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WTO ANALYTICAL INDEX: DISPUTE SETTLEMENT UNDERSTANDING Understanding on Rules and Procedures Governing the Settlement of Disputes |
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> Article 1 |
Appendix 3: Working Procedures 1. In its proceedings the panel shall follow the relevant provisions of this Understanding. In addition, the following working procedures shall apply.
2. The panel shall meet in closed session. The parties to the dispute, and interested parties, shall be present at the meetings only when invited by the panel to appear before it.
3. The deliberations of the panel and the documents submitted to it shall be kept confidential. 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 which that Member has designated as confidential. Where a party to a dispute submits a confidential version of its written submissions to the panel, it shall also, upon request of a Member, provide a non-confidential summary of the information contained in its submissions that could be disclosed to the public.
4. Before the first substantive meeting of the panel with the parties, the parties to the dispute shall transmit to the panel written submissions in which they present the facts of the case and their arguments.
5. At its first substantive meeting with the parties, the panel shall ask the party which has brought the complaint to present its case. Subsequently, and still at the same meeting, the party against which the complaint has been brought shall be asked to present its point of view.
6. All third parties which have notified their interest in the dispute to the DSB shall be invited in writing to present their views during a session of the first substantive meeting of the panel set aside for that purpose. All such third parties may be present during the entirety of this session.
7. Formal rebuttals shall be made at a second substantive meeting of the panel. The party complained against shall have the right to take the floor first to be followed by the complaining party. The parties shall submit, prior to that meeting, written rebuttals to the panel.
8. The panel may at any time put questions to the parties and ask them for explanations either in the course of a meeting with the parties or in writing.
9. The parties to the dispute and any third party invited to present its views in accordance with Article 10 shall make available to the panel a written version of their oral statements.
10. In the interest of full transparency, the presentations, rebuttals and statements referred to in paragraphs 5 to 9 shall be made in the presence of the parties. Moreover, each party's written submissions, including any comments on the descriptive part of the report and responses to questions put by the panel, shall be made available to the other party or parties.
11. Any additional procedures specific to the panel.
12. Proposed timetable for panel work:
The above calendar may be changed in the light of unforeseen developments. Additional meetings with the parties shall be scheduled if required. 582. The Appellate Body in EC - Hormones held that Panels, under the DSU, enjoy a margin of discretion to deal with situations that "are not explicitly regulated": "[T]he DSU, and in particular its Appendix 3, leave panels a margin of discretion to deal, always in accordance with due process, with specific situations that may arise in a particular case and that are not explicitly regulated. Within this context, an appellant requesting the Appellate Body to reverse a panel's ruling on matters of procedure must demonstrate the prejudice generated by such legal ruling."(875) 583. The Appellate Body in EC - Hormones stated that it agreed with the Panel's exercise of its margin of discretion when it allowed the United States to participate in the second substantive meeting of the proceedings initiated by Canada in the same dispute.(876) With respect to "enhanced" third-party rights, see paragraphs 232-237 above. 2. Submission of new evidence or allegation 584. In Argentina - Textiles and Apparel, Argentina argued in its appeal that the Panel had acted inconsistently with Article 11 of the DSU by permitting certain evidence in the form of approximately 90 invoices and customs documents which purported to show specific cases in which Argentina had applied duties in excess of its 35 per cent ad valorem tariff binding. Argentina requested that this evidence be rejected because it had been submitted too late in the Panel proceeding and because it was impossible for Argentina to respond to the evidence presented due to blacking-out of certain information from these documents. The Appellate Body noted that the Panel had admitted the evidence and had given Argentina two weeks to respond to the evidence. The Appellate Body then held that while "the Working Procedures in Appendix 3 do contemplate two distinguishable stages" where "a full presentation of the facts on the basis of submission of supporting evidence" should be made during the first stage, it ultimately found that "the Working Procedures in their present form do not constrain panels with hard and fast rules on deadlines for submitting evidence" and that the Panel had acted within its discretion when it admitted the additional evidence: "Article 11 of the DSU does not establish time limits for the submission of evidence to a panel. Article 12.1 of the DSU directs a panel to follow the Working Procedures set out in Appendix 3 of the DSU, but at the same time authorizes a panel to do otherwise after consulting the parties to the dispute. The Working Procedures in Appendix 3 also do not establish precise deadlines for the presentation of evidence by a party to the dispute.(877) It is true that the Working Procedures 'do not prohibit' submission of additional evidence after the first substantive meeting of a panel with the parties. It is also true, however, that the Working Procedures in Appendix 3 do contemplate two distinguishable stages in a proceeding before a panel.... Under the Working Procedures in Appendix 3, the complaining party should set out its case in chief, including a full presentation of the facts on the basis of submission of supporting evidence, during the first stage. The second stage is generally designed to permit 'rebuttals' by each party of the arguments and evidence submitted by the other parties.
