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WTO ANALYTICAL INDEX: DISPUTE SETTLEMENT UNDERSTANDING

Understanding on Rules and Procedures Governing the Settlement of Disputes

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> Working Procedures for Appellate Review
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> Principles and Concepts of General International Law Related to Dispute Settlement
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XVII. Article 17    back to top

A. Text of Article 17

Article 17: Appellate Review

Standing Appellate Body

1.     A standing Appellate Body shall be established by the DSB. The Appellate Body shall hear appeals from panel cases. It shall be composed of seven persons, three of whom shall serve on any one case. Persons serving on the Appellate Body shall serve in rotation. Such rotation shall be determined in the working procedures of the Appellate Body.

 

2.     The DSB shall appoint persons to serve on the Appellate Body for a four-year term, and each person may be reappointed once. However, the terms of three of the seven persons appointed immediately after the entry into force of the WTO Agreement shall expire at the end of two years, to be determined by lot. Vacancies shall be filled as they arise. A person appointed to replace a person whose term of office has not expired shall hold office for the remainder of the predecessor’s term.

 

3.     The Appellate Body shall comprise persons of recognized authority, with demonstrated expertise in law, international trade and the subject matter of the covered agreements generally. They shall be unaffiliated with any government. The Appellate Body membership shall be broadly representative of membership in the WTO. All persons serving on the Appellate Body shall be available at all times and on short notice, and shall stay abreast of dispute settlement activities and other relevant activities of the WTO. They shall not participate in the consideration of any disputes that would create a direct or indirect conflict of interest.

 

4.     Only parties to the dispute, not third parties, may appeal a panel report. Third parties which have notified the DSB of a substantial interest in the matter pursuant to paragraph 2 of Article 10 may make written submissions to, and be given an opportunity to be heard by, the Appellate Body.

 

5.     As a general rule, the proceedings shall not exceed 60 days from the date a party to the dispute formally notifies its decision to appeal to the date the Appellate Body circulates its report. In fixing its timetable the Appellate Body shall take into account the provisions of paragraph 9 of Article 4, if relevant. When the Appellate Body considers that it cannot provide its report within 60 days, it shall inform the DSB in writing of the reasons for the delay together with an estimate of the period within which it will submit its report. In no case shall the proceedings exceed 90 days.

 

6.     An appeal shall be limited to issues of law covered in the panel report and legal interpretations developed by the panel.

 

7.     The Appellate Body shall be provided with appropriate administrative and legal support as it requires.

 

8.     The expenses of persons serving on the Appellate Body, including travel and subsistence allowance, shall be met from the WTO budget in accordance with criteria to be adopted by the General Council, based on recommendations of the Committee on Budget, Finance and Administration.

Procedures for Appellate Review

9.     Working procedures shall be drawn up by the Appellate Body in consultation with the Chairman of the DSB and the Director-General, and communicated to the Members for their information.

 

10.     The proceedings of the Appellate Body shall be confidential. The reports of the Appellate Body shall be drafted without the presence of the parties to the dispute and in the light of the information provided and the statements made.

 

11.     Opinions expressed in the Appellate Body report by individuals serving on the Appellate Body shall be anonymous.

 

12.     The Appellate Body shall address each of the issues raised in accordance with paragraph 6 during the appellate proceeding.

 

13.     The Appellate Body may uphold, modify or reverse the legal findings and conclusions of the panel.

Adoption of Appellate Body Reports

14.     An Appellate Body report shall be adopted by the DSB and unconditionally accepted by the parties to the dispute unless the DSB decides by consensus not to adopt the Appellate Body report within 30 days following its circulation to the Members.(8) This adoption procedure is without prejudice to the right of Members to express their views on an Appellate Body report.

 

(footnote original) (8) If a meeting of the DSB is not scheduled during this period, such a meeting of the DSB shall be held for this purpose.

 
B. Interpretation and Application of Article 17

1. General

(a) Role of the Appellate Body

835.     In US — Stainless Steel (Mexico), the Appellate Body expressed its concern over the Panel’s decision to deviate from well-established Appellate Body jurisprudence. In that context, the Appellate Body made some observations on its role in the WTO dispute settlement system:

“In the hierarchical structure contemplated in the DSU, panels and the Appellate Body have distinct roles to play. In order to strengthen dispute settlement in the multilateral trading system, the Uruguay Round established the Appellate Body as a standing body. Pursuant to Article 17.6 of the DSU, the Appellate Body is vested with the authority to review “issues of law covered in the panel report and legal interpretations developed by the panel”. Accordingly, Article 17.13 provides that the Appellate Body may “uphold, modify or reverse” the legal findings and conclusions of panels. The creation of the Appellate Body by WTO Members to review legal interpretations developed by panels shows that Members recognized the importance of consistency and stability in the interpretation of their rights and obligations under the covered agreements. This is essential to promote “security and predictability” in the dispute settlement system, and to ensure the “prompt settlement” of disputes.”(1320)

2. Article 17.1

(a) Establishment of the Appellate Body

836.     At its meeting of 10 February 1995, the DSB established the Appellate Body in accordance with Article 17.1 of the DSU.(1321)

3. Article 17.2

(a) Appointment of Members of the Appellate Body

837.     On 6 December 1994, the Preparatory Committee to the WTO approved its recommendations for the procedures for the appointment of Appellate Body members.(1322)

(b) Table showing individuals appointed to serve as Appellate Body Members to date

838.     The following table provides information on the individuals appointed to serve as Appellate Body Members. It is updated to 30 September 2011.

Name Nationality Term(s) of office Term(s) as Chairperson
Said El-Naggar Egypt 1995-2000 7 February 1999 — 6 February 2000
Mitsuo Matsushita Japan 1995-2000
Christopher Beeby New Zealand 1995-2000 7 February 1998 — 6 February 1999
Claus-Dieter Ehlermann Germany 1995-2001 7 February 2001-10 December 2001
Florentino Feliciano Philippines 1995-2001 7 February 2000 — 6 February 2001
Julio Lacarte-Muró Uruguay 1995-2001 7 February 1996 — 6 February 1997
7 February 1997 — 6 February 1998
James Bacchus United States 1995-2003 15 December 2001-14 December 2002
15 December 2002 — 10 December 2003
John Lockhart Australia 2001-2006
Yasuhei Taniguchi Japan 2000-2007 17 December 2004 — 16 December 2005
Merit E. Janow United States 2003-2007
Arumugamangalam Venkatatchalam Ganesan India 2000-2008 17 December 2005 — 16 December 2006
Georges Michel Abi-Saab Egypt 2000-2008 13 December 2003 — 12 December 2004
Luiz Olavo Baptista Brazil 2001-2009 17 December 2007 — 16 December 2008
Giorgio Sacerdoti Italy 2001-2009 17 December 2006 — 16 December 2007
David Unterhalter South Africa 2006-2013 18 December 2008 — 11 December 2009
12 December 2009 — 16 December 2010
Lilia R. Bautista Philippines 2007-2011 17 December 2010 — 14 June 2011
Jennifer Hillman United States 2007-2011 15 June 2011 — 10 December 2011
Shotaro Oshima Japan 2008-2012
Yuejiao Zhang China 2008-2012
Ricardo Ramirez-Hernández Mexico 2009-2013
Peter Van den Bossche Belgium 2009-2013

4. Article 17.4

(a) Table showing percentage of panel reports appealed to date

839.     The following table provides information on the number and percentage of panel reports appealed. This table covers both original panel proceedings, as well as Article 21.5 proceedings. It is updated to 30 September 2011.

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All panel reports Original panel reports Article 21.5 panel reports
Year of adoption Panel reports adopted(1323) Panel reports appealed(1324) Percentage appealed(1325) Panel reports adopted Panel reports appealed Percentage appealed Panel reports adopted Panel reports appealed Percentage appealed
1996 2 2 100% 2 2 100% 0 0 -
1997 5 5 100% 5 5 100% 0 0
1998 12 9 75% 12 9 75% 0 0
1999 10 7 70% 9 7 78% 1 0 0%
2001 17 12 71% 13 9 69% 4 3 75%
2002 12 6 50% 11 5 45% 1 1 100%
2003 10 7 70% 8 5 63% 2 2 100%
2004 8 6 75% 8 6 75% 0 0 -
2005 20 12 60% 17 11 65% 3 1 33%
2006 7 6 86% 4 3 75% 3 3 100%
2007 10 5 50% 6 3 50% 4 2 50%
2008 11 9 82% 8 6 75% 3 3 100%
2009 8 6 75% 6 4 67% 2 2 100%
2010 5 2 40% 5 2 40% 0 0
2011(1326) 6 4 66% 6 4 66% 0 0
Total 162 109 67% 135 90 67% 27 19 70%

5. Article 17.5

(a) Table showing the length of time taken in Appellate Body proceedings to date

840.     The following table provides information on the length of time taken in WTO proceedings to date from the date of the commencement of an appeal to the date of the circulation of the Appellate Body report.(1327) It is updated to 30 September 2011.

Prescribed Time-Period in Article 17.5 60-90 days
Average to Date 95 days
Longest to Date 301 days
Shortest to Date 57 days
WT/DS No. Dispute Short Title Days from commencement to circulation
WT/DS2, WT/DS4 US — Gasoline 68 days
WT/DS8, WT/DS10, WT/DS11 Japan — Alcoholic Beverages II 57 days
WT/DS18 Australia — Salmon 90 days
WT/DS22 Brazil — Desiccated Coconut 67 days
WT/DS24 US — Underwear 91 days
WT/DS26 EC — Hormones 114 days
WT/DS27 EC — Bananas III 90 days
WT/DS31 Canada — Periodicals 62 days
WT/DS33 US — Wool Shirts and Blouses 60 days
WT/DS34 Turkey — Textiles 88 days
WT/DS46 Brazil — Aircraft 91 days
WT/DS48 EC — Hormones 114 days
WT/DS50 India — Patents (US) 65 days
WT/DS56 Argentina — Textiles and Apparel 65 days
WT/DS58 US — Shrimp 91 days
WT/DS60 Guatemala — Cement I 90 days
WT/DS62, WT/DS67, WT/DS68 EC — Computer Equipment 73 days
WT/DS69 EC — Poultry 75 days
WT/DS70 Canada — Aircraft 91 days
WT/DS75, WT/DS84 Korea — Alcoholic Beverages 90 days
WT/DS76 Japan — Agricultural Products II 90 days
WT/DS87, WT/DS110 Chile — Alcoholic Beverages 91 days
WT/DS90 India — Quantitative Restrictions 90 days
WT/DS98 Korea — Dairy 90 days
WT/DS103, WT/DS113 Canada — Dairy 90 days
WT/DS 108 US — FSC 90 days
WT/DS 121 Argentina — Footwear (EC) 90 days
WT/DS 122 Thailand — H-Beams 140 days
WT/DS 135 EC — Asbestos 140 days
WT/DS 136 US — 1916 Act 91 days
WT/DS 138 US — Lead and Bismuth II 104 days
WT/DS139, WT/DS142 Canada — Autos 90 days
WT/DS141 EC — Bed Linen 90 days
WT/DS 146, WT/DS 175 India — Autos 47 days
WT/DS161, WT/DS169 Korea — Various Measures on Beef 91 days
WT/DS 162 US — Anti-Dumping Act of 1916 91 days
WT/DS 165 US — Certain EC Products 90 days
WT/DS 166 US — Wheat Gluten 87 days
WT/DS 170 Canada — Patent Term 91 days
WT/DS 176 US — Section 211 Appropriations Act 90 days
WT/DS 177, WT/DS 178 US — Lamb 90 days
WT/DS 184 US — Hot-Rolled Steel 90 days
WT/DS 192 US — Cotton Yarn 91 days
WT/DS202 US — Line Pipe 88 days
WT/DS207 Chile — Price Band System 91 days
WT/DS212 US — Countervailing Measures on Certain EC Products 91 days
WT/DS213 US — Carbon Steel 90 days
WT/DS217, WT/DS234 US — Offset Act (Byrd Amendment) 90 days
WT/DS219 EC — Tube or Pipe Fittings 90 days
WT/DS231 EC — Sardines 90 days
WT/DS244 US — Corrosion-Resistant Steel Sunset Review 91 days
WT/DS245 Japan — Apples 90 days
WT/DS246 EC — Tariff Preferences 90 days
WT/DS248, WT/DS249, WT/DS251, WT/DS252, WT/DS253, WT/DS254, WT/DS258, WT/DS259 US — Steel Safeguards 91 days
WT/DS257 US — Softwood Lumber IV 90 days
WT/DS264 US — Softwood Lumber V 90 days
WT/DS265, WT/DS266, WT/DS283 EC — Export Subsidies on Sugar 105 days
WT/DS267 US — Upland Cotton 136 days
WT/DS268 US — Oil Country Tubular Goods Sunset Review 90 days
WT/DS269, WT/DS 286 EC — Chicken Cuts 91 days
WT/DS276 Canada — Wheat Exports and Grain Imports 90 days
US — Anti-Dumping Measures on Oil Country
WT/DS282 Tubular Goods 90 days
WT/DS285 US — Gambling 90 days
WT/DS294 US — Zeroing (EC) 66 days
WT/DS295 Mexico — Anti-Dumping Measures on Rice 132 days
WT/DS296 US — Countervailing Duty Investigation on DRAMs 90 days
WT/DS302 Dominican Republic — Import and Sale of Cigarettes 91 days
WT/DS308 Mexico — Taxes on Soft Drinks 90 days
WT/DS315 EC — Selected Customs Matters 91 days
WT/DS316 EC and certain member States — Large Civil Aircraft 301 days
WT/DS320, WT/DS321 US/Canada — Continued Suspension 140 days
WT/DS322 US — Zeroing (Japan) 90 days
WT/DS332 Brazil — Retreaded Tyres 91 days
WT/DS336 Japan — DRAMS (Korea) 89 days
WT/DS339, WT/DS340, WT/DS342 China — Auto Parts 91 days
WT/DS343 US — Shrimp (Thailand) 85 days
WT/DS344 US — Stainless Steel (Mexico) 90 days
WT/DS345 US — Customs Bond Directive 90 days
WT/DS350 US — Continued Zeroing 90 days
WT/DS360 India — Additional Import Duties 90 days
WT/DS363 China — Publications and Audiovisual Products 90 days
WT/DS367 Australia — Apples 90 days
WT/DS371 Thailand — Cigarettes (Philippines) 115 days
WT/DS379 US — Anti-Dumping and Countervailing Duties (China) 100 days
WT/DS397 EC — Fasteners (China) 112 days
WT/DS399 US — Tyres (China) 104 days

6. Article 17.6: scope of Appellate review

(a) “issues of law … and legal interpretations”

(i) Factual findings versus legal findings

841.     In Canada — Periodicals, the Appellate Body made reference to the limits of its mandate under Articles 17.6 and 17.13 as follows:

“We are mindful of the limitation of our mandate in Articles 17.6 and 17.13 of the DSU. According to Article 17.6, an appeal shall be limited to issues of law covered in the Panel Report and legal interpretations developed by the Panel. The determination of whether imported and domestic products are ‘like products’ is a process by which legal rules have to be applied to facts. In any analysis of Article III:2, first sentence, this process is particularly delicate, since ‘likeness’ must be construed narrowly and on a case-by-case basis.”(1328)

842.     In EC — Bananas III, the Appellate Body identified several findings of the Panel as being factual findings and thus outside its scope of review:

“On the first issue, the Panel found that the procedural and administrative requirements of the activity function rules for importing third-country and non-traditional ACP bananas differ from, and go significantly beyond, those required for importing traditional ACP bananas. This is a factual finding….

 

 

It is, however, evident from the terms of its finding that the Panel concluded, as a matter of fact, that the de facto discrimination did continue to exist after the entry into force of the GATS. This factual finding is beyond review by the Appellate Body. Thus, we do not reverse or modify the Panel’s conclusion in paragraph 7.308 of the Panel Reports.

 

 

In our view, the conclusions by the Panel on whether Del Monte is a Mexican company, the ownership and control of companies established in the European Communities that provide wholesale trade services in bananas, the market shares of suppliers of Complaining Parties’ origin as compared with suppliers of EC (or ACP) origin, and the nationality of the majority of operators that ‘include or directly represent’ EC (or ACP) producers, are all factual conclusions. Therefore, we decline to rule on these arguments made by the European Communities.”(1329)

843.     In EC — Hormones, the Appellate Body made a distinction between factual(1330) and legal findings and stressed that factual findings “are, in principle, not subject to [its] review”:

“Under Article 17.6 of the DSU, appellate review is limited to appeals on questions of law covered in a panel report and legal interpretations developed by the panel. Findings of fact, as distinguished from legal interpretations or legal conclusions, by a panel are, in principle, not subject to review by the Appellate Body. The determination of whether or not a certain event did occur in time and space is typically a question of fact; for example, the question of whether or not Codex has adopted an international standard, guideline or recommendation on [one of the growth hormones at issue] is a factual question…. The consistency or inconsistency of a given fact or set of facts with the requirements of a given treaty provision is, however, a legal characterization issue. It is a legal question.”(1331)

844.     In Australia — Salmon, the Appellate Body confirmed that “[t]he Panel’s consideration and weighing of the evidence in support of [the] claims relates to its assessment of the facts and, therefore, falls outside the scope of appellate review under Article 17.6 of the DSU.”(1332)

845.     The Appellate Body on Korea — Alcoholic Beverages further indicated that the panel’s examination and weighing of the evidence submitted fall within the scope of its discretion as the trier of facts:

“The Panel’s examination and weighing of the evidence submitted fall, in principle, within the scope of the Panel’s discretion as the trier of facts and, accordingly, outside the scope of appellate review. This is true, for instance, with respect to the Panel’s treatment of the Dodwell Study, the Sofres Report and the Nielsen Study. We cannot second-guess the Panel in appreciating either the evidentiary value of such studies or the consequences, if any, of alleged defects in those studies. Similarly, it is not for us to review the relative weight ascribed to evidence on such matters as marketing studies, methods of production, taste, colour, places of consumption, consumption with “meals” or with “snacks”, and prices.”(1333)

846.     In US — Wheat Gluten, the Appellate Body again referred to the Panel as the trier of the facts, in respect of its discretion to consider the evidence in a given case and summarized its prior jurisprudence on the scope of review that the Appellate Body can undertake of the Panel’s findings pursuant to Article 17.6 of the DSU:

“[W]e recall that, in previous appeals, we have emphasized that the role of the Appellate Body differs from the role of panels. Under Article 17.6 of the DSU, appeals are ‘limited to issues of law covered in the panel report and legal interpretations developed by the panel’, (emphasis added) By contrast, we have previously stated that, under Article 11 of the DSU, panels are:

 

… charged with the mandate to determine the facts of the case and to arrive at factual findings. In carrying out this mandate, a panel has the duty to examine and consider all the evidence before it, not just the evidence submitted by one or the other party, and to evaluate the relevance and probative force of each piece thereof.(1334) (emphasis added)

 

We have also stated previously that, although the task of panels under Article 11 relates, in part, to its assessment of the facts, the question whether a panel has made an ‘objective assessment’ of the facts is a legal one, that may be the subject of an appeal.(1335) (emphasis added) However, in view of the distinction between the respective roles of the Appellate Body and panels, we have taken care to emphasize that a panel’s appreciation of the evidence falls, in principle, ‘within the scope of the panel’s discretion as the trier of facts’.‘(1336) (emphasis added)… a panel’s appreciation of the evidence falls, in principle, ‘within the scope of the panel’s discretion as the trier of facts’,(1337) (emphasis added)…”(1338)

847.     In US — Section 211 Appropriations Act, the Appellate Body considered that the examination by the Panel of the municipal law of a WTO Member for the purpose of determining whether that Member has complied with its obligations under the WTO Agreement is a legal characterization by a panel and thus subject to review by the Appellate Body:

“[T]he municipal law of WTO Members may serve not only as evidence of facts, but also as evidence of compliance or non-compliance with international obligations. Under the DSU, a panel may examine the municipal law of a WTO Member for the purpose of determining whether that Member has complied with its obligations under the WTO Agreement. Such an assessment is a legal characterization by a panel. And, therefore, a panel’s assessment of municipal law as to its consistency with WTO obligations is subject to appellate review under Article 17.6 of the DSU.”(1339)

848.     In US — Softwood Lumber V, the United States submitted that one of the issues raised by Canada on appeal — whether the United States’ investigating authority exercised its discretion in calculating wood chip offset revenue for Tembec in an “objective” and “even-handed” manner — was a factual issue and, accordingly, beyond the scope of appellate review. The Appellate Body first noted that United States did not dispute the general proposition that an investigating authority must make its determinations in an objective and even-handed manner, as the Panel had found that the USDOC did in this case, but did not find such an obligation in Article 2.2.1.1 of the Anti-Dumping Agreement. The Appellate Body disagreed with the United States since, in its view, the issue raised by Canada was a question of law. For the Appellate Body, “[t]he fact that such an ‘obligation [is] not found in Article 2.2.1.1’ is not dispositive. Whether a particular approach of an investigating authority is, or is not, even-handed is, ultimately, a matter of the ‘legal characterization’(1340) of facts and, as such, a matter of law”.(1341)

849.     In US — Upland Cotton (Article 21.5 — Brazil), the Appellate Body noted that the “boundary between an issue that is purely factual and one that involves mixed issues of law and fact is often difficult to draw”.(1342) The Appellate Body also pointed out that, pursuant to Article 17.6 of the DSU, it could only review the claim by the United States to the extent to which it related to an error of interpretation or application of Article 6.3(c) of the SCM Agreement.(1343)

(ii) Relevance of the characterization of a finding by the panel

850.     In Chile — Price Band System, the Appellate Body noted that the Panel’s characterization of a finding “as a factual matter” does not mean that the issue is shielded from appellate review:

“[T]he Panel’s characterization of its finding ‘as a factual matter’ does not mean that the issue whether Chile’s price band system is a border measure similar to a variable import levy or a minimum import price is shielded from appellate review. This is a question of law, and not of fact, and thus is clearly within our jurisdiction under Article 17.6 of the DSU.(1344) As we said in our Report in EC — Hormones, the assessment of the consistency or inconsistency of a given fact or set of facts with the requirements of a given treaty provision is an issue of legal characterization. The mere assertion by a panel that its conclusion is a ‘factual matter’ does not make it so. … All the same, in reviewing the Panel’s assessment of Chile’s price band system, we are mindful of the need to give due deference to the discretion of the Panel, as the ‘trier of fact’, to weigh the evidence before it.”(1345)

(iii) Review of new issues

851.     In EC — Tube or Pipe Fittings, the Appellate Body rejected the European Communities’ argument that a particular issue was not properly before the Appellate Body, stating that the issue was identified during the Panel proceedings.(1346)

(iv) Review of new evidence

852.     In US — Offset Act (Byrd Amendment), the Appellate Body stated that it had no authority to consider new facts on appeal:

Article 17.6 is clear in limiting our jurisdiction to issues of law covered in panel reports and legal interpretations developed by panels. We have no authority to consider new facts on appeal. The fact that the documents are “available on the public record” does not excuse us from the limitations imposed by Article 17.6. We note that the other participants have not had an opportunity to comment on those documents and, in order to do so, may feel required to adduce yet more evidence. We would also be precluded from considering such evidence.”(1347)

853.     In Chile — Price Band System (Article 21.5 — Argentina), the Appellate Body dealt with a request of Argentina to reject certain documents attached to the appellant submission of Chile. According to Argentina, such documents consisted of new evidence that had not been brought before the Panel. The Appellate Body did not find necessary to have recourse to the information contained in such documents and, thus, did not make any separate or additional ruling related to their admissibility.(1348)

