particular the term “deliberations”:

“Regarding the requirement in Article 14.1 of the DSU that “[p]anel deliberations shall be confidential”, the Panel first notes that one of the ordinary meanings of the word “deliberations” is “careful consideration, weighing up with a view to decision”. The term “deliberations” also applies to “[c]onsideration and discussion of a question by a legislative assembly, a committee, etc.; debate”. However, the Panel is not of the view that a panel hearing is similar to a consideration by a legislative body or a committee. Even though exchanges of points of view take place in both instances, the nature of the exchange of arguments by parties to a dispute before an adjudicating body remains different from that of an assembly or a committee. This suggests that the term “deliberation” was not intended to cover the exchange of arguments between the parties, but rather the internal discussion of the Panel with a view to reach its conclusions. We note that our interpretation of the term “deliberation” conforms to the use of that term in the statutes of other international judicial bodies.(1233) It is also confirmed by the context of Article 14.1. Article 14 deals with confidentiality in the work of panels stricto sensu (deliberations, drafting of the panel report, opinions of panelists), whereas the provisions dealing with the conduct of the proceedings with the parties are contained in Article 12. The Panel therefore concludes that Article 14.1 of the DSU does not apply to panel hearings and that opening the Panel’s substantive meetings with the parties to public observation does not breach that provision.”(1234)

2. Article 14.3: individual opinions

(a) Table of individual opinions in panel reports

771.     The following table provides information on individual opinions in panel reports to date. It is updated to 30 September 2011. For information on individual opinions in Appellate Body Reports and Article 22.6 arbitrations, see the Sections on Article 17.11 of the DSU and Article 22.6 of the DSU.

DS No.

Description

Issue

Reference

DS69

Opinion by a member of the Panel

Whether a CIF import price includes customs duties under Article 5.1(b) of the Agreement on Agriculture

Panel Report, EC — Poultry, paras. 289-292

DS165

One panelist’s view

Whether a bonding requirement was to be considered as a “restriction” contrary to Article XI of the GATT 1994 or as a duty or charge under Article II of the GATT 1994, and whether Article XX(d) of the GATT 1994 may also include measures taken to comply with WTO law

Panel Report, US — Certain EC Products, paras. 6.60-6.61

DS213

Dissenting opinion

Whether the de minimis standard applies to sunset reviews under Article 21.3 of the SCM Agreement

Panel Report, US — Carbon Steel, paras. 10.1-10.15

DS246

Dissenting opinion

Whether the Enabling Clause is an exception to Article I of the GATT 1994

Panel Report, EC — Tariff Preferences, paras. 9.1-9.21

DS264

Dissenting opinion

Whether model zeroing is prohibited in original investigations under the Anti-Dumping Agreement

Panel Report, US — Softwood Lumber V, paras. 9.1-9.24

DS294

Additional observations

Whether zeroing in administrative reviews is consistent with the Anti-Dumping Agreement

Panel Report, US — Zeroing (EC), para. 7.285

 

Dissenting opinion

Whether zeroing is permissible in assessment proceedings under Articles 2.4 and 2.4.2 of the Anti-Dumping Agreement

Panel Report, US — Zeroing (EC), paras. 9.1-9.62

DS350

Separate opinion

Whether model zeroing is permissible under the AD Agreement

Panel Report, US — Continued Zeroing, paras. 9.1-9.10

DS381

Separate opinion

Whether the measure at issue is a “technical regulation”, as opposed to a “standard”, within the meaning of Annex 1.1 of the TBT Agreement

Panel Report, US — Tuna II (Mexico), paras. 7.146 — 7.188

DS382

One panelist’s view

Relationship between the “fair comparison” requirement under the first sentence of Article 2.4 of the Anti-Dumping to the last sentence of Article 2.4

Panel Report, US — Orange Juice (Brazil), para. 7.143

 

XV. Article 15    back to top

A. Text of Article 15

Article 15: Interim Review Stage

1.     Following the consideration of rebuttal submissions and oral arguments, the panel shall issue the descriptive (factual and argument) sections of its draft report to the parties to the dispute. Within a period of time set by the panel, the parties shall submit their comments in writing.

 

2.     Following the expiration of the set period of time for receipt of comments from the parties to the dispute, the panel shall issue an interim report to the parties, including both the descriptive sections and the panel’s findings and conclusions. Within a period of time set by the panel, a party may submit a written request for the panel to review precise aspects of the interim report prior to circulation of the final report to the Members. At the request of a party, the panel shall hold a further meeting with the parties on the issues identified in the written comments. If no comments are received from any party within the comment period, the interim report shall be considered the final panel report and circulated promptly to the Members.

 

3.     The findings of the final panel report shall include a discussion of the arguments made at the interim review stage. The interim review stage shall be conducted within the time-period set out in paragraph 8 of Article 12.

 
B. Interpretation and Application of Article 15

1. Article 15.1: issuance and review of the descriptive (factual and arguments) part of the report

(a) Timing of comments on the descriptive section

772.     In a number of cases, parties have provided additional comments on the descriptive part of the report in the context of subsequently providing comments on the interim report containing the Panel’s findings.(1235)

773.     In US — Clove Cigarettes, the Panel made a point of noting that:

“[T]he United States put forward a number of requests for review of the language in Section II of this Report which had already been subject to the parties’ review as part of the Descriptive Part. We note that the United States did not take advantage of the two-week period provided by the Panel to comment on the Descriptive Part in order to suggest those particular changes. Nevertheless, the Panel has decided to accept some of the United States’ requests for changes in Section II of this Report in order to ensure the accuracy of the description of the facts in this Report.”(1236)

(b) The “normal practice” of third parties reviewing the summary of their arguments

774.     In EC — Bananas III, the Panel declined a request by several third parties to participate in the interim review process. However, the Panel referred to the “normal practice” of allowing third parties to review the draft of the summary of their arguments in the descriptive part of the report:

“Following the second substantive meeting of the Panel with the parties, several of the third parties asked for further participatory rights, including participation in the interim review process. We consulted the parties and found that, as before, they had diverging views on the appropriateness of granting this request. We decided that no further participatory rights should be extended to third parties, except, in accord with normal practice, to permit them to review the draft of the summary of their arguments in the Descriptive Part. In this regard, we noted that Article 15 of the DSU, which deals with the interim review process, refers only to parties as participants in that process. In our view, to give third parties all of the rights of parties would inappropriately blur the distinction drawn in the DSU between parties and third parties.(1237)

775.     In EC and certain member States — Large Civil Aircraft, Brazil sought “enhanced” third party rights, including but not limited to the right to review and comment on the interim report, in particular the summary of Brazil’s arguments in the draft descriptive part of the panel report. The Panel declined Brazil’s request for “enhanced” third party rights, but noted that:

“Brazil has requested the Panel to grant it the “enhanced” third party right “to review and comment on the interim Panel Report, in particular the summary of Brazil’s arguments in the draft descriptive part of the Panel report”. In EC — Bananas III, the panel referred to the “normal practice” of permitting third parties to review the draft of the summary of their arguments in the descriptive part of the report (Panel Reports, EC — Bananas III, para. 7.9). Insofar as Brazil is merely requesting the Panel to permit Brazil to review and comment on the summary of its arguments contained in any descriptive sections of the Panel’s draft report, the Panel sees no reason to depart from the normal practice in WTO panel proceedings. We note that, while both the United States and the European Communities oppose Brazil’s request for “enhanced” third party rights, the United States considers that “the ability to comment on the description of its arguments in the draft descriptive part of the report” is “a right routinely provided to third parties, not an “enhanced right”.” “(1238)

(c) Contested factual issues

776.     Panels often address contested factual issues in the Findings section of the report, rather than in the Factual Aspects section of the descriptive part of the report. For example, in US — Clove Cigarettes, the Panel explained, in the introduction to the Factual Aspects section of the descriptive part of the report, that “[t]he parties disagree on a number of factual issues. To the extent it is necessary for the Panel to resolve those disputed factual issues, it will do so in its Findings.”(1239)

777.     However, in some cases panels have resolved contested factual issues in the Factual Aspects section of the descriptive part of the report. In Philippines — Taxes on Distilled Spirits, for example, the Panel noted at the beginning of the Factual Aspects section of its descriptive part:

“This section describes the evidence before the Panel. It includes uncontested facts, as well as factual arguments presented by one or more of the parties that are contested, with the Panel’s assessment of those arguments. The Panel used these facts and its factual findings to draw legal conclusions on the claims before it. Those legal conclusions are set forth in Section VII of these reports.”(1240)

2. Article 15.2: requests for the panel to review precise aspects of the interim report

(a) Requirement to identify “precise aspects” of the interim report

778.     In Japan — Alcoholic Beverages II, the Panel stated that the purpose of the interim review stage was to consider “specific and particular aspects” of the interim report, and indicated that it would address those arguments that it considered to be “sufficiently specific and detailed”:

“In approaching the interim review stage, the Panel drew guidance from Article 15.2 DSU which states that “a party may submit a written request for the panel to review precise aspects of the interim report prior to circulation of the final report to the Members”. Whilst the Panel was willing to approach the interim review stage with the broadest possible interpretation of Article 15.2 DSU, it was of the view that the purpose of the review meeting is not to provide the parties with an opportunity to introduce new legal issues and evidence, or to enter into a debate with the Panel. In the view of the Panel, the purpose of the interim review stage is to consider specific and particular aspects of the interim report. Consequently, the Panel addressed the entire range of such arguments presented by the parties which it considered to be sufficiently specific and detailed.”(1241)

779.     In Australia — Salmon, the Panel declined Australia’s request for a “whole of report review” and instead confined its interim review to the parties’ comments that related to “precise aspects” of the interim report:

“At the interim review meeting, Canada objected to Australia’s request for “a whole of report review”. Canada referred to Article 15.2 of the DSU which provides an opportunity for parties to request the panel to “review precise aspects of the interim report”. According to Canada, it is not open to the Panel to consider anything other than comments dealing with “precise aspects” of the interim report. We agree with Canada and have therefore only reviewed our interim report in light of the comments made by the parties which relate to “precise aspects” of the interim report.(1242)

780.     Along the same lines, the Panel in Japan — Apples (Article 21.5 — US) recalled that:

“[P]ursuant to Article 15.2 of the DSU, a party may request the Panel “to review precise aspects of the interim report”. We recall that a previous panel confronted with interim review comments questioning large sections of the interim report refused to address comments which did not relate to precise aspects of the interim report.(1243) We note that Japan’s comments regarding our finding under Article 2.2 of the SPS Agreement do not identify specific paragraphs that should be modified.”(1244)

781.     In US/Canada — Continued Suspension, the Panel noted that:

“[S]ome of the EC comments are general statements on whole sections of the report, not a written request for the Panel to review precise aspects of the interim report. We recall that the panel in Australia — Salmon(1245) stated as follows:

 

“According to Canada, it is not open to the Panel to consider anything other than comments dealing with ‘precise aspects’ of the interim report. We agree with Canada and have therefore only reviewed our interim report in light of the comments made by the parties which relate to ‘precise aspects’ of the interim report.”