[T]he Working Procedures in their present form do not constrain panels with hard and fast rules on deadlines for submitting evidence. The Panel could have refused to admit the additional documentary evidence of the United States as unseasonably submitted. The Panel chose, instead, to admit that evidence, at the same time allowing Argentina two weeks to respond to it. Argentina drew attention to the difficulties it would face in tracing and verifying the manually processed customs documents and in responding to them, since identifying names, customs identification numbers and, in some cases, descriptions of the products had been blacked out. The Panel could well have granted Argentina more than two weeks to respond to the additional evidence. However, there is no indication in the panel record that Argentina explicitly requested from the Panel, at that time or at any later time, a longer period within which to respond to the additional documentary evidence of the United States. Argentina also did not submit any countering documents or comments in respect of any of the additional documents of the United States."(878) 585. In Canada - Aircraft, Canada requested the Panel to make a preliminary ruling on the issue of whether the complaining party may adduce new evidence or allegations after the end of the first substantive meeting. Canada argued that it would suffer prejudice under the accelerated procedure under Article 4 of the SCM Agreement as a result of the late submission of allegations or evidence. The Panel, in a finding not addressed by the Appellate Body, ruled that it was not bound to exclude the submission of new allegations after the first substantive meeting and that it could not see any legal basis for such a duty: "[A]n absolute rule excluding the submission of evidence by a complaining party after the first substantive meeting would be inappropriate, since there may be circumstances in which a complaining party is required to adduce new evidence in order to address rebuttal arguments made by the respondent. Furthermore, there may be instances, as in the present case,(879) where a party is required to submit new evidence at the request of the panel. For these reasons, we rejected Canada's request for a preliminary ruling that the Panel should not accept new evidence submitted by Brazil after the first substantive meeting.
[W]e are not bound to exclude the submission of new allegations after the first substantive meeting. We can see nothing in the DSU, or in the Appendix 3 Working Procedures, that would require the submission of new allegations to be treated any differently than the submission of new evidence. Indeed, one could envisage situations in which the respondent might present information to a panel during the first substantive meeting that could reasonably be used as a basis for a new allegation by the complaining party. Provided the new allegation falls within the panel's terms of reference, and provided the respondent party's due process rights of defence are respected, we can see no reason why any such new allegation should necessarily be rejected by the panel as a matter of course, simply because it is submitted after the first substantive meeting with the parties. We consider that this approach is consistent with the Appellate Body's ruling in European Communities - Bananas that '[t]here is no requirement in the DSU or in GATT practice for arguments on all claims relating to the matter referred to the DSB to be set out in a complaining party's first written submission to the panel. It is the panel's terms of reference, governed by Article 7 of the DSU, which set out the claims of the complaining parties relating to the matter referred to the DSB.' (880)" (881) 3. Deadline for affirmative defence 586. In Canada - Aircraft, Brazil argued that a good faith interpretation of the DSU requires a party making an affirmative defence to set forth the grounds for that affirmative defence in its first written submission to the panel. The Panel disagreed: "As noted above, there is nothing in the DSU, or in the Appendix 3 Working Procedures, to prevent a party submitting new evidence or allegations after the first substantive meeting. We can see no basis in the DSU to treat the submission of affirmative defences after the first substantive meeting any differently. Thus, although it is desirable that affirmative defences, as with any claim, should be submitted as early as possible, there is no requirement that affirmative defences should be submitted before the end of the first substantive meeting with the parties. Provided that due process is respected, we see nothing to prohibit the submission of affirmative defences after the first substantive meeting with the parties."