854.     Similarly, in US — Zeroing (EC) (Article 21.5 — EC), the Appellate Body received a request from the United States to dismiss a piece of evidence (an exchange of emails) submitted by the European Communities given that, allegedly, it was a new piece of evidence that could not be considered in the appellate stage. The Appellate Body agreed with the United States that the evidence was new and, therefore, it could not be considered in the appellate proceedings.(1349)

(v) Review of new arguments

855.     In Canada — Aircraft, Brazil had raised an argument during the appellate review which it had not raised during the Panel review. The Appellate Body, although it found that this new argument was beyond the scope of appellate review, stated that “new arguments are not per se excluded from the scope of appellate review, simply because they are new”:

“In our view, this new argument raised by Brazil is beyond the scope of appellate review. Article 17.6 of the DSU provides that ‘[a]n appeal shall be limited to issues of law covered in the panel report and legal interpretations developed by the panel’. In principle, new arguments are not per se excluded from the scope of appellate review, simply because they are new. However, for us to rule on Brazil’s new argument, we would have to solicit, receive and review new facts that were not before the Panel, and were not considered by it. In our view, Article 17.6 of the DSU manifestly precludes us from engaging in any such enterprise.”(1350)

856.     The Appellate Body in US — FSC declined to address a “new” argument regarding double taxation under the last sentence of footnote 59 of the SCM Agreement because it considered that this new argument did not involve either an “issue of law covered in the panel report” or “legal interpretations developed by the panel”:

“The argument which the United States asks us to address under the fifth sentence of footnote 59 involves two separate legal issues: first, that the FSC measure is a measure ‘to avoid double taxation of foreign-source income’ within the meaning of footnote 59; and second, that, in consequence, the FSC measure is excluded from the prohibition in Article 3.1(a) of the SCM Agreement against export subsidies. In our view, examination of the substantive issues raised by this particular argument would be outside the scope of our mandate under Article 17.6 of the DSU, as this argument does not involve either an ‘issue of law covered in the panel report’ or ‘legal interpretations developed by the panel’. The Panel was simply not asked to address the issues raised by the United States’ new argument. Further, the new argument now made before us would require us to address legal issues quite different from those which confronted the Panel and which may well require proof of new facts…. We, therefore, decline to examine the United States’ argument that the FSC measure is a measure ‘to avoid double taxation’ within the meaning of footnote 59, and we reserve our opinion on this issue.(1351)

857.     In EC — Export Subsidies on Sugar, the Appellate Body held that for it to rule on the “new argument” at issue, it would have to solicit, receive and review new facts that were not before the Panel:

“… the European Communities did not argue before the Panel that sales of A and B beet are “largely insufficient to cover all the fixed costs of producing C beet”, in the manner in which it is arguing this point on appeal …(1352)

 

The Appellate Body previously held, in Canada — Aircraft, that new arguments are not excluded from the scope of appellate review “simply because they are new”.(1353) However, in that case, the Appellate Body also said … for us to rule on [the] new argument [at issue], we would have to solicit, receive and review new facts that were not before the Panel, and were not considered by it. In our view, Article 17.6 of the DSU manifestly precludes us from engaging in any such enterprise.(1354)

 

In this respect, we note that the European Communities supports its argument on appeal with a table containing calculations (Table 9 in its appellant’s submission).(1355) This table was not placed before the Panel, but uses data drawn from Exhibits presented to the Panel by the Complaining Parties. We also note that the Complaining Parties, in their respective appellee’s submissions and at the oral hearing, contested the accuracy of some of the calculations, as well as certain concepts underlying the European Communities’ calculations.”(1356),(1357)

(b) “Completing the analysis”

858.     In US — Gasoline, the Appellate Body, further to reversing the Panel’s conclusions on the first part of Article XX(g) of GATT 1994 and having completed the Article XX(g) analysis in that case, examined the measure’s consistency with the provisions of the chapeau of Article XX, based on the legal findings contained in the Panel Report.(1358)

859.     In Canada — Periodicals, the Appellate Body reversed the Panel’s findings on the issue of “like products” under Article III:2 of GATT 1994. The Appellate Body then addressed the question whether it could “complete the Panel’s analysis”, specifically whether it could proceed to make a determination whether the goods at issue were “directly competitive or substitutable” within the meaning of Article III:2, second sentence, of GATT 1994. The Appellate Body held that it could do so, noting that Article III:2, first sentence and Article III:2, second sentence were part of a “logical continuum”:

“We are mindful of the limitation of our mandate in Articles 17.6 and 17.13 of the DSU. According to Article 17.6, an appeal shall be limited to issues of law covered in the Panel Report and legal interpretations developed by the Panel. The determination of whether imported and domestic products are ‘like products’ is a process by which legal rules have to be applied to facts. In any analysis of Article III:2, first sentence, this process is particularly delicate, since ‘likeness’ must be construed narrowly and on a case-by-case basis. We note that, due to the absence of adequate analysis in the Panel Report in this respect, it is not possible to proceed to a determination of like products.

 

 

We believe the Appellate Body can, and should, complete the analysis of Article III:2 of the GATT 1994 in this case by examining the measure with reference to its consistency with the second sentence of Article III:2, provided that there is a sufficient basis in the Panel Report to allow us to do so. The first and second sentences of Article III:2 are closely related. The link between the two sentences is apparent from the wording of the second sentence, which begins with the word ‘moreover’. It is also emphasized in Ad Article III, paragraph 2, which provides: ‘A tax conforming to the requirements of the first sentence of paragraph 2 would be considered to be inconsistent with the provisions of the second sentence only in cases where …’. An examination of the consistency of Part V.1 of the Excise Tax Act with Article III:2, second sentence, is therefore part of a logical continuum.

 

The Appellate Body found itself in a similar situation in United States — Gasoline. Having reversed the Panel’s conclusions on the first part of Article XX(g) and having completed the Article XX(g) analysis in that case, the Appellate Body then examined the measure’s consistency with the provisions of the chapeau of Article XX, based on the legal findings contained in the Panel Report.(1359)

 

As the legal obligations in the first and second sentences are two closely-linked steps in determining the consistency of an internal tax measure with the national treatment obligations of Article III:2, the Appellate Body would be remiss in not completing the analysis of Article III:2. In the case at hand, the Panel made legal findings and conclusions concerning the first sentence of Article III:2, and because we reverse one of those findings, we need to develop our analysis based on the Panel Report in order to issue legal conclusions with respect to Article III:2, second sentence, of the GATT 1994.”(1360)

860.     In EC — Hormones, the Appellate Body, having reversed the Panel’s findings under Article 5.5 of the SPS Agreement, refused to complete the analysis by examining the measure under Article 5.6. According to the Appellate Body; it “cannot be assumed that all the findings of fact necessary to proceed to a determination of consistency or inconsistency of the EC measures with the requirements of Article 5.6 have been made by the Panel”.(1361)

861.     In EC — Poultry, the Appellate Body referring to its previous rulings on US — Gasoline and Canada — Periodicals, held that, having reversed the Panel’s finding on Article 5.1(b) of the Agreement on Agriculture, it should complete its analysis of the c.i.f. import price by making a finding with respect to the consistency of the EC regulation with Article 5.5, which was not addressed by the Panel for reasons of judicial economy:

“We are aware of the provisions of Article 17 of the DSU that state our jurisdiction and our mandate. Article 17.6 of the DSU provides: “An appeal shall be limited to issues of law covered in the panel report and legal interpretations developed by the panel”. Article 17.13 of the DSU states: “The Appellate Body may uphold, modify or reverse the legal findings and conclusions of the panel.” In certain appeals, however, the reversal of a panel’s finding on a legal issue may require us to make a finding on a legal issue which was not addressed by the panel. This occurred, for example, in the appeals in United States — Standards for Reformulated and Conventional Gasoline(1362) and in Canada — Certain Measures Concerning Periodicals.(1363) And, in this appeal, as we have reversed the Panel’s finding on Article 5.1(b), we believe we should complete our analysis of the c.i.f. import price by making a finding with respect to the consistency of the EC regulation with Article 5.5, which was not addressed by the Panel for reasons of judicial economy.”(1364)

862.     In Australia — Salmon, the Appellate Body noted that” [b]ecause the Panel finds that the difference in the level of protection in respect of the three natural hormones, when used for growth promotion purposes, and the level of protection in respect of natural hormones present endogenously in meat and other foods is unjustifiable, the Panel regards it as unnecessary to decide whether the difference in the levels of protection set by the European Communities in respect of natural hormones used as growth promoters and in respect of the same hormones when used for therapeutic or zootechnical purposes, is justified.” The Appellate Body then decided to complete the Panel’s analysis:

“In certain appeals, when we reverse a panel’s finding on a legal issue, we may examine and decide an issue that was not specifically addressed by the panel, in order to complete the legal analysis and resolve the dispute between the parties. This occurred, for example, in the appeals in United States — Gasoline, Canada — Certain Measures Concerning Periodicals, European Communities — Measures Affecting the Importation of Certain Poultry Products (‘European Communities — Poultry’), and United States — Import Prohibition of Certain Shrimp and Shrimp Products.

 

As we have reversed the Panel’s finding that the SPS measure at issue, erroneously identified as the heat-treatment requirement, is not based on a risk assessment, we believe that-to the extent possible on the basis of the factual findings of the Panel and/or of undisputed facts in the Panel record — we should complete the legal analysis and determine whether the actual SPS measure at issue, i.e., Australia’s import prohibition on fresh, chilled or frozen ocean-caught Pacific salmon, is based on a risk assessment.”(1365)

863.     In Argentina — Footwear (EC), the Appellate Body upheld the conclusions of the Panel that Argentina’s investigation in that case was inconsistent with the requirements of Articles 2 and 4 of the Agreement on Safeguards. The Appellate Body then stated that, as there was no legal basis for the safeguard measure at issue, it was not necessary to complete the analysis:

“As a consequence, there is no legal basis for the safeguard measures imposed by Argentina. For this reason, we do not believe that it is necessary to complete the analysis of the Panel relating to the claim made by the European Communities under Article XIX of the GATT 1994 by ruling on whether the Argentine authorities have, in their investigation, demonstrated that the increased imports in this case occurred ‘as a result of unforeseen developments’”(1366)

864.     In Korea — Dairy, the Appellate Body considered the European Communities’ request that the Appellate Body complete the Panel’s reasoning and find that by imposing a safeguard measure in circumstances where the alleged increase in imports was not “as a result of unforeseen developments” within the meaning of Article XIX:1(a) of GATT 1994, Korea also violated its obligations under Article XIX of the GATT 1994. The Appellate Body declined to do so, noting there were insufficient factual findings:

“In the absence of any factual findings by the Panel or undisputed facts in the Panel record relating to whether the alleged increase in imports was, indeed, ‘a result of unforeseen developments and of the effect of the obligations incurred by a Member under this Agreement, including tariff concessions …’, we are not in a position, within the scope of our mandate set forth in Article 17 of the DSU, to complete the analysis and make a determination as to whether Korea acted inconsistently with its obligations under Article XIX:1(a). Accordingly, we are unable to come to a conclusion on whether or not Korea violated its obligations under Article XIX:1(a) of the GATT 1994.”(1367)

865.     The Appellate Body on Korea — Dairy also noted that in determining whether Korea violated the second sentence of Article 5.1 of the Agreement on Safeguards, it would have to determine whether the quantitative restrictions imposed by Korea were below the average level of imports in the last three representative years for which statistics were available, and if so, whether Korea had given a reasoned explanation as required by the second sentence of Article 5.1. Similarly, with regard to its conclusions referenced in paragraph 864 above, the Appellate Body held that it did not have a sufficient factual basis on which to complete the analysis:

“The Panel did not make any factual findings on the average level of imports of skimmed milk powder preparations in the last three representative years. The average level of imports in that period was also contested by the parties. Accordingly, we are not in a position, within the scope of our mandate under Article 17 of the DSU, to complete the analysis in this case and make a determination as to the consistency of Korea’s safeguard measure with the second sentence of Article 5.1.”(1368)

866.     Similarly, the Appellate Body in Canada — Autos could not complete the Panel’s analysis in the absence of sufficient facts in the Panel’s record:

“In Australia — Salmon, we stated that where we have reversed a finding of a panel, we should attempt to complete a panel’s legal analysis ‘to the extent possible on the basis of the factual findings of the Panel and/or of undisputed facts in the Panel record’. Here, as we have stated, the Panel did not identify the precise levels of the CVA requirements applicable to specific manufacturers. In addition, there are not sufficient undisputed facts in the Panel record that would enable us to examine this issue ourselves. As a result, it is impossible for us to assess whether the use of domestic over imported goods is a condition ‘in law’ for satisfying the CVA requirements, and, therefore, is a condition for receiving the import duty exemption.”(1369)

867.     In EC — Asbestos, the Appellate Body specified the conditions under which it would hold itself competent to “complete the analysis” of a panel. It held that it would do so when there were sufficient factual findings made by the Panel and the additional analysis required was “closely related” to the findings actually made by the Panel. Finally, the Appellate Body noted that the rules it would have had to apply, had it decided to “complete the analysis” in the present case, would have meant applying provisions which had “not previously been the subject of any interpretation or application by either panels or the Appellate Body”. Ultimately, the Appellate Body decided not to complete the panel’s analysis in this respect:

“As we have reached a different conclusion from the Panel’s regarding the applicability of the TBT Agreement to the measure, we now consider whether it is appropriate for us to rule on the claims made by Canada relating to the TBT Agreement. In previous appeals, we have, on occasion, completed the legal analysis with a view to facilitating the prompt settlement of the dispute, pursuant to Article 3.3 of the DSU. (1370) However, we have insisted that we can do so only if the factual findings of the panel and the undisputed facts in the panel record provide us with a sufficient basis for our own analysis. If that has not been the case, we have not completed the analysis.(1371)

 

The need for sufficient facts is not the only limit on our ability to complete the legal analysis in any given case. In Canada — Periodicals, we reversed the panel’s conclusion that the measure at issue was inconsistent with Article III:2, first sentence, of the GATT 1994, and we then proceeded to examine the United States’ claims under Article III:2, second sentence, which the panel had not examined at all. However, in embarking there on an analysis of a provision that the panel had not considered, we emphasized that ‘the first and second sentences of Article III:2 are closely related’ and that those two sentences are “part of a logical continuum.”(1372) (emphasis added)

 

In this appeal, Canada’s outstanding claims were made under Articles 2.1, 2.2, 2.4 and 2.8 of the TBT Agreement. We observe that, although the TBT Agreement is intended to “further the objectives of GATT 1994”, it does so through a specialized legal regime that applies solely to a limited class of measures. For these measures, the TBT Agreement imposes obligations on Members that seem to be different from, and additional to, the obligations imposed on Members under the GATT 1994.

 

As the Panel decided not to examine Canada’s four claims under the TBT Agreement, it made no findings, at all, regarding any of these claims. Moreover, the meaning of the different obligations in the TBT Agreement has not previously been the subject of any interpretation or application by either panels or the Appellate Body. Similarly, the provisions of the Tokyo Round Agreement on Technical Barriers to Trade, which preceded the TBT Agreement and which contained obligations similar to those in the TBT Agreement, were also never the subject of even a single ruling by a panel.”(1373)

868.     Similarly, in US — Hot-Rolled Steel, the Appellate Body could not complete the analysis of the Panel:

“In these circumstances, Japan requests that we rule on its claim, under Article 2.4 of the Anti-Dumping Agreement, that, in relying on downstream sales, USDOC failed to make proper “allowances” in respect of the additional costs and profits of the downstream sellers, reflected in the price of these sales. …

 

 

Our examination of this issue must be based on the factual findings of the Panel or uncontested facts in the Panel record. As the Panel did not examine this issue, and as the parties do not agree on the relevant facts, we find that there is not an adequate factual record for us to complete the analysis by examining Japan’s claim under Article 2.4 of the Anti-Dumping Agreement.”(1374)

869.     Also in Canada — Dairy (Article 21.5 — New Zealand and US), the Appellate Body could not complete the Panel’s analysis in the absence of factual findings in the record:

“[T]he Panel did not find it necessary to make any factual findings on the costs of production and the facts relating to this issue were not the subject of agreement between the parties. Moreover, the Panel proceedings were conducted without the parties arguing their case, or the Panel making enquiries, from the perspective of the average total cost of production standard we have adopted.

 

In these circumstances, we are unable to complete the analysis by determining whether the supply of CEM involves ‘payments’ under Article 9.1(c) of the Agreement on Agriculture. Yet, we do not wish to be understood as holding that the supply of CEM does not involve ‘payments’ under Article 9.1(c). We are simply not in a position to make a ruling on this issue.”(1375)

870.     In US — Section 211 Appropriations Act, on the contrary, the Appellate Body found sufficient factual findings in the record of the Panel so as to be able to complete its analysis:

“In the past, we have completed the analysis where there were sufficient factual findings in the panel report or undisputed facts in the panel record to enable us to do so, and we have not completed the analysis where there were not. In one instance, we declined to complete the analysis with respect to a “novel” issue that had not been argued in sufficient detail before the panel.

 

 

[W]e conclude that the Panel record contains sufficient factual findings and facts undisputed between the participants to permit us to complete the analysis regarding the consistency of Sections 211(a)(2) and (b) — in respect of trade names-with Article 2.1 of the TRIPS Agreement in conjunction with Article 2(1) of the Paris Convention (1967) and Article 3.1 of the TRIPS Agreement, with Article 4 of the TRIPS Agreement, with Article 42 of the TRIPS Agreement, and with Article 2.1 of that Agreement in conjunction with Article 8 of the Paris Convention (1967).”(1376)

871.     In US — Steel Safeguards, the Appellate Body after considering whether it needed to complete the Panel’s analysis, decided that it was not necessary.(1377)

872.     In US — Softwood Lumber IV, the Appellate Body could not complete the Panel’s analysis in the absence of sufficient factual findings:

“[W]e are unable to complete the legal analysis of Canada’s claim that the United States acted inconsistently with Article 14(d) of the SCM Agreement. We observe, in this regard, that panels sometimes make alternative factual findings that serve to assist the Appellate Body in completing the legal analysis should it disagree with legal interpretations developed by the panel, but this is not the case in the Panel Report before us.”(1378)

873.     In US — Gambling, the Appellate Body indicated that a panel’s decision to continue its legal analysis and to make factual findings beyond those that are strictly necessary to resolve the dispute may assist the Appellate Body should it later be called upon to complete the analysis:

“Provided that it complies with its duty to assess a matter objectively, a panel enjoys the freedom to decide which legal issues it must address in order to resolve a dispute.(1379) Moreover, in some instances, a panel’s decision to continue its legal analysis and to make factual findings beyond those that are strictly necessary to resolve the dispute may assist the Appellate Body should it later be called upon to complete the analysis,(1380) as, for example, in this case.”(1381)

874.     In EC — Export Subsidies on Sugar, the Appellate Body declined to complete the legal analysis and to examine the Complaining Parties’ claims under the SCM Agreement left unaddressed by the Panel. The Appellate Body begun by reviewing previous case law on this matter:

“In several previous disputes, the Appellate Body examined an issue ‘not specifically addressed by the panel, in order to complete the legal analysis and resolve the dispute between the parties’.(1382) However, the Appellate Body has declined to complete the legal analysis where ‘the factual findings of the panel and the undisputed facts in the panel record’ did not provide a sufficient basis for the legal analysis by the Appellate Body.(1383) Moreover, as Article 17.6 of the DSU limits appeals to ‘issues of law covered in the panel report and legal interpretations developed by the panel’, the Appellate Body has also previously declined to complete the legal analysis of a panel in circumstances where that would involve addressing claims ‘which the panel had not examined at all’.(1384) In addition, the Appellate Body has indicated that it may complete the analysis only if the provision that a panel has not examined is ‘closely related(1385) to a provision that the panel has examined, and that the two are ‘part of a logical continuum’.”(1386),(1387)

875.     With respect to the specific facts of EC — Export Subsidies on Sugar, the Appellate Body explained that the complaining parties’ claims under the SCM Agreement were not closely related to their claims under the Agreement on Agriculture, that the issues raised by these claims were not sufficiently explored before the Panel, and that it did not have the requisite factual findings to complete legal analysis:

“Turning to the specific case before us, we note that the Complaining Parties argue that their claims under the SCM Agreement are closely related to their claims under the Agreement on Agriculture.(1388) We are not persuaded, however, that Articles 3, 8, and 9.1 of the Agreement on Agriculture, on the one hand, and Articles 3.1(a), 3.2, and items (a) and (d) of the Illustrative List of the SCM Agreement, on the other hand, are ‘closely related, because the issues presented under the two Agreements are different in several respects.

 

Furthermore, in the instant case, we note that the Panel made reference to the limited arguments made by the Complaining Parties under the SCM Agreement… Although, on appeal, the Complaining Parties did argue their claims under the SCM Agreement to some extent, they did not address, in a sufficient manner, the question whether Article 3 of the SCM Agreement applies to export subsidies listed in Article 9.1 of the Agreement on Agriculture that are provided to scheduled agricultural products in excess of a responding Member’s commitment levels…. the question of the applicability of the SCM Agreement to the export subsidies in this dispute raises a number of complex issues.(1389) We also consider that, in the absence of a full exploration of these issues, completing the analysis might affect the due process rights of the participants.

 

Moreover, we do not have the requisite factual findings to complete the legal analysis. In particular, we do not have sufficient facts before us, as would be necessary to specify the period of time for withdrawal, as required by Article 4.7 of the SCM Agreement. We note in this respect that, when specifying what period would represent ‘without delay’, panels have taken into account, inter alia, “the nature of the measures and the difficulties likely to be faced in implementing the recommendation”.(1390) Based on our reading of the Panel Reports and the Panel record, we fail to see any evidence therein regarding the nature of the measures that would be required to ‘withdraw’ the subsidy, which would permit us to make a recommendation under Article 4.7.”(1391)

876.     In EC — Selected Customs Matters, the Appellate Body considered that general observations made by the Panel, in the context of an analysis based on a narrow interpretation of the measure at issue and the claim set out in the panel request that the Appellate Body reversed, did not provide a sufficient foundation to complete the analysis with respect to a broader claim:

“It is well settled that the Appellate Body will be in a position to complete the legal analysis if it has before it sufficient factual findings of the panel or undisputed facts on the panel record.(1392) In this case, the Panel did not examine the United States’ claim that the measures at issue, collectively, are administered in a non-uniform manner. Therefore, we have to consider whether the factual findings or general observations made by the Panel with respect to the claims it did examine, can be utilized in the context of completing the analysis …

 

… Accordingly, it appears to us that these general observations of the Panel do not constitute a sufficient foundation of factual findings or undisputed facts upon which we can rely for completing the analysis.