 

We agree with the reasoning of the above mentioned panel and therefore consider that the general comments by the European Communities did not require a specific reply from the Panel. We limited our replies to the portions of the report on which specific comments, in the form of precise requests for reconsideration on specific paragraphs, had been made by the European Communities. We addressed the EC general comments as part of our review of specific paragraphs.”(1246)

(b) Using interim review to re-argue a case

782.     In US — 1916 Act (EC), the Panel observed that “[t]he limited function of the interim review stage is confirmed by the existence of an appeal procedure, where parties may address issues of law covered in the panel report and challenge legal interpretations developed by the panel (Article 17.6 of the DSU).”(1247)

783.     In Japan — Apples (Article 21.5 — US), the Panel stated that interim review is not the appropriate stage for rearguing a case on new grounds:

“Japan seems to suggest that we address at this stage the process of verification that exported apples are mature and symptomless. We largely agree with the United States that Japan’s suggestion amounts to re-arguing the validity of the measure at issue as a whole from a different angle, by presenting the elements of the measure at issue as a “production process control” necessary to verify that the exported product is mature, symptomless apples. We believe that the interim review is not the appropriate stage for rearguing the case on new grounds.”(1248)

784.     Along the same lines, the Panel in Japan — DRAMs (Korea) noted that Korea had re-argued many of the points already advanced in its submissions:

“In addressing Korea’s arguments, we note that Korea has sought to re-argue many of the points that it made during its submissions. This is not necessarily the purpose of the interim review mechanism set forth at Article 15.2 of the DSU. In particular, we do not consider that Article 15.2 of the DSU requires us to provide a defence of our findings at the Interim Review stage.”(1249)

785.     The Panel in US — Poultry (China) considered that interim review is “not the appropriate forum for relitigating arguments already put before a panel” and refrained from engaging in a new analysis of the US arguments on particular point:

“The United States’ other argumentation in support of its position on judicial economy seems to repeat or expand its prior submissions to this Panel on its views of the substantive interpretation of the provisions of the SPS Agreement and the GATT 1994. We note that the interim review is not the appropriate forum for relitigating arguments already put before a panel(1250) and that the Panel has already addressed the United States’ arguments where appropriate in its findings. We will therefore briefly address the United States’ arguments and will thus refrain from engaging in a new analysis of the United States’ substantive arguments on these provisions… ,”(1251)

(c) Failure to inform the panel of factual errors and omissions

786.     In EC — Asbestos, the Panel indicated that while neither party claimed that the Panel had made any substantive error in its assessment of the facts, the letter attached to Canada’s comments indicated that its request for review was “without prejudice to Canada’s position on all the aspects of the Panel’s Report”. The Panel considered that:

“[l]f it had misunderstood or misrepresented some of the factual aspects of the case in its findings, the parties would need the interim review stage in order to make the necessary corrections or clarifications because, unlike errors of law, errors of fact cannot usually be modified on appeal. The parties should take advantage of this last opportunity to rectify the factual assessments of the Panel otherwise the Panel could unnecessarily be at risk of being accused of not having made an objective evaluation of the facts. It might be claimed that the fact that a party does not inform the Panel of a factual error in its findings may be contrary to the obligation in Article 3.10 of the Understanding, which provides inter alia that “all Members will engage in these procedures [settlement of disputes] in good faith in an effort to resolve the dispute” (emphasis added).”(1252)

787.     In Chile — Price Band System (Article 21.5 — Argentina), Chile asserted that the Panel acted inconsistently with Article 11 of the DSU in refusing to re-assess certain aspects of the original price band system that the original panel and the Appellate Body misunderstood, and in relying on this “factual error” in its analysis of the measure at issue. The Appellate Body observed that:

“In examining this aspect of Chile’s appeal, we first note that Chile did not raise this alleged misunderstanding concerning the operation of the original measure either to the original panel at the interim review stage, or during the appeal in the original proceedings.… ”(1253)

788.     In US/Canada — Continued Suspension, the European Communities indicated, in the introduction to its interim review request, that it would try to provide “some examples” of the “numerous and serious errors in the reasoning of the Panel on the scientific issues underpinning the dispute, but that it was not “not possible in the time available” to provide a “detailed and complete list of all omissions and errors” of the two interim reports, and “reserve[d] the right to make all its comments at the appeal stage”. The Panel responded that:

“This statement suggests that the European Communities did not identify all the precise aspects of the interim report with which it disagrees due to lack of time and because this would require rewriting substantial parts of the Panel report. It would, however, be able to make all its comments at the appeal stage. The Panel wishes first to make it clear that parties were free to request an extension if they needed more time to review the interim report and identify precise aspects that should be addressed by the Panel. The Panel notes in this respect that it is at the request of the European Communities that parties were granted several additional weeks to review the interim report. The Panel also notes that the European Communities gave as a justification for its request the expected length and complexity of the report. The Panel therefore regrets that the European Communities is now alleging lack of time as a justification for providing only “some examples” of errors in the reasoning of the Panel on the scientific issues underpinning this dispute.

 

In contrast, the European Communities mentions that it may make “all its comments” at the appeal stage. The Panel is surprised by the apparent choice of the European Communities to “make all its comments” before the Appellate Body rather than before the Panel, at the procedural stage expressly designed for the purpose of considering any and all comments on the interim report. This is because the decision of the European Communities to provide only “some examples” of errors of the Panel suggests that it has already decided to appeal the Panel report unless the Panel makes changes which the European Communities will not specify. It is also not clear whether the “examples” given by the European Communities exhaust all its factual comments or whether it intends to make further comments on factual issues before the Appellate Body. Having regard to Article 17.6 of the DSU, we consider this to be equivalent to depriving the interim review stage of its purpose.”(1254)

(d) Submitting new evidence during interim review stage

789.     In EC — Sardines, the Appellate Body explained that the interim review stage is not an appropriate time to introduce new evidence:

“We also reject the European Communities’ contention relating to the letters it submitted at the interim review stage. The interim review stage is not an appropriate time to introduce new evidence. We recall that Article 15 of the DSU governs the interim review. Article 15 permits parties, during that stage of the proceedings, to submit comments on the draft report issued by the panel, and to make requests ‘for the panel to review precise aspects of the interim report’. At that time, the panel process is all but completed; it is only — in the words of Article 15 —‘precise aspects’ of the report that must be verified during the interim review. And this, in our view, cannot properly include an assessment of new and unanswered evidence. Therefore, we are of the view that the Panel acted properly in refusing to take into account the new evidence during the interim review, and did not thereby act inconsistently with Article 11 of the DSU.”(1255)

790.     In EC — Selected Customs Matters, the Panel considered that “the terms of Article 15.2 preclude us from taking into consideration evidence which is not reflected in the Interim Report”, and therefore declined to consider certain new evidence submitted by the European Communities.(1256) On appeal, the Appellate Body found that the Panel did not err:

“With respect to Exhibits EC-167, EC-168, and EC-169 (which relate to the adoption of EC Regulation 2171/ 2005 and its consequences), we are of the view that the Panel did not err in declining to consider these pieces of evidence.(1257) As the Appellate Body stated in EC — Sardines, “[t]he interim review stage is not an appropriate time to introduce new evidence.”(1258) The Panel’s decision to decline to consider Exhibits EC-167, EC-168, and EC-169 appears to us to be in line with the Appellate Body’s statement in EC — Sardines that “only … ‘precise aspects’ of the [interim] report… must be verified during the interim review … [a]nd this … cannot properly include an assessment of new and unanswered evidence.”(1259) In any event, although Exhibits EC-167, EC-168, and EC-169 might have arguably supported the view that uniform administration had been achieved by the time the Panel Report was issued, we fail to see how these exhibits showed uniform administration at the time of the establishment of the Panel.”(1260)

791.     In EC — Approval and Marketing of Biotech Products, the Panel declined to take into account certain information provided by the European Communities during the interim review process, noting that the European Communities could have provided the evidence earlier:

“The Panel notes that Exhibit EC-167 contains a letter dated 18 May 2004. The EC second written submission, in which the European Communities referred to the withdrawal of the application in question, dates from 19 July 2004. Thus, the European Communities could have provided the relevant letter already at the time it filed its second written submission, or at least shortly thereafter. We note that paragraph 12 of the Panel’s Working Procedures states in pertinent part that ‘[p]arties shall submit all factual evidence to the Panel no later than during the first substantive meeting, except with respect to evidence necessary for purposes of rebuttals, answers to questions or comments made for purposes of rebutting answers provided by others. Exceptions to this procedure will be granted upon a showing of good cause.’ In this instance, the European Communities has not made a showing of good cause for submitting in March 2006 what it could have submitted already in May 2004. The fact that, in the European Communities’ view, ‘there is no point in waiting for an eventual implementation phase to start producing the document’ certainly does not amount to the requisite ‘good cause’. since this argument provides no justification for submitting evidence that has been available for more than two years as late as the interim review stage. We also note that in EC — Sardines the Appellate Body stated in unqualified terms that ‘[t]he interim review stage is not an appropriate time to introduce new evidence’ For these reasons, the Panel declines to make the change requested by the European Communities.”(1261)

792.     In EC — Bananas III (Article 21.5 — United States), the Panel recalled that the Appellate Body “has explicitly held that the interim review stage is not the appropriate time to introduce new evidence”(1262) and concluded that certain evidence submitted by the European Communities at the interim review meeting was “inadmissible at this late stage in the process”.(1263)

793.     In China — Auto Parts, China referred to certain evidence that was not produced prior to its interim review request. The Panel recalled that:

“In this regard, previous panels and the Appellate Body refused to consider new evidence provided at the interim review stage because in their view, the interim review stage is not an appropriate time to introduce new evidence. The Appellate Body in EC — Sardines states that Article 15 of the DSU, which governs the interim review, permits parties, during that stage of the proceedings, to submit comments on the draft report issued by the panel and to make requests for the panel to review precise aspects of the interim report. In the Appellate Body’s view this cannot properly include an assessment of new and unanswered evidence.(1264) Based on the same reasoning, the Appellate Body in EC — Selected Customs Matters considered that the Panel in that dispute acted properly in refusing to take into account the new evidence during the interim review, and did not thereby act inconsistently with Article 11 of the DSU.(1265)

 

“We are of the view that the approach adopted by panels and the Appellate Body above and the principle under Article 15 of the DSU lead us to reject the evidence newly introduced by China at the interim review stage of the present dispute. However, even if we were to assess such new evidence, in particular given the absence of any procedural objection from the complainants, we do not consider that the practice of the complainants as advanced by China constitutes subsequent practice based on which our analysis regarding China’s creation of new tariff line at the ten-digit level must be revised….”(1266)

794.     In EC — IT Products, the European Communities submitted two documents allegedly demonstrating that two of the measures at issue had been modified, and another entirely repealed. The European Communities requested that, on the basis of these documents, the Panel refrain from making any recommendation in relation to those measures. The Panel declined the European Communities’ request on the following grounds:

“We note that the documents in Attachment 1 and 2 were published in November 2009, long after the record had closed. At no time between November 2009 and the issuance of the Interim Reports did the European Communities seek leave of the Panel to provide this additional information. Article 15.2 of the DSU, which provides for the Interim Review process, was considered by the Appellate Body in EC-Sardines. It clarified that this provision does not permit parties to “introduce new evidence”, and is available only “for the panel to review precise aspects of the interim report”.(1267) Consistent with the Appellate Body’s approach and in the interest of protecting the due process rights of the complainants, who had no opportunity to make submissions for the record on the documents provided, we decline to consider further the documents attached by the European Communities to its request for interim review. The Panel also declines to make adjustments to the Interim Reports to exclude the measures in question from the Panel’s recommendation and to add text about the European Communities’ confirmation that certain measures have been repealed, as requested by the European Communities.”(1268)

795.     The Panel in EC and certain member States — Large Civil Aircraft also declined to consider certain evidence submitted by the European Communities at the interim review stage:

“As the European Communities itself argues in a different context, a party cannot change its arguments at this stage of the proceeding, nor is the Panel entitled to mischaracterise a party’s arguments in its report. It would, in our view, be entirely inappropriate for us to make alternative findings on the basis of these newly-submitted data, as any such findings would necessarily be based on evidence and arguments not previously before us, and to which the United States has had only the most minimal opportunity to respond. To include such newly-submitted evidence, thereby allowing it to appear as if the arguments based on that evidence had been made during the proceeding, would in our view be unfair, and would deprive the United States of the due process to which it entitled in dispute settlement in the WTO. Thus, even were we inclined to make alternative findings on the basis of the product groupings asserted by the European Communities, at most such findings would involve consideration of the evidence originally put before the Panel by the European Communities, and not these newly-submitted tables.”(1269)

(e) Request to reconsider evidence, arguments and findings

796.     In US — Continued Zeroing, the European Communities requested that the Panel reconsider its assessment of certain evidence already on the record. The Panel stated that:

“Although we understand the US concern regarding the relative lateness in the EC’s attempt to explain the factual bases of its claims regarding the seven periodic reviews at issue, we see no provision in the DSU that would preclude us from assessing the EC’s explanations. Nor has the United States cited such a legal provision in its argumentation in this regard. We therefore proceed to our assessment of the EC’s comments.”(1270)

797.     In EC and certain member States — Large Civil Aircraft, the Panel reconsidered two findings in the light of the European Communities’ request for interim review. First, the Panel stated that “[i]n light of the arguments in the European Communities’ request for interim review”, it had “reconsidered” its decision to reject the internal rate of return (IRR) for some of the Launch Aid / Member State Financing (LA/MSF) contracts at issue. Ultimately, the Panel found that it “need not come to a firm conclusion” on that issue.(1271) However, with respect to another separate issue, the Panel reconsidered certain evidence at the request of the European Communities, and, upon reconsideration, was persuaded by the European Communities that its original conclusion “was incorrect as a matter of fact”. The Panel explained that:

“The European Communities, referring to its first written submission and supporting exhibits, maintains that the July 2001 grant to Puerto Santa Maria and the July 2002 grant to Sevilla were both made under a scheme of the Andalusian government, and that the applications and disbursements were managed by the Consejería de Trabajo e Industria de la Junta de Andalucía. The United States acknowledged that the government of Andalusia “provided” the grant to Puerto Santa Maria, and “authorized” the grant to Sevilla. Citing information submitted by the United States, Exhibits US-240 and US-242, we originally concluded that these grants were provided as part of an Andalusian government development plan for a particular geographic region within Andalusia, the Bahia de Cadiz, and thus were limited to “enterprises located within a designated geographical region within the jurisdiction of the granting authority”.