(882) 4. Objections to panel's jurisdiction 587. In US - 1916 Act, the European Communities argued in its appeal that any jurisdictional objections should have been raised before the interim review stage and invoked the principle that procedural objections must be made in a timely manner and in good faith. The Appellate Body held that "vesting of jurisdiction in a panel is a fundamental prerequisite for lawful panel proceedings" and that "some issues of jurisdiction may be of such a nature that they have to be addressed by the Panel at any time": "We agree with the Panel that the interim review was not an appropriate stage in the Panel's proceedings to raise objections to the Panel's jurisdiction for the first time. An objection to jurisdiction should be raised as early as possible and panels must ensure that the requirements of due process are met. However, we also agree with the Panel's consideration that 'some issues of jurisdiction may be of such a nature that they have to be addressed by the Panel at any time.'(883) We do not share the European Communities' view that objections to the jurisdiction of a panel are appropriately regarded as simply 'procedural objections'. The vesting of jurisdiction in a panel is a fundamental prerequisite for lawful panel proceedings. We, therefore, see no reason to accept the European Communities' argument that we must reject the United States' appeal because the United States did not raise its jurisdictional objection before the Panel in a timely manner."(884) (a) Composition of parties' delegations 588. In Brazil - Aircraft (Article 21.5 - Canada II), the Panel's Working procedures included a paragraph 13 providing that the parties and third parties had the right to determine the composition of their own delegations: "The parties and third parties to this proceeding have the right to determine the composition of their own delegations. Delegations may include, as representatives of the government concerned, private counsel and advisers. The parties and third parties shall have responsibility for all members of their delegations and shall ensure that all members of their delegations, as well as any other advisors consulted by a party or third party, act in accordance with the rules of the DSU and the working procedures of this Panel, particularly in regard to confidentiality of the proceedings. Parties shall provide a list of the participants of their delegation before or at the beginning of the meeting with the Panel."(885) (b) Business Confidential Information 589. As regards procedures concerning business confidential information, see paragraphs 389-392 above.
XXXI. Appendix 4: Expert Review Groups back to top Appendix 4: Expert Review Groups The following rules and procedures shall apply to expert review groups established in accordance with the provisions of paragraph 2 of Article 13.
1. Expert review groups are under the panel's authority. Their terms of reference and detailed working procedures shall be decided by the panel, and they shall report to the panel.
2. Participation in expert review groups shall be restricted to persons of professional standing and experience in the field in question.
3. Citizens of parties to the dispute shall not serve on an expert review group without the joint agreement of the parties to the dispute, except in exceptional circumstances when the panel considers that the need for specialized scientific expertise cannot be fulfilled otherwise. Government officials of parties to the dispute shall not serve on an expert review group. Members of expert review groups shall serve in their individual capacities and not as government representatives, nor as representatives of any organization. Governments or organizations shall therefore not give them instructions with regard to matters before an expert review group.
4. Expert review groups may consult and seek information and technical advice from any source they deem appropriate. Before an expert review group seeks such information or advice from a source within the jurisdiction of a Member, it shall inform the government of that Member. Any Member shall respond promptly and fully to any request by an expert review group for such information as the expert review group considers necessary and appropriate.
5. The parties to a dispute shall have access to all relevant information provided to an expert review group, unless it is of a confidential nature. Confidential information provided to the expert review group shall not be released without formal authorization from the government, organization or person providing the information. Where such information is requested from the expert review group but release of such information by the expert review group is not authorized, a non-confidential summary of the information will be provided by the government, organization or person supplying the information.
6. The expert review group shall submit a draft report to the parties to the dispute with a view to obtaining their comments, and taking them into account, as appropriate, in the final report, which shall also be issued to the parties to the dispute when it is submitted to the panel. The final report of the expert review group shall be advisory only.
No jurisprudence or decision of a competent WTO body.