 

Further, as we said above, these general observations by the Panel with respect to the institutions and mechanisms involved in the administration of European Communities customs law were made in the context of an analysis based on the Panel’s narrow interpretation of the measure at issue and the claim set out in the panel request. We have reversed this interpretation of the Panel… Moreover, the Panel examined the operation of these institutions and mechanism in isolation and did not discuss how these institutions and mechanism interact in the administration of the European Communities customs law. Finally, given the breadth and the nature of the claim set out by the United States in the panel request, we are of the view that paragraphs 7.157 to 7.191 of the Panel Report do not constitute a sufficient basis to enable us to complete the analysis”(1393)

877.     In Japan — DRAMs (Korea), the Appellate Body indicated that it was not in a position to complete the Panel’s analysis:

“We note that neither participant has requested, in its written submission, that we complete the legal analysis by undertaking our own review of the JIA’s finding of entrustment or direction if we were to reverse the Panel’s finding of inconsistency with Article 1.1(a)(1)(iv) of the SCM Agreement. At the oral hearing, Korea tentatively suggested that we complete the analysis but recognized the difficulty of such a task. We do not consider that the participants have addressed sufficiently, in their submissions, those issues we might need to examine in order to complete the analysis in this case, including the probative value of certain evidence not considered by the Panel. In these circumstances, we are not in a position to, and therefore do not, complete the analysis to reach our own conclusion on the consistency of the JIA’s determination of entrustment or direction with Article 1.1(a)(1)(iv) of the SCM Agreement.(1394)

878.     In US/Canada — Continued Suspension, the Appellate Body concluded that because of numerous flaws in the analysis of the Panel and the highly con tested nature of the facts, it was not possible to complete the analysis with regard to certain factual issues:

“Having reversed the Panel, we must now determine whether we can complete the analysis by reviewing ourselves the consistency of the European Communities’ risk assessment relating to oestradiol-17B with Article 5.1 of the SPS Agreement. In the past, the Appellate Body has completed the analysis when there were sufficient factual findings by the panel or undisputed facts on the Panel record to enable it to do so. In light of the numerous flaws we have found in the Panel’s analysis and the highly contested nature of the facts, we do not consider it possible to complete the analysis in this case. Thus, we make no findings on the consistency or inconsistency of the European Communities’ import ban relating to oestradiol-17β”(1395)

 

“Given the numerous flaws that we identified in the Panel’s analysis, and the highly contested nature of the facts, we do not consider it possible to complete the analysis. Thus, we make no findings on the consistency or inconsistency of the European Communities’ provisional SPS measure relating to progesterone, testosterone, zeranol, trenbolone acetate and MGA.”(1396)

879.     In US — Continued Zeroing, the Appellate Body found that it was not in a position to complete the analysis whenever the Panel’s findings and undisputed facts were insufficient:

“We recognize the important limitation on our ability to complete the analysis. We have accordingly adopted, for the purpose of this dispute, a cautious approach. Thus, only where the Panel has made clear findings of fact concerning the use of the zeroing methodology, without interruption, in different types of proceedings over an extended period of time, have we considered these findings sufficient for us to complete the analysis and to make findings regarding the continued application o zeroing in these cases. By contrast, we have not completed the analysis where the factual findings are absent in respect of the use of the zeroing methodology in each of the successive proceedings whereby the duties are maintained, or where there are insufficient factual findings to indicate that zeroing has been repeatedly applied. In such circumstances, an examination of the facts, as well as a determination as to what conclusions may be drawn from the remaining evidence in the record, would be more appropriately conducted by a panel, with the assistance of the parties.”(1397)

880.     In light of this finding, the Appellate Body did not complete the analysis on several issues.(1398)

881.     In Australia — Apples, the Appellate Body, when deciding whether it could complete the analysis and rule on New Zealand’s claim under Article 5.6 of the SPS Agreement, found that it was unable to identify sufficient uncontested facts or factual findings by the Panel to enable it to make findings concerning the level of risk associated with certain New Zealand’s alternative measures.(1399)

882.     In US — Anti Dumping and Countervailing Duties (China), the Appellate Body stated that it was “mindful that it may only complete the analysis to the extent that there [were] sufficient factual findings by the Panel or undisputed facts on the Panel record”.(1400) The Appellate Body also recalled its settled jurisprudence, whereby:

“When the factual findings of the panel and the undisputed facts in the panel record provide the Appellate Body with a sufficient basis for its own analysis, the Appellate Body may complete the analysis with a view to facilitating the prompt settlement of the dispute”.(1401)

883.     In EC and certain member States — Large Civil Aircraft, the Appellate Body stated that it has exercised “restraint” in deciding whether to complete the analysis in past disputes:

“We note that the Appellate Body has exercised restraint in deciding whether to complete the legal analysis in past disputes. The Appellate Body has emphasized that it can complete the analysis only if the factual findings by the panel, or the undisputed facts on the panel record, provide a sufficient basis for the Appellate Body to do so. Where this has not been the case, the Appellate Body has declined to complete the analysis.”(1402)

7. Article 17.9: Working procedures of the Appellate Body

884.     See “Working Procedures for Appellate Review” further below in this Chapter.

885.     In US — Lead and Bismuth II, the Appellate Body examined whether it could admit amicus curiae briefs.

The Appellate Body confirmed its broad authority to adopt procedural rules:

“[Article 17.9 of the DSU] 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.(1403) 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.”(1404)

8. Article 17.10: Confidentiality requirements on the Appellate Body proceedings

886.     In Brazil — Aircraft, the Appellate Body addressed the issue of the confidentiality obligation applicable to the Appellate Body members and staff as well as to WTO Members at large. It also emphasized the ordinary meaning of the word “proceedings”:

“With respect to appellate proceedings, in particular, the provisions of the DSU impose an obligation of confidentiality which applies to WTO Members generally as well as to Appellate Body Members and staff. In this respect, Article 17.10 of the DSU states, without qualification, that “[t]he proceedings of the Appellate Body shall be confidential.” (emphasis added) The word “proceeding” has been defined as follows:

 

In a general sense, the form and manner of conducting juridical business before a court or judicial officer. Regular and orderly progress in form of law, including all possible steps in an action from its commencement to the execution of judgment.(1405) (emphasis added).

 

More broadly, the word “proceedings” has been defined as “the business transacted by a court”.(1406) In its ordinary meaning, we take “proceedings” to include, in an appellate proceeding, any written submissions, legal memoranda, written responses to questions, and oral statements by the participants and the third participants; the conduct of the oral hearing before the Appellate Body, including any transcripts or tapes of that hearing; and the deliberations, the exchange of views and internal workings of the Appellate Body.”(1407)

887.     Having recalled the provisions of Article 17.10 of the DSU which contains rules protecting the confidentiality of written submissions and information submitted to it, the Appellate Body, in Brazil — Aircraft, went on to assess the scope of the confidentiality requirements thereunder:

Article 18.2 of the DSU also contains rules protecting the confidentiality of written submissions and information submitted to the Appellate Body:

 

Written submissions to the pane! or the Appellate Body shall be treated as confidential, but shall be made available to the parties to the dispute. Nothing in this Understanding shall preclude a party to a dispute from disclosing statements of its own positions to the public. Members shall treat as confidential information submitted by another Member to the panel or the Appellate Body which that Member has designated as confidential. A party to a dispute shall also, upon request of a Member, provide a non-confidential summary of the information contained in its written submissions that could be disclosed to the public.” (emphasis added)

 

Finally, we wish to recall that Members of the Appellate Body and its staff are covered by Article VII:1 of the Rules of Conduct, which provides:

 

Each covered person shall at all times maintain the confidentiality of dispute settlement deliberations and proceedings together with any information identified by a party as confidential, (emphasis added).”(1408)

888.     In Australia — Apples, the Appellate Body granted a request by the participants to allow public observation of the oral hearing. In the context of a procedural ruling regarding this request, the Appellate Body summarized its reasoning on this issue in prior cases, including its reasoning on Article 17.10:

“We recall that requests to allow public observation of the oral hearing have been made, and have been authorized, in five previous appeals. In its rulings, the Appellate Body has held that it has the power to authorize such requests by the participants, provided that this does not affect the confidentiality in the relationship between the third participants and the Appellate Body, or impair the integrity of the appellate process. The Appellate Body has reasoned that:

 

(a)     The confidentiality rule in the first sentence of Article 17.10 of the DSU must be read in the light of its context, particularly Article 18.2 of the DSU, which does not preclude a participant from foregoing confidentiality and, instead, disclosing statements of its own positions to the public. The third sentence of Article 18.2 states that “Members shall treat as confidential information submitted by another Member to the panel or the Appellate Body which that Member has designated as confidential.” This provision would be redundant if Article 17.10 were interpreted to require absolute confidentiality in respect of all elements of appellate proceedings, and thus suggests that the confidentiality rule in Article 17.10 has limits.

 

(b)     The confidentiality requirement in Article 17.10 operates in a relational manner. Different sets of relationships are implicated in appellate proceedings, including: (i) a relationship between the participants and the Appellate Body; and (ii) a relationship between the third participants and the Appellate Body. The requirement that the proceedings of the Appellate Body be confidential affords protection to these separate relationships and is intended to safeguard the interests of the participants and third participants, as well as the adjudicative function of the Appellate Body, so as to foster the system of dispute settlement under conditions of fairness, impartiality, independence and integrity. When participants request to forego confidentiality protection for their communications with the Appellate Body at the oral hearing, the right to confidentiality of third participants vis-à-vis the Appellate Body is not implicated, because such request does not extend to any communications, nor touch upon the relationship, between the third participants and the Appellate Body.

 

(c)     Pursuant to Rule 27 of the Working Procedures, the Appellate Body has the power to exercise control over the conduct of the oral hearing, including authorizing the lifting of confidentiality at the request of the participants provided that this does not adversely affect the rights and interests of the third participants or the integrity of the appellate process. The active participation of third participants in oral hearings has been fostered in the Working Procedures and in practice; yet the rights of third participants are distinct from those of the participants in an appellate proceeding.

 

(d)     Although certain elements of confidentiality are incapable of derogation(1409), the confidentiality of statements by participants at an oral hearing in an appeal is not of such a nature.”(1410)

9. Article 17.11: concurring and separate opinions

(a) Table of individual opinions in Appellate Body reports to date

889.     The following table provides information on individual opinions in Appellate Body reports to date. It is updated to 30 September 2011.

DS No. Description Issue Reference
DS135 Concurring statement Relevance of commercial competition to the likeness determination under Article III:4 of the GATT 1994 Appellate Body Report, EC — Asbestos, paras. 149-154
DS267 Separate opinion Whether export credit, export credit guarantees and insurance programs are subject to export subsidy disciplines under the Agreement on Agriculture and the SCM Agreement Appellate Body Report, US — Upland Cotton, paras. 631-641
DS294 Separate opinion Whether the measure at issue had a sufficient nexus to the recommendations and rulings of the DSU or the measures “taken to comply” for purposes of an Article 21.5 proceeding Appellate Body Report, US — Zeroing (EC) (Article 21.5 — EC), paras. 259-270
DS316 Separate views from each member of the AB Division Whether an extinction of subsidies occurs in the context of partial privatizations and private-to-private sales under the SCM Agreement Appellate Body Report, EC and certain member States — Large Civil Aircraft, para. 726 (a), (b) and (c)
Separate view from one member Whether the AB could complete the legal analysis on the United States’ claims of displacement under SCM Agreement Art. 6 Appellate Body Report, EC and certain member States — Large Civil Aircraft, para. 1149
DS350 Concurring opinion Whether zeroing in periodic reviews is permissible under Article 9.3 of the Anti-Dumping Agreement and GATT 1994 Art. VI:2 Appellate Body Report, US — Continued Zeroing, paras. 304-313

10. Article 17.12: “shall address each of the issues raised”

890.     In Mexico — Corn Syrup (Article 21.5 — US), the Appellate Body, while not making reference to Article 17.12, implied that expressly exercising judicial economy amounted “addressing” a claim (or objection):

“[H]ad we been satisfied that Mexico did, in fact, explicitly raise its objections before the Panel, then the Panel may well have been required to “address” those objections, whether by virtue of Articles 7.2 and 12.7 of the DSU, or the requirements of due process.(44)

 

(44) We recall that, in a different context involving judicial economy, we said that:

 

… for purposes of transparency and fairness to the parties, a panel should, … in all cases, address expressly [even] those claims which it declines to examine and rule upon … Silence does not suffice for these purposes.

 

Appellate Body Report, Canada — Certain Measures Affecting the Automotive Industry WT/DS139/AB/R, WT/DS142/AB/R, adopted 19 June 2000, para. 117.”

891.     In several cases, the Appellate Body has found that Article 17.12 does not preclude it from exercising judicial economy. For example, in US — Upland Cotton, the Appellate Body considered it unnecessary to develop interpretations of certain terms for the purpose of resolving the dispute:

“Nor do we believe that it is necessary to make a finding on the interpretation of the phrase “world market share” in Article 6.3(d) of the SCM Agreement. We recall that Article 17.12 of the DSU requires that the “Appellate Body shall address each of the issues raised in accordance with paragraph 6 [of Article 17] during the appellate proceeding”. … For its part, Article 3.4 of the DSU provides that “[r]ecommendations or rulings made by the DSB shall be aimed at achieving a satisfactory settlement of the matter”. Similarly, Article 3.7 states that “[t]he aim of the dispute settlement mechanism is to secure a positive solution to a dispute”.

 

 

With this in mind, we observe that although an interpretation by the Appellate Body, in the abstract, of the meaning of the phrase “world market share” in Article 6.3(d) of the SCM Agreement might offer at best some degree of “guidance” on that issue, it would not affect the resolution of this particular dispute. Indeed, irrespective of whether we were to uphold or reverse the Panel’s finding on this issue, upon adoption of the recommendations and rulings by the DSB, the United States would be under no additional obligation regarding implementation. Thus, although we recognize that there may be cases in which it would be useful for us to review an issue, despite the fact that our ruling would not result in rulings and recommendations by the DSB, we find no compelling reason for doing so in this case.

 

Accordingly, we believe that an interpretation of the phrase “world market share” in Article 6.3(d) of the SCM Agreement is unnecessary for purposes of resolving this dispute. We emphasize that we neither uphold nor reverse the Panel’s findings on the interpretation of the phrase “world market share” in Article 6.3(d) of the SCM Agreement(1411)

11. Article 17.13: “may uphold, modify or reverse the legal findings and conclusions of the panel”

(a) Panel finding not appealed not implicitly upheld

892.     In Canada — Periodicals, the Appellate Body stressed 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”.(1412)

(b) Appellate Body may declare a Panel findings “moot” and of “no legal effect”

893.     In certain circumstances, the Appellate Body’s analysis may declare a panel’s findings moot and of no legal effect, rather than upholding, modifying or reversing those findings. For example, in Brazil — Aircraft (Article 21.5 — Canada), the Appellate Body stated that:

“As Brazil has failed to prove one of the elements necessary to prove that payments made under the revised PROEX are justified by item (k), we do not believe it is necessary to examine the issue of whether export subsidies under the revised PROEX are “the payment [by governments] of all or part of the costs incurred by exporters or financial institutions in obtaining credits” within the meaning of the first paragraph of item (k). Therefore, we do not address the Article 21.5 Panel’s findings on this issue. These findings of the Article 21.5 Panel are moot, and, thus, of no legal effect.”(1413)

894.     In US — Certain EC Products, the Appellate Body stated that:

“Having found that the 3 March Measure is the measure at issue in this dispute, and that the 19 April action is outside its terms of reference, the Panel should have limited its reasoning to issues that were relevant and pertinent to the 3 March Measure. By making statements on an issue that is only relevant to the 19 April action, the Panel failed to follow the logic of, and thus acted inconsistently with, its own finding on the measure at issue in this dispute. The Panel, therefore, erroneously made statements that relate to a measure which it had itself previously determined to be outside its terms of reference.

 

For these reasons, we conclude that the Panel erred by making the statements in paragraphs 6.121 to 6.126 of the Panel Report on the mandate of arbitrators appointed under Article 22.6 of the DSU. Therefore, these statements by the Panel have no legal effect.”(1414)

895.     In US — Cotton Yarn, the United States appealed against the Panel’s interpretation that Article 6.4 of the Agreement on Textiles and Clothing required attribution to all Members the imports from whom cause serious damage or actual threat thereof. The Appellate Body stated that:

“The Panel considered it necessary, in its reasoning, to rule on the broader interpretative question of whether Article 6.4 requires attribution to all Members the imports from whom cause serious damage or actual threat thereof. The United States also appeals the Panel’s interpretation on this broader question. However, our findings resolve the dispute as defined by Pakistan’s claims before the Panel. We, therefore, do not rule on the issue of whether Article 6.4 requires attribution to all Members the imports from whom cause serious damage or actual threat thereof. In these circumstances, the Panel’s interpretation on this question is of no legal effect.”(1415)

(c) “legal findings and conclusions”

896.     In US — Wool Shirts and Blouses, the Appellate Body declined to address a particular statement by the Panel appealed by India. The Appellate Body held that the statement was not a legal finding, but rather a “descriptive and gratuitous comment”:

“India appealed the following statement relating to Article 6.10 of the ATC at paragraph 7.20 of the Panel Report:

 

‘During the review process, the TMB is not limited to the initial information submitted by the importing Member as parties may submit additional and other information in support of their positions, which, we understand, may relate to subsequent events.’ (emphasis added)

 

In our view, this statement by the Panel is purely a descriptive and gratuitous comment providing background concerning the Panel’s understanding of how the TMB functions. We do not consider this comment by the Panel to be ‘a legal finding or conclusion’ which the Appellate Body ‘may uphold, modify or reverse’.”(1416),(1417)

897.     In EC — Poultry, the Appellate Body addressed the issue of the allocation of a tariff-rate quota share to a non-Member and the participation of non-Members in the “others” category of a tariff-rate quota. In this con text the Appellate Body stated that it was mindful of the mandate under Article 17.6 of the DSU and held that, contrary to Brazil’s claim, the Panel had not made any legal findings on this issue:

“It is true that in footnote 140 of the Panel Report, the Panel states that paragraph 7.75 of the EC — Bananas panel reports and ‘particularly the use of the phrase ‘all suppliers other than Members with a substantial interest in supplying the product’… indicates that the Banana III panel did not take the view that allocation of quota shares to non-Members under Article XIII:2(d) was not permitted’. We do not consider this comment made in a footnote by the Panel to be either a ‘legal interpretation developed by the panel’ within the meaning of Article 17.6 of the DSU or a ‘legal finding’ or ‘conclusion’ that the Appellate Body may ‘uphold, modify or reverse’ under Article 17.13 of the DSU. It is undisputed in this case that there is no allocation of a country-specific share in the tariff-rate quota to a non-Member. There is, therefore, no finding nor any ‘legal interpretation developed by the panel’ that may be the subject of an appeal of which the Appellate Body may take cognizance.”(1418)

898.     In US — Anti-Dumping and Countervailing Duties (China), the Appellate Body indicated that it was not clear that certain statements made by the Panel in that case could be characterized as “findings” on issues of law or legal interpretation:

“At the outset, we note that China’s appeal concerns statements made by the Panel in order to clarify the narrow and fact-specific nature of its finding of violation of Article 2.2 of the SCM Agreement. These statements identify certain unanswered questions and posit that, if evidence relevant to those questions existed, and /fit had been placed on the record before the USDOC, this “might have” resulted in a finding of regional specificity consistent with Article 2.2.(1419)

 

Whether or not these statements by the Panel can be characterized as “findings” on issues of law or legal interpretations(1420), they were very much focused on the particular facts of the LWS investigation, and it is clear to us that they were obiter in nature.”(1421)

12. Article 17.14

(a) Legal effect of adopted Appellate Body reports

(i) General

899.     In US — Shrimp (Article 21.5 — Malaysia) the Appellate Body referred to its ruling in Japan — Alcoholic Beverages II and considered that the same reasoning applied to Appellate Body reports:

“[W]e note that in our Report in Japan — Taxes on Alcoholic Beverages, we stated that:

 

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.

 

This reasoning applies to adopted Appellate Body Reports as well. Thus, in taking into account the reasoning in an adopted Appellate Body Report-a Report, moreover, that was directly relevant to the Panel’s disposition of the issues before it — the Panel did not err. The Panel was correct in using our findings as a tool for its own reasoning. Further, we see no indication that, in doing so, the Panel limited itself merely to examining the new measure from the perspective of the recommendations and rulings of the DSB.”(1422)

900.     In US — Softwood Lumber V, the United States requested that the Appellate Body not import wholesale the findings and reasoning from the Appellate Body report on EC — Bed Linen on the grounds that it was not a party to that dispute, that the arguments raised in that case were different and that the United States’ practice of zeroing was not at issue in that appeal. The complainant, Canada, disagreed. The Appellate Body after referring to its prior reports on Japan — Alcoholic Beverages II and US — Shrimp (Article 21.5 — Malaysia) and to Article 3.2 of the DSU, indicated that they had given full consideration to the particular facts of the case before them and to the arguments raised by the United States on appeal, as well as to those raised by Canada and the third participants. The Appellate Body said that, in doing so, they “have taken into account the reasoning and findings contained in the Appellate Body Report in EC — Bed Linen, as appropriate”.(1423)

901.     The Appellate Body in EC — Bed Linen, on a plain reading of Article 17.14 provisions held that an adopted Appellate Body Report must be treated as a final resolution to a dispute between the parties to that dispute. Unappealed findings are also subject to similar treatment:

“…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.”(1424)

902.     In US — Oil Country Tubular Goods Sunset Reviews, the Appellate Body stated that:

“The Panel had before it exactly the same instrument that had been examined by the Appellate Body in US — Corrosion-Resistant Steel Sunset Review; thus, it was appropriate for the Panel, in determining whether the SPB is a measure, to rely on the Appellate Body’s conclusion in that case. Indeed, following the Appellate Body’s conclusions in earlier disputes is not only appropriate, but is what would be expected from panels, especially where the issues are the same.”(1425)

903.     In US — Stainless Steel (Mexico), the Panel disagreed with the Appellate Body on whether “zeroing” is prohibited in the calculation of anti-dumping margins. On appeal, the Appellate Body explained why it was “deeply concerned” by the Panel’s decision to deviate from the Appellate Body’s well established jurisprudence clarifying the interpretation of the same legal issues:

“It is well settled that Appellate Body reports are not binding, except with respect to resolving the particular dispute between the parties. This, however, does not mean that subsequent panels are free to disregard the legal interpretations and the ratio decidendi contained in previous Appellate Body reports that have been adopted by the DSB.(1426)…

 

In US-Shrimp (Article 21.5-Malaysia), the Appellate Body clarified that this reasoning applies to adopted Appellate Body reports as well. In US — Oil Country Tubular Goods Sunset Reviews, the Appellate Body held that “following the Appellate Body’s conclusions in earlier disputes is not only appropriate, but is what would be expected from panels, especially where the issues are the same.”

 

Dispute settlement practice demonstrates that WTO Members attach significance to reasoning provided in previous panel and Appellate Body reports. Adopted panel and Appellate Body reports are often cited by parties in support of legal arguments in dispute settlement proceedings, and are relied upon by panels and the Appellate Body in subsequent disputes. In addition, when enacting or modifying laws and national regulations pertaining to international trade matters, WTO Members take into account the legal interpretation of the covered agreements developed in adopted panel and Appellate Body reports. Thus, the legal interpretation embodied in adopted panel and Appellate Body reports becomes part and parcel of the acquis of the WTO dispute settlement system. Ensuring “security and predictability” in the dispute settlement system, as contemplated in Article 3.2 of the DSU, implies that, absent cogent reasons, an adjudicatory body will resolve the same legal question in the same way in a subsequent case.