 

Having reconsidered the evidence, we are persuaded that this conclusion was incorrect as a matter of fact. Page 14,291 of Exhibit US-240, cited by the United States, provides that the funds were granted “for a plan of action for the Bahia de Cadiz Centre (Poligono Parque Industrial Bahía)”. Having carefully considered the evidence again, we cannot conclude that the “Plan” referred to in Exhibit US-240 is an Andalusian government development plan for the Bahia de Cadiz. It appears that the facts surrounding this grant were confounded with the facts surrounding the July 2003 grant to Puerto Real, which was made pursuant to a programme directed toward aiding development in the Bahia de Cadiz area, and which the European Communities acknowledged is not generally available throughout Andalusia. However, that programme did not come into effect until after the application for the July 2001 Puerto Santa Maria grant had been made, and thus is not relevant to the question of specificity of that grant. The United States did not assert any other basis of specificity with respect to this grant. In the absence of any other arguments or evidence of specificity, we have changed our conclusion, and determine that the 2001 grant to Puerto Santa Maria was not provided to an enterprise in a designated geographical region within the territory of the granting authority, and is therefore not specific under Article 2.2 of the SCM Agreement.”(1272)

798.     In US — Tuna II (Mexico), Mexico had argued that many of the US interim review comments were more in the nature of requests for reconsideration which are not appropriate for this phase of the proceedings. The Panel responded that requests to review precise aspects of the Panel’s report may legitimately include requests for “reconsideration” of specific factual or legal findings:

“As stated on previous occasions by the Appellate Body, the interim review stage is not an appropriate moment to introduce new and unanswered evidence.(1273) However, in our view, requests to review precise aspects of the Panel’s report may legitimately include requests for “reconsideration” of specific factual or legal findings, provided that such requests are not based on the presentation of new evidence. We therefore did not find it necessary to exclude a priori from consideration any request for review from either party on the sole basis that it would seek reconsideration by the Panel of some of its determinations. We note in this respect that Mexico itself requested the Panel to reconsider its decision to exercise judicial economy in relation to Mexico’s claims under the GATT 1994 and sought a review of certain aspects of the Panel’s determinations.”(1274)

(f) New arguments, including new jurisdictional arguments

799.     In US — 1916 Act (EC), the Panel considered that the United States had not acted in a timely manner in raising a jurisdictional argument for the first time in the interim review stage. However, the Panel proceeded to address (and reject) the US objection on the merits:

“We agree that Article 15 of the DSU does not seem to prohibit a party from raising new arguments at the interim review stage, provided they are made in the context of a request for review of precise aspects of the interim report. However, we note that the DSU, in particular Appendix 3, provides for well defined steps in the proceedings, during which parties may raise arguments in support of their positions. The fact that the interim review takes place at the very end of those proceedings, once all submissions have been made, hearings have taken place and a draft report has been issued to the parties is evidence that this stage of the proceedings is not meant to address issues which could have been better addressed in the written and oral proceedings conducted by the Panel.(1275) Moreover, Article 3.10 provides that parties must engage in dispute settlement in good faith. This implies that they should not withhold until the interim review stage arguments that they could be legitimately expected to have raised at a much earlier stage of the proceedings, in light of the claims developed in the first submissions.

 

As a result, we consider that there would be a number of reasons to reject the US argument as untimely. However, since Article 15.3 of the DSU provides that the final report shall include a discussion of the arguments made at the interim review stage, and since our decision to address the EC claims under Article VI of the GATT 1994 and the Anti-Dumping Agreement may be subject to appeal, we consider that it is justifiable to explain why, in our view, the competence of the Panel to address a violation of Article VI and the Anti-Dumping Agreement is not affected by the findings of the Appellate Body in Guatemala — Cement and of the panel and Appellate Body in Brazil — Desiccated Coconut.”(1276)

800.     On appeal, the Appellate Body found that the Panel did not err in addressing the jurisdictional argument, not with standing that the United States had raised it for the first time at the interim review stage:

“We agree with the Panel that the interim review was not an appropriate stage in the Panel’s proceedings to raise objections to the Panel’s jurisdiction for the first time. An objection to jurisdiction should be raised as early as possible and panels must ensure that the requirements of due process are met. However, we also agree with the Panel’s consideration that ‘some issues of jurisdiction may be of such a nature that they have to be addressed by the Panel at any time.’ We do not share the European Communities’ view that objections to the jurisdiction of a panel are appropriately regarded as simply ‘procedural objections’. The vesting of jurisdiction in a panel is a fundamental prerequisite for lawful panel proceedings. We, therefore, see no reason to accept the European Communities’ argument that we must reject the United States’ appeal because the United States did not raise its jurisdictional objection before the Panel in a timely manner.”(1277)

801.     In US — Carbon Steel, the United States argued that a particular claim was outside of the Panel’s terms of reference. The United States first advanced this argument in its comments on an EC response to a Panel question following the second meeting. The Panel proceeding to make findings on this claim in its interim report. In its request for interim review, the United States reiterated its argument that this claim was outside of the Panel’s terms of reference. In response to the US request for interim review, the Panel agreed with the United States and found that the claim was indeed outside of its terms of reference.(1278) The Panel clarified that “the United States made its objection known following the response by the European Communities that it was indeed making a separate claim in respect of this obligation. Therefore, this is not a situation in which we need to decide whether we can address an objection which could have been raised in a timely manner, but was not.”(1279)

802.     In Korea — Certain Paper, the Panel addressed certain additional arguments that Indonesia presented at the interim review stage, notwithstanding its view that these arguments could have been raised in a more coherent manner:

“We note that in our discussion of this claim in our interim report (infra, paras. 7.99-7.105), we addressed what we perceived to be the main arguments developed by Indonesia in this regard. At interim review, however, Indonesia drew our attention to certain additional arguments (infra, para. 7.108) regarding the calculation of interest expenses for CMI, which we had not addressed in our interim report. Although these arguments could, in our view, have been raised in a more coherent manner, we nevertheless felt obliged to address them and have accordingly revised our finding with respect to this claim, as contained in paragraphs 7.106-7.112 below.”(1280)

803.     In US — Zeroing (EC) (Article 21.5 — EC), the Panel noted that the US request for review contained a number of arguments that had not been made or developed during the proceeding, but would nonetheless address these arguments:

“The purpose of the interim review stage is not to allow a party to raise new arguments or develop arguments which were at most merely alluded to during the course of the proceeding. That said, we consider it useful to address certain of the points made by the United States in its request for review.”(1281)

(g) Changes to the interim report in the absence of a request from a party

804.     It is normal practice for panels to correct any typographical and other non-substantive errors in an interim report, prior to the issuance of the final report, on their own initiative. In respect of such “nonsubstantive errors”, the Panel in US — Large Civil Aircraft (2nd complaint), for example, explained that it had “corrected stylistic and grammatical errors and errors in references to submissions and exhibits. The Panel has also corrected inconsistencies in terminology and has made changes to improve the clarity and accuracy of the Report.”(1282)

805.     In Turkey — Rice, the United States objected to the Panel adding certain statements to the final report that had not appeared in the interim report. At issue was an additional section on “Special and Differential Treatment”, in which the Panel noted that Turkey “is a developing country Member” and explained how the Panel had taken Turkey’s status into account when preparing and revising the timetable for the proceeding. The United States considered this to be a “new finding”, and noted that neither party had raised or commented on this issue as part of the interim review stage. The Panel declined the US request to delete this section from its final report, and indicated that the section at issue was “only a statement that reflects what occurred during the panel proceedings and does not affect the rights and obligations of either party in the current dispute”.(1283)

(h) Additional interim review meeting

806.     An additional interim review meeting has been requested and held in a number of proceedings.(1284)

807.     In US/Canada — Continued Suspension, the Panel explained that it is for a party, and not for a panel, to decide whether an additional interim review meeting would be useful:

“The European Communities and Canada separately requested an interim review by the Panel of certain aspects of the interim report issued to the Parties on 31 July 2007. The European Communities stated that it stood ready to attend an interim review hearing to discuss the issues raised in its letter, “should the Panel consider it useful”. The Panel notes that it is not for it to decide whether holding an interim review hearing would be useful. Article 15.2 of the DSU provides that it is “[a]t the request of a party [that] the panel shall hold a further meeting with the parties on the issues identified in the written comments.” The Panel does not understand the EC statement above as a request by the European Communities for the Panel to hold an additional meeting with the parties. Furthermore, the Panel notes that Canada did not request such a meeting. As a result, the Panel did not hold an interim review meeting.”(1285)

3. Article 15.3: findings of the final panel report to include a discussion of interim review arguments

808.     It is normal practice for panels to include an “Interim Review” section in the panel report discussing the arguments made at the interim review stage, followed by the panel’s “Findings” section. A number of panels have made a point of clarifying that, in accordance with Article 15.3 of the DSU , the “Interim Review” section is part the Panel’s “findings”.(1286) For example, in the introduction to the Interim Review section of its Reports, the Panel in US/Canada — Continued Suspension noted that:

“Pursuant to Article 15.3 of the DSU , the findings of the final panel report shall include a discussion of the arguments made by the parties at the interim review stage. This section of the Panel report provides such a discussion. As is clear from Article 15.3, this Section is part of the Panel’s findings.”(1287)

4. Other issues

(a) Interim reports in cases involving multiple complainants / reports

809.     In US — Offset Act (Byrd Amendment), a case involving multiple complaining parties, the Panel declined a US request to issue a separate final report in the dispute brought by Mexico. The Panel rejected this request on the grounds that it was not timely. In the context of discussing this issue, Panel noted that:

“Upon considering the US request, we formed the view that the preparation of a separate report on the dispute brought by Mexico would delay issuance of the Panel’s interim report. Although the United States only requested a separate final report, we are not prepared to issue a separate final report without also issuing a separate interim report. This is because we are not entitled to issue a final report on the dispute brought by Mexico without first having issued an interim report on that dispute. Otherwise Mexico would be denied its right to request a review of precise aspects of its interim report (DSU Article 15.2).”(1288)

810.     On appeal, the Appellate Body rejected the United States’ claim that the Panel acted inconsistently with Article 9.2 of the DSU by not issuing a separate panel report in the dispute brought by Mexico. However, the Appellate Body noted that:

“We express no view on the question whether the Panel was correct in concluding, in paragraph 7.5 of the Panel Report, that it was “not entitled to issue a final report on the dispute brought by Mexico without first having issued an interim report on that dispute”. In this respect, we note moreover that the United States has not requested a finding with respect to whether the Panel erred in its interpretation of Article 15.2 of the DSU.”(1289)

811.     In US — St eel Safeguards, a case involving multiple complaining parties, the United States requested that the panel issue eight separate panel reports pursuant to Article 9.1 of the DSU . The United States made this request a few days before the scheduled issuance of the descriptive part of the report. The Panel indicated that, in the circumstances of that case, it would issue a single descriptive part:

“[A]s indicated in Article 15 of the DSU, a Panel Report shall contain a Descriptive Part which includes a description of the factual and legal allegations and arguments of the parties to the dispute. The Panel believes that the Descriptive Part of any panel report should include an objective reflection of the relevant panel process. Therefore, in light of (i) the circumstances of the single panel process followed for the disputes WT/DS248, WT/DS249, WT/DS251, WT/DS252, WT/DS253, WT/DS254, WT/DS258 and WT/DS259; (ii) the timing of the US request, that is, a few days before the issuance of the Descriptive Part; (iii) the fact that the Panel is examining a series of safeguard measures that are in place for only three years; (iv) the need to ensure due process, the Panel is of the view that a single Descriptive Part should, in any case, be issued by the Panel. Should the Panel reach the conclusion that multiple Panel Reports are to be issued, all such Panels Report will have the same Descriptive Part.