XXXII. Working Procedures for Appellate Review back to top 590. On 24 January 2002, the Appellate Body issued a consolidated, revised version of the Working Procedures for Appellate Review, reflecting amendment to Rule 5(2).(886)
591. With respect to the interpretation of the Appellate Body Working Procedures, see paragraphs 373-388 above.
XXXIII. Other Issues in WTO Dispute Proceedings back to top A. Due Process in WTO Dispute Settlement Proceedings 1. Standard panel working procedures as a tool to ensure due process 592. In EC - Bananas III, the Appellate Body indicated that issues including whether or not a claim had been specified in the request for establishment of a panel "could be decided early in panel proceedings, without causing prejudice or unfairness to any party or third party, if panels had detailed, standard working procedures that allowed, inter alia, for preliminary rulings".(887) 593. The Appellate Body in India - Patents (US) also pointed to the relevance of having standard panel working procedures that provide for appropriate factual discovery at an early stage in order to assist the requirements of due process: "It is worth noting that, with respect to fact-finding, the dictates of due process could better be served if panels had standard working procedures that provided for appropriate factual discovery at an early stage in panel proceedings."(888) 594. Similarly, the Appellate Body in Argentina - Textiles and Apparel observed that "standard working procedures for panels would help to ensure due process and fairness in panel proceedings": "As we have observed in two previous Appellate Body Reports, we believe that detailed, standard working procedures for panels would help to ensure due process and fairness in panel proceedings. See European Communities - Regime for the Importation, Sale and Distribution of Bananas, adopted 25 September 1997, WT/DS27/AB/R, para. 144; India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, adopted 16 January 1998, WT/DS50/AB/R, para. 95."(889) 2. Identification of measures and claims at issue 595. In India - Patents (US), the Appellate Body noted that "the demands of due process that are implicit in the DSU make [the clear statement of the claims and the free disclosure of facts] especially necessary during consultations". See paragraph 88 above. 596. The European Communities argued in EC - Computer Equipment that its right to due process during the course of the proceedings was violated because the term LAN equipment lacked precision in the request for establishment of a panel. The Appellate Body stated: "We do not see how the alleged lack of precision of the terms, LAN equipment and PCs with multimedia capability, in the request for the establishment of a panel affected the rights of defence of the European Communities in the course of the panel proceedings. As the ability of the European Communities to defend itself was not prejudiced by a lack of knowing the measures at issue, we do not believe that the fundamental rule of due process was violated by the Panel."(890) 597. The Appellate Body in Korea - Dairy, when considering if the mere listing in the request for establishment of the Articles claimed to have been violated meets the standard of Article 6.2, took into account whether the ability of the respondent to defend itself had been prejudiced by that fact. See paragraph 167 above. 598. In Chile - Price Band System, the Appellate Body ruled that "[t]he requirements of due process and orderly procedure dictate that claims must be made explicitly in WTO dispute settlement". See paragraph 170 above. 599. Also in Chile - Price Band System, the Appellate Body, in the context of its analysis of whether an amendment to a measure after the request for establishment of a panel was part of the measure at issue, considered the importance for the "demands of due process" "that a complaining party should not have to adjust its pleadings throughout dispute settlement proceedings in order to deal with a disputed measure as a "moving target"".(891) See paragraph 207 above. 3. Identification of appealed measures 600. The appellees in US - Shrimp argued that the United States' notice of appeal was both vague and cursory and therefore not in compliance with the procedural requirements of Rule 20(2) of the Working Procedures for Appellate Review. The Appellate Body, which disagreed, noted that "an appellee is, of course, always entitled to its full measure of due process" and considered that the developed and substantial nature of the appellees' submissions in that case was "the best indication that that full measure of due process was not in any degree impaired by the notice of appeal".(892) See paragraphs 381-382 above. 601. In Australia - Salmon, the Appellate Body warned panels to be careful to observe due process, when complying with the Article 12.2 requirement of flexibility in panel procedures, by providing parties with adequate opportunity to respond to evidence submitted: "We note that Article 12.2 of the DSU provides that '[p]anel procedures should provide sufficient flexibility so as to ensure high-quality panel reports, while not unduly delaying the panel process.' However, a panel must also be careful to observe due process, which entails providing the parties adequate opportunity to respond to the evidence submitted."