 

In the hierarchical structure contemplated in the DSU, panels and the Appellate Body have distinct roles to play. In order to strengthen dispute settlement in the multilateral trading system, the Uruguay Round established the Appellate Body as a standing body. Pursuant to Article 17.6 of the DSU, the Appellate Body is vested with the authority to review “issues of law covered in the panel report and legal interpretations developed by the panel”. Accordingly, Article 17.13 provides that the Appellate Body may “uphold, modify or reverse” the legal findings and conclusions of panels. The creation of the Appellate Body by WTO Members to review legal interpretations developed by panels shows that Members recognized the importance of consistency and stability in the interpretation of their rights and obligations under the covered agreements. This is essential to promote “security and predictability” in the dispute settlement system, and to ensure the “prompt settlement” of disputes. The Panel’s failure to follow previously adopted Appellate Body reports addressing the same issues undermines the development of a coherent and predictable body of jurisprudence clarifying Members’ rights and obligations under the covered agreements as contemplated underthe DSU. Clarification, as envisaged in Article 3.2 of the DSU, elucidates the scope and meaning of the provisions of the covered agreements in accordance with customary rules of interpretation of public international law. While the application of a provision may be regarded as confined to the context in which it takes place, the relevance of clarification contained in adopted Appellate Body reports is not limited to the application of a particular provision in a specific case.

 

We are deeply concerned about the Panel’s decision to depart from well-established Appellate Body jurisprudence clarifying the interpretation of the same legal issues. The Panel’s approach has serious implications for the proper functioning of the WTO dispute settlement system, as explained above. Nevertheless, we consider that the Panel’s failure flowed, in essence, from its misguided understanding of the legal provisions at issue. Since we have corrected the Panel’s erroneous legal interpretation and have reversed all of the Panel’s findings and conclusions that have been appealed, we do not, in this case, make an additional finding that the Panel also failed to discharge its duties under Article 11 of the DSU.”(1427)

(b) Table showing the length of time taken from the date of the circulation of the Appellate Body report to the date of its adoption

904.     The following table provides information on the length of time taken in WTO proceedings from the date of the circulation of the Appellate Body report to the date of its adoption.(1428) It is updated to 30 September 2011.

Prescribed Time-Period in Article 17.14 20-30 days
Average to Date 23 days
Longest to Date 30 days
Shortest to Date 10 days
WT/DS No. Dispute Short Title Days from circulation to adoption
WT/DS2, WT/DS4 US — Gasoline 21 days
WT/DS8, WT/DS10, WT/DS11 Japan — Alcoholic Beverages II 28 days
WT/DS 18 Australia — Salmon 17 days
WT/DS22 Brazil — Desiccated Coconut 27 days
WT/DS24 US — Underwear 15 days
WT/DS26 EC — Hormones 28 days
WT/DS27 EC — Bananas III 16 days
WT/DS31 Canada — Periodicals 30 days
WT/DS33 US — Wool Shirts and Blouses 28 days
WT/DS34 Turkey — Textiles 28 days
WT/DS46 Brazil — Aircraft 18 days
WT/DS48 EC — Hormones 28 days
WT/DS50 India — Patents (US) 28 days
WT/DS56 Argentina — Textiles and Apparel 26 days
WT/DS58 US — Shrimp 25 days
WT/DS60 Guatemala — Cement I 23 days
WT/DS62, WT/DS67, WT/DS68 EC — Computer Equipment 17 days
WT/DS69 EC — Poultry 10 days
WT/DS70 Canada — Aircraft 18 days
WT/DS75, WT/DS84 Korea — Alcoholic Beverages 30 days
WT/DS76 Japan — Agricultural Products II 25 days
WT/DS87,WT/DS110 Chile — Alcoholic Beverages 30 days
WT/DS90 India — Quantitative Restrictions 30 days
WT/DS98 Korea — Dairy 29 days
WT/DS103,WT/DS113 Canada — Dairy 14 days
WT/DS 108 US — FSC 25 days
WT/DS 121 Argentina — Footwear (EC) 29 days
WT/DS 122 Thailand — H-Beams 24 days
WT/DS 135 EC — Asbestos 24 days
WT/DS 136 US — 1916 Act 29 days
WT/DS 138 US — Lead and Bismuth II 28 days
WT/DS139, WT/DS142 Canada — Autos 19 days
WT/DS 141 EC — Bed Linen 11 days
WT/DS 146, WT/DS 175 India — Autos 17 days
WT/DS 161, WT/DS 169 Korea — Various Measures on Beef 30 days
WT/DS 162 US — Anti-Dumping Act of 1916 29 days
WT/DS 165 US — Certain EC Products 30 days
WT/DS 166 US — Wheat Gluten 28 days
WT/DS 170 Canada — Patent Term 24 days
WT/DS 176 US — Section 211 Appropriations Act 30 days
WT/DS 177, WT/DS 178 US — Lamb 15 days
WT/DS 184 US — Hot-Rolled Steel 30 days
WT/DS 192 US — Cotton Yarn 28 days
WT/DS202 US — Line Pipe 21 days
WT/DS207 Chile — Price Band System 30 days
WT/DS212 US — Countervailing Measures on Certain EC Products 30 days
WT/DS213 US — Carbon Steel 21 days
WT/DS217, WT/DS234 US — Offset Act (Byrd Amendment) 11 days
WT/DS219 EC — Tube or Pipe Fittings 27 days
WT/DS231 EC — Sardines 27 days
WT/DS244 US — Corrosion-Resistant Steel Sunset Review 25 days
WT/DS245 Japan — Apples 14 days
WT/DS246 EC — Tariff Preferences 13 days
WT/DS248, WT/DS249, WT/DS251, WT/DS252, WT/DS253, WT/DS254, WT/DS258, WT/DS259 US — Steel Safeguards 30 days
WT/DS257 US — Softwood Lumber IV 29 days
WT/DS264 US — Softwood Lumber V 20 days
WT/DS265, WT/DS266, WT/DS283 EC — Export Subsidies on Sugar 21 days
WT/DS267 US — Upland Cotton 18 days
WT/DS268 US — Oil Country Tubular Goods Sunset Review 18 days
WT/DS269, WT/DS 286 EC — Chicken Cuts 15 days
WT/DS276 Canada — Wheat Exports and Grain Imports 28 days
WT/DS282 US — Anti-Dumping Measures on Oil Country Tubular Goods 26 days
WT/DS285 US — Gambling 13 days
WT/DS294 US — Zeroing (EC) 21 days
WT/DS295 Mexico — Anti-Dumping Measures on Rice 21 days
WT/DS296 US — Countervailing Duty Investigation on DRAMs 23 days
WT/DS302 Dominican Republic — Import and Sale of Cigarettes 24 days
WT/DS308 Mexico — Taxes on Soft Drinks 18 days
WT/DS315 EC — Selected Customs Matters 28 days
WT/DS316 EC and certain member States — Large Civil Aircraft 14 days
WT/DS320, WT/DS321 US/Canada — Continued Suspension 29 days
WT/DS322 US — Zeroing (Japan) 14 days
WT/DS332 Brazil — Retreaded Tyres 14 days
WT/DS336 Japan — DRAMS (Korea) 19 days
WT/DS339, WT/DS340, WT/DS342 China — Auto Parts 28 days
WT/DS343 US — Shrimp (Thailand) 16 days
WT/DS344 US — Stainless Steel (Mexico) 20 days
WT/DS345 US — Customs Bond Directive 16 days
WT/DS350 US — Continued Zeroing 15 days
WT/DS360 India — Additional Import Duties 18 days
WT/DS363 China — Publications and Audiovisual Products 29 days
WT/DS367 Australia — Apples 18 days
WT/DS371 Thailand — Cigarettes (Philippines) 28 days
WT/DS379 US — Anti-Dumping and Countervailing Duties (China) 14 days
WT/DS397 EC — Fasteners (China) 13 days

 

XVIII. Article 18    back to top

A. Text of Article 18

Article 18: Communications with the Panel or Appellate Body

1.     There shall be no ex parte communications with the panel or Appellate Body concerning matters under consideration by the panel or Appellate Body.

 

2.     Written submissions to the panel or the Appellate Body shall be treated as confidential, but shall be made available to the parties to the dispute. Nothing in this Understanding shall preclude a party to a dispute from disclosing statements of its own positions to the public. Members shall treat as confidential information submitted by another Member to the panel or the Appellate Body which that Member has designated as confidential. A party to a dispute shall also, upon request of a Member, provide a non-confidential summary of the information contained in its written submissions that could be disclosed to the public.

 
B. Interpretation and Application of Article 18

1. Article 18.1

905.     In EC — Bananas III (US) (Article 22.6 — EC), the European Communities indicated that it could not accept the BCI procedures adopted by the Arbitrators, and that the Arbitrators should not consider any BCI as to do so would violate Article 18.1 of the DSU, which prohibits ex parte contacts between parties and panelists. The Arbitrators responded that:

“Since we are of the view that the procedures are reasonable in the circumstances5, we do not accept the EC argument that its decision not to receive information under the rules we have established means that the United States may not submit the information. Acceptance of the EC argument would mean that a party’s refusal to participate in a proceeding would effectively prevent the proceeding from going forward.”(1429)

906.     In US — Wheat Gluten, the United States indicated that domestic producers would grant permission for the release of certain business confidential information provided that the information was not divulged to representatives of the European Communities. The Panel considered that “in light of Article 18.1 of the DSU and the position expressed by the European Community in this case, it should not view the requested information under the conditions outlined by the United States”.(1430)

907.     In Canada — Aircraft Credits and Guarantees, Canada provided certain information to the Panel without providing a copy to Brazil. The Panel explained that:

“Having reviewed the parties’ first written submissions, on 20 June 2001 the Panel asked Brazil “to provide full details of the terms and conditions of Embraer’s offer of financing to Air Wisconsin”, and Canada “to provide full details of the terms and conditions of its Air Wisconsin transaction”. Both parties responded to this request on 25 June 2001. Canada failed to provide a copy of the information to Brazil on that date. Instead, Canada “ask [ed] the Panel to require that when this information is provided to Brazil, its disclosure be restricted to officials of the Government of Brazil and private legal counsel retained and paid for by the Government of Brazil who are directly involved in this dispute settlement proceeding”. In a letter to Canada dated 26 June 2001, the Panel noted that Canada’s letter of 25 June 2001 “was not copied to Brazil, contrary to paragraph 10 of the Panel’s Working Procedures”. The Panel further “note[d] that, with the limited exception of paragraph 16, its Working Procedures do not provide for any special procedures regarding the treatment of business confidential information. The Panel does not consider it appropriate to introduce such procedures under the present circumstances, i.e., on the basis of an ex parte request, and without an opportunity to consult with Brazil”. For those reasons, the Panel returned Canada’s submission of 25 June 2001. At the first substantive meeting, Canada informed the Panel that it had not intended to make an ex parte communication, and that it was not seeking to introduce any special procedures for the treatment of business confidential information. On that basis, its letter of 25 June 2001 was entered in the record.”(1431)

908.     In Korea — Certain Paper, in its second written submission Korea stated that it would continue to serve its confidential submissions on Indonesia subject to the understanding that these submissions would not be disclosed by Indonesia to anyone other than the relevant Indonesian government officials and to legal advisors of Indonesia who had agreed to maintain the confidentiality of information provided to them”. Indonesia responded that Korea could not unilaterally subject to conditions Indonesia’s use of Korea’s submissions in the preparation of its case. Korea then requested the Panel to direct Indonesia to return to Korea all confidential submissions made by the latter. Korea also indicated that it would serve non-confidential versions of its confidential submissions on Indonesia. The Panel understood this proposition to mean that Korea would submit full confidential versions of its submissions to the Panel, but that only non-confidential versions would be served on Indonesia. The Panel considered that:

“In respect of Korea’s proposal to withdraw its existing submissions and submit non-confidential versions of those submissions to Indonesia, considering the fact that Article 18.1 of the DSU precludes ex parte communications between the Panel and a party, we stated that while we would entertain any request by Korea to withdraw its submissions or to redact from them certain information, in such a case the submissions withdrawn or information redacted would no longer be before the Panel. We further stated that we were fully conscious of the obligations placed on Members by Article 6.5 of the Anti-dumping Agreement, and remain prepared to work with the parties to design ways to protect any information treated as confidential by the investigating authorities in the underlying investigation. Korea, however, failed to request such procedures.”(1432)

909.     In Turkey — Rice, the Panel requested certain information from Turkey. In response, Turkey indicated that it could only provide the requested information to the Secretariat and the Panel, but not the United States. The Panel explained that:

“The Panel was explicit in the documents it requested from Turkey, both after the first and after the second substantive meeting with the parties. As noted above, in response to the Panel’s requests, Turkey expressed that its “officials involved in this Panel proceeding [did] not feel comfortable in risking information leaks and possible criminal accusations of violation of Turkish law on confidentiality”. Turkey offered to provide “‘blacked-out’ copies of [some] Certificates of Control only to the Panel and after a clear understanding… that these documents would not be made available to the United States nor to any other entity beside the Panel and the WTO Secretariat”. However, the Panel cannot accept such an offer from Turkey, which is one of the parties to this dispute. Indeed, the evidence requested by the Panel, as well as all submissions under the proceedings at issue, fall under the provision contained in Article 18.1 of the DSU…”(1433)

2. Article 18.2

(a) Disclosure of “written submissions”

(i) Difference between “submissions” and “statements”

910.     In Argentina — Poultry Anti-Dumping Duties, Brazil informed the Panel of its intention to make its first written submission (except the exhibits) available to the public, after providing Argentina with an opportunity to indicate whether the submission should be revised to exclude any information deemed confidential. Argentina objected and submitted that a Member is only entitled to disclose written statements of its position. According to Argentina, Article 18.2 of the DSU draws a clear distinction between “written submissions” and position “statements”. The Panel rejected Argentina’s interpretation as being formalistic:

“On substance, we agree with Canada that Argentina’s interpretation(1434) of Article 18.2 of the DSU results in a formalistic distinction between the terms “written submission” and “statement”. In doing so, Argentina negates that a party’s written submissions to a panel necessarily contain statements of that party’s positions. In our view, the first two sentences of Article 18.2 of the DSU should not be read in formalistic isolation of one another. Read together, and in context of one another, the first two sentences of Article 18.2 of the DSU mean that while one party shall not disclose the submissions of another party, each party is entitled to disclose statements of its own positions, subject to the confidentiality requirement set forth in the third sentence of Article 18.2 of the DSU. We recall that a party’s written submissions to a panel necessarily contain statements of that party’s positions. In our view, therefore, disclosing submissions to a panel is one way for a party to disclose statements of its positions. If a party chooses to make public the totality of the statements of its own position contained in its written submission, it is entitled to do so, provided the confidentiality requirement of the third sentence of Article 18.2 of the DSU is respected. Since Argentina has not argued that Brazil violated its confidentiality obligation, we do not consider that Brazil’s decision to disclose the entirety of the statements of position contained in its first written submission to the Panel (excluding exhibits) was inconsistent with Article 18.2 of the DSU.”(1435)

(ii) Timing of the disclosure

911.     Subsequently, in the proceedings in Argentina — Poultry Anti-Dumping Duties, Argentina withdrew its objection to the disclosure of Brazil’s written submission. However, it did not agree with the timing of that disclosure. According to Argentina, Brazil should not have revealed its submissions until after publication of the Panel report. The Panel again disagreed with Argentina on this point since, in its view, Article 18.2 of the DSU does not impose any time-limits for the disclosure:

“Furthermore, we note that, by the time of our first substantive meeting with the parties, Argentina was no longer arguing that Brazil was not entitled to make the entirety of its written submissions to the Panel available to the public during the Panel proceedings. Implicitly, therefore, Argentina ultimately agreed that Brazil was entitled to make its written submission available to the public pursuant to Article 18.2 of the DSU. Although Argentina argued that Brazil should not have done so until after publication of the Panel’s report, we find no basis for this argument in Article 18.2 of the DSU. Article 18.2 sets no temporal limits on Members’ rights and obligations under that provision. Nor do we find any basis for this argument in paragraph 11 of the Panel’s Working Procedures, which concerns the preparation of the descriptive part of the Panel’s report.(1436) We see nothing in this provision which would impose any limits on rights accruing to Members under Article 18.2 of the DSU.”(1437)

(b) Non-confidential versions of written submissions

912.     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 dealt with the United States’ request to require production of non-confidential versions of written submissions within 14 days following the filing of the written submissions. The Panel responded as follows:

“The Panel recalls that, although the production of a non-confidential summary is mandatory upon request by any WTO Member, it is also WTO practice for panels to leave parties to agree on the date for production of such summaries, if any deadline is to apply. Accordingly, the Panel urges the parties to agree as early as possible on deadlines for production of such non-confidential summaries so as to ensure that appropriate information relating to the present dispute is disclosed to the public.”(1438)

(c) Alleged breaches of confidentiality

913.     Regarding breaches of confidentiality in the form of leaking the interim report, see Article 15 of the DSU.

914.     In Thailand — H-Beams, an industry association submitted an amicus brief which cited Thailand’s confidential submission. Thailand then claimed that Poland’s private counsel may have violated WTO rules of confidentiality by providing Thailand’s submission to the said association. Although Poland and the lawyer concerned denied the alleged breach of confidentiality, the Appellate Body rejected the amicus brief in a preliminary ruling:

“The terms of Article 17.10 of the DSU are clear and unequivocal: ‘[t]he proceedings of the Appellate Body shall be confidential’. Like all obligations under the DSU, this is an obligation that all Members of the WTO, as well as the Appellate Body and its staff, must respect. WTO Members who are participants and third participants in an appeal are fully responsible under the DSU and the other covered agreements for any acts of their officials as well as their representatives, counsel or consultants. We emphasized this in Canada — Measures Affecting the Export of Civilian Aircraft, WT/DS70/AB/R, para. 145, where we stated that:

 

… the provisions of Articles 17.10 and 18.2 apply to all Members of the WTO, and oblige them to maintain the confidentiality of any submissions or information submitted, or received, in an Appellate Body proceeding. Moreover, those provisions oblige Members to ensure that such confidentiality is fully respected by any person that a Member selects to act as its representative, counsel or consultant. (emphasis added)

 

We note that Poland has made substantial efforts to investigate this matter, and to gather information from its legal counsel, Hogan & Hartson L.L.P. We note as well the responses from the third participants, the European Communities, Japan and the United States. Furthermore, Poland has accepted the proposal made by Hogan & Hartson L.L.P. to withdraw as Poland’s legal counsel in this appeal. On the basis of the responses we have received from Poland and from the third participants, and on the basis of our own examination of the facts on the record in this appeal, we believe that there is prima facie evidence that CITAC received, or had access to, Thailand’s appellant’s submission in this appeal.

 

We see no reason to accept the written brief submitted by CITAC in this appeal. Accordingly, we have returned this brief to CITAC.”(1439)

915.     The Panel in Brazil — Aircraft (Article 21.5 — Canada II) rejected Brazil’s arguments that Canada had acted inconsistently with the requirements of the DSU or the Panel’s working procedures providing advisers who were not designated as members of its delegation with access to information submitted to the Panel by Brazil. A member of the Canadian delegation at a meeting of the Panel with the parties had provided a copy of Brazil’s written version of its oral statement to persons who were not members of its delegation. Further, Canada had “shared [Brazil’s submissions and statements] with members of a private law firm retained by a Canadian aircraft manufacturer”.(1440) The Panel advised as follows:

“In our view, it emerges from [Article 18.2 of the DSU] that Canada must keep confidential all information submitted to this Panel by Brazil.(1441) However, as the Appellate Body has noted, “a Member’s obligation to maintain the confidentiality of […] proceedings extends also to the individuals whom that Member selects to act as its representatives, counsel and consultants.”(1442) Thus, the Appellate Body clearly assumed that Members may provide confidential information also to non-government advisors.

 

We see nothing in Article 18.2 of the DSU, or any other provision of the DSU(1443), to suggest that Members may share such confidential information with non-government advisors only if those advisors are members of an official delegation at a panel meeting.(1444) Indeed, paragraph 13 of this Panel’s Working Procedures expressly provides that:

 

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. (emphasis added)

 

It is apparent from the second and third sentences of paragraph 13 of the Working Procedures that the “other advisors” referred to are advisors who are not part of a Member’s delegation at a panel meeting. It is equally clear to us that paragraph 13 is based on the premise that parties to panel proceedings may give their “other advisors” access to confidential information submitted by the other party.(1445) Were it otherwise, there would be no point in requiring parties to safeguard the confidentiality of panel proceedings in respect of such “other advisors”.(1446)

 

On the basis of the foregoing, we are unable to accept Brazil’s argument that Canada acted inconsistently with the requirements of the DSU or this Panel’s Working Procedures by giving advisors not designated as members of its delegation access to information submitted to this Panel by Brazil.(1447)

 

In reaching this conclusion, we note, however, that, pursuant to paragraph 13 of the Working Procedures, Canada must ensure that any advisors who were not members of its official delegation respect the confidentiality of the present proceedings.”(1448)

916.     In relation to the involvement of private lawyers, the Panel in Brazil — Aircraft (Article 21.5 — Canada II) indicated that it had no basis for questioning a confidentiality agreement between the relevant private lawyers and the Canadian Government. For the Panel, confidentiality rules are not to be used by a panel to “stifle” necessary communication between Member governments and their advisers, provided adequate safeguards are in place.

“We note Canada’s statement that the members of the law firm which have had access to Brazil’s submissions have been part of its litigation team and have served as “advisors” to the Government of Canada. Since no members of a private law firm were part of Canada’s delegation to the meeting of the Panel with the parties, the private lawyers Canada says were advising it fall within the “other advisors” category within the meaning of paragraph 13 of the Panel’s Working Procedures. It was (and is), therefore, the responsibility of Canada to ensure that those private lawyers maintain the confidentiality of the documents submitted by Brazil.

 

Based on Canada’s representations, we also understand that the law firm in question has an attorney-client relationship with a Canadian regional aircraft manufacturer. We think that the dual role performed by the law firm-as advisor to the Government of Canada and attorney for a Canadian regional aircraft manufacturer-places the law firm in a particularly delicate position as far as the protection of Brazil’s submissions, statements and exhibits is concerned.(1449) In our view, it is crucial, in such circumstances, that Canada put in place appropriate safeguards to ensure non-disclosure of confidential information.

 

 

We agree that maintaining confidentiality in accordance with the obligations of the DSU is important. On the other hand, in applying the rules on confidentiality we must be careful not to stifle necessary communication between Member governments and their advisors, as long as appropriate safeguards are in place. In the absence of arguments and evidence to the contrary, we have no basis for questioning Canada’s representation that the relevant private lawyers are subject to a confidentiality agreement with the Government of Canada.”(1450),(1451)

917.     In EC — Export Subsidies on Sugar, an association representing German sugar producers submitted an amicus brief that disclosed Brazil’s confidential information. Australia, Brazil and Thailand requested the Panel to reject the association’s brief. The European Communities did not wish to comment.(1452) The Panel requested that the industry association identify the source of its information, which it refused to do.(1453) The Panel, in a preliminary ruling, determined that there had been a breach of confidentiality and refused to further consider the brief. It further stated:

“The Panel has come to the conclusion that a breach of confidentiality did occur in the framework of these proceedings. The Panel is therefore concerned and deeply deplores this breach of confidentiality and the disregard of a requirement imposed by the DSU and the Panel’s Working Procedures. …

 

The Panel hereby reports the incident to the Dispute Settlement Body.”(1454)

918.     In US — Upland Cotton, the United States requested that the Panel would note in its final report that Brazil had breached the obligation of confidentiality of the Panel’s interim report. Brazil replied that certain press reports could not have obtained information form any Brazilian source but could just as easily have been United States officials or other persons not connected to Brazil. The Panel stated:

“Indeed, pursuant to Article 18.2 of the DSU, all panel proceedings remain confidential until the Panel Report is circulated to WTO Members. Over and above the binding treaty obligation of confidentiality in the DSU, the confidentiality of our Panel proceedings was reflected in our working procedures adopted pursuant to Article 12.1 of the DSU. Therefore, we are profoundly concerned to observe that the confidentiality has not been respected and that aspects of the Panel’s interim report were disclosed, as evidenced in various press reports brought to our attention by the parties. We consider this lack of respect for confidentiality unacceptable.”(1455)

(d) Additional procedures to protect Business Confidential Information (BCI)

(i) General

919.     In Brazil — Aircraft and Canada — Aircraft, the Panels, at the request of the parties, adopted special BCI procedures that went beyond the protection afforded by Article 18.2 of the DSU. However, the Appellate Body declined to adopt additional procedures to protect business confidential information during the appeal process. The Appellate Body stated:

“[T]he provisions of Articles 17.10 and 18.2 apply to all Members of the WTO, and oblige them to maintain the confidentiality of any submissions or information submitted, or received, in an Appellate Body proceeding. Moreover, those provisions oblige Members to ensure that such confidentiality is fully respected by any person that a Member selects to act as its representative, counsel or consultant.

 

 

For these reasons, we do not consider that it is necessary, under all the circumstances of this case, to adopt additional procedures for the protection of business confidential information in these appellate proceedings.”(1456)

920.     However, the Appellate Body did adopt additional procedures to protect business confidential information in EC and certain member States — Large Civil Aircraft.(1457) In that proceeding, the Appellate Body clarified that:

“[W]e recognize that, in Brazil — Aircraft and Canada — Aircraft, the Appellate Body did not consider it necessary, in the circumstances of those appeals, to adopt additional procedures to protect information deemed sensitive by the participants.(1458) In doing so, however, the Appellate Body did not suggest that the DSU, the other covered agreements, or the Working Procedures precluded the adoption of procedures providing additional protection; rather, the Appellate Body did not consider that such additional protection was necessary in the particular circumstances of those appeals.”(1459)

(ii) Table of proceedings in which additional procedures to protect business confidential information (BCI) were requested

921.     The following table provides information on proceedings in which one or both parties requested additional BCI procedures. It is updated to cover proceedings in which the report, award or decision was circulated prior to 30 September 2011.

DS No. Case Stage of Proceeding Decision on additional BCI procedures Reference
DS18 Australia — Salmon (Article 21.5 — Canada) Article 21.5 panel Panel adopted certain additional BCI procedures, but declined Australia’s proposed BCI procedures (considered unnecessary) Para. 7.7
DS27 EC — Bananas (US) (Article 22.6 — EC) Article 22.6 Arbitrators adopted additional BCI procedures Paras. 2.2-2.7
DS46 Brazil — Aircraft Panel Panel adopted additional BCI procedures Para. 1.10
DS46 Brazil — Aircraft Appellate Body Appellate Body did not adopt additional BCI procedures (considered unnecessary) Paras. 103-125
DS54 Indonesia — Autos Panel Panel did not adopt additional BCI procedures 
(party did not pursue request)
Paras. 14.5-14.8
DS55
DS59
DS64
DS70 Canada — Aircraft Panel Panel adopted additional BCI procedures Paras. 9.54-9.69
DS70 Canada — Aircraft Appellate Body Appellate Body did not adopt additional BCI procedures (considered unnecessary) Paras. 125-147
DS103, DS113 Canada — Dairy (Article 21.5-New Zealand and US) Panel Panel did not adopt additional BCI procedures (considered unnecessary) Paras. 2.15-2.21
DS126 Australia — Automotive Leather II (Article 21.5 — US) Panel Panel adopted additional BCI procedures Para. 4.1

DS126 Australia — Automotive Leather II (Article 21.5 — US) Article 21.5 panel Panel adopted additional BCI procedures Paras. 3.2-3.6

DS166 US — Wheat Gluten Panel Panel adopted certain additional BCI procedures, but declined to adopt additional rules proposed by the United States (absence of agreement) Paras. 3.1-3.2 and 8.10

DS122 Thailand — H-Beams Panel Panel adopted additional BCI procedures Para. 5.2 and Annex 5

DS211 Egypt — Steel Rebar Panel Panel adopted additional BCI procedures Para. 7.34 and Annex 13

DS265, EC — Export Panel Panel did not adopt additional BCI procedures Paras. 2.10-2.19

DS266, DS283 Subsidies on Sugar (considered unnecessary)
DS273 Korea — Commercial Vessels Panel Adopted additional BCI procedures Para. 1.15

DS276 Canada — Wheat Exports and Grain Imports Panel Panel adopted additional BCI procedures Paras. 6.8-6.9

DS291, DS292, DS293 EC — Approval and Marketing of Biotech Products Panel Panel adopted additional BCI procedures 6.179-6.182

DS312 Korea — Certain Paper (Article 21.5 — Indonesia) Article 21.5 panel Panel adopted additional BCI procedures Para. 2.6

DS316 EC and certain member States — Large Civil Aircraft Panel Panel adopted additional BCI procedures adopted Para. 1.10 and Annex F

DS316 EC and certain member States — Large Civil Aircraft Appellate Body Appellate Body adopted additional BCI procedures Paras. 17-28 and Annex III.

DS331 Mexico — Steel Pipes and Tubes Panel Panel adopted additional BCI procedures Para. 1.6

DS337 EC — Salmon (Norway) Panel Panel adopted additional BCI procedures Paras. 1.10-1.11 and Annex A-4

DS353 US — Large Civil Aircraft (2nd complaint) Panel Panel adopted additional BCI procedures Para. 7.11 and Annex D

DS371 Thailand — Cigarettes (Philippines) Panel Panel adopted additional BCI procedures Paras. 2.3-2.4 and Annex A-1

DS371 Thailand — Cigarettes (Philippines) Appellate Body Neither participant requested the Appellate Body to adopt additional BCI procedures Para. 10

DS379 US — Anti-Dumping and Countervailing Duties (China) Panel Panel adopted additional BCI procedures Para. 1.10 and Annex E

DS396, DS403 Philippines — Taxes on Distilled Spirits Panel Panel adopted additional BCI procedures Paras. 1.7-1.8 and Annex G-4

(iii) Public version of the panel Report in case of BCI

922.     It is common for panels to redact any BCI from the version of its report that is circulated to Members and the public.

923.     In Japan — DRAMs (Korea), several passages had been omitted from the public version of the Panel Report because Japan and Korea had indicated that those passages contained BCI. The European Communities, although acknowledging that BCI must be respected, claimed that the Panel had dealt with it in such a sweeping manner that the Panel Report had become unintelligible for third parties, and as a result its rights as a third party have been affected.(1460) The Appellate Body resumed the panels’ duties in this regard as follows:

“While a panel must not disclose information which is by its nature confidential(1461), a panel, in deciding to redact such 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 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.”(1462)

(e) Public panel hearings

(i) General

924.     In US/Canada — Continued Suspension, the Panel opened its hearings to the public at the request of the disputing parties. Since this was the first time in GATT/ WTO history that a panel had held hearings open for public observation, the Panel deemed it appropriate to elaborate further on the reasons why it agreed to open its substantive meetings for public observation. The Panel saw no inconsistency with its decision to hold hearings open for public observation with Article 18.2:

“Regarding the requirement contained in Article 18.2 of the DSU that “[w]ritten submissions to the panel … shall be treated as confidential”, we note that, by opening its hearings to public observation, the Panel did not disclose to the public the content of the parties’ written submissions. By making statements to which the public could listen, the parties themselves exercised their right under Article 18.2 to “disclos[e] statements of [their] own positions to the public”. The Panel is mindful that, by asking questions or seeking clarifications during the hearings with respect to written submissions of the parties, it may have itself “disclosed” the content of such submissions. However, the Panel notes that at all times the parties retained the right to request that specific statements of theirs not be broadcasted so as to remain confidential and that, in this case, the parties had made their written submissions public. The Panel notes also that Article 18.2 provides that “Members shall treat as confidential information submitted by another Member to the Panel or the Appellate Body which that Member has designated as confidential.” We consider that this sentence clarifies the scope of the confidentiality requirement which applies to the Panel and to Members, and that panels have to keep confidential only the information that has been designated as confidential or which has otherwise not been disclosed to the public. Any other interpretation would imply a double standard, whereby panels would have to treat as confidential information which a WTO Member does not have to treat as confidential. The Panel also notes that, by requesting that the Panel hold hearings open to public observation, the parties to this dispute have implicitly accepted that their arguments be public, with the exception of those they would identify as confidential.”(1463)

(ii) Table of panel hearings opened to public observation

925.     The following table provides information on panel hearings opened to the public to date. In some cases the entirely of the hearings was open to public observation, whereas in others only portions of the hearings (e.g. opening oral statements) were opened to public observation. It covers those panel proceedings in which the panel report was circulated prior to 30 September 2011.

WT/DS No. Dispute Dates of Hearings Reference
WT/DS320 WT/DS321 US/Canada — Continued Suspension 12-15 September 2005 2-3 October 2006 Panel Reports, US/Canada — Continued Suspension, paras. 7.38-7.51
WT/DS316 EC and certain member States — Large Civil Aircraft 20-21 March 2007 25-26 July 2007 Panel Report, EC and certain member States — Large Civil Aircraft, para. 1.13
WT/DS353 US — Large Civil Aircraft (2nd complaint) 26-27 September 2007 16-17 January 2008 Panel Report, US — Large Civil Aircraft (2nd complaint), para. 1.15
WT/DS27 EC — Bananas III (Article 21.5 — US) 6-7 November 2007 Panel Reports, EC — Bananas III (Article 21.5 — US), para. 1.11
WT/DS350 US — Continued Zeroing 29 January 2008 22 April 2008 Panel Report, US — Continued Zeroing, para. 1.9
WT/DS294 US — Zeroing (EC) (Article 21.5 — EC) 9-10 April 2008 Panel Report, US — Zeroing (EC) (Article 21.5 — EC)
WT/DS367 Australia — Apples 2-3 September 2008 30 June-2 July 2009 Panel Report, Australia — Apples, paras. 1-18-1.19 and 1.51
WT/DS322 US — Zeroing (Japan) (Article 21.5 — Japan) 4-5 November 2008 Panel Report, US — Zeroing (Japan) (Article 21.5 — Japan), para. 1.6
WT/DS375 WT/DS376 EC — IT Products 12-14 May 2009 9 July 2009 Panel Report, EC — IT Products, para. 1.11
WT/DS377

(iii) Appellate Body hearings opened to public observation

926.     For information on Appellate Body hearings opened to the public to date, see Rule 16(1) of the Working Procedures for Appellate Review further below in this Chapter.

(f) Article 22.6 proceedings

927.     In US — Upland Cotton (Article 22.6 — US I), the Arbitrator stated that:

Article 18.2 of the DSU provides “Members shall treat as confidential information submitted by another Member to the panel or the Appellate Body which that Member has designated as confidential.” The Arbitrator considers that the same rule also applies to these arbitration proceedings. Therefore Members shall treat the information designated by the United States as confidential, and are under an obligation not to disclose it to anyone not involved in the proceedings. The Arbitrator is also under an obligation not to disclose such confidential information in its Decisions.”(1464)

(g)     Private lawyers involved in WTO dispute settlement proceedings

928.     The Panel in EC — Tariff Preferences addressed the issue of whether the joint representation of the complaining party and a third party by the same legal counsel breached any confidentiality rules under the DSU. The Panel considered that all Members involved in the dispute settlement process have the obligation of ensuring confidentiality as required under Article 18.2 and Article 14.1 as well as the Working Procedures of the DSU. The Panel also noted that this obligation extended to all representatives of the parties, including their legal counsel:

“As a general matter, the Panel considers that Members involved in the dispute settlement process have the obligation of ensuring confidentiality, as required by Article 18.2, Article 14.1(1465) and the Working Procedures, regardless of who serves as their legal counsel. Needless to say, this obligation of Members involved in the dispute settlement process must be respected by all of their representatives, including legal counsel. In addition, as a general professional discipline, it is the responsibility of counsel to maintain the confidentiality of all communications between it and the party (or third party) it represents. In this regard, the Panel again notes that bar associations in many jurisdictions have elaborated rules of conduct dealing explicitly with confidentiality between clients and their legal counsel.”(1466),(1467)

 

XIX. Article 19    back to top

A. Text of Article 19

Article 19: Panel and Appellate Body Recommendations

1.     Where a panel or the Appellate Body concludes that a measure is inconsistent with a covered agreement, it shall recommend that the Member concerned(9) bring the measure into conformity with that agreement.(10) In addition to its recommendations, the panel or Appellate Body may suggest ways in which the Member concerned could implement the recommendations.

 

(footnote original)9 The “Member concerned” is the party to the dispute to which the panel or Appellate Body recommendations are directed.

 

(footnote original)10 With respect to recommendations in cases not involving a violation of GATT 1994 or any other covered agreement, see Article 26.

 

2.     In accordance with paragraph 2 of Article 3, in their findings and recommendations, the panel and Appellate Body cannot add to or diminish the rights and obligations provided in the covered agreements.


B. Interpretation and Application of Article 19

1. Article 19.1

(a) “bring the measure into conformity with that agreement”

(i) Variations of the measures at issue over time

Measure in force

929.     In India — Autos, the Panel noted that Article 19 “envisages a situation where a violation is in existence”.(1468)

930.     In Chile — Price Band System, the Panel remarked that, pursuant to Article 19.1, “a panel is required to make the recommendation to bring a measure which it has found inconsistent into conformity if that measure is still in force. Conversely, when a panel concludes that a measure was inconsistent with a covered agreement, the said recommendation cannot and should not be made.”(1469)

Measure no longer in existence

931.     In US — Certain EC Products, the Panel had recommended that the DSB request the United States to bring its measure into conformity with its obligations under the WTO Agreement. However, the Appellate Body, having upheld the Panel’s finding that the “measure at issue in this dispute [was] no longer in existence”, concluded that the Panel’s recommendation was incongruent:

“[T]here is an obvious inconsistency between the finding of the Panel that ‘the 3 March Measure is no longer in existence’ and the subsequent recommendation of the Panel that the DSB request that the United States bring its 3 March Measure into conformity with its WTO obligations. The Panel erred in recommending that the DSB request the United States to bring into conformity with its WTO obligations a measure which the Panel has found no longer exists.”(1470)

932.     In Chile — Price Band System, the Panel refrained from issuing recommendations on the grounds that the measures at issue were no longer in existence. The Panel however considered that this fact did not preclude it from making findings on those measures if such considerations were necessary to secure a positive solution to the dispute. In particular, the Panel stated that:

Article 19.1 DSU would not prevent us from making findings regarding the consistency of an expired provisional safeguard measure, if we were to consider that the making of such findings is necessary ‘to secure a positive solution’ to the dispute. We would not, however, formulate recommendations with regard to those measures.”(1471)

933.     In Dominican Republic — Import and Sales of Cigarettes, the Appellate Body also considered in its recommendations the changes in the measure at issue during the appeal proceedings that could affect the existence of the measure. Thus, the Appellate Body qualified its recommendations noting that Dominican Republic should bring its measure into conformity with its obligations under the GATT 1994 to the extent that the modifications made so far to that measure “have not already done so”.(1472)

934.     In EC — Commercial Vessels, the Panel also refrained from recommending the European Communities to bring some measures into conformity, referring to the Appellate Body decision in US — Certain EC Products on measures that no longer exist. However, the Panel observed that:

“However, the notion of a measure that no longer “exists” is not always straightforward. In the present case, it is clear from the information before the Panel that where national aid schemes have expired, no new applications for TDM aid can be submitted. On the other hand, however, we cannot determine with certainty whether and to what extent it is possible that subsidies continue to be provided pursuant to applications made before the expiry of those schemes. Therefore, the Panel considers that its recommendation does not apply to the schemes that have expired, except to the extent that those schemes continue to be operational.”(1473)

935.     In EC — Approval and Marketing of Biotech Products, the Panel made a qualified recommendation under Article 19.1, recommending that the DSB request the European Communities to bring the general de facto moratorium on approvals into conformity with its obligations under the SPS Agreement “if, and to the extent that, that measure has not already ceased to exist”.(1474)

936.     In EC — IT Products, the European Communities submitted two documents at the interim review stage, 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 modify the interim report so as to remove any recommendation under Article 19.1 in relation to those measures. The Panel denied the European Communities’ request on the grounds that such evidence could not properly be introduced for the first time at the interim review stage.(1475)

937.     In US — Poultry (China), the Panel concluded that “given that the measure at issue, Section 727 has expired, we do not recommend that the DSB request the United States to bring the relevant measure into conformity with its obligations under the SPS Agreement and the GATT 1994”.(1476)

938.     In Thailand — Cigarettes (Philippines), the Panel had, in its interim report, declined to make a recommendation under Article 19.1 in respect of certain measures that were no longer in force. At the interim review stage, the Philippines requested that the Panel make a recommendation, arguing that a measure that is no longer in force because, for example, it has been superseded or replaced, may still continue to exist for purposes of Article 19.1 of the DSU if the respondent Member takes further action in relation to the measure later on, or if the measure will otherwise continue to have effects in domestic law. The Panel largely agreed with the Philippines:

“Although the parties do not take issue with the Panel’s conclusion that the so-called expired and/or completed measures may still be subject to panels’ examination and rulings depending on the factual circumstances in each case, they have differing views on whether panels also must make a recommendation pursuant to Article 19.1 of the DSU with respect to such expired measures. Although a measure can normally be considered to have ceased to exist if it has been superseded or replaced by a subsequent measure or reaching the end of the period of effect, we consider that the measure’s expiration in such circumstances would not in itself make it automatically fall outside the scope of panels’ obligation to make a recommendation under Article 19.1. As the Philippines submits, there may be situations where despite the expiry nature of a measure, it must still be brought into compliance to the extent that the measure continues to exist by being subject to a further action by the responding Member or by continuing to have effects on the concerned imported goods.”(1477)

939.     The Panel in Thailand — Cigarettes (Philippines) went on to ultimately conclude that:

“[I]t is not entirely clear to us whether and, if so, to what extent, these MRSP Notices will have effects on the subsequent MRSP Notices. Our recommendations with respect to these MRSP Notices, therefore, apply only to the extent they continue to have effects. We do not make a recommendation for the December 2005 MRSP Notice as it is not disputed that it has expired and does not continue to exist for purpose of Article 19.1 of the DSU.”(1478)

940.     In US — Large Civil Aircraft (2nd complaint), the Panel found that the United States had granted Boeing FSC/ETI subsidies that were prohibited under Article 3.1(a) of the SCM Agreement. However, the Panel declined to make any recommendation under Article 4.7 of the SCM Agreement, explaining that:

“[T]he FSC/ETI measure in force at the time of the Panel’s establishment has been substantially changed during the course of the present proceedings and indeed it appears that the measure is no longer in force with respect to Boeing. The Panel considers that it is well established in WTO dispute settlement practice that when a measure has expired, it is appropriate for a panel to refrain from making a recommendation with respect to such a measure.(1479),(1480)

Relevance of events that occurred during the proceedings

941.     In India — Autos, the Panel noted that certain events occurred in the course of the proceedings that had affected the existence or persistence of the alleged violations whereby the respondent had requested such events be taken into account when making recommendations under Article 19.1. In these circumstances, the Panel felt that it would not be making an “objective assessment of the matter before it”, had it chosen not to address the impact of events that took place in the course of the proceedings, in assessing the appropriateness of making a recommendation under Article 19.1.(1481)

942.     In US — Oil Country Tubular Goods Sunset Review, the Panel stated that possible changes and new facts during the implementation of rulings and recommendations from the DSU should be taken into account by the panels.(1482)

(ii) Recommendations by the Panel or Appellate Body that remain operative

943.     In US — FSC (Article 21.5 — EC II), the Panel noted that procedures under Article 21.5 refer to a post-recommendation period, which does not require any additional recommendation by panels or the Appellate Body:

“In this respect, an Article 21.5 compliance procedure occurs after the DSB has already made recommendations and rulings based on Article 19.1 of the DSU (and/or Article 4.7 of the SCM Agreement). It is linked to the post-recommendation implementation period envisaged in Articles 21.1 and 21.3 of the DSU. This necessarily implies that the textual reference in Article 21.5 of the DSU to have “recourse to these dispute settlement procedures” cannot include the requirement to, once again, formulate additional recommendations under Article 19 of the DSU (and/or Article 4.7 of the SCM Agreement).”(1483)

944.     In US — Oil Country Tubular Goods Sunset Review (Article 21.5), the Panel made no new recommendation arguing that the recommendation from the original proceedings was still operative with respect to the determination to bring the measure into compliance.(1484)

945.     In US/Canada — Continued Suspension, the Appellate Body referred to the recommendations and rulings adopted in the previous case on EC — Hormones declaring that they remain operative because it was unable to complete the analysis “as to whether Directive 2003/74/EC has brought the European Communities into substantive compliance within the meaning of Article 22.8 of the DSU”.(1485)

946.     In US — Softwood Lumber IV (Article 21.5 — Canada), the Appellate Body declined to make any additional recommendation, noting that the Panel already acted within its scope and jurisdiction under Article 19.1.(1486)

947.     In US — Large Civil Aircraft (2nd complaint), the Panel found that FSC-related subsidies provided to Boeing were inconsistent with Article 3.1 of the SCM Agreement. However, the Panel declined to make a recommendation in the light of the fact that the recommendations from the prior US — FSC dispute remained operative:

“[T]o the extent that FSC/ETI tax benefits remained applicable to Boeing at the time of the establishment of this Panel, pursuant to the transition and grandfather clauses of the AJCA, the Panel notes that the panel and Appellate Body reports in US — FSC (Article 21.5 — ECU) concluded that the recommendation made by the panel in US — FSC remained operative. The Panel considers it important not to disturb this recommendation. A new recommendation under Article 4.7 of the SCM Agreement would not add to the legal force of the existing recommendation. The findings made in prior cases regarding the legal provisions as such necessarily imply that the application of these provisions in individual cases was also inconsistent with Article 3. The obligation of the United States to withdraw the prohibited subsidies at issue thus also entails an obligation to cease applying the measures in individual cases. If anything, a new recommendation could detract from the legal force of the existing obligation insofar as it would give rise to a new period for implementation.”(1487),(1488)

(b) “the panel … may suggest ways in which the Member concerned could implement the recommendation”

(i) Panel’s discretion to suggest ways to implement

General

948.     In US — Steel Plate, the Panel indicated that it was “free to suggest ways in which we believe the [respondent] could appropriately implement our recommendation”.(1489)

949.     In US — Softwood Lumber V, the Panel considered “[b]y virtue of Article 19.1, panels have discretion (“may”) to suggest ways in which a Member could implement the relevant recommendation. However, a panel is not required to make a suggestion should it not deem it appropriate to do so.”(1490)

950.     In Korea — Certain Paper, Indonesia requested that the Panel use its discretion under Article 19.1 of the DSU to suggest that Korea implement the recommendation in this case by revoking the measure at issue. The Panel characterized the making of suggestions under Article 19.1 as “exceptional”, and indicated that it saw no reason to depart from the general rule of making no suggestion:

“We note that the general rule under Article 19.1 of the DSU with respect to the recommendations of WTO panels is to recommend that the Member concerned bring its measure into conformity with the relevant provisions of the covered agreements at issue. Exceptionally, Article 19.1 also authorizes the panels to suggest ways in which such recommendations could be implemented.

Taking into account the circumstances of the proceedings at issue, we see no reason to depart from the general rule and make a suggestion regarding implementation. We therefore decline Indonesia’s request.”(1491)

951.     In US — Zeroing (EC) (Article 21.5 — EC), the Appellate Body confirmed that “[t]he second sentence of Article 19.1 of the DSU confers a discretionary right, authorizing panels and the Appellate Body to suggest ways in which the recommendations and rulings could be implemented”.(1492)

Suggestions made by Panel of ways to implement

952.     In US — Underwear, the Panel recommended the DSB to request the United States bring its measure into compliance with United States obligations under the Agreement on Textiles and Clothing by removing the measure inconsistent with the United States’ obligation. The Panel went further in suggesting the following:

“We find that such compliance can best be achieved and further nullification and impairment of benefits accruing to Costa Rica under the ATC best be avoided by prompt removal of the measure inconsistent with the obligations of the United States. We further suggest that the United States bring the measure challenged by Costa Rica into compliance with US obligations under the ATC by immediately withdrawing the restriction imposed by the measure.”(1493)

953.     In EC — Bananas III (Article 21.5 — Ecuador), the Panel made the following recommendations to the European Communities to bring its banana import regime into conformity with WTO rules after noting that previous implementation attempts had been only partly successful:

“First, the European Communities could choose to implement a tariff-only system for bananas, without a tariff quota. This could include a tariff preference (at zero or another preferential rate) for ACP bananas. If so, a waiver for the tariff preference maybe necessary unless the need for a waiver is obviated, for example, by the creation of a free-trade area consistent with Article XXIV of GATT. This option would avoid the need to seek agreement on tariff quota shares.

 

Second, the European Communities could choose to implement a tariff-only system for bananas, with a tariff quota for ACP bananas covered by a suitable waiver.

 

Third, the European Communities could maintain its current bound and autonomous MFN tariff quotas, either without allocating any country-specific shares or allocating such shares by agreement with all substantial suppliers consistently with the requirements of the chapeau to Article XIII:2. The MFN tariff quota could be combined with the extension of duty-free treatment (or preferential duties) to ACP imports.”(1494)

954.     In India — Patents (US), the Panel declined the United States’ request to the Panel to suggest the manner in which India should implement its obligation, since in its opinion it would have impaired India’s right to choose how to implement the TRIPS Agreement pursuant to Article 1.1.(1495) However it did suggest that India take into account the interests of persons who would have filed patent applications if India had had an appropriate mechanism in place:

“[I]n establishing a mechanism that preserves novelty and priority in respect of applications for product patents in respect of pharmaceutical and agricultural chemical inventions during the transitional period, India should take into account the interests of those persons who would have filed patent applications had an appropriate mechanism been maintained since the expiry of the Patents Ordinance 1994, as well as those who have already filed such applications under that Ordinance or the administrative practices currently in place.”(1496)

955.     In Guatemala — Cement I, the Panel concluded that Guatemala had violated the provisions of the Anti-Dumping Agreement by initiating an investigation when there was not sufficient evidence to justify such an initiation under Article 5.3 of the Agreement. Therefore it suggested that the anti-dumping measure be revoked. The Panel stated:

“[T]he entire investigation rested on an insufficient basis, and therefore should never have been conducted. This is, in our view, a violation which cannot be corrected effectively by any actions during the course of the ensuing investigation. Therefore, we suggest that Guatemala revoke the existing anti-dumping measure on imports of Mexican cement, because, in our view, this is the only appropriate means of implementing our recommendation.”(1497)

956.     In India — Quantitative Restrictions, the Panel suggested that a reasonable period of time be granted to India in order to remove the imports restrictions which were not justified under Article XVIII:B. The Panel also brought to the attention of the DSB some factors to be taken into consideration that had an added importance for the principle of special and differential treatment. The Panel suggested:

“[T]that the parties negotiate an implementation/phase-out period. Should it be impossible for them to do so, we suggest that the reasonable period of time, whether determined by arbitration (Article 21.3(c) of the DSU) or other means, be set in light of the above-listed factors.”(1498)

957.     In US — Lead and Bismuth II, the European Communities had requested the Panel “to suggest that the United States amend its countervailing duty laws to recognize the principle that a privatization at market price extinguishes subsidies”. However, according to the Panel, the European Communities had not identified any provision of the United States’ law that required the imposition of countervailing duties in the circumstances of the present dispute. Thus, the Panel was unable to make the suggestion requested by the European Communities. However it noted that the United States had continued to apply its change-in-ownership methodology during the course of the dispute. It therefore suggested:

“[T]hat the United States takes all appropriate steps, including a revision of its administrative practices, to prevent the aforementioned violation of Article 10 of the SCM Agreement from arising in the future.”(1499)

958.     In Guatemala — Cement II, the Panel suggested that Guatemala revoke its anti-dumping measure on imports of grey portland cement from Mexico. However, it declined Mexico’s request that the Panel suggest to Guatemala that it should refund the anti-dumping duties:

“In respect of Mexico’s request that we suggest that Guatemala refund the anti-dumping duties collected, we note that Guatemala has now maintained a WTO-inconsistent anti-dumping measure in place for a period of three and a half years. … Mexico’s request raises important systemic issues regarding the nature of the actions necessary to implement a recommendation under Article 19.1 of the DSU, issues which have not been fully explored in this dispute. Thus, we decline Mexico’s request to suggest that Guatemala refund the anti-dumping duties collected.”(1500)

959.     In US — Cotton Yarn, Pakistan requested the Panel to suggest that the most appropriate way for the United States to implement the Panel’s ruling would be to rescind the safeguard action forthwith. The Panel agreed and held as follows:

“In this case, we recommend that the Dispute Settlement Body request that the United States bring the measure at issue into conformity with its obligations under the ATC. We suggest that this can best be achieved by prompt removal of the import restriction.”(1501)

960.     In US — Offset Act (Byrd Amendment), the Panel considered that, “although there could potentially be a number of ways in which the United States could bring the [concerned measure] into conformity”, it found it “difficult to conceive of any method which would be more appropriate and/or effective than the repeal of the … measure”. Therefore, the Panel suggested that the United States repeal the WTO-inconsistent measures.(1502)

961.     In Argentina — Poultry Anti-Dumping Duties, the Panel “[could] not perceive how Argentina could properly implement [the] recommendation without revoking the anti-dumping measure at issue in this dispute. Accordingly, [the Panel suggested] that Argentina repeals Resolution No. 574/2000 imposing definitive antidumping measures on eviscerated poultry from Brazil.”(1503)

962.     In US/Canada — Continued Suspension, after finding that the United States and Canada committed procedural violations under Article 23 of the DSU, the Panel suggested that” [I] n order to implement its findings under Article 23 and in order to ensure the prompt settlement of this dispute, the United States should have recourse to the rules and procedures of the DSU without delay”.(1504)

963.     In Mexico — Steel Pipes and Tubes, after finding that Mexico had acted in a manner inconsistent with its obligations under the Anti-Dumping Agreement, the Panel noted that these inconsistencies were of a “fundamental and pervasive”(1505) nature and suggested that Mexico should: “revok[e]” the anti-dumping measures applied to steel pipes and tubes from Guatemala in order to implement properly the conclusions and recommendations identified in this case”.(1506)

964.     In EC — Export Subsidies on Sugar, after noting the concern of several developing countries with regard to their preferential access to the EC market for their sugar exports, the Panel suggested that:

“[I]n bringing its exports of sugar into conformity with its obligations under Articles 3.3 and 8 of the Agreement on Agriculture, the European Communities consider measures to bring its production of sugar more into line with domestic consumption whilst fully respecting its international commitments with respect to imports, including its commitments to developing countries”.(1507)

965.     In EC — Trademarks and Geographical Indications, after recommending that the European Communities bring its Regulation into conformity with the TRIPS Agreement and GATT 1994, the Panel suggested that:

“[0]ne way in which the European Communities could implement the above recommendation with respect to the equivalence and reciprocity conditions, would be to amend the Regulation so as for those conditions not to apply to the procedures for registration of [Geographical Indications] located in other WTO Members which, it submitted to the Panel, is already the case.”(1508)

966.     In EC — Selected Customs Matters, the Panel elaborated, in abstract, on the possible ways to bring a measure into compliance when there is a violation of Article X:3(a) of GATT 1994:

“In this regard, the Panel recalls that it is evident from Articles 6.2 and 19.1 of the DSU that it is the “measure at issue” in the request for establishment of a panel that must be brought into conformity in the event that that measure is found to be in violation of a WTO obligation. If a WTO Member were found to be in violation of Article X:3(a) of the GATT 1994, this would mean that the manner in which laws, regulations, decisions and/or rulings of the kind described in Article X:1 of the GATT 1994 are being administered by that Member is not uniform, impartial and/or reasonable. If, in the light of such a violation, a panel or the Appellate Body has recommended to the DSB that the Member bring the measure in question into conformity, the Member would need to alter the manner in which the relevant laws, regulations, decisions and/or rulings are being administered in order to abide by that recommendation. “(1509)

Panel declines to suggest ways to implement

967.     In India — Patents (US), the Panel declined the United States’ request to the Panel to suggest a manner in which India should implement its obligation, since in its opinion it would impair India’s right to choose how to implement the TRIPS Agreement pursuant to Article 1.1.(1510)

968.     In US — DRAMS, the Panel declined to make any suggestions on the grounds that there was a range of possible ways through which the United States could appropriately implement the Panel’s recommendation.(1511)

969.     In US — Lead and Bismuth II, the European Communities had requested the Panel to suggest that the United States amend its countervailing duty laws to recognize the principle that a privatization at market price extinguishes subsidies. However, according to the Panel, the European Communities had not identified any provision of the United States’ law that required the imposition of countervailing duties in the circumstances of that dispute; and thus, it was unable to make the suggestion requested by the European Communities.(1512)

970.     In Guatemala — Cement II, the Panel declined Mexico’s request that the Panel suggest to Guatemala that it should refund the anti-dumping duties. The Panel stated that:

“In light of the nature and extent of the violations in this case, we do not perceive how Guatemala could properly implement our recommendation without revoking the antidumping measure at issue in this dispute. Accordingly, we suggest that Guatemala revoke its anti-dumping measure on imports of grey portland cement from Mexico.”(1513)

971.     In US — Stainless Steel, Korea requested the Panel to suggest that the United States revoke its anti-dumping orders on stainless steel plate and sheet from Korea. The Panel noted that the Anti-Dumping Agreement comprised 18 separate articles and numerous obligations, thus violations may have different forms and implications. The Panel further recalled that Korea’s claims related to the determinations of the Department of Commerce regarding the margin of dumping. It found that the determinations were inconsistent with the Anti-Dumping Agreement in a number of respects, but it could not say that had the Department of Commerce acted consistently with the Anti-Dumping Agreement, it would not have found the existence of dumping. In this case the Panel concluded:

“Under these circumstances, while there can be little doubt that revocation would be one way that the United States could implement our recommendation, we are not prepared to conclude at this time that it is the only way to do so. Accordingly, we decline Korea’s request to suggest that the United States revoke the antidumping duties at issue in this dispute.”(1514)

972.     In US — Hot Rolled Steel, the Panel declined to make specific suggestions in accordance with Japan’s requests. It considered that the modalities of the implementation of its recommendations were for the United States to determine.(1515) It further noted that Japan’s request for reimbursement raised important systemic issues that had not been fully explored in the dispute.(1516)

973.     In US — Line Pipe, the Panel declined Korea’s request for a specific suggestion on ways in which the United States might implement the recommendations, stating that there may be other ways in which the United States could implement its recommendation.(1517)

974.     In US — Steel Plate, the Panel indicated that it was “free to suggest ways in which we believe the United States appropriately implement our recommendation” but decided not to do so in that case.(1518)

975.     In Chile — Price Band System, the Panel recommended that the DSB request Chile to bring its price band system measure into conformity with its obligations under the Agreement on Agriculture and the GATT 1994. However it declined to make any recommendation with respect to the safeguard measures Argentina had challenged.(1519)

976.     In EC — Sardines, Peru requested the Panel to make a specific suggestion i.e. that the European Communities permit Peru without any further delay to market its sardines in accordance with the naming standard consistent with the TBT Agreement. However the Panel declined to make the suggestion stating that the authority under Article 19.1 was a discretionary one.(1520)

977.     In US — Countervailing Measures on Certain EC Products, the European Communities requested the Panel to suggest possible means of implementation by the United States, inter alia, the revocation of a number of countervailing duty orders. According to the European Communities, the Panel should do this on the grounds that the United States had shown a lack of good faith with respect to their previous dispute settlement proceedings. The Panel declined to do so and explained that its findings were sufficiently clear and that WTO Members have discretion in how they bring their measures into conformity with their WTO obligations.(1521)

978.     In EC — Tariff Preferences, India requested the Panel to suggest to the European Communities that it bring its measure into conformity with its obligations under GATT 1994 by obtaining a waiver. The Panel did not consider it appropriate to make such a suggestion to the European Communities in light of the fact that there was more than one way that the European Communities could bring its measure into conformity and because the European Communities had requested a waiver which was still pending.(1522)

979.     In US — Oil Country Tubular Goods Sunset Reviews, Argentina requested that the Panel suggest to the United States that it bring its measures into conformity with its WTO obligations by revoking the antidumping order and repealing or amending the laws and regulations at issue. However, the Panel saw “no particular reason to make such a suggestion and therefore decline[d] Argentina’s request”.(1523)

980.     In EC — Tube or Pipe Fittings, Brazil requested the Panel to suggest that the European Communities repeal its anti-dumping duty order and reimburse all the anti-dumping duties collected thereunder. The Panel declined to do so.(1524)

981.     In US — Countervailing Duty Investigation on DRAMS, Korea requested the Panel to “recommend” that the US terminate the countervailing duty order immediately. In response, the Panel said that “any such recommendation is precluded by Article 19.1 of the DSU, which restricts us to recommending that the US bring the relevant measures into conformity with the relevant agreement.”(1525)

982.     In Korea — Certain Paper, the Panel declined to make suggestions regarding the implementation noting that such suggestions are “exceptional”. Given the circumstances of the dispute, the Panel considered it was not necessary “to depart from the general rule” of not making any suggestions regarding implementation.(1526)

(ii) Choice of means of implementation

983.     In US — Steel Plate, the Panel referred to Article 21.3 which concerns the respondent’s duty to inform the DSB of its intentions in respect of implementation, as supporting its statement that “while a panel may suggest ways of implementing its recommendation, the choice of means of implementation is decided, in the first instance, by the Member concerned”.(1527)

984.     In US — Countervailing Measures on Certain EC Products, the Panel rejected a request by the European Communities to make suggestions on the way that the United States should bring its measure into conformity and pointed out that “the Members have discretion in how to bring a measure found to be WTO-inconsistent into conformity with WTO obligations.” (1528)

(iii) Surveillance of implementation

985.     In Brazil — Aircraft (Article 21.5 — Canada), Canada requested that the Panel suggest that the parties develop mechanisms that would allow Canada to verify compliance with the original recommendation of the DSB. The Panel stated :

“In our view, Article 19.1 appears to envision suggestions regarding what could be done to a measure to bring it into conformity or, in case of a recommendation under Article 4.7 of the SCM Agreement, what could be done to ‘withdraw’ the prohibited subsidy. It is not clear if Article 19.1 also addresses issues of surveillance of those steps. That said, any agreement that WTO Members might reach among themselves to improve transparency regarding the implementation of WTO obligations can only be encouraged.” (1529)

(iv) Legal effect of suggestions

986.     In US — Offset Act (Byrd Amendment) (Article 21.3(c)), the complainants argued that the only effective way for the United States to comply with the recommendations and rulings of the DSB was to repeal the measure. In this regard, the complainants noted that the Panel in US — Offset Act (Byrd Amendment) had made a suggestion, pursuant to Article 19.1, that the United States repeal the measure. The Arbitrator responded:

“With respect to the suggestion of the Panel that the United States repeal the CDSOA, I note, first, that the Panel, in making its suggestion, also recognized that “there could potentially be a number of ways in which the United States could bring the CDSOA into conformity”. Moreover, although the suggestion by the Panel, as part of a panel report adopted by the DSB, could serve as a useful contribution to the decision-making process in the implementing Member, I do not believe that the existence of such a suggestion ultimately affects the well-established principle that “choosing the means of implementation is, and should be, the prerogative of the implementing Member”.”(1530)

987.     In EC — Bananas III (Ecuador) (Article 21.5 — Ecuador II) I EC — Bananas III (US) (Article 21.5 — US), the European Communities argued that, once a panel or an Appellate Body report containing suggestions made pursuant to the second sentence of Article 19.1 of the DSU has been adopted, the consistency of the measures suggested by the original panel with the covered agreement cannot be challenged by the complaining party before an Article 21.5 panel. The Appellate Body disagreed:

“Suggestions made by panels or the Appellate Body pursuant to Article 19.1 of the DSU regarding ways of implementation form part of panel or Appellate Body reports adopted by the DSB in previous proceedings. The DSU does not expressly address the question of the legal status of suggestions that form part of a report adopted by the DSB, nor does it specify the legal consequences when a Member chooses to implement DSB recommendations and rulings by following a suggestion for implementation. A Member may choose whether or not to follow a suggestion. The use of the term “could” in Article 19.1 clarifies that Members are not obliged to follow suggestions for implementation.

 

Suggestions made pursuant to Article 19.1 are not in themselves the subject of review by a compliance panel. Article 21.5 of the DSU only refers to “measures taken to comply with the recommendations and rulings” and not to measures taken to comply with suggestions issued pursuant to the second sentence of Article 19.1. This confirms that an Article 21.5 panel’s power of review is limited to the assessment of the existence or consistency with the covered agreements of the measures taken to comply with recommendations and rulings of the DSB. Thus, what matters in Article 21.5 proceedings is whether the result of implementation ‘whatever means are chosen’ brings about substantive compliance with the DSB recommendations and rulings. As the Panel noted, the conformity of the measures taken to comply with the covered agreements will depend on whether actual implementation of the DSB recommendations and rulings has been achieved by the Member concerned.(1531) Therefore, we agree with the Panel that the measures actually taken by a Member to comply with DSB recommendations and rulings, whether or not they follow the suggestions for implementation made in previous proceedings, are the subject matter of the challenge in Article 21.5 proceedings.

 

We consider that suggestions made by panels or the Appellate Body may, if correctly and fully implemented, lead to compliance with the DSB’s recommendations and rulings. However, full compliance with DSB rulings and WTO-consistency of the measures actually taken to comply cannot be presumed simply because a Member declares that its measures taken to comply conform to a suggestion made under Article 19.1 of the DSU. As pointed out above, Article 21.5 proceedings focus on the measure actually taken to comply, not the ways in which the Member could implement the recommendations and rulings. Following a suggestion does not guarantee substantive compliance with the recommendations and rulings by the DSB. Whether such compliance has been achieved needs to be determined through Article 21.5 proceedings. The adoption of a panel or Appellate Body report by the DSB makes the recommendations and rulings therein binding upon the parties. As noted earlier, such adoption by the DSB does not make suggestions for implementation binding upon the parties (especially, where, as in this case, the first Ecuador Article 21.5 panel made several suggestions); nor does DSB adoption mean that actions taken to implement suggestions must be presumed to be WTO-consistent or shielded from review in Article 21.5 proceedings.

 

We, therefore, agree with the Panel that Ecuador had the right to challenge before an Article 21.5 panel the European Communities’ measure taken to comply, whether or not such measure implemented a suggestion made by an earlier panel or the Appellate Body. The function of Article 21.5 proceedings is to resolve disagreement over compliance. Even if the measure taken to comply conformed to a suggestion made, this would not bar Ecuador from bringing Article 21.5 proceedings to determine whether the implementing measure achieves full compliance with the DSB recommendations and rulings. We do not consider that, as a consequence of the DSB adoption of a panel or Appellate Body report containing a suggestion, the measure implementing such a suggestion can be presumed to be WTO-consistent.(1532) In our view, a DSU rule that establishes a legal presumption of conformity should do so in clear and unambiguous terms.(1533) Therefore, we do not see how the terms in Article 19.1, second sentence, “imply” a legal presumption, particularly as this provision has to be read in the context of Article 21.5, which entitles Members to the review of implementation measures in compliance proceedings.

 

Suggestions made by panels or the Appellate Body may provide useful guidance and assistance to Members and facilitate implementation of DSB recommendations and rulings, particularly in complex cases. However, the fact that a Member has chosen to follow a suggestion does not create a presumption of compliance in Article 21.5 proceedings. The fact that a Member has chosen to follow a suggestion is part of the history and background of the measure at issue in Article 21.5 proceedings, but it should not in itself pre-empt a panel’s assessment of compliance under Article 21.5. In our view, suggestions provide guidance, which is necessarily prospective in nature and cannot, therefore, take account of all circumstances in which implementation may occur.

 

In these circumstances, we consider that the Panel did not err when it decided to examine whether the EC Bananas Import Regime was consistent with the covered agreements, rather than examining whether it complied with the suggestions for implementation made by the first Ecuador Article 21.5 panel.”(1534)

2. Article 19.2

988.     In Chile — Alcoholic Beverages, Chile claimed that through its findings, the Panel had added to the rights and obligations of WTO Members under the WTO Agreement, contrary to Articles 3.2 and 19.2 of the DSU. The Appellate Body rejected this argument:

“Chile claims that the Panel’s findings on the issues of “not similarly taxed” and “so as to afford protection” compromise the “security and predictability” of the multilateral trading system, provided for in Article 3.2 of the DSU, and “add to … the rights and obligations of Members” under Article III:2, second sentence, of the GATT 1994, in contravention of Articles 3.2 and 19.2 of the DSU. In this dispute, while we have rejected certain of the factors relied upon by the Panel, we have found that the Panel’s legal conclusions are not tainted by any reversible error of law. In these circumstances, we do not consider that the Panel has added to the rights or obligations of any Member of the WTO. Moreover, we have difficulty in envisaging circumstances in which a panel could add to the rights and obligations of a Member of the WTO if its conclusions reflected a correct interpretation and application of provisions of the covered agreements. Chile’s appeal under Articles 3.2 and 19.2 of the DSU must, therefore, be denied.”(1535)

989.     In Mexico — Taxes on Soft Drinks, Mexico argued that the Panel should have declined to exercise jurisdiction. In the context of addressing this issue, the Appellate Body observed that doing so would be contrary to Articles 3.2 and 19.2:

“A decision by a panel to decline to exercise validly established jurisdiction would seem to “diminish” the right of a complaining Member to “seek the redress of a violation of obligations” within the meaning of Article 23 of the DSU, and to bring a dispute pursuant to Article 3.3 of the DSU. This would not be consistent with a panel’s obligations under Articles 3.2 and 19.2 of the DSU. We see no reason, therefore, to disagree with the Panel’s statement that a WTO panel “would seem … not to be in a position to choose freely whether or not to exercise its jurisdiction.”(1536)

3. Relationship with other Articles

(a) Articles 16, 21 and 22

990.     In EC — Bed Linen (Article 21.5 — India), the Appellate Body concluded that a reading of Articles 16.4 and 19.1, 21.1, 21.3 and 22.1, taken together, clarifies that “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”.(1537)

(b) Article 6.2 of the DSU

991.     In EC — Selected Customs Matters, the Appellate Body made a distinction between the compliance measure and the identification of the specific measure at issue in the proceedings. Because the Panel erroneously relied on the means of compliance to identify the measure at issue, the Appellate Body disposed of the Panel’s ruling and emphasized the purpose of Article 19.1 per se:

“The Panel considered that, when a violation of Article X:3(a) of the GATT 1994 is claimed, the measure at issue must necessarily be a “manner of administration” because, if such a violation is found, the WTO Member concerned would need to alter the manner of administration in order to comply with a recommendation made pursuant to Article 19.1 of the DSU. In our view, this reasoning of the Panel is flawed because it conflates the threshold question of whether a measure falls within a panel’s terms of reference with the question of the means of implementation in the event that a violation is found. Through the recommendation under Article 19.1, the Member found to have violated a provision of a covered agreement is required to take corrective action to remove the violation. The recommendation envisaged in Article 19.1 concerns the stage of implementation and not the question of whether a measure falls within a panel’s terms of reference. Moreover, the Member concerned has a degree of discretion with respect to the nature and type of action that it undertakes in order to achieve compliance. Therefore, we have difficulty in understanding how the means of compliance with a recommendation under Article 19.1 of the DSU should govern the identification of the specific measure at issue in a panel request.”(1538)

4. Relationship with other WTO Agreements

(a) Article 4.7 of the SCM Agreement

992.     In Australia — Automotive Leather II (Article 21.5 — US), the Panel addressed the issue of the relationship between the recommendation to “bring the measure into conformity” under Article 19.1 and the recommendation to “withdraw the subsidy” under Article 4.7 of the SCM Agreement. In this context and considering whether Article 4.7 allowed “retroactive” remedies, the Panel rejected the argument that “Article 19.1 of the DSU, even in conjunction with Article 3.7 of the DSU, requires the limitation of the specific remedy provided for in Article 4.7 of the SCM Agreement to purely prospective action”. The Panel held that:

“An interpretation of Article 4.7 of the SCM Agreement which would allow exclusively ‘prospective’ action would make the recommendation to ‘withdraw the subsidy’ under Article 4.7 indistinguishable from the recommendation to ‘bring the measure into conformity’ under Article 19.1 of the DSU, thus rendering Article 4.7 redundant.

 

 

Article 19.1 of the DSU is not the basis of the recommendation in a case involving prohibited subsidies, such as this one. Rather, the recommendation to ‘withdraw the subsidy’ is required by Article 4.7 of the SCM Agreement … Thus, to the extent that ‘withdraw the subsidy’ requires some action that is different from ‘bring the measure into conformity’, it is that different action which prevails.”(1539)

993.     In EC and certain member States — Large Civil Aircraft, the Panel stated that:

“[W]e note that the special and additional rules applicable under Parts II and III of the SCM Agreement do not require a panel to specify how the implementation of recommendations under Articles 4.7 and 7.8 should be effected by the subsidizing Member(s). In this context, we recall that the second sentence of Article 19.1 of the DSU provides that a panel “may” suggest ways in which a recommendation could be implemented. Assuming that this provision also applies to recommendations under Articles 4.7 and 7.8 of the SCM Agreement, we note the observation of the panel in US — Hot Rolled Steel that the means of implementation is, pursuant to Article 21.3 of the DSU, for the Member concerned, in the first instance.”(1540)

 

XX. Article 20    back to top

A. Text of Article 20

Article 20: Time-frame for DSB Decisions

Unless otherwise agreed to by the parties to the dispute, the period from the date of establishment of the panel by the DSB until the date the DSB considers the panel or appellate report for adoption shall as a general rule not exceed nine months where the panel report is not appealed or 12 months where the report is appealed. Where either the panel or the Appellate Body has acted, pursuant to paragraph 9 of Article 12 or paragraph 5 of Article 17, to extend the time for providing its report, the additional time taken shall be added to the above periods.


B. Interpretation and Application of Article 20

1. General

994.     In US — Steel Safeguards, the United States requested the Panel to issue eight separate panel reports, rather than one consolidated report. In the context of considering the United States’ request to have a separate panel report in respect of each complainant, the Panel stated that it was “well aware of the time-limit obligations provided for in the DSU including those mentioned in Articles 12.8 and 20, and of the importance of proceeding expeditiously with this dispute (as with all disputes)”.(1541)

2. Nature of DSU maximum time-limits

995.     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 “p]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. tit, 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.”(1542)

3. Table showing the total length of time taken in panel/Appellate Body proceedings to date

996.     The following table provides information on the length of time taken in WTO proceedings to date from the date of the establishment of the panel to the date of the adoption of the panel report (and where applicable, the Appellate Body report).(1543) It is updated to 5 October 2011.

Prescribed Time-Period in Article 20 9-12 months
Average to Date 18 months 21 days
Longest to Date 71 months 12 days
Shortest to Date 7 months 1 day(1544)
DS No. Case Time from establishment to adoption of Report(s)
DS2, DS4 US — Gasoline 13 months 10 days
DS8, DS10, DS11 Japan — Alcoholic Beverages II 13 months 4 days
DS18 Australia — Salmon 18 months 26 days
DS22 Brazil — Desiccated Coconut 12 months 15 days
DS24 US — Underwear 11 months 20 days
DS26 EC — Hormones 20 months 23 days
DS27 EC — Bananas III 16 months 17 days
DS31 Canada — Periodicals 13 months 11 days
DS33 US — Wool Shirts and Blouses 13 months 6 days
DS34 Turkey — Textiles 20 months 6 days
DS44 Japan — Film 18 months 6 days
DS46 Brazil — Aircraft 12 months 27 days
DS48 EC — Hormones 15 months 27 days
DS50 India — Patents (US) 13 months 26 days
DS54, DS55, DS59, DS64 Indonesia — Autos 13 months 11 days
DS56 Argentina — Textiles and Apparel 13 months 27 days
DS58 US — Shrimp 20 months 11 days
DS60 Guatemala — Cement I 20 months 5 days
DS62, DS67, DS68 EC — Computer Equipment 15 months 27 days
DS69 EC — Poultry 11 months 22 days
DS70 Canada — Aircraft 12 months 27 days
DS75, DS84 Korea — Alcoholic Beverages 16 months 1 day
DS76 Japan — Agricultural Products II 16 months 1 day
DS79 India — Patents (EC) 11 months 6 days
DS87, DS110 Chile — Alcoholic Beverages 25 months 24 days
DS90 India — Quantitative Restrictions 22 months 4 days
DS98 Korea — Dairy 17 months 19 days
DS99 US — DRAMS 13 months 3 days
DS103, DS113 Canada — Dairy 19 months 2 days
DS108 US — FSC 17 months 26 days
DS114 Canada — Pharmaceutical Patents 14 months 6 days
DS121 Argentina — Footwear (EC) 17 months 19 days
DS122 Thailand — H-Beams 16 months 16 days
DS126 Australia — Automotive Leather II 11 months 24 days
DS132 Mexico — Corn Syrup 13 months 29 days
DS135 EC — Asbestos 28 months 11 days
DS136 US — 1916 Act 19 months 25 days
DS138 US — Lead and Bismuth II 15 months 20 days
DS139, DS142 Canada — Autos 16 months 18 days
DS141 EC — Bed Linen 16 months 12 days
DS146, DS175 India — Autos 20 months 8 days
DS152 US — Section 301 Trade Act 10 months 25 days
DS155 Argentina — Hides and Leather 18 months 20 days
DS156 Guatemala — Cement II 13 months 25 days
DS160 US — Section 110(5) Copyright Act 14 months 1 day
DS161, DS169 Korea — Various Measures on Beef 19 months 14 days
DS162 US — Anti-Dumping Act of 1916 14 months
DS163 Korea — Procurement 12 months 3 days
DS165 US — Certain EC Products 18 months 24 days
DS166 US — Wheat Gluten 17 months 23 days
DS170 Canada — Patent Term 12 months 19 days
DS174, DS290 EC — Trademarks and Geographical Indications 18 months 18 days
DS176 US — Section 211 Appropriations Act 16 months 5 days
DS177, DS178 US — Lamb 17 months 26 days
DS179 US — Stainless Steel 14 months 12 days
DS184 US — Hot-Rolled Steel 17 months 3 days
DS189 Argentina — Ceramic Tiles 11 months 18 days
DS192 US — Cotton Yarn 16 months 16 days
DS194 US — Export Restraints 11 months 12 days
DS202 US — Line Pipe 16 months 12 days
DS204 Mexico — Telecoms 25 months 14 days
DS206 US — Steel Plate 12 months 5 days
DS207 Chile — Price Band System 19 months 11 days
DS211 Egypt — Definitive Anti-Dumping Measures on Rebar from Turkey 15 months 10 days
DS212 US — Countervailing Measures on Certain EC Products 15 months 28 days
DS213 US — Carbon Steel 15 months 9 days
DS217, DS234 US — Offset Act (Byrd Amendment) 17 months 4 days
DS219 EC — Tube or Pipe Fittings 24 months 24 days
DS221 US — Section 129(c)(1) URAA 12months 7 days
DS222 Canada — Aircraft Credits and Guarantees 11 months 7 days
DS231 EC — Sardines 14 months 28 days
DS236 US — Softwood Lumber III 10 months 26 days
DS238 Argentina — Preserved Peaches 14 months 27 days
DS241 Argentina — Poultry Anti-Dumping Duties 13 months 2 days
DS243 US — Textiles Rules of Origin 12 months 26 days
DS244 US — Corrosion-Resistant Steel Sunset Review 19 months 17 days
DS245 Japan — Apples 18 months 15 days
DS246 EC — Tariff Preferences 14 months 23 days
DS248, DS249, DS251, DS252, DS253, DS254, DS258, DS259 US — Steel Safeguards 18 months 17 days
DS257 US — Softwood Lumber IV 16 months 16 days
DS264 US — Softwood Lumber V 19 months 23 day
DS265, DS266, DS283 EC — Export Subsidies on Sugar 20 months 19 days
DS267 US — Upland Cotton 24 months 3 days
DS268 US — Oil Country Tubular Goods Sunset Review 18 months 27 days
DS269, DS 286 EC — Chicken Cuts 22 months 20 days
DS273 Korea — Commercial Vessels 20 months 20 days
DS276 Canada — Wheat Exports and Grain Imports 17 months 26 days
DS277 US — Softwood Lumber VI 11 months 19 days
DS282 US — Anti-Dumping Measures on Oil Country Tubular Goods 26 months 29 days
DS285 US — Gambling 20 months 29 days
DS291, DS292, DS293 EC — Approval and Marketing of Biotech Products 38 months 22 days
DS294 US — Zeroing (EC) 25 months 19 days
DS295 Mexico — Anti-Dumping Measures on Rice 25 months 13 days
DS296 US — Countervailing Duty Investigation on DRAMs 17 months 26 days
DS299 EC — Countervailing Measures on DRAM Chips 18 months 10 days
DS301 EC — Commercial Vessels 15 months 1 day
DS302 Dominican Republic — Import and Sale of Cigarettes 16 months 10 days
DS308 Mexico — Taxes on Soft Drinks 20 months 18 days
DS312 Korea — Certain Paper 14 months 1 day
DS315 EC — Selected Customs Matters 20 months 19 days
DS316 EC and certain member States — Large Civil Aircraft 71 months 12 days
DS320, DS321 US/Canada — Continued Suspension 45 months 16 days
DS322 US — Zeroing (Japan) 22 months 25 days
DS331 Mexico — Steel Pipes and Tubes 16 months 7 days
DS332 Brazil — Retreaded Tyres 23 months 6 days
DS334 Turkey — Rice 19 months 14 days
DS335 US — Shrimp (Ecuador) 7 months 1 day
DS336 Japan — DRAMS (Korea) 18 months 6 days
DS337 EC — Salmon (Norway) 19 months 2 days
DS339, DS340, DS342 China — Auto Parts 26 months 29 days
DS341 Mexico — Olive Oil 21 months 7 days
DS343 US — Shrimp (Thailand) 21 months 15 days
DS344 US — Stainless Steel (Mexico) 19 months 2 days
DS345 US — Customs Bond Directive 20 months 19 days
DS350 US — Continued Zeroing 20 months 26 days
DS360 India — Additional Import Duties 17 months 6 days
DS362 China — Intellectual Property Rights 18 months 2 days
DS363 China — Publications and Audiovisual Products 26 months 4 days
DS366 Colombia — Ports of Entry 19 months 6 days
DS367 Australia — Apples 35 months 11 days
DS371 Thailand — Cigarettes (Philippines) 32 months 10 days
DS375, DS376, DS377 EC — IT Products 24 months 8 days
DS379 US — Anti-Dumping and Countervailing Duties (China) 26 months 14 days
DS382 US — Orange Juice (Brazil) 21 months
DS383 US — Anti-Dumping Measures on PET Bags 11 months 5 days
DS392 US — Poultry (China) 15 months 1 day
DS397 EC — Fasteners (China) 21 months 13 days
DS399 US — Tyres (China) 18 months 16 days 9 months 12 days
DS402 US — Zeroing (Korea) (282 days)

 

Footnotes:

1320. Appellate Body Report, US — Stainless Steel (Mexico), para. 161. back to text
1321. WT/DSB/M/1. back to text
1322. PC/IPL/13. back to text
1323. The Panel Reports in EC — Bananas III (Ecuador), EC — Bananas III (Guatemala and Honduras), EC — Bananas III (Mexico), and EC — Bananas III (US) are counted as a single panel report. The Panel Reports in US — Steel Safeguards, in EC — Export Subsidies on Sugar, and in EC — Chicken Cuts, are also counted as single panel reports in each of those disputes. back to text
1324. Panel reports are counted as having been appealed where they are adopted as upheld, modified, or reversed by an Appellate Body report. The number of panel reports appealed may differ from the number of Appellate Body reports because some Appellate Body reports address more than one panel report. back to text
1325. Percentages are rounded to the nearest whole number. back to text
1326. The information in this table is updated to 30 September 2011. back to text
1327. This table covers only those disputes in which a panel report was adopted by 30 September 2011. It excludes cases in which an appeal was filed and then withdrawn. It does not cover Article 21.5 proceedings. back to text
1328. Appellate Body Report, Canada — Periodicals, p. 22. back to text
1329. Appellate Body Report, EC — Bananas III, paras. 206, 237 and 239. back to text
1330. Examples of factual findings that the Appellate Body have refrained from reviewing are Appellate Body Report, EC — Bananas III, paras. 206; 237 and 239; Appellate Body Report, Australia — Salmon, paras. 259-261 (see para. 842 below); Appellate Body Report, Japan — Agricultural Products II, para. 98; Appellate Body Report, India — Quantitative Restrictions, paras. 143-144. back to text
1331. Appellate Body Report, EC — Hormones, para. 132. See also, inter alia, Appellate Body Report, US — Upland Cotton, where the Appellate Body dealt with the scope of an appellate review under Article 17.6 of the DSU and recalled its previous findings in EC — Hormones. In particular, the Appellate Body stated that:
“[p]ursuant to Article 17.6 of the DSU, appeals are limited to issues of law covered in the panel report and legal interpretations developed by the panel. To the extent that the United States’ arguments concern the Panel’s appreciation and weighing of the evidence, we note from the outset that the Appellate Body will not interfere lightly with the Panel’s discretion ‘as the trier of facts’. At the same time, the Appellate Body has previously pointed out that the ‘consistency or inconsistency of a given fact or set of facts with the requirements of a given treaty provision is … a legal characterization issue’.”
Appellate Body Report, US — Upland Cotton, para. 399. See also Appellate Body Report, US — Anti Dumping Measures and Oil Country Tubular Goods, para. 195. back to text
1332. Appellate Body Report, Australia — Salmon, para. 261. back to text
1333. Appellate Body Report, Korea — Alcoholic Beverages, para. 161. back to text
1334. (footnote original) Appellate Body Report, Korea — Dairy Safeguard, supra, footnote 29, para. 137. back to text
1335. (footnote original) Appellate Body Report, EC Measures Concerning Meat and Meat Products (Hormones) (“European Communities — Hormones”), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, DSR 1998:1, 135, at 183, para. 132. back to text
1336. (footnote original) Appellate Body Report, Korea — Taxes on Alcoholic Beverages (“Korea — Alcoholic Beverages”), WT/DS75/AB/R, WT/DS84/AB/R, adopted 17 February 1999, paras. 161 and 162. back to text
1337. (footnote original) Appellate Body Report, Korea — Taxes on Alcoholic Beverages (“Korea — Alcoholic Beverages”), WT/DS75/AB/R, WT/DS84/AB/R, adopted 17 February 1999, paras. 161 and 162. back to text
1338. Appellate Body Report, US — Wheat Gluten, paras. 150-151. back to text
1339. Appellate Body Report, US — Section 211 Appropriations Act, para. 105. back to text
1340. Appellate Body Report, EC — Hormones, para. 132. back to text
1341. Appellate Body Report, US — Softwood Lumber V, para. 163. back to text
1342. Appellate Body Report, US — Upland Cotton (Article 21.5 — Brazil), para. 385. back to text
1343. Appellate Body Report, US — Upland Cotton (Article 21.5 — Brazil), para. 420. back to text
1344. (footnote original) Article 17.6 of the DSU provides: “An appeal shall be limited to issues of law covered in the panel report and legal interpretations developed by the panel.” back to text
1345. Appellate Body Report, Chile — Price Band System, para. 224. back to text
1346. Appellate Body Report, EC — Tube or Pipe Fittings, paras. 183—184. back to text
1347. Appellate Body Report, US — Offset Act (Byrd Amendment), para. 222. back to text
1348. Appellate Body Report, Chile — Price Band System (Article 21.5 — Argentina), para. 253. back to text
1349. Appellate Body Report, US — Zeroing (EC) (Article 21.5 — EC), para. 171. back to text
1350. Appellate Body Report, Canada — Aircraft, para. 211. back to text
1351. Appellate Body Report, US — FSC, para. 103. back to text
1352. (footnote original) European Communities’ appellant’s submission, para. 279. The European Communities, in response to questioning at the oral hearing, confirmed that it had not made this assertion before the Panel and that Table 9 of its appellant’s submission, which provides data and calculations in support of this assertion, had not been included in its written submission to the Panel. The European Communities explained at the oral hearing that it was making its assertion on appeal “in response to the Panel finding”. back to text
1353. (footnote original) Appellate Body Report on Canada — Aircraft, para. 211. back to text
1354. (footnote original) Ibid. back to text
1355. (footnote original) Table 9 is in paragraph 279 of the European Communities’ appellant’s submission. back to text
1356. (footnote original) In particular, the European Communities, on the one hand, and the Complaining Parties, on the other hand, disagreed as to which cost items should properly be included in the category of “fixed costs”. (See European Communities’ appellant’s submission, footnote 242 to paras. 106-109; and Thailand’s appellee’s submission, paras. 153 and 161) back to text
1357. Appellate Boda Report on EC — Export Subsidies on Sugar, paras. 240-242. back to text
1358. Appellate Body Report, US — Gasoline, pp. 22-29. back to text
1359. (footnote original) WT/DS2/AB/R, adopted 20 May 1996, pp. 22-29. back to text
1360. Appellate Body Report, Canada — Periodicals, pp. 24-26. back to text
1361. Appellate Body Report, EC — Hormones, para. 222. back to text
1362. (footnote original) Adopted 20 May 1996, WT/DS2/AB/R, pp. 13-29. back to text
1363. (footnote original) Adopted 30 July 1997, WT/DS31/AB/R, pp. 23-24. back to text
1364. Appellate Body Report, EC — Poultry, para. 156. back to text
1365. Appellate Body Report, Australia — Salmon, paras. 117-118. back to text
1366. Appellate Body Report, Argentina — Footwear (EC), para. 98. back to text
1367. Appellate Body Report, Korea — Dairy, para. 92. back to text
1368. Appellate Body Report, Korea — Dairy, para. 102. back to text
1369. Appellate Body Report, Canada — Autos, para. 145. back to text
1370. (footnote original) See, for instance, Appellate Body Report, United States — Gasoline, supra, footnote 15, at 18 ff; Appellate Body Report, Canada — Certain Measures Concerning Periodicals (“Canada — Periodicals”), WT/DS31/AB/R, adopted 30 July 1997, DSR 1997:1, 449, at 469 ff; Appellate Body Report, EC Measures Concerning Meat and Meat Products (Hormones) (“European Communities — Hormones”), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, paras. 222 ff; Appellate Body Report, European Communities — Measures Affecting the Importation of Certain Poultry Products, WT/DS69/AB/R, adopted 23 July 1998, paras. 156 ff; Appellate Body Report, Australia — Measures Affecting Importation of Salmon (“Australia — Salmon”), WT/DS18/AB/R, adopted 6 November 1998, paras. 117 ff, 193 ff and 227 ff; Appellate Body Report, United States — Shrimp, supra, footnote 14, paras. 123 ff; Appellate Body Report, Japan — Measures Affecting Agricultural Products, WT/DS76/AB/R, adopted 19 March 1999, paras. 112 ff; Appellate Body Report, United States — Tax Treatment for “Foreign Sales Corporations”, WT/DS108/AB/R, adopted 20 March 2000, paras. 133 ff; Appellate Body Report, Canada — Measures Affecting the Export of Civilian Aircraft, Recourse by Brazil to Article 21.5 of the DSU, WT/DS70/AB/RW, adopted 4 August 2000, paras. 43 ff; and Appellate Body Report, United States — Definitive Safeguard Measures on Imports of Wheat Gluten from the European Communities (“United States — Wheat Gluten”), WT/DS166/AB/R, adopted 19 January 2001, paras. 80 ff and 127 ff.
In addition, after modifying the panel’s reasoning, we have, on occasion, applied our interpretation of the legal provisions at issue to the facts of the case (see, for instance, Appellate Body Report, Argentina — Measures Affecting Imports of Footwear, Textiles, Apparel and Other Items, WT/DS56/AB/R, adopted 22 April 1998, paras. 48 ff; Appellate Body Report, Canada — Measures Affecting the Importation of Milk and the Exportation of Dairy Products, WT/DS103/AB/R, WT/DS113/AB/R, adopted 27 October 1999, paras. 138 ff; Appellate Body Report, Argentina — Safeguard Measures on Imports of Footwear, WT/DS121/AB/R, adopted 12 January 2000, paras. 109 ff). back to text
1371. (footnote original) See Appellate Body Report, Australia — Salmon, supra, footnote 48, paras. 209 ff, 241 ff and 255; Appellate Body Report, Korea — Definitive Safeguard Measure on Imports of Certain Dairy Products, WT/DS98/AB/R, adopted 12 January 2000, paras. 91 ff and 102 ff; Appellate Body Report, Canada — Certain Measures Affecting the Automotive Industry, WT/DS139/AB/R, WT/DS142/AB/R, adopted 19 June 2000, paras. 133 ff and 144 ff; Appellate Body Report, Korea — Measures Affecting Imports of Fresh, Chilled and Frozen Beef (“Korea — Beef”), WT/DS161/AB/R, WT/DS169/AB/R, adopted 10 January 2001, paras. 128 ff. back to text
1372. (footnote original) supra, footnote 48, at 469. back to text
1373. Appellate Body Report, EC — Asbestos, paras. 78-81. back to text
1374. Appellate Body Report, US — Hot-Rolled Steel, paras. 174and 180. back to text
1375. Appellate Body Report, Canada — Dairy (Article 21.5 — New Zealand and US), paras. 235-236. back to text
1376. Appellate Body Report, US — Section 211 Appropriations Act, paras. 343 and 352. See also Appellate Body Reports on US — Upland Cotton (Article 21.5 — Brazil), para. 296; India — Additional Import Duties, para. 204; and US — Continued Zeroing, para. 187, where the Appellate Body recalled its previous findings which clarified in which instances it could complete an analysis. back to text
1377. Appellate Body Report, US — Steel Safeguards, paras. 430-431. back to text
1378. Appellate Body Report US — Softwood Lumber IV, para. 118. back to text
1379. (footnote original) Appellate Body Report, India — Patents (US), para. 87; Appellate Body Report, US — Wool Shirts and Blouses, p. 19, DSR 1997:1, 323, at 340; Appellate Body Report, Canada — Autos, para. 114. back to text
1380. (footnote original) Appellate Body Report on US — Softwood Lumber IV, para. 118. back to text
1381. Appellate Body Report, US — Gambling, para. 344. back to text
1382. (footnote original) Appellate Body Report, Australia — Salmon, para. 117 (citing Appellate Body Report, US — Gasoline, pp. 19 ff, DSR 1996:1, 3, at 18 ff; Appellate Body Report, Canada — Periodicals, pp. 23 ff, DSR 1997:1, 449, at 468ff; Appellate Body Report, EC — Poultry, paras. 154 ff and Appellate Body Report, US — Shrimp, paras. 123 ff). back to text
1383. (footnote original) Appellate Body Report, EC — Asbestos, para. 78. back to text
1384. (footnote original) Appellate Body Report, EC — Asbestos, paras. 79 and 82 (cited in Appellate Body Report, US — Section 211 Appropriations Act, para. 343). See also Appellate Body Report, EC — Poultry, para. 107. back to text
1385. (footnote original) Appellate Body Report, EC — Asbestos, para. 79. (emphasis original) back to text
1386. (footnote original) Ibid, (citing Appellate body Report, Canada — Periodicals, p. 24, DSR 1997:1, 449, at 469). (emphasis added in EC — Asbestos) back to text
1387. Appellate Body Report, EC — Export Subsidies on Sugar, para. 337. back to text
1388. (footnote original) See Brazil’s other appellant’s submission, para. 49; and Thailand’s other appellant’s submission, para. 56. back to text
1389. (footnote original) These issues include, for instance, whether the Agreement on Agriculture contains “specific provisions dealing specifically with the same matter” (Appellate Body Report, US — Upland Cotton, paras. 532-533 (quoting Appellate Body Report, EC — Bananas III, para. 155; and referring to Appellate Body Report, Chile — Price Band System, para. 186)); whether the SCM Agreement applies to the subsidy as a whole, or whether it applies to the subsidy only to the extent that the subsidy exceeds the responding Members’ commitment levels as specified in its Schedule; and whether, in the event the SCM Agreement applies, a panel could make a recommendation to withdraw the subsidy in whole, or whether that recommendation would apply to the subsidy only to the extent that it exceeds the responding Member’s commitment levels. back to text
1390. (footnote original) Panel Report, Brazil — Aircraft, para. 8.5. See also Panel Report, Canada — Aircraft Credits and Guarantees, para. 8.4; Panel Report, Canada — Autos, para. 11.6-11.7; and Panel Report, US — FSC, paras. 8.6-8.8. We further note that the panel in Brazil — Aircraft determined that:
… taking into account the nature of the measures and the procedures which may be required to implement our recommendation, on the one hand, and the requirement that Brazil withdraw its subsidies ‘without delay’ on the other, we conclude that Brazil shall withdraw the subsidies within 90 days.
(Panel Report, Brazil — Aircraft, para. 8.5) Agreeing with the panel’s recommendation, the Appellate Body in the same case noted that:
… there is a significant difference between the relevant rules and procedures of the DSU and the special or additional rules and procedures set forth in Article 4.7 of the SCM Agreement. Therefore, the provisions of Article 21.3 are not relevant in determining the period of time for implementation of a finding of inconsistency with the prohibited subsidies provisions of Part II of the SCM Agreement.
(Appellate Body Report, Brazil — Aircraft, para. 192) back to text
1391.  Appellate Body Report, EC — Export Subsidies on Sugar, paras. 338-340. back to text
1392. (footnote original) See Appellate Body Report, US — Hot-Rolled Steel, para. 235; Appellate Body Report, Canada — Dairy (Article 21.5 — New Zealand and US), para. 98; and Appellate Body Report, US — Section 211 Appropriations Act, para. 343. back to text
1393.  Appellate Body Report, EC — Selected Customs Matters, para. 278 and 285-286. back to text
1394. Appellate Body Report, Japan — DRAMs (Korea), para. 142. back to text
1395. Appellate Body Reports, US/Canada — Continued Suspension, paras. 620. back to text
1396. Appellate Body Reports, US/Canada — Continued Suspension, para.735. back to text
1397. Appellate Body Report, US — Continued Zeroing, para. 195. back to text
1398. Appellate Body Report, US — Continued Zeroing, paras. 193-194. back to text
1399. Appellate Body Report, Australia — Apples, paras. 385, 402. back to text
1400. Appellate Body Report, US — Anti Dumping and Countervailing Duties (China), para. 342. back to text
1401. Appellate Body Report, US — Anti Dumping and Countervailing Duties (China), paras. 528, 598. back to text
1402. Appellate Body Report, EC and certain member States — Large Civil Aircraft, para. 1140. back to text
1403. (footnote original) In addition, Rule 16(1) of the Working Procedures allows a division hearing an appeal to develop an appropriate procedure in certain specified circumstances where a procedural question arises that is not covered by the Working Procedures. back to text
1404. Appellate Body Report, US — Lead and Bismuth II, para. 39. back to text
1405. (footnote original) Black’s Law Dictionary, (West Publishing Co., 1990), p. 1204. back to text
1406. (footnote original) The New Shorter Oxford English Dictionary, (Clarendon Press, 1993), Vol. II, at 2364. back to text
1407. Appellate Body Report, Brazil — Aircraft, para. 121. back to text
1408. Appellate Body Report, Brazil — Aircraft, para. 123-124. back to text
1409. (footnote original) For example, derogation from the situation contemplated in the second sentence of Article 17.10, which provides that “[t]he reports of the Appellate Body shall be drafted without the presence of the parties to the dispute and in the light of the information provided and the statements made”, would impair the exercise, integrity and independence of the Appellate Body’s adjudicative function. back to text
1410. Appellate Body Report, Australia — Apples, Annex III, para. 4. back to text
1411. Appellate Body Report, US — Upland Cotton, paras. 510-511. See also Appellate Body Report, US — Upland Cotton, paras. 695,745-748, 761-762. back to text
1412. Appellate Body Report, Canada — Periodicals, footnote 28 to para. 19. back to text
1413. Appellate Body Report, Brazil — Aircraft (Article 21.5 — Canada), para. 78. back to text
1414. Appellate Body Report, US — Certain EC Products, paras. 89-90. back to text
1415. Appellate Body Report, US — Cotton Yarn, para. 127. back to text
1416. (footnote original) Within the meaning of Article 17.13 of the DSU. back to text
1417. Appellate Body Report, US — Wool Shirts and Blouses, p. 17. back to text
1418. Appellate Body Report, EC — Poultry, para. 107. back to text
1419. Panel Report, para. 9.162. back to text
1420. (footnote original) We note that, although China’s Notice of Appeal and appellant’s submission challenge the Panel’s “interpretation” of Article 2.2 of the SCM Agreement in this regard, the relevant paragraph of the Panel Report cited by China (paragraph 9.155) is contained in the section of the Panel Report dealing with the application of Article 2.2 to the USDOC’s specificity determination in the LWS investigation. Neither China’s Notice of Appeal nor its appellant’s submission alleges any error in the section of the Panel Report dealing with the interpretation of Article 2.2 (paragraphs 9.124-9.144). back to text
1421. Appellate Body Report, US — Anti-Dumping and Countervailing Duties (China), paras. 420-421. back to text
1422. Appellate Body Report, US — Shrimp (Article 21.5 — Malaysia), paras. 108-109. back to text
1423. Appellate Body Report, US — Softwood Lumber V, para. 112. back to text
1424. Appellate Body Report, EC — Bed Linen, para. 93. back to text
1425. Appellate Body Report, US — Oil Country Tubular Goods Sunset Reviews, para. 188. back to text
1426. (footnote original) We note that the mandate of an Article 21.5 panel includes the task of assessing whether the measures taken to comply with the rulings and recommendations adopted by the DSB in the original proceedings achieve compliance with those rulings. Therefore, panels established under that provision are bound to follow the legal interpretation contained in the original panel and Appellate Body reports that were adopted by the DSB. back to text
1427. Appellate Body Report, US — Stainless Steel (Mexico), paras. 158— 162. back to text
1428. This table covers only those disputes in which a panel report was adopted by 30 September 2011. It excludes cases in which an appeal was filed and then withdrawn. It does not cover Article 21.5 proceedings. back to text
1429. Decision by the Arbitrators, EC — Bananas III (US) (Article 22.6 — EC), para. 2.6. back to text
1430. Panel Report, US — Wheat Gluten, para. 8.10. back to text
1431. Panel Report, Canada — Aircraft Credits and Guarantees, para. 7.135. back to text
1432. Panel Report, Korea — Certain Paper, para. 7.17. back to text
1433. Panel Report, Turkey — Rice, para. 7.100. back to text
1434. (footnote original) We are referring to the arguments set forth in Argentina’s submission of 15 August 2002. back to text
1435. Panel Report, Argentina — Poultry Anti-Dumping Duties, para. 7.14. back to text
1436. (footnote original) Paragraph 11 of the Panel’s Working Procedures provides that “[t]he descriptive part of the Panel’s report will include the procedural and factual background to the present dispute. There will be no description of the main arguments of the parties and third parties as such. Instead, the Panel will attach the parties’ submissions (including first and second written submissions, written versions of the first and second oral statements, and each parties’ replies to questions from the other party and from the Panel) to its report. Upon request of a party, specific portions of a submission designated by that party as confidential at the time of its submission will not be included in the submission attached to the Panel’s report.” back to text
1437. Panel Report, Argentina — Poultry Anti-Dumping Duties, para. 7.15. back to text
1438. Panel Reports on US — Steel Safeguards, para. 5.3. back to text
1439. Appellate Body Report, Thailand — H-Beams, para. 74. back to text
1440. (footnote original) Canada’s Response to Panel Question 31 (Annex A-4). back to text
1441. (footnote original) This is subject, of course, to the provisions of the last sentence of Article 18.2 of the DSU, which allow a party to panel proceedings to disclose to the public non-confidential summaries of the information contained in the written submissions of the other party, if such summaries are requested. back to text
1442. (footnote original) Original Appellate Body Report on Canada — Aircraft, supra, para. 141 (emphasis added). The Appellate Body made the quoted statement in respect of appellate review proceedings. We do not see, however, why the same reasoning should not extend, by analogy, to panel proceedings. back to text
1443. (footnote original) Contrary 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. back to text
1444. (footnote original) The following statement by the Panel in Korea — Alcoholic Beverages supports this view:
    We note that written submissions of the parties which contain confidential information may, in some cases, be provided to nongovernment 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. (Panel Report on Korea — Alcoholic Beverages, supra, para. 10.32, emphasis added) back to text
1445. (footnote original) Brazil is correct in pointing out that paragraph 13 does not expressly authorize disclosure of confidential information to “other advisors”, but, in our view, it does so by implication. We stress, however, that paragraph 13 talks about “advisors” and not other members of the public, such as private parties interested in the outcome of particular panel proceedings. back to text
1446. (footnote original) We note that there is nothing in the other paragraphs of this Panel’s Working Procedures to suggest that confidential information may be disclosed to non-government advisors only if those advisors are members of an official delegation to a panel meeting. back to text
1447. (footnote original) It should be pointed out that Brazil did not, in these proceedings, submit any business confidential information. back to text
1448. Panel Report, Brazil — Aircraft (Article 21.5 — Canada II), paras. 3.5-3.10. back to text
1449. (footnote original) We recall that Brazils concern is with the confidentiality of its arguments and statements. Business confidential information, which might require other procedures and safeguards, is not, as already mentioned, involved in this situation. back to text
1450. (footnote original) Since Brazil has not responded to Canada’s argument that the private lawyers in question are subject to a confidentiality agreement, there are no grounds for assuming that that agreement inadequately protects confidential information. back to text
1451. Panel Report, Brazil — Aircraft (Article 21.5 — Canada II), paras. 3.11-3.15. back to text
1452. Panel Reports, EC — Export Subsidies on Sugar, para. 2.20. back to text
1453. Panel Reports, EC — Export Subsidies on Sugar, para. 7.82. back to text
1454. Panel Reports, EC — Export Subsidies on Sugar, para. 7.98-7.99. back to text
1455. Panel Report, US — Upland Cotton, para. 6.5. back to text
1456. Appellate Body Reports, Canada — Aircraft, paras. 145 and 147, and Brazil — Aircraft, paras. 123 and 125. back to text
1457. Appellate Body Report, EC and certain member States — Large Civil Aircraft, paras. 17-19 and Annex III. back to text
1458. (footnote original) Ruling of 11 June 1999 (quoted in relevant part in Appellate Body Report, Brazil — Aircraft, para. 119 and Appellate Body Report, Canada — Aircraft, para. 141). back to text
1459. Appellate Body Report, EC and certain member States — Large Civil Aircraft, Annex III, para. 26. back to text
1460. See European Communities’ third participant’s submission, para. 10 (quoting Panel Report, paras. 7.205 and 7.206). back to text
1461. (footnote original) See, for example, Article g12.4 of the SCM Agreement. back to text
1462. Appellate Body Report, Japan — DRAMs (Korea), para. 279. back to text
1463. Panel Reports, US/Canada — Continued Suspension, para. 7.48. back to text
1464. Decision by the Arbitrator, US — Upland Cotton (Article 22.6 — US I), para. 1.33. back to text
1465. (footnote original) It could be argued that the Interim Report of a panel constitutes part of its “deliberations” before it is finalized and issued to the parties. back to text
1466. (footnote original) See, e.g., American Bar Association, Model Rules of Professional Conduct, Rule 1.6; New York State Bar Association, Lawyer’s Code of Professional Responsibility, DR 4-101; Canadian Bar Association, Code of Professional Conduct, Chapter IV; Law Society of Upper Canada, Rules of Professional Conduct, Rule 2.03; Council of the Bars and Law Societies of the European Union, Code of Conduct for Lawyers in the European Union, Rules 2.3; Bar of England and Wales, Code of Conduct, Rules 603, 608 and 702. back to text
1467. Panel Report, EC — Tariff Preferences, paras. 7.15-7.16. back to text
1468. Panel Report, India — Autos, para. 8.15. See also the Panel Report, Mexico — Taxes on Soft Drinks, para. 8.230. back to text
1469. Panel Report, Chile — Price Band System, para. 7.112. See also Panel Report, EC — IT Products, para. 7.167. back to text
1470. Appellate Body Report, US — Certain EC Products, paras. 81 and 129. back to text
1471. Panel Report, Chile — Price Band System, paras. 7.112 and 1 .VIA. back to text
1472. Appellate Body Report, Dominican Republic — Import and Sale of Cigarettes, para. 129. back to text
1473. Panel Report, EC — Commercial Vessels, para. 8.4. back to text
1474. Panel Report, EC — Approval and Marketing of Biotech Products, paras. 8.16 and 8.36. back to text
1475. Panel Report, EC — IT Products, paras. 6.48-6.50,8.14, 8.25,8.37. back to text
1476. Panel Report, US — Poultry (China), para. 8.7. back to text
1477. Panel Report, Thailand — Cigarettes (Philippines), para. 6.15. back to text
1478. Panel Report, Thailand — Cigarettes (Philippines), para. 8.8. back to text
1479. (footnote original) See, for example, Appellate Body Report, US — Certain EC Products, paras. 81-82. The panel in EC — Approval and Marketing of Biotech Products concluded that “WTO jurisprudence supports the inference that panels are to avoid making recommendations which would apply to measures that are no longer in existence or have been amended.” Panel Report, EC — Approval and Marketing of Biotech Products, para. 7.1316. back to text
1480. US — Large Civil Aircraft (2nd complaint), para. 8.6. back to text
1481. Panel Report, India — Autos, paras. 8.27-8.28. back to text
1482. Panel Report, US — Oil Country Tubular Goods Sunset Review, para. 7.56; and Appellate Body Report, US — Oil Country Tubular Goods Sunset Review, para. 40-57. back to text
1483. Panel Report, US — FSC (Article 21.5 — EC II), para. 7.43. This ruling was upheld by the Appellate Body in US — FSC (Article 21.5 — ECU) (AB), para. 89. See also Panel Reports, Korea — Certain Paper (Article 21.5), para. 7.4; US — Upland Cotton (Article 21.5), para. 15.2; EC — Bananas III (Article 21.5 — US), para. 8.13; EC — Bananas III (Article 21.5 — Ecuador II) I EC — Bananas III (Article 21.5 — US), para. 272; US — Zeroing (EC) (Article 21.5 — EC), para. 9.2; and US — Zeroing (Japan) (Article 21.5 — Japan), para. 8.2. See also Appellate Body Reports, EC — Bananas III (Article 21.5 — Ecuador II) / EC — Bananas III (Article 21.5 — US), para. 214. back to text
1484. Panel Report, US — Oil Country Tubular Goods Sunset Review (Article 21.5), para. 8.4. back to text
1485. Appellate Body Reports, US/Canada — Continued Suspension, para. 737. back to text
1486. Appellate Body Report on US — Softwood Lumber IV (Article 21.5 — Canada), para. 97. back to text
1487. (footnote original) A recommendation by this Panel under Article 4.7 of the SCM Agreement would provide the United States with a new period within which to withdraw the subsidy provided to Boeing. The implication would be that while the United States has since November 2000 been under an obligation to withdraw the FSC measures at issue, with respect to the application of those measures to Boeing, the obligation to withdraw the subsidy would come into existence only upon completion of the present proceeding. Such a result would be fundamentally illogical. back to text
1488. Panel Report, US — Large Civil Aircraft (2nd complaint), para. 8.6. back to text
1489. Panel Report, US — Steel Plate, para. 8.8. See also Panel Report, US — Softwood Lumber VI, para. 8.8. back to text
1490. Panel Report, US — Softwood Lumber V, para. 8.6. See also Panel Reports, Argentina — Poultry Anti-Dumping Duties, para. 8.5, and EC — Tube or Pipe Fittings, para. 8.11, and Appellate Body Report, US — Continued Zeroing, para. 389. back to text
1491. Panel Report, Korea — Certain Paper, paras. 9.3-9.4. back to text
1492. Appellate Body Report, US — Zeroing (EC) (Article 21.5 — EC), para. 466. back to text
1493. Panel Report, US — Underwear, para. 8.3 back to text
1494. Panel Report, EC — Bananas III (Article 21.5 — Ecuador), paras. 6.155-6.158. back to text
1495. Panel Report, India — Patents (US), para. 5.65. back to text
1496. Panel Report, India — Patents (US), para. 6.2. back to text
1497. Panel Report, Guatemala — Cement I, para. 8.6. back to text
1498. Panel Report, India — Quantitative Restrictions, paras. 7.5-7.7. back to text
1499. Panel Report, US — Lead and Bismuth II, para. 8.1. back to text
1500. Panel Report, Guatemala — Cement II, para. 9.7. back to text
1501. Panel Report, US — Cotton Yarn, para. 8.5. back to text
1502. Panel Report, US — Offset Act (Byrd Amendment), para. 8.6. back to text
1503. Panel Report, Argentina — Poultry Anti-Dumping Duties, para. 8.7. back to text
1504. Panel Reports, US/Canada — Continued Suspension, para. 8.3. back to text
1505. Panel Report, Mexico — Steel Pipes and Tubes, para. 8.13. back to text
1506. Panel Report, Mexico — Steel Pipes and Tubes, para. 8.12. back to text
1507. Panel Reports, EC — Export Subsidies on Sugar, para 8.7. back to text
1508. Panel Reports, EC — Trademarks and Geographical Indications, para. 8.5. back to text
1509. Panel Report, EC — Selected Customs Matters, para. 7.21. back to text
1510. Panel Report, India — Patents (US), para. 5.65. back to text
1511. Panel Report, US — DRAMS, para. 7.4. See also Panel Report, US — Steel Plate, para. 7.110. back to text
1512. Panel Report, US — Lead and Bismuth II, para. 8.2. back to text
1513. Panel Report, Guatemala — Cement II, para. 9.6. back to text
1514. Panel Report, US — Stainless Steel, para. 7.10. back to text
1515. Panel Report, US — Hot Rolled Steel, para. 8.11. back to text
1516. Panel Report, US — Hot Rolled Steel, para. 8.13. back to text
1517. Panel Report, US — Line Pipe, para. 8.6. back to text
1518. Panel Report, US — Steel Plate, para. 8.8. back to text
1519. Panel Report, Chile — Price Band System, para. 8.3. back to text
1520. Panel Report, EC — Sardines, para. 8.3. back to text
1521. Panel Report, US — Countervailing Measures on Certain EC Products, para. 6.43. back to text
1522. Panel Report, EC — Tariff Preferences, para. 8.3. back to text
1523. Panel Report, US — Oil Country Tubular Goods Sunset Reviews, paras. 8.3-8.5. back to text
1524. Panel Report, EC — Tube or Pipe Fittings, paras. 8.9 and 8.11. back to text
1525. Panel Report, US — Countervailing Duty Investigation on DRAMS, para. 8.4. back to text
1526. Panel Report, Korea — Certain Paper, paras. 9.3 and 9.4. back to text
1527. Panel Report, US — Steel Plate, para. 8.8. back to text
1528. Panel Report, US — Countervailing Measures on Certain EC Products, para. 6.43. back to text
1529. Panel Report, Brazil — Aircraft (Article 21.5 — Canada), para. 7.3. back to text
1530. Award of the Arbitrator, US — Offset Act (Byrd Amendment) (Article 21.3(c)), para. 52. back to text
1531. (footnote original) Ecuador Panel Report, para. 7.247. back to text
1532. (footnote original) European Communities’ appellant’s submission, para. 90 (Ecuador). back to text
1533. (footnote original) For example, Article 3.8 of the DSU, which establishes a legal presumption that a breach of WTO rules constitutes nullification or impairment, does so in clear and unambiguous terms. Similarly, a legal presumption of conformity with the GATT 1994 is established in clear and unambiguous terms by Article 2.4 of the Agreement on the Application of Sanitary and Phytosanitary Measures for measures conforming to that Agreement. back to text
1534. Appellate Body Reports, EC — Bananas III (Ecuador) (Article 21.5 — Ecuador II) / EC — Bananas III (US) (Article 21.5 — US), paras. 321-326. back to text
1535. Appellate Body Report, Chile — Alcoholic Beverages, para. 79. back to text
1536. Appellate Body Report, Mexico — Taxes on Soft Drinks, para. 53. back to text
1537. Appellate Body Report, EC — Bed Linen (Article 21.5 — India), para. 93. back to text
1538. Appellate Body Report, EC — Selected Customs Matters, para. 134. back to text
1539. Panel Report, Australia — Automotive Leather II (Article 21.5 — US), paras. 6.31 and 6.41. back to text
1540. Panel Report, EC and certain member States — Large Civil Aircraft, para. 8.8. back to text
1541. Panel Reports, US — Steel Safeguards, para. 2.18. back to text
1542. Panel Report, US — Section 301 Trade Act, para. 7.31 and footnote 646. back to text
1543. This table covers only those disputes in which a panel report was adopted. It excludes cases in which an appeal was filed and then withdrawn. It does not cover Article 21.5 proceedings. back to text
1544. In this particular case (DS335), there were accelerated procedures which included only one meeting with the parties. back to text

 

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