 

The parties will note when they receive the draft Descriptive Part of the Panel Report this week, that the Panel has tried to ensure that collective and individual complainant’s claims, allegations and arguments are properly reflected, together with the relevant United States’ defenses. As provided for in Article 15.1 of the DSU , all parties will be invited to comment and suggest changes to this draft Descriptive Part to ensure that it is an objective reflection of all the parties’ legal and factual allegations and arguments.”(1290)

(b)     Request for separate interim report on particular issue

812.     In US — Upland Cotton, the Panel rejected a US request for a separate interim report concerning Article 13 of the Agriculture Agreement:

Article 15.2 of the DSU only envisages one interim report in respect of the entire matter before a panel. It appears to us that this is because multiple interim report procedures would unduly delay the panel process without benefiting the quality of the final panel report. We therefore rejected this suggestion.”(1291)

(c) Confidentiality of the interim report

813.     A number of panels have expressed disappointment over apparent breaches, by disputing parties, of the confidentiality of the interim report.

814.     For example, in US — Underwear, the Panel “expressed its disappointment about the apparent breach of confidentiality and reiterated the utmost importance of maintaining confidentiality so as to preserve the credibility and integrity of the dispute settlement process, particularly at the interim review stage.”(1292)

815.     In US — Steel Safeguards, the Panel expressed its disappointment as follows:

“We would like to address the issue of confidentiality of the Interim Reports. When, on 26 March 2002, we transmitted our Interim Reports to the parties, we clearly indicated that such Reports were confidential. Indeed, pursuant to the DSU, all panel proceedings remain confidential until the Panel Report is circulated to WTO Members. We had also explicitly emphasized at all our meetings with the parties that the panel proceedings were confidential. This was accepted by the parties and reflected in the Panel’s working procedures and in all our relevant correspondence with the parties. Therefore, we are concerned to discover that parties have not respected this confidentiality obligation and have disclosed aspects of the Panel’s Interim Reports. We consider that this lack of respect of a specific requirement imposed by the DSU and the Panel’s working procedures is regrettable and should not remain unmentioned.”(1293)

816.     In EC — Approval and Marketing of Biotech Products, the Panel stated that:

“[E]ach Party formally stated that it had no involvement in the leaks of the confidential interim findings and conclusions. It is plain to see that these statements cannot easily be reconciled with the fact that these leaks did occur. However, as is apparent from the above summary of the Parties’ responses to the Panel’s letters, the Panel was not provided sufficient reliable information to determine the origin(s) of the leaks. The Panel subsequently sent a letter to the Parties to inform them that it intended to take appropriate action to try to avoid further leaks of the reports upon issuance of the final reports (see the Panel’s letter to the Parties contained in Annex K).

 

It should be noted, in addition, that the Institute for Agriculture and Trade Policy and Friends of the Earth submitted amicus curiae (friend-of-the-court) briefs, requesting the Panel to accept and consider their briefs. The Panel acknowledged receipt of these briefs, shared them with the Parties and Third Parties, and accepted them as such. In the light of this, it is surprising and disturbing that the same NGOs which claimed to act as amici, or friends, of the Panel when seeking to convince the Panel to accept their unsolicited briefs subsequently found it appropriate to disclose, on their own websites, interim findings and conclusions of the Panel which were clearly designated as confidential.”(1294)

(d) Additional set of comments in the light of a new Appellate Body Report

817.     In US — Zeroing (Japan), the Panel submitted its interim report to the parties on 8 March 2006, the requests for interim review were received on 22 March 2006, and the parties’ comments on one another’s interim review requests were received on 5 April 2006. On 20 April 2006, the Panel informed the parties that it had completed its review of the comments made during the interim review process, and was in a position to issue its final report to the parties. However, the Panel indicated that it was aware that the Appellate Body Report in US — Zeroing (EC) had been circulated on 18 April 2006, and recognized that those findings had a direct bearing on the contents of its interim report. After consulting with the parties, the Panel invited the parties to submit written comments on any relevant issues of law addressed in the Appellate Body Report, and decided to hold an additional meeting with the parties.

(e) Translation issues

818.     In EC and certain member States — Large Civil Aircraft, the Panel denied a request by the European Communities to translate the entire interim report into French and Spanish:

“Whatever may be the extent of the right of a WTO Member to participate in dispute settlement in its preferred WTO working language, in our view, this is not a right that can be exercised in this dispute at this late stage of the proceedings. As noted above, the European Communities has made all submissions and representations throughout this proceeding, both during the Annex V process, and before this Panel. All such submissions and representations have been in English — there have been no requests for translation, and there were no requests for interpretation at any of the Panel’s meetings with the parties and third parties. The Panel has communicated with the parties and third parties exclusively in English. To provide the interim report in all three WTO working languages would significantly delay these proceedings, which, due to the number and complexity of the claims, and the volume of materials submitted, have already gone on for much longer than is the norm in WTO dispute settlement. We consider this situation to be analogous to that addressed in United States — Continued Dumping and Subsidy Offset Act of 2000,(1296) where the Appellate Body found that the right to issuance of separate panel reports, which is explicitly provided for in Article 9.2 of the DSU , was not unqualified, and concluded that the Panel in that case did not act inconsistently with Article 9.2 in denying a request for separate reports that was not made in a timely manner.(1297) Similarly, we consider that the request made by the European Communities in this case is not timely. In addition, we note that the request made by the European Communities in this case does not concern a right explicitly provided for in the DSU or any other provision of the WTO Agreements, and is in any event conditional on whether we address recommendations to the member States involved in this dispute, a decision that will be known only when we have completed our decision-making process. Moreover, the Members whose right to defend their interests would assertedly be served by receiving our interim report in translation have not previously participated directly in this dispute, and even now have not made any requests directly to the Panel. In light of the foregoing, we therefore deny the European Communities’ conditional request for translated versions of the interim report.”(1298)

819.     The Panel in EC and certain member States — Large Civil Aircraft also rejected an EC request to translate certain quotations appearing in the interim report, taken from Spanish or French language exhibits, into English:

“The Interim Report quotes in the original Spanish and French language the text of exhibits that were submitted by the parties only in those languages, which are, we recall, working languages of the WTO. In Mexico — Telecoms, the English text in the body of the report was quoted from a WTO document, the English version of Mexico’s schedule, while the footnote quoted from another WTO document, the authentic Spanish version of that schedule submitted by Mexico-that is to say, both versions already existed. In this case, we considered exhibits submitted by both parties in original French and Spanish versions in our deliberations, without translation into English. Thus, references to text in Spanish and French accurately reflect our deliberations, and form part of our findings. Therefore, we have determined not to translate into English those sections of the Interim Report that quote text in Spanish or French prior to issuance of the final report to the parties. However, we do note that those sections will be translated prior to circulation of the final report to the Members and the public, such that the Spanish version of the final report will be entirely in Spanish, the French version of the final report will be entirely in French, and the English version of the final report will be entirely in English.”(1299)

 

XVI. Article 16    back to top

A. Text of Article l6

Article 16: Adoption of Panel Reports

1.     In order to provide sufficient time for the Members to consider panel reports, the reports shall not be considered for adoption by the DSB until 20 days after the date they have been circulated to the Members.

 

2.     Members having objections to a panel report shall give written reasons to explain their objections for circulation at least 10 days prior to the DSB meeting at which the panel report will be considered.

 

3.     The parties to a dispute shall have the right to participate fully in the consideration of the panel report by the DSB, and their views shall be fully recorded.

 

4.     Within 60 days after the date of circulation of a panel report to the Members, the report shall be adopted at a DSB meeting(7) unless a party to the dispute formally notifies the DSB of its decision to appeal or the DSB decides by consensus not to adopt the report. If a party has notified its decision to appeal, the report by the panel shall not be considered for adoption by the DSB until after completion of the appeal. This adoption procedure is without prejudice to the right of Members to express their views on a panel report.

 

(footnote original) 7 If a meeting of the DSB is not scheduled within this period at a time that enables the requirements of paragraphs 1 and 4 of Article 16 to be met, a meeting of the DSB shall be held for this purpose.

 
B. Interpretation and Application of Article l6

1. Legal effect of adopted panel reports

(a) In general

820.     In Japan — Alcoholic Beverages II, the Appellate Body reversed the Panel’s statement that adopted panel reports constituted subsequent practice in a specific case under Article 31.3(b) of the Vienna Convention. The Appellate Body held that:

Article XVI :1 of the WTO Agreement and paragraph 1(b) (iv) of the language of Annex 1A incorporating the GATT 1994 into the WTO Agreement bring the legal history and experience under the GATT 1947 into the new realm of the WTO in a way that ensures continuity and consistency in a smooth transition from the GATT 1947 system. This affirms the importance to the Members of the WTO of the experience acquired by the CONTRACTING PARTIES to the GATT 1947 — and acknowledges the continuing relevance of that experience to the new trading system served by the WTO. Adopted panel reports are an important part of the GATT acquis. They are often considered by subsequent panels. They create legitimate expectations among WTO Members, and, therefore, should be taken into account where they are relevant to any dispute. However, they are not binding, except with respect to resolving the particular dispute between the parties to that dispute. In short, their character and their legal status have not been changed by the coming into force of the WTO Agreement.1300

821.     In US — Anti-Dumping and Countervailing Duties (China), the Appellate Body clarified that panel reports are also not part of the “context” within the meaning of Article 31 of the Vienna Convention:

“We note that the definition of “context” in Article 31(2) of the Vienna Convention makes no mention of jurisprudence. Panel reports in previous disputes do not form part of the context of a term or provision in the sense of Article 31(2) of the Vienna Convention. Rather, the legal interpretation embodied in adopted panel and Appellate Body reports become part and parcel of the WTO acquis and have to be taken into account as such.”1301

(b) Panel findings not appealed

822.     In Canada — Periodicals, the Appellate Body noted that “a Panel finding that has not been specifically appealed in a particular case should not be considered to have been endorsed by the Appellate Body. Such a finding may be examined by the Appellate Body when the issue is raised properly in a subsequent appeal.”1302

(c) Panel reports regarding the same subject-matter in parallel dispute by other complainant(s)

823.     In India — Patents (EC), the Panel addressed the question of whether, and if so, to what extent it was bound by the reports by the Panel and the Appellate Body regarding the same subject-matter in India — Patents (US). The Panel concluded that:

“ [P]anels are not bound by previous decisions of panels or the Appellate Body even if the subject-matter is the same. In examining dispute WT/DS79 we are not legally bound by the conclusions of the Panel in dispute WT/DS50 as modified by the Appellate Body report. However, in the course of “normal dispute settlement procedures” required under Article 10.4 of the DSU, we will take into account the conclusions and reasoning in the Panel and Appellate Body reports in WT/DS50. Moreover, in our examination, we believe that we should give significant weight to both Article 3.2 of the DSU, which stresses the role of the WTO dispute settlement system in providing security and predictability to the multilateral trading system, and to the need to avoid inconsistent rulings (which concern has been referred to by both parties). In ourview, these considerations form the basis of the requirement of the referral to the “original panel” wherever possible under Article 10.4 of the DSU.”1303

(d) Substantive findings in panel reports reversed on procedural/jurisdictional grounds

824.     In Guatemala — Cement I, the Appellate Body found that the dispute was not properly before the Panel and therefore reversed that Panel on jurisdictional grounds. The Panel in Guatemala — Cement II stated that:

“We note that the Appellate Body ruled in Guatemala — Cement I that “the dispute was not properly before the Panel”, and that it therefore could not consider any of the substantive issues raised in the alternative by Guatemala. In other words, the Appellate Body found that the panel in Guatemala — Cement I should never have reached the substance of the dispute. We therefore consider that the substantive findings of the panel in Guatemala — Cement I are in this respect similar to those of unadopted panel reports, i.e., while they have no legal status, they may nevertheless provide useful guidance to the extent that we consider them relevant and persuasive. We recall in any event Mexico’s assertion that its arguments in this dispute are put before us independently of their having been supported, or not, by a previous panel.”1304

(e) Failure to distinguish findings in prior panel reports

825.     In EC — Salmon (Norway), Norway claimed that Articles 2.1 and 2.6 of the Anti-Dumping Agreement must be interpreted to require an investigating authority to define the product under consideration to include only products that are all “like”. In the course of rejecting Norway’s claim, the Panel stated that:

“[T]his very issue, and many of the arguments raised by Norway, have been previously addressed by other Panels. Norway has not attempted to distinguish the views of those Panels from the circumstances of this case. While we are not bound by the decisions of other Panels, we nonetheless consider it appropriate to review those decisions to assess the similarities and differences in the underlying facts, and determine whether the analysis of those Panels is helpful in our assessment of the arguments in this case.”1305

(f) As between the parties: final resolution of the dispute

826.     In US — Shrimp (Article 21.5 — Malaysia), the Appellate Body clarified that Appellate Body Reports that are adopted by the DSB must be treated by the parties to a particular dispute “as a final resolution to that dispute”.1306 In EC — Bed Linen (Article 21.5 — India), the Appellate Body clarified that the same holds true with respect to adopted panel reports:

“The issue raised in this appeal is similar to the issue we resolved in US — Shrimp (Article 21.5 — Malaysia). In this appeal, however, the original panel’s finding on India’s claim under Article 3.5 relating to “other factors” was not appealed in the original dispute. Accordingly, the finding of the original panel relating to that claim was adopted by the DSB as part of a panel report, and, therefore, Article 17.14, which deals with the adoption of Appellate Body Reports, does not dispose of the issue before us.

 

All the same, in our view, an unappealed finding included in a panel report that is adopted by the DSB must be treated as a final resolution to a dispute between the parties in respect of the particular claim and the specific component of a measure that is the subject of that claim. This conclusion is supported by Articles 16.4 and 19.1, paragraphs 1 and 3 of Article 21, and Article 22.1 of the DSU. Where a panel concludes that a measure is inconsistent with a covered agreement, that panel shall recommend, according to Article 19.1, that the Member concerned bring that measure into conformity with that agreement. A panel report, including the recommendations contained therein, shall be adopted by the DSB within the time period specified in Article 16.4 — unless appealed. Members are to comply with recommendations and rulings adopted by the DSB promptly, or within a reasonable period of time, in accordance with paragraphs 1 and 3 of Article 21 of the DSU. A Member that does not comply with the recommendations and rulings adopted by the DSB within these time periods must face the consequences set out in Article 22.1, relating to compensation and suspension of concessions. Thus, a reading of Article 16.4 and 19.1, paragraphs 1 and 3 of Article 21, and Article 22.1 of the DSU, taken together, makes it abundantly clear that a panel finding which is not appealed, and which is included in a panel report adopted by the DSB, must be accepted by the parties as a final resolution to the dispute between them, in the same way and with the same finality as a finding included in an Appellate Body Report adopted by the DSB — with respect to the particular claim and the specific component of the measure that is the subject of the claim. Indeed, the European Communities and India agreed at the oral hearing that both panel reports and Appellate Body Reports would have the same effect, in this respect, once adopted by the DSB.

 

On this point, we recall that we resolved the question of the effect of findings adopted by the DSB as part of a panel report in the same vein in Mexico — Corn Syrup (Article 21.5 — US). In that implementation dispute, we relied on Article 3.2 of the DSU, which emphasizes the need for security and predictability in the trading system, and on Article 3.3 of the DSU, which stresses the necessity for the prompt settlement of disputes. There, we treated certain findings of the original panel that had not been appealed in the original proceedings, and that had been adopted by the DSB, as a final resolution to the dispute between the parties in respect of the particular claim and the specific component of the measure that was the subject of the claim. We observed there that “Mexico seems to seek to have us revisit the original panel report”,1307 and added that:

 

… the original panel report, regarding the initial measure (SECOFI’s original determination), has been adopted and that these Article 21.5 proceedings concern a subsequent measure (SECOFI’s redetermination). We also note that Mexico did not appeal the original panel’s report, and that Articles 3.2 and 3.3 of the DSU reflect the importance to the multilateral trading system of security, predictability and the prompt settlement of disputes. We see no basis for us to examine the original panel’s treatment of the alleged restraint agreement.1308 (original italics)

 

We, therefore, agree with the Panel in this dispute that:

 

… the same principle [as that expressed in Article 17.14] applies to those aspects of the Panel’s report that are not appealed and are thus not addressed by the Appellate Body. Thus, the portions of the original Report of the Panel that are not appealed, together with the Appellate Body report resolving the issues appealed, must, in our view, be considered as the final resolution of the dispute, and must be treated as such by the parties, and by us, in this proceeding.1309 (footnote omitted)”1310

2. Article 16.4: 60-day deadline for adopting / appealing panel report

(a) General

827.     In several cases, the DSB has agreed, in case of a joint request from the parties to a dispute, to extend the 60-day deadline set forth in Article 16.4.

828.     In July 1999, the European Communities proposed, and the DSB agreed by consensus, to extend the 60-day deadline in three disputes. According to the minutes of the DSB meeting held on 26 July 1999:

“The representative of the European Communities drew attention to the fact that the time-periods under Article 16.4 of the DSU in respect of three Reports of Panels in which the EC was a complainant would expire in August. These Panel Reports were the following: (i) “Chile —Taxes on Alcoholic Beverages” ( WT/DS87/R WT/ DS110/R); (ii) “Argentina — Safeguard Measures on Imports of Footwear” ( WT/DS121/R); and (iii) “Korea —Definitive Safeguard Measure on Certain Dairy Products” (WT/DS98/R). In order to comply with the requirements of Article 16.4, the EC would have to request three special DSB meetings during the month of August. To avoid problems which such meetings could create for the WTO’s work, the EC would be prepared to accept the postponement of consideration of these Panel Reports and the extension of the corresponding time-periods for appeal to a future meeting of the DSB at the beginning of September. He underlined that such extension would be granted by the DSB on the understanding that the rights of the parties to the disputes with respect to adoption or appeal of these Panel Reports were preserved, as if such adoption had been requested within the 60-day period specified in Article 16.4 of the DSU. In order to do so it would be necessary for the DSB to agree by consensus to extend the time-periods in question.”1311

829.     No Member objected. The DSB took note of the statements and agreed to the European Communities’ proposal to postpone the consideration of the three panel reports.1312

830.     In EC — Export Subsidies on Sugar, the DSB agreed to a joint request by the parties to extend the 60-day deadline under Article 16.4.1313 The parties’ request to the DSB included the following procedural agreement reached by the parties concerned:

“1.     In order to take account of the end of year period, and to avoid inconveniencing the appeal procedure, the above parties agree that the 60 day time-period in Article 16.4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) as applicable to the above disputes will be extended to 31 January 2005, and that the agreement of the Dispute Settlement Body (DSB) to this extension will be sought at a meeting of the DSB to be requested for 13 December 2004.

 

2.     This extension is agreed on the understanding that the rights of the parties to the disputes with respect to adoption or appeal of the panel reports are preserved, as if such adoption or appeal had been requested within the 60 days specified in Article 16.4 of the DSU.

 

3.     The European Communities (EC) will file its notice of appeal of the panel reports in these disputes on 13 January 2005, provided the DSB agreement set out in paragraph 1 is obtained.

 

4.     If for any reason the EC does not file its notice of appeal on 13 January 2005, the complainants may, individually or jointly, request a DSB meeting for adoption of the panel reports within the extended 60 day period.

 

5.     The parties also agree that the complainants will request a second meeting of the DSB for 14 December 2004 for the adoption of the panel reports within the original 60 day period should this prove necessary, but that this request will be withdrawn should the DSB agreement set out in paragraph 1 above be obtained.”1314

831.     Brazil — Retreaded Tyres is another example of another case in which the DSB agreed to a joint request by the parties to extend the time period for adoption of the Panel Report.1315 In that case, the request to the DSB by Brazil and the European Communities included the following procedural agreement:

“1.     In order to take into account certain scheduling difficulties concerning the appeal procedure, the above parties agree that the 60 day time-period in Article 16.4 of Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) as applicable to the above dispute will be extended to 20 September 2007, and that a decision of the Dispute Settlement Body (DSB) on this extension will be sought at a meeting of the DSB to be requested for 10 August 2007.

 

2.     This extension is agreed on the understanding that the rights of the parties to the dispute with respect to adoption or appeal of the panel report are preserved, as if such adoption or appeal had been requested within 60 days specified in Article 16.4 of the DSU.

 

3.     The European Communities (EC) will file its notice of appeal of the panel report in this dispute on 3 September 2007, provided the DSB decision set out in paragraph 1 is obtained.

 

4.     If for any reason the EC does not file its notice of appeal on 3 September 2007, the parties may request a DSB meeting for adoption of the panel report within the extended period.”1316

832.     In several cases, the 60-day deadline has been extended on account of serious constraints faced by the Appellate Body at times of multiple on-going appeals. For example, in Thailand — Cigarettes (Philippines), the DSB agreed to the parties’ joint request to extend the 60-day deadline. The parties made this request “taking into account the current workload of the Appellate Body”.1317

(b) Circumvention of 60-day deadline

833.     In EC — Sardines (2002), the European Communities withdrew its original Notice of Appeal, and re-filed a new one on the same day. The European Communities withdrew its Notice of Appeal on the condition that its amended, re-filed Notice of Appeal be accepted. The appellee (Peru) objected to the appellant (European Communities) “conditionally” with drawing its Notice of Appeal and filing a new one. In that case, the Appellate Body considered that the manner in which the European Communities had proceeded was reasonable and permissible. However, the Appellate Body stated that:

“[W]e believe there are circumstances that, although not constituting ‘abusive practices’. would be in violation of the DSU, and would, thus, compel us to disallow the conditional withdrawal of a notice of appeal as well as the filing of a replacement notice. For example, if the conditional withdrawal or the filing of a new notice were to take place after the 60-day deadline in Article 16.4 of the DSU for adoption of panel reports, this would effectively circumvent the requirement to file appeals within 60 days of circulation of panel reports. In such circumstances, we would reject the conditional withdrawal and the new notice of appeal.”1318

(c) Table showing length of time taken in WTO proceedings to date

834.     The following table provides information on the length of time taken in WTO proceedings to date from: (i) the date of circulation of a panel report to the date of its appeal (Article 16.4 of the DSU); and (ii) the date of circulation of a panel report to the date of its adoption without an appeal (Article 16.4 of the DSU).1319 It is updated to cover those disputes in which a panel report was adopted (along or together with an Appellate Body report) by 30 September 2011.

Prescribed Time-Period in Article 16.4 60 days
Average Days from Circulation of Panel Report to Appeal 46 days
Longest to Date 162 days
Shortest to Date 0 days (i.e. same day)
Average days from Circulation of Panel Report to Adoption (without appeal) 41 days
Average to Date 44 days
Longest to Date 84 days
Shortest to Date 21 days
WT/DS No. Dispute Short Title Days from circulation to appeal Days from circulation to adoption
WT/DS2, WT/DS4 US — Gasoline 23 days  
WT/DS8, WT/DS10, WT/DS11 Japan — Alcoholic Beverages II 28 days  
WT/DS18 Australia — Salmon 40 days  
WT/DS22 Brazil — Desiccated Coconut 60 days  
WT/DS24 US — Underwear 3 days  
WT/DS26 EC — Hormones 37 days  
WT/DS27 EC — Bananas III 20 days  
WT/DS31 Canada — Periodicals 46 days  
WT/DS33 US — Wool Shirts and Blouses 49 days  
WT/DS34 Turkey — Textiles 56 days  
WT/DS44 Japan — Film   22 days
WT/DS46 Brazil — Aircraft 19 days  
WT/DS48 EC — Hormones 37 days  
WT/DS50 India — Patents (US) 40 days  
WT/DS54, WT/DS55, WT/DS59, WT/DS64 Indonesia — Autos   21 days
WT/DS56 Argentina — Textiles and Apparel   57 days
WT/DS58 US — Shrimp 59 days  
WT/DS60 Guatemala — Cement I 46 days  
WT/DS62, WT/DS67, WT/DS68 EC — Computer Equipment 47 days  
WT/DS69 EC — Poultry 48 days  
WT/DS70 Canada — Aircraft 19 days  
WT/DS75, WT/DS84 Korea — Alcoholic Beverages 33 days  
WT/DS76 Japan — Agricultural Products II 28 days  
WT/DS79 India — Patents (EC)   29 days
WT/DS87, WT/DS110 Chile — Alcoholic Beverages 90 days  
WT/DS90 India — Quantitative Restrictions 49 days  
WT/DS98 Korea — Dairy 86 days  
WT/DS99 US — DRAMS   49 days
WT/DS103, WT/DS113 Canada — Dairy 59 days  
WT/DS108 US — FSC 49 days  
WT/DS114 Canada — Pharmaceutical Patents 21 days  
WT/DS121 Argentina — Footwear (EC) 82 days  
WT/DS122 Thailand — H-Beams 25 days  
WT/DS126 Australia — Automotive Leather II 22 days  
WT/DS132 Mexico — Corn Syrup 27 days  
WT/DS135 EC — Asbestos 35 days  
WT/DS136 US — 1916 Act 59 days  
WT/DS138 US — Lead and Bismuth II 35 days  
WT/DS139, WT/DS142 Canada — Autos 20 days  
WT/DS141 EC — Bed Linen 32 days  
WT/DS146, WT/DS175 India — Autos 41 days  
WT/DS152 US — Section 301 Trade Act   36 days
WT/DS155 Argentina — Hides and Leather   59 days
WT/DS156 Guatemala — Cement II   24 days
WT/DS160 US — Section 110(5) Copyright Act   42 days
WT/DS161, WT/DS169 Korea — Various Measures on Beef 42 days  
WT/DS162 US — Anti-Dumping Act of 1916 0  
WT/DS163 Korea — Procurement   49 days
WT/DS165 US — Certain EC Products 57 days  
WT/DS166 US — Wheat Gluten 57 days  
WT/DS170 Canada — Patent Term 45 days  
WT/DS174, WT/DS290 EC — Trademarks and Geographical Indications   36 days
WT/DS176 US — Section 211 Appropriations Act 59 days  
WT/DS177, WT/DS178 US — Lamb 41 days  
WT/DS179 US — Stainless Steel   41 days
WT/DS184 US — Hot-Rolled Steel 56 days  
WT/DS189 Argentina — Ceramic Tiles   38 days
WT/DS192 US — Cotton Yarn 39 days  
WT/DS194 US — Export Restraints   55 days
WT/DS202 US — Line Pipe 21 days  
WT/DS204 Mexico — Telecoms   60 days
WT/DS206 US — Steel Plate   31 days
WT/DS207 Chile — Price Band System 52 days  
WT/DS211 Egypt — Definitive Anti-Dumping Measures on Rebar from Turkey   54 days
WT/DS212 US — Countervailing Measures on Certain EC Products   40 days
WT/DS213 US — Carbon Steel 58 days  
WT/DS217, WT/DS234 US — Offset Act (Byrd Amendment) 32 days  
WT/DS219 EC — Tube or Pipe Fittings 47 days  
WT/DS221 US — Section 129(c)(1) URAA 46 days
WT/DS222 Canada — Aircraft Credits and Guarantees   22 days
WT/DS231 EC — Sardines 30 days  
WT/DS236 US — Softwood Lumber III   35 days
WT/DS238 Argentina — Preserved Peaches   60 days
WT/DS241 Argentina — Poultry Anti-Dumping Duties   27 days
WT/DS243 US — Textiles Rules of Origin   31 days
WT/DS244 US — Corrosion-Resistant Steel Sunset Review 32 days  
WT/DS245 Japan — Apples 44 days  
WT/DS246 EC — Tariff Preferences 38 days  
WT/DS248, WT/DS249, WT/DS251, WT/DS252, WT/DS253, WT/DS254, WT/DS258, WT/DS259 US — Steel Safeguards 31 days  
WT/DS257 US — Softwood Lumber IV 53 days  
WT/DS264 US — Softwood Lumber V 30 days  
WT/DS265, WT/DS266, WT/DS283 EC — Export Subsidies on Sugar 90 days  
WT/DS267 US — Upland Cotton 40 days  
WT/DS268 US — Oil Country Tubular Goods Sunset Review 46 days  
WT/DS269, WT/DS286 EC — Chicken Cuts 14 days  
WT/DS273 Korea — Commercial Vessels   35 days
WT/DS276 Canada — Wheat Exports and Grain Imports 56 days  
WT/DS277 US — Softwood Lumber VI 35 days  
WT/DS282 US — Anti-Dumping Measures on Oil Country Tubular Goods 45 days  
WT/DS285 US — Gambling 58 days  
WT/DS291, WT/DS292, WT/DS293 EC — Approval and Marketing of Biotech Products   53 days
WT/DS294 US — Zeroing (EC) 78 days  
WT/DS295 Mexico — Anti-Dumping Measures on Rice 44 days  
WT/DS296 US — Countervailing Duty Investigation on DRAMs 36 days  
WT/DS299 EC — Countervailing Measures on DRAM Chips   47 days
WT/DS301 EC — Commercial Vessels   59 days
WT/DS302 Dominican Republic — Import and Sale of Cigarettes 59 days  
WT/DS308 Mexico — Taxes on Soft Drinks 60 days  
WT/DS312 Korea — Certain Paper   31 days
WT/DS315 EC — Selected Customs Matters 59 days  
WT/DS316 EC and certain member States — Large Civil Aircraft 21 days  
WT/DS320, WT/DS321 US/Canada — Continued Suspension 59 days  
WT/DS322 US — Zeroing (Japan) 21 days  
WT/DS331 Mexico — Steel Pipes and Tubes   46 days
WT/DS332 Brazil — Retreaded Tyres 83 days  
WT/DS334 Turkey — Rice   31 days
WT/DS335 US — Shrimp (Ecuador)   21 days
WT/DS336 Japan — DRAMS (Korea) 49 days  
WT/DS337 EC — Salmon (Norway)   60 days
WT/DS339, WT/DS340, WT/DS342 China — Auto Parts 59 days  
WT/DS341 Mexico — Olive Oil   47 days
WT/DS343 US — Shrimp (Thailand) 53 days  
WT/DS344 US — Stainless Steel (Mexico) 42 days  
WT/DS345 US — Customs Bond Directive 48 days  
WT/DS350 US — Continued Zeroing 36 days  
WT/DS360 India — Additional Import Duties 53 days  
WT/DS362 China — Intellectual Property Rights   53 days
WT/DS363 China — Publications and Audiovisual Products 41 days  
WT/DS366 Colombia — Ports of Entry   23 days
WT/DS367 Australia — Apples 22 days  
WT/DS371 Thailand — Cigarettes (Philippines) 99 days  
WT/DS375, WT/DS376, WT/DS377 EC and its member States — IT Products   36 days
WT/DS379 US — Anti-Dumping and Countervailing Duties (China) 40 days  
WT/DS382 US — Orange Juice (Brazil)   84 days
WT/DS383 US — Anti-Dumping Measures on PET Bags   27 days
WT/DS392 US — Poultry (China)   26 days
WT/DS397 EC — Fasteners (China) 112 days  
WT/DS399 US — Tyres (China) 162 days  
WT/DS402 US — Zeroing (Korea)   37 days

 

Footnotes:

1088. Appellate Body Report, China — Publications and Audiovisual Products, para.215. back to text
1089. Appellate Body Report, EC — Export Subsidies on Sugar, para. 312. back to text
1090. Panel Report, EC and certain member States — Large Civil Aircraft, footnote 1914. back to text
1091. Panel Report, US — Large Civil Aircraft (2nd complaint), footnote 2933. back to text
1092. Appellate Body Report, EC — Hormones, footnote 138. back to text
1093. Appellate Body Report, EC — Hormones, para. 154. back to text
1094. Appellate Body Report, India — Patents (US), para. 92. back to text
1095. Panel Report, EC — Tariff Preferences, para. 7.8. back to text
1096. (footnote original) The Appellate Body has held that “the protection of due process is an essential feature of a rules-based system of adjudication, such as that established under the DSU”, and that “due process is fundamental to ensuring a fair and orderly conduct of dispute settlement proceedings”. (Appellate Body Reports, Canada — Continued Suspension / US — Continued Suspension, para. 433; and Appellate Body Report, Thailand — H-Beams, para. 88, respectively. See also Appellate Body Report, Chile — Price Band System, para. 176) back to text
1097. (footnote original) See Appellate Body Report, Mexico — Corn Syrup (Article 21.5 — US) , para. 107. See also Appellate Body Report, India — Patents (US), para. 94; and Appellate Body Report, Chile — Price Band System, para. 176. back to text
1098. (footnote original) Appellate Body Report, Chile — Price Band System, para. 176. back to text
1099. Appellate Body Report, Thailand — Cigarettes (Philippines), para. 147. back to text
1100. Appellate Body Report, EC — Bananas III, para. 144. back to text
1101. Appellate Body Report, India — Patents (US), para. 95. back to text
1102. Appellate Body Report, Argentina — Textiles and Apparel, fn. 68. back to text
1103. (footnote original) We observe that, in India — Patents (US), the Appellate Body held that, while “panels enjoy some discretion in establishing their own working procedures, this discretion does not extend to modifying the substantive provisions of the DSU”. (Appellate Body Report, India — Patents (US), para. 92. See also Appellate Body Report, US — FSC (Article 21.5 — EC), para. 241) back to text
1104. (footnote original) See Appellate Body Reports, Canada — Continued Suspension I US — Continued Suspension, para. 434; Appellate Body Report, Argentina — Textiles and Apparel, footnote 68 to para. 79; Appellate Body Report, EC — Bananas III, para. 144; and Appellate Body Report, India — Patents (US), para. 95. back to text
1105. (footnote original) Appellate Body Report, Argentina — Textiles and Apparel, para. 79. See also Appellate Body Report, US — FSC (Article 21.5 — EC), para. 240. back to text
1106. (footnote original) Appellate Body Report, India — Patents (US), para. 95. back to text
1107. (footnote original) Appellate Body Report, US — Gambling, para. 271. (original emphasis) back to text
1108. (footnote original) Appellate Body Report, EC — Hormones, footnote 138 to para. 152. back to text
1109. Appellate Body Report, Thailand — Cigarettes (Philippines), paras. 148-149. back to text
1110. Appellate Body Report, EC — Computer Equipment, para. 70. back to text
1111. Appellate Body Report, India — Patents (US), para. 94. back to text
1112. Appellate Body Report, Chile — Price Band System, para. 164. back to text
1113. Appellate Body Report, Chile — Price Band System, para. 144. back to text
1114. Appellate Body Report, Australia — Salmon, para. 272. back to text
1115. Appellate Body Report, Australia — Salmon, para. 278. back to text
1116. See para. 414 of this Chapter. back to text
1117. (footnote original) Chile’s appellant’s submission, para. 23. back to text
1118. (footnote original) Appellate Body Report […] para. 94. back to text
1119. (footnote original) Appellate Body Report […] para. 278. back to text
1120. Appellate Body Report, Chile — Price Band System, paras. 174-176. back to text
1121. (footnote original) Appellate Body Report, Australia — Salmon, para. 278. See also para. 270. back to text
1122. (footnote original) Appellate Body Report, US — Carbon Steel, para. 123. See also Appellate Body Report, US — Gambling, para. 269; Appellate Body Report, US — FSC, para. 166; and Appellate Body Report, Mexico — Corn Syrup (Article 21.5 — US), para. 50. back to text
1123. Appellate Body Report, Thailand — Cigarettes (Philippines), paras. 150 and 155. back to text
1124. Panel Report, US — Tuna II (Mexico), para. 7.9. back to text
1125. Panel Report, US — Tuna II (Mexico), footnote 559. back to text
1126. Appellate Body Report, India — Patents (US), para. 92. back to text
1127. Appellate Body Report. EC — Hormones, para. 154. back to text
1128. Appellate Body Report, US — Shrimp, paras. 105-106. back to text
1129. Panel Reports, US/Canada — Continued Suspension, para. 7.44. back to text
1130. Panel Report, Canada — Aircraft, para. 9.56. back to text
1131. Panel Reports, US/Canada — Continued Suspension, para. 7.45. back to text
1132. Panel Reports, US/Canada — Continued Suspension, para. 7.51. back to text
1133. Panel Report, US — Upland Cotton, para. 7.5. back to text
1134. See paras. 668-678 of this Chapter on due process issues. back to text
1135. Appellate Body Report, Australia — Salmon, para. 272. back to text
1136. Panel Report, US — Cotton Yarn, para. 7.10. See also Panel Report, EC — Tube or Pipe Fittings, para. 7.53. back to text
1137. Appellate Body Report, US — Steel Safeguards, para. 5.3. back to text
1138. Appellate Body Report, US — Shrimp, para. 101. See also Appellate Body Report, US — Lead and Bismuth II, paras. 40-41. back to text
1139. paragraph 11 of the Panels Working Procedures read as follows: Parties shall submit all factual evidence to the Panel no later than during the first substantive meeting, except with respect to evidence necessary for purposes of rebuttal submissions, or answers to questions or provided that good cause is shown. In all cases, the other party(ies) shall be accorded a period of time for comment, as appropriate. Panel Reports on US — Steel Safeguards, para. 6.1. back to text
1140. Appellate Body Report, Argentina — Textiles and Apparel, para. 79. back to text
1141. Panel Report, US — FSC (Article 21.5 — EC), para. 6.6. back to text
1142. Appellate Body Report, Korea — Alcoholic Beverages, paras. 166 and 168. back to text
1143. Appellate Body on Chile — Alcoholic Beverages, para. 78. back to text
1144. Appellate Body on Argentina — Footwear (EC), para. 149. back to text
1145. (footnote original) The New Shorter Oxford English Dictionary, Lesley Brown (ed.) (Clarendon Press, 1993), Vol. I, p. 188. back to text
1146. (footnote original) Ibid., Vol. II, p. 2482. back to text
1147. (footnote original) We have also examined these principles in other contexts. See, for example, Appellate Body Report, United States — Hot-Rolled Steel, supra, footnote 59, paras. 101 and 193; Appellate Body Report, United States — Import Prohibition of Certain Shrimp and Shrimp Products,WT/DS58/AB/R, adopted 6 November 1998, para. 158; and Appellate Body Report, United States — FSC, supra, footnote 24, para. 166. back to text
1148. (footnote original) Appellate Body Report, Korea — Alcoholic Beverages, WT/DS75/AB/R, WT/DS83/AB/R, adopted 17 February 1999, para. 168. [ In this case, Korea had claimed in its appeal that the Panel had failed to comply with its obligations under Article 12.7 of the DSU to state the basic rationale behind its findings and recommendations. The Appellate Body did not define the term “basic rationale”, but noted that the Panel had “set out a detailed and thorough rationale for its findings and recommendations in this case”:
          “In this case, we do not consider it either necessary, or desirable, to attempt to define the scope of the obligation provided for in Article 12.7 of the DSU. It suffices to state that the Panel has set out a detailed and thorough rationale for its findings and recommendations in this case. The Panel went to some length to take account of competing considerations and to explain why, nonetheless, it made the findings and recommendations it did. The rationale set out by the Panel may not be one that Korea agrees with, but it is certainly more than adequate, on any view, to satisfy the requirements of Article 12.7 of the DSU. We, therefore, conclude that the Panel did not fail to set out the basic rationale for its findings and recommendations as required by Article 12.7 of the DSU.”]  back to text
1149. (footnote original) Appellate Body Report, Chile — Taxes on Alcoholic Beverages, WT/DS87/AB/R, WT/DS110/AB/R, adopted 12 January 2000, para. 78. back to text
1150. Appellate Body Report, Mexico — Corn Syrup (Article 21.5 — US), paras. 106-109. back to text
1151. Appellate Body on Mexico — Corn Syrup (Article 21.5 — US), paras. 124 and 126. back to text
1152. Appellate Body Report, US — Steel Safeguards, paras. 503-504. See also paras. 5.5-507. back to text
1153. Panel Report, US — Shrimp (Ecuador), para. 7.1. back to text
1154. Panel Report, US — Zeroing (Korea), paras. 7.13-7.14. back to text
1155. Appellate Body Report, Japan — DRAMs (Korea), para. 279. back to text
1156. Panel Report, US — Section 301 Trade Act, para. 7.31 and footnote 646. back to text
1157. Appellate Body Report, EC — Bananas III (Article 21.5 — Ecuador II) I EC — Bananas III (Article 21.5 — US), para. 195. back to text
1158. This table covers only those disputes in which a panel report was adopted by 30 September 2011. It excludes cases in which a mutually agreed solution was reached prior to the circulation of the panel report. It does not cover Article 21.5 proceedings. back to text
1159. For the purposes of calculating this average, it has been assumed that a month was made of 30 days. back to text
1160. Panel Report, India — Quantitative Restrictions, para. 5.10. back to text
1161. Panel Report, Turkey — Rice, paras. 7.304-7.305. back to text
1162. Panel Report, Philippines — Distilled Spirits, para. 7.190-7.191. back to text
1163. Panel Report, India — Quantitative Restrictions, para. 5.157. back to text
1164. (footnote original) See, for example, EC — Bananas III, para. 142 (WT/DS27/AB/R). back to text
1165. Panel Report, US — Offset Act (Byrd Amendment), para. 7.87. back to text
1166. Panel Report, Mexico — Telecoms, para. 8.3. back to text
1167. Panel Report, Turkey — Rice, para. 7.304. back to text
1168. Appellate Body Report, US — Steel Safeguards, paras. 5.3. Paragraph 17(b) of the Panels Working Procedures read as follows:
     “The parties and the third parties shall provide their written submissions to the Dispute Settlement Registrar by 5:30 p.m. on the deadlines established by the Panel and by 5:00 p.m. if the deadline falls on a Friday. If, due to exceptional circumstances, it is not possible for submissions to be provided to the Registrar by the times stipulated, parties should agree otherwise with the Secretary to the Panel, … The parties and the third parties shall provide the Panel with 10 paper copies of their written submissions. All these copies must be filed with the Dispute Settlement Registrar, …” back to text
1169. Panel Report, EC — Bananas III, paras. 7.10-7.12. back to text
1170. Appellate Body Report, EC — Bananas III, para. 10. back to text
1171. Appellate Body Report, EC — Bananas III, para. 12. back to text
1172. (footnote original) The Panel on referring to Bananas III, referred to the Appellate and Panel Reports on EC — Regime for the Importation, Sale and Distribution of Bananas, WT/DS27, adopted on 25 September 1997. back to text
1173. Panel Report, Indonesia — Autos, para. 14.2. back to text
1174. Panel Report, Korea — Alcoholic Beverages, paras. 10.31-10.33. back to text
1175. This paragraph is quoted in paragraph 3.7 of the Panel Report in Brazil — Aircraft (Article 21.5 — Canada II). With respect to the discussion on confidentiality implications of disclosing submissions to non-government members of the parties’ delegations, see paras. 913-916. back to text
1176. (footnote original) Panel Report, Argentina — Textiles and Apparel, para. 6.55. back to text
1177. (footnote original) In that case, evidence had been submitted by the United States a few days before the second hearing of the panel. back to text
1178. (footnote original) Appellate Body Report, Argentina — Textiles and Apparel, paras. 80-81. back to text
1179. (footnote original) Exhibits BRA-76 and 77 are respectively dated 10 July 2001 and 19 October 2002. back to text
1180. Decision by the Arbitrator, Canada — Aircraft Credits and Guarantees(Article 22.6 — Canada), paras. 2.11-2.14 back to text
1181. Decision by the Arbitrator, Canada — Aircraft Credits and Guarantees {Article 22.6 — Canada), paras. 2.16-2.17. back to text
1182. Panel Report, Canada — Aircraft, para. 9.77. back to text
1183. Paragraph 16 of the Panel’s Working procedures provided:
      …“The parties shall provide the Panel with an executive summary of the claims and arguments contained in their written submissions and oral presentations. These executive summaries will be used by the Panel only for the purpose of assisting the Panel in drafting a concise arguments section of the Panel report so as to facilitate timely translation and circulation of the Panel report to the Members. They shall not serve in any way as a substitute for the submissions of the parties.”
      Panel Report, US — Line Pipe, back to text
1184. Panel Report, US — Line Pipe,  back to text
1185. Paragraph 16 of the Panel’s Working procedures provided:
       …“The parties shall provide the Panel with an executive summary of the claims and arguments contained in their written submissions and oral presentations. These executive summaries will be used by the Panel only for the purpose of assisting the Panel in drafting a concise arguments section of the Panel report so as to facilitate timely translation and circulation of the Panel report to the Members. They shall not serve in any way as a substitute for the submissions of the parties. The summaries of the first written submission and rebuttal written submission shall be limited to 10 pages and the summaries of the oral statements at the meeting will be limited to 5 pages. Summaries shall be submitted to the Secretariat within seven days of the original submission concerned.”
      Panel Report, EC — Tube or Pipe Fittings, para. 7.50. back to text
1186. (footnote original) Our Working Procedures state, in relevant part: “Members shall treat as confidential information submitted by another Member to the Panel which that Member has designated as confidential and shall not disclose such information to individuals not involved in the dispute. Where a party to a dispute submits a confidential version of its written submissions to the Panel, it shall also, upon request, provide a nonconfidential summary of the information contained in its submissions that could be disclosed to the public, within ten days of its submission to the Panel.” back to text
1187. Panel Report, EC — Tube or Pipe Fittings, paras. 7.51-7.55. back to text
1188. Appellate Body Report, US — Steel Safeguards, para. 5.3. The final text of paragraph 5 of the Panel’s Working Procedure thus read as follows:
      “Within seven days following the date for filing a submission, each of the parties and third parties is invited to provide the Panel with an executive summary of their submissions. The executive summaries will be used only for the purpose of assisting the Panel in drafting a concise factual and arguments section of the Panel report to the Members. They shall not in any way serve as a substitute for the submissions of the parties in the Panel’s examination of the case. The executive summary to be provided by each party should not exceed 15 pages in length and shall summarise the content of the written submissions. In relation to the executive summaries to be provided by the United States, it is allowed an additional 15 pages to address issues that have been raised in the submissions of one or more of the other parties that are specific to those parties and which are not common to the other parties. The summary to be provided by each third party shall summarize their written submissions, as applicable, and should not exceed 5 pages in length.” back to text
1189. Appellate Body Report, US — Shrimp, para. 104. back to text
1190. (footnote original) Appellate Body Report, Japan — Agricultural Products II, para. 129. back to text
1191. Appellate Body Reports, US/Canada — Continued Suspension, para. 439. back to text
1192. Panel Report, US — Shrimp, para. 7.8. back to text
1193. Appellate Body Report, US — Shrimp, paras. 104 and 106. back to text
1194. Appellate Body Report, US — Shrimp, paras. 107-110. back to text
1195. Appellate Body Report, US — Lead and Bismuth II, para. 39-42. back to text
1196. Appellate Body Report, US — Lead and Bismuth II, para. 39. back to text
1197. Appellate Body Report, US — Lead and Bismuth II, paras. 40-41. back to text
1198. Appellate Body Report, US — Lead and Bismuth II, para. 42. back to text
1199. (footnote original) Appellate Body Report, supra, footnote 58, para. 40. This is subject to meeting the requirements in Rule 27(3) of the Working Procedures, which provides that “[a]ny third participant who has filed a submission pursuant to Rule 24 may appear to make oral arguments or presentations at the oral hearing.” However, we have on several occasions permitted third parties who have not filed a submission to attend the oral hearing as passive observers. back to text
1200. (footnote original) Appellate Body Report, US —FSC, supra, footnote 20, para. 166. In that appeal, we were not referring in the quoted excerpt to the issue of amicus curiae briefs. The issue there related to the exercise of the right of appeal. We nevertheless believe that our views on how to interpret the Working Procedures are of general application and are thus pertinent to the amicus curiae issue as it arises in this case. back to text
1201. Appellate Body Report, EC — Sardines, paras. 166-167. back to text
1202. Panel Report, US — Tuna II (Mexico), para. 7.9. back to text
1203. Panel Report, US — Tuna II (Mexico), footnote 559. back to text
1204. Panel Report, Australia — Automotive Leather II, para. 9.28. back to text
1205. Appellate Body Report, Canada — Aircraft, para. 192. back to text
1206. Appellate Body Report, Thailand — H-Beams, para. 135. back to text
1207. Panel Report, US — Upland Cotton, para. 7.27. back to text
1208. (footnote original) See the second statement of Christopher Campbell of EWG, paras. 3 and 4, reproduced in Exhibit BRA-368. back to text
1209. (footnote original) Article 13.1 and 13.2 and Appendix 4 to the DSU. back to text
1210. Panel Report, US — Upland Cotton, para. 7.633. back to text
1211. Panel Report, EC — Bananas III (Article 21.5 —US), para. 6.33. back to text
1212. Panel Report, US — Continued Zeroing, footnote 20. back to text
1213. Panel Report, Turkey — Textiles, paras. 4.1-4.3. back to text
1214. Panel Report, India — Quantitative Restrictions, para. 5.12-5.13. On the right/obligation to consult the IMF, see Appellate Body Report, Argentina — Textiles and Apparel, paras. 82-86. back to text
1215. (footnote original) Appellate Body Report, WT/DS56/AB/R and Corr.l, adopted 22 April 1998, DSR 1998:111, 1003. back to text
1216. (footnote original) In EC —Hormones, we stated that Article 13 of the DSU “enable[s] panels to seek information and advice as they deem appropriate in a particular case”. (Appellate Body Report, para. 147) In Argentina —Textiles and Apparel, we stated that, pursuant to Article 13.2 of the DSU, “just as a panel has the discretion to determine how to seek expert advice, so also does a panel have the discretion to determine whether to seek information or expert advice at all”. (Appellate Body Report, para. 84) In US —Shrimp, we considered that “a panel also has the authority to accept or reject any information or advice which it may have sought and received, or to make some other appropriate disposition thereof. It is particularly within the province and the authority of a panel to determine the need for information and advice in a specific case”. (Appellate Body Report, para. 104) (original emphasis) back to text
1217. Appellate Body Report, EC — Sardines, para. 302. back to text
1218. Appellate Body Report, Argentina — Textiles and Apparel, paras. 82, 84 and 86. back to text
1219. (footnote original) Appellate Body Report, WT/DS56/AB/R and Corr.l, adopted 22 April 1998, DSR 1998:111, 1003. back to text
1220. (footnote original) In EC — Hormones, we stated that Article 13 of the DSU “enable[s] panels to seek information and advice as they deem appropriate in a particular case”. (Appellate Body Report, supra, footnote, 17 para. 147) In Argentina — Textiles and Apparel, we stated that, pursuant to Article 13.2 of the DSU, “just as a panel has the discretion to determine how to seek expert advice, so also does a panel have the discretion to determine whether to seek information or expert advice at all”. (Appellate Body Report, supra, footnote 236, para. 84) In US — Shrimp, we considered that “a panel also has the authority to accept or reject any information or advice which it may have sought and received, or to make some other appropriate disposition thereof. It is particularly within the province and the authority of a panel to determine the need for information and advice in a specific case”. (Appellate Body Report, supra, footnote 50, para. 104) (emphasis original). back to text
1221. Appellate Body Report, EC — Sardines, para. 302. back to text
1222. Appellate Body Report, US — Carbon Steel, para. 153. back to text
1223. Appellate Body Report, US — Continued Zeroing, paras. 343-344. back to text
1224. Panel Report, US — Large Civil Aircraft (2nd Complaint), para. 7.23. back to text
1225. Appellate Body Report, Canada — Aircraft, para. 185. back to text
1226. Appellate Body Report, Canada — Aircraft, para. 187. back to text
1227. Appellate Body Report, US — Wheat Gluten, para. 174. back to text
1228.  Award of the Arbitrators on US — Section 110(5) Copyright Act, para. 1.10. back to text
1229. Appellate Body Report, EC — Hormones, para. 148. back to text
1230. Appellate Body Report, Japan — Agricultural Products II, paras. 127-130. back to text
1231. Appellate Body Report, Australia — Apples, paras. 384, 399. back to text
1232. Panel Report, Canada — Aircraft (Article 21.5 — Canada II), footnote 13. back to text
1233. (footnote original) Article 46 of the Statute of International Court of Justice provides that “[t]he hearing in Court shall be public, unless the Court decides otherwise, or unless the parties demand that the public be not admitted”. Article 54.3 of the Statute provides that “[t]he deliberations of the Court shall take place in private and remain secret…”. Article 26 of the Statute of the International Tribunal for the Law of the Sea provides that” [t]he hearing shall be public, unless the Tribunal decides otherwise, or unless the parties demand that the public be not admitted”. Article 42 of the Rules of the Tribunal provides that “[t]he deliberations of the Tribunal shall take place in private and remain secret…” Article 20 of the Statute of the International Criminal Tribunal for Former Yugoslavia provides that “[t]he hearing in Court shall be public, unless the Trial Chamber decides to close the proceedings in accordance with its rules of procedure and evidence”. Rule 78 of its Rules of Procedure and Evidence provides: “[a]U proceedings before a Trial Chamber, other than deliberations of the Chamber, shall be held in public, unless otherwise provided.” Rule 29 provides that “[t]he deliberations of the Chambers shall take place in private and remain secret.” back to text
1234. Panel Reports, US — Continued Suspension, para. 7.49, Canada — Continued Suspension, para. 7.47. back to text
1235. See, e.g. Panel Reports, US — Gasoline, para. 5.6; Mexico — Corn Syrup, para. 6.7; and US — Steel Safeguards, para. 9.3. back to text
1236.  Panel Report, US — Clove Cigarettes, para. 6.3. back to text
1237.  Panel Reports, EC — Bananas III (Mexico), para. 7.9; EC — Bananas III (Ecuador), para. 7.9; EC — Bananas III (United States), para. 7.9; and EC — Bananas III (Guatemala and Honduras), para. 7.9. back to text
1238.  Panel Report, EC and certain member States — Large Civil Aircraft, footnote 2027. back to text
1239.  Panel Report, US — Clove Cigarettes, para. 2.3. back to text
1240.  Panel Report, Philippines — Taxes on Distilled Spirits, footnote 12. back to text
1241.  Panel Report, Japan — Alcoholic Beverages II, para. 5.2. back to text
1242.  Panel Report, Australia — Salmon, para. 7.3. back to text
1243. (footnote original) Panel Report on Australia — Salmon, para. 7.3. back to text
1244.  Panel Report, Japan — Apples (Article 21.5 — US), para. 7.21. back to text
1245.  (footnote original) Panel Report on Australia — Salmon, para. 7.3. back to text
1246.  Panel Reports, Canada — Continued Suspension, paras. 6.16-6.17, and US — Continued Suspension, paras. 6.17-6.18. back to text
1247.  Panel Report, US — 1916 Act (EC), footnote. 279. back to text
1248.  Panel Report, Japan — Apples (Article 21.5 — US), para. 7.23. back to text
1249.  Panel Report, Japan — DRAMs (Korea), para. 6.2. back to text
1250.  (footnote original) Panel Report, Japan — DRAMS, para. 6.2. back to text
1251.  Panel Report, US — Poultry (China), para. 6.32. back to text
1252.  Panel Report, EC — Asbestos, para. 7.2 and footnote 3. back to text
1253.  Appellate Body Report, Chile — Price Band System (Article 21.5 — Argentina), para. 234. back to text
1254.  Panel Reports, Canada — Continued Suspension, paras. 6.13-6.14, and US — Continued Suspension,  paras. 6.14-6.15. back to text
1255.  Appellate Body Report, EC — Sardines, para. 301. back to text
1256.  Panel Report, EC — Selected Customs Matters, para. 6.6. back to text
1257. (footnote original) See Panel Report, para. 6.6. back to text
1258. (footnote original) Appellate Body Report, EC — Sardines, para. 301. back to text
1259. (footnote original) Ibid. back to text
1260.  Appellate Body Report, EC — Selected Customs Matters, para. 259. back to text
1261.   Panel Report, EC — Approval and Marketing of Biotech Products, para. 6.134. back to text
1262.  Panel Report, EC — Bananas III (Article 21.5 — United States), para. 6.16 (citing Appellate Body Report on EC — Sardines, para. 301). back to text
1263.  Panel Report, EC — Bananas III (Article 21.5 — United States), para. 6.18. back to text
1264. (footnote original) Appellate Body Report on EC — Sardines, para. 301. back to text
1265. (footnote original) Appellate Body Report on EC — Selected Customs Matters, para. 259. back to text
1266.  Panel Report, China — Auto Parts, paras. 6.36-6.37. back to text
1267.  Appellate Body Report, EC — Sardines, para. 301. back to text
1268.  Panel Report, EC — IT Products, para. 6.48. back to text
1269.  Panel Report, EC and certain member States — Large Civil Aircraft, para. 6.311. back to text
1270.  Panel Report, US — Continued Zeroing, para. 6.4. back to text
1271.  Panel Report, EC and certain member States — Large Civil Aircraft, paras. 6.73-7.75. back to text
1272.  Panel Report, EC and certain member States — Large Civil Aircraft, paras. 6.230-6.231. back to text
1273. See Appellate Body Report, EC — Sardines, para. 301. back to text
1274.  Panel Report, US — Tuna II (Mexico), para. 6.3. back to text
1275.  (footnote original) The limited function of the interim review stage is confirmed by the existence of an appeal procedure, where parties may address issues of law covered in the panel report and challenge legal interpretations developed by the panel (Article 17.6 of the DSU). back to text
1276.  Panel Report, US — 1916 Act (EC), paras. 5.18-519. back to text
1277.  Appellate Body Report, US — 1916 Act, para. 54. back to text
1278.  Panel Report, US — Carbon Steel, para. 7.24 and paras. 8.135-8.145. back to text
1279.  Panel Report, US — Carbon Steel, para. 7.24 and para. 8.136. back to text
1280.  Panel Report, Korea — Certain Paper, para. 6.5. back to text
1281.  Panel Report, US — Zeroing (EC) (Article 21.5 — EC), para. 7.26. back to text
1282.  Panel Report, US — Large Civil Aircraft (2nd complaint), footnote 892. back to text
1283.  Panel Report, Turkey — Rice, Annex K-3. back to text
1284.  See, e.g. Panel Reports, US — Gasoline, para. 5.1; Japan — Alcoholic Beverages II, para. 5.1; US — Underwear, para. 6.1; and Mexico —Corn Syrup, para. 6.1. back to text
1285.  Panel Report, Canada — Continued Suspension, para. 6.2. See also Panel Reports,  US — Continued Suspension, para. 6.2. back to text
1286.  See, e.g. Panel Reports, US — Section 129(c)(1) URAA, footnote 53; Canada — Wheat Exports and Grain Imports, footnote 74; EC —Commercial Vessels, para. 6.1; EC — IT Products, para. 6.1; and EC and certain member States — Large Civil Aircraft, para. 6.2. back to text
1287.  Panel Reports, US/Canada — Continued Suspension, para. 6.1. back to text
1288.  Panel Report, US — Offset Act (Byrd Amendment), para. 7.5. back to text
1289.  Appellate Body Report, US — Offset Act (Byrd Amendment), footnote 267. back to text
1290.  Panel Reports, Steel — Safeguards, para. 2.18. back to text
1291.  Panel Report, US — Upland Cotton, para. 7.298. back to text
1292.  Panel Report, US — Underwear, para. 6.3. back to text
1293.  Panel Reports, US — Steel Safeguards, para. 9.41. back to text
1294.  Panel Report, EC — Approval and Marketing of Biotech Products, paras. 6.195-6.196. back to text
1295.  Panel Report, US — Zeroing (Japan), para. 6.2. back to text
1296.  (footnote original) Appellate Body Report, United States —Continued Dumping and Subsidy Offset Act of 2000 (“US — Offset Act (Byrd Amendment)”), WT/DS217/AB/R, WT/DS234/AB/R, adopted 27 January 2003, DSR 2003:1, 375. back to text
1297.  (footnote original) Id., para. 314. back to text
1298.  Panel Report, EC and certain member States — Large Civil Aircraft, para. 7.177. back to text
1299.  Panel Report, EC and certain member States — Large Civil Aircraft, para. 6.19 (emphasis removed). back to text
1300. Appellate Body Report, Japan — Alcoholic Beverages II, p. 14.   back to top
1301. Appellate Body Report, US — Anti-Dumping and Countervailing Duties (China), para. 325. back to top
1302. Appellate Body Report, Canada — Periodicals, footnote 28. back to top
1303. Panel Report, Indian — Patents (EC), para. 7.30. back to top
1304. Panel Report, Guatemala — Cement II, para. 8.15. back to top
1305. Panel Report, EC — Salmon (Norway), para. 7.69. back to top
1306. Appellate Body Report, US — Shrimp (Article 21.5 — Malaysia), para. 97. back to top
1307. (footnote original) Appellate Body Report, Mexico — Corn Syrup (Article 21.5 — US), para. 78. back to top
1308. (footnote original) para. 79. back to top
1309. (footnote original)  Panel Report, para. 6.51. The Panel found support for its view in our finding in Japan — Alcoholic Beverages II, that “[a]dopted Panel Reports are an important part of the GATT acquis. … They create legitimate expectations among WTO Members, and, therefore, should be taken into account where they are relevant to any dispute. However, they are not binding, except with respect to resolving the particular dispute between the parties to that dispute”. (Ibid., footnote 73 to para. 6.51, quoting Appellate Body Report, Japan — Alcoholic Beverages II, at 108) (emphasis added) back to top
1310. Appellate Body Report, EC — Bed Linen (Article 21.5 — India), paras. 92-95. back to top
1311. WT/DSB/M/65, p. 19. back to top
1312. WT/DSB/M/65, p. 20. back to top
1313. Appellate Body Report, EC — Export Subsidies on Sugar, para. 5. back to top
1314. WT/DS265/24, WT/DS266/24 and WT/DS283/5. back to top
1315. Appellate Body Report, Brazil — Retreaded Tyres, para. 6. back to top
1316. WT/DS332/8. back to top
1317. WT/DS371/7; WT/DSB/M/290, paras. 53-58. back to top
1318. Appellate Body Report, EC — Sardines, para. 147. back to top
1319. It excludes cases in which a mutually agreed solution was reached prior to the circulation of the Panel Report. It does not cover Article 21.5 proceedings. back to top

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