(893) 602. In Australia - Salmon, the Appellate Body further indicated that "[a] fundamental tenet of due process is that a party be provided with an opportunity to respond to claims made against it". In this case, Australia had claimed that the Panel erred in failing to accord it an opportunity to submit a formal written rebuttal submission to respond to the oral statement made by Canada at the second meeting. The Appellate Body, noting that Australia had requested one week to respond to Canada's oral statement and that the Panel had granted Australia's request, dismissed the claim as follows: "A fundamental tenet of due process is that a party be provided with an opportunity to respond to claims made against it. In this case, we believe that the Panel did accord Australia a proper opportunity to respond by allowing Australia to submit a third written submission. We cannot see how the Panel failed to accord due process to Australia by granting the extra time it had requested."(894) 603. In Chile - Price Band System, the Appellate Body concluded that the Panel had made a finding on a claim not made by Argentina.(895) Chile had claimed that, by making a finding on that claim, the Panel had deprived Chile of a fair right to response. The Appellate Body agreed with Chile and ruled that the Panel had acted inconsistently with Article 11 of the DSU by denying Chile the fair right of response and thus had denied it the due process rights to which it was entitled: "There is, furthermore, the requirement of due process. As Argentina made no claim under the second sentence of Article II:1(b) of the GATT 1994, Chile was entitled to assume that the second sentence was not in issue in the dispute, and that there was no need to offer a defence against a claim under that sentence. We agree with Chile that, by making a finding on the second sentence-a claim that was neither made nor argued-the Panel deprived Chile of a 'fair right of response'.(896)
As we said in India - Patents, '... the demands of due process ... are implicit in the DSU'.(897) And, as we said in Australia - Salmon on the right of response, '[a] fundamental tenet of due process is that a party be provided with an opportunity to respond to claims made against it'.(898) Chile contends that this fundamental tenet of due process was not observed on this issue.
As we said earlier, Article 11 imposes duties on panels that extend beyond the requirement to assess evidence objectively and in good faith, as suggested by Argentina. This requirement is, of course, an indispensable aspect of a panel's task. However, in making "an objective assessment of the matter before it", a panel is also duty bound to ensure that due process is respected. Due process is an obligation inherent in the WTO dispute settlement system. A panel will fail in the duty to respect due process if it makes a finding on a matter that is not before it, because it will thereby fail to accord to a party a fair right of response. In this case, because the Panel did not give Chile a fair right of response on this issue, we find that the Panel failed to accord to Chile the due process rights to which it is entitled under the DSU."(899) (a) Instances where a Panel must address jurisdictional issues 604. In Mexico - Corn Syrup (Article 21.5 - US), the Appellate Body defined the two instances where a panel is obliged to address issues that affect its own jurisdiction: "We believe that a panel comes under a duty to address issues in at least two instances. First, as a matter of due process, and the proper exercise of the judicial function, panels are required to address issues that are put before them by the parties to a dispute. Second, panels have to address and dispose of certain issues of a fundamental nature, even if the parties to the dispute remain silent on those issues. In this regard, we have previously observed that "[t]he vesting of jurisdiction in a panel is a fundamental prerequisite for lawful panel proceedings."(900) For this reason, panels cannot simply ignore issues which go to the root of their jurisdiction - that is, to their authority to deal with and dispose of matters. Rather, panels must deal with such issues - if necessary, on their own motion - in order to satisfy themselves that they have authority to proceed. ... ... our task is simply to determine whether the "objections" that Mexico now raises before us are of such a nature that they could have deprived the Panel of its authority to deal with and dispose of the matter. If so, then the Panel was bound to address them on its own motion."(901) (b) Lack of regulation in standard working procedures 605. In EC - Bananas III, the Appellate Body considered that the compliance of the Panel request with Article 6.2 could be decided early by a preliminary ruling if panels had detailed, standard working procedures that allowed it: "As a panel request is normally not subjected to detailed scrutiny by the DSB, it is incumbent upon a panel to examine the request for the establishment of the panel very carefully to ensure its compliance with both the letter and the spirit of Article 6.2 of the DSU... ... We note, in passing, that this kind of issue could be decided early in panel proceedings, without causing prejudice or unfairness to any party or third party, if panels had detailed, standard working procedures that allowed, inter alia, for preliminary rulings."(902) 606. In Canada - Aircraft, the Panel noted that there's no requirement nor established practice that obliges the Panel to issue a preliminary ruling before the deadline for the parties' first written submission. See paragraph 607 below. (c) Absence of requirement to rule 607. In Canada - Aircraft, Canada asked the Panel to issue a preliminary ruling on its jurisdiction before the deadline for the parties' first written submission. The Panel denied the request on the grounds that there is no requirement nor established practice in that regard: "Canada asked the Panel to issue the requested ruling on the Panel's jurisdiction prior to the deadline for the parties' first written submissions. In our view, there is no requirement in the DSU for panels to rule on preliminary issues prior to the parties' first written submissions. Nor is there any established practice to this effect, for there are numerous panel reports where rulings on preliminary issues have been reserved until the final report.(903) Furthermore, there may be cases where the panel wishes to seek further clarification from the parties before providing a preliminary ruling. Indeed, we considered it necessary to request such clarification in the present case. In our view, the possibility for obtaining such clarification would be lost - or at least significantly undermined - if a panel were required to rule on preliminary issues before the deadline for the parties' first written submissions. For these reasons, we rejected Canada's request for a preliminary ruling on this issue prior to the deadline for the parties' first submissions."(904) 608. In EC - Hormones, the Appellate Body ruled that "a procedural objection raised by a party to a dispute should be sufficiently specific to enable the panel to address it(905)".(906) 609. The Appellate Body in Mexico - Corn Syrup (Article 21.5 - US) stated that requirements of good faith, due process and orderly procedure dictate that objections should be explicitly raised for the Panel to be required to address them: "[T]he 'observations' raised by Mexico were not expressed in a fashion that indicated that Mexico was raising an objection to the authority of the Panel. The requirements of good faith, due process and orderly procedure dictate that objections, especially those of such potential significance, should be explicitly raised. Only in this way will the panel, the other party to the dispute, and the third parties, understand that a specific objection has been raised, and have an adequate opportunity to address and respond to it. In our view, Mexico's objection was not explicitly raised. Thus, in making its "observations", Mexico did not meet this standard. (...) However, had 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(907). In such circumstances, however, the Panel could have satisfied that duty simply by stating in its Report that it declined to examine or rule on Mexico's "objections" due to the untimely manner in which they were raised. We note, in this regard that Mexico was aware of all the facts on which it now relies in arguing that the Panel had no authority to deal with and dispose of the matter as soon as the United States submitted its communication seeking recourse to Article 21.5 of the DSU on 12 October 2000. Yet Mexico mentioned these alleged deficiencies, for the first time, more than four months later, at the meeting with the Panel on 20 February 2000. Mexico did not take advantage of the opportunities it had to raise the issues at the DSB meeting of 23 October 2000, or in either of its written submissions to the Panel."(908) 610. As regards the requirement to raise objections in a timely manner, see paragraph 626 below. 3. Issues subject to preliminary rulings 611. In Korea - Alcoholic Beverages, Korea requested a preliminary ruling on the adequacy of the consultations on the grounds that the complainants had not engaged in consultations in good faith with a view to reaching a mutual solution as envisaged by the DSU.(909) As regards the Panel's preliminary ruling in this regard, see paragraph 90 above. (i) Clarity of the panel request 612. In Thailand - H-Beams, Thailand had asked the Panel for a preliminary ruling on the sufficiency of Poland's panel request with respect to Articles 5 and 6 of the Anti-Dumping Agreement at the time of filing of its first written submission. In assessing and identifying the claim brought under Article 6.2, the Appellate Body responded: "Thailand argues that it was prejudiced by the lack of clarity of Poland's panel request. The fundamental issue in assessing claims of prejudice is whether a defending party was made aware of the claims presented by the complaining party, sufficient to allow it to defend itself. In assessing Thailand's claims of prejudice, we consider it relevant that, although Thailand asked the Panel for a preliminary ruling on the sufficiency of Poland's panel request with respect to Articles 5 and 6 of the Anti-Dumping Agreement at the time of filing of its first written submission, it did not do so at that time with respect to Poland's claims under Articles 2 and 3 of that Agreement. We must, therefore, conclude that Thailand did not feel at that time that it required additional clarity with respect to these claims, particularly as we note that Poland had further clarified its claims in its first written submission. This is a strong indication to us that Thailand did not suffer any prejudice on account of any lack of clarity in the panel request."(910) (ii) Specificity of the panel request 613. In EC - Bananas III, the Appellate Body considered the panel request specificity issue was a matter which could be dealt with early on in a case: "[T]his kind of issue could be decided early in panel proceedings, without causing prejudice or unfairness to any party or third party, if panels had detailed, standard working procedures that allowed, inter alia, for preliminary rulings."(911) 614. In Korea - Alcoholic Beverages, Korea requested the Panel to issue a preliminary ruling on the specificity of the request for establishment of the panel by both the European Communities and the United States. Korea argued that the description of the product concerned by the European Communities ("certain alcoholic beverages falling within HS heading 2208") and the United States ("other distilled spirits such as whisky, brandy, vodka, gin and ad-mixtures") were not specific enough to satisfy Article 6.2.(912) As regards the Panel's preliminary ruling in this regard, see paragraph 138 above. (c) Panel's terms of reference 615. In Argentina - Textiles and Apparel, the Panel declined to issue a preliminary ruling on the objection raised by Argentina as regards the Panel not having jurisdiction to address the specific duties on footwear that were withdrawn before the Panel was established.(913) (d) Late submission of new evidence 616. In Korea - Alcoholic Beverages, Korea requested the Panel to issue a preliminary ruling rejecting certain evidence submitted by the European Communities after the second substantive meeting. Korea alleged that its rights of defense were violated by the late submission of such evidence.(914) As regards the Panel's preliminary ruling in this regard, see paragraph 258 above. 617. In Canada - Aircraft, Canada requested the Panel to make a preliminary ruling on the issue of whether the complaining party may adduce new evidence or allegations after the end of the first substantive meeting. Canada argued that it would suffer prejudice under the accelerated procedure under Article 4 of the SCM Agreement as a result of the late submission of allegations or evidence.(915) As regards the Panel's preliminary ruling in this regard, see paragraph 259 above. (i) Breach of confidentiality of the consultation process 618. In Korea - Alcoholic Beverages, Korea requested a preliminary ruling on whether both complainants, the European Communities and the United States, had breached the confidentiality requirement of Article 4.6 by making reference, in their submissions, to information supplied by Korea during consultations.(916) As regards the Panel's preliminary ruling in this regard, see paragraph 103 above. (ii) Business confidential information 619. In Canada - Aircraft and Brazil - Aircraft, the Appellate Body made a preliminary ruling on 11 June 1999 that it was not necessary to adopt additional procedures to protect business confidential information in the appellate proceeding. The Appellate Body held that the existing provisions concerning confidentiality of dispute settlement proceedings were sufficient for the purposes at issue. In this regard, see paragraph 390 above. (iii) Confidentiality concerns when private counsels intervene 620. 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 issued a preliminary ruling rejecting the amicus brief. See paragraphs 394-396 above. 621. In EC - Bananas III, St. Lucia submitted to the Appellate Body a letter explaining its reasons for including two private lawyers in its delegation for the oral hearing. The Appellate Body issued a preliminary ruling indicating that nothing in the WTO Agreement, the DSU or its Working Procedures prevented a Member from admitting whomever it deems fit to become part of its delegation to Appellate Body proceedings. See paragraph 628 below. 622. In Indonesia - Autos, Indonesia had announced that two private lawyers were members of its delegation for the first substantive meeting of the Panel with the parties. Following a request by the United States to exclude those lawyers from the meeting, the Chairman issued a preliminary ruling on behalf of the Panel following the line in EC - Bananas III, see paragraph 630 below. 623. In Korea - Alcoholic Beverages, Korea requested the Panel to issue a preliminary ruling with respect to permission to have private counsel attend the Panel meetings and address the Panel. The Panel accepted the presence of private counsel. As regards the content of the Panel's preliminary ruling in this regard, see paragraph 631 below. 624. As regards confidentiality concerns when private lawyers are concerned, see paragraphs 394-396 above and 620 above. 625. In EC - Asbestos, the Panel received several written submissions from non-governmental organizations. The Panel issued a preliminary ruling informing the parties that, in the light of the European Communities' decision to incorporate into its own submissions the amicus briefs submitted by two organizations, the Panel would consider these two documents on the same basis as the other documents furnished by the European Communities in this dispute. At the second substantive meeting of the Panel with the parties, the Panel gave Canada the opportunity to reply, in writing or orally, to the arguments set forth in these two amicus briefs. At that same meeting, the Panel also informed the parties that it had decided not to take into consideration the other amicus briefs submitted.(917) At the appeal stage, the Appellate Body adopted an additional procedure, for the purposes of this appeal only, pursuant to Rule 16(1) of its Working Procedures, to deal with any possible submissions received from amicus curiae. With respect to the additional procedures, see paragraph 380 above. Pursuant to the additional procedure, the Appellate Body received 17 applications requesting leave to file a written brief in this appeal. Six of these 17 applications were received after the deadline specified in the additional procedure and, for this reason, leave to file a written brief was denied to these six applicants. The other 11 applications were considered by the Appellate Body but finally denied for failure to comply sufficiently with all the requirements set forth in paragraph 3 of the Additional Procedure.(918) 626. In Mexico - Corn Syrup (Article 21.5 - US), the Appellate Body ruled that parties must raise objections in a timely manner: "When a Member wishes to raise an objection in dispute settlement proceedings, it is always incumbent on that Member to do so promptly. A Member that fails to raise its objections in a timely manner, notwithstanding one or more opportunities to do so, may be deemed to have waived its right to have a panel consider such objections."(919) (b) Timing of the preliminary ruling 627. In Canada - Aircraft, Canada asked the Panel to make a ruling on the Panel's jurisdiction before the deadline set for the submission of the written submission of the parties. The Panel stated: "In our view, there is no requirement in the DSU for panels to rule on preliminary issues prior to the parties' first written submissions. Nor is there any established practice to this effect, for there are numerous panel reports where rulings on preliminary issues have been reserved until the final report. Furthermore, there may be cases where the panel wishes to seek further clarification from the parties before providing a preliminary ruling."(920) 1. Presence of private counsel in oral hearings 628. In EC - Bananas III, the Panel did not allow the presence of private lawyers at the first substantive meeting.(921) The Appellate Body, however, allowed their presence in the oral hearing and to that effect it issued a preliminary ruling indicating that nothing in the WTO Agreement, the DSU or its Working Procedures prevented a Member from admitting whomever it deems fit to become part of its delegation to Appellate Body proceedings. Accordingly, the Appellate Body held that a Member could include private counsel in its delegation to an Appellate Body hearing: "[W]e can find nothing in the Marrakesh Agreement Establishing the World Trade Organization (the 'WTO Agreement'), the DSU or the Working Procedures, nor in customary international law or the prevailing practice of international tribunals, which prevents a WTO Member from determining the composition of its delegation in Appellate Body proceedings. Having carefully considered the request made by the government of Saint Lucia, and the responses dated 14 July 1997 received from Canada; Jamaica; Ecuador, Guatemala, Honduras, Mexico and the United States, we rule that it is for a WTO Member to decide who should represent it as members of its delegation in an oral hearing of the Appellate Body."(922) 629. In its Report, the Appellate Body in EC - Bananas III further justified its preliminary ruling (see paragraph 628 above) as follows: "We note that there are no provisions in the Marrakesh Agreement Establishing the World Trade Organization (the 'WTO Agreement'), in the DSU or in the Working Procedures that specify who can represent a government in making its representations in an oral hearing of the Appellate Body. With respect to GATT practice, we can find no previous panel report which speaks specifically to this issue in the context of panel meetings with the parties. We also note that representation by counsel of a government's own choice may well be a matter of particular significance - especially for developing-country Members - to enable them to participate fully in dispute settlement proceedings. Moreover, given the Appellate Body's mandate to review only issues of law or legal interpretation in panel reports, it is particularly important that governments be represented by qualified counsel in Appellate Body proceedings."(923) 630. In Indonesia - Autos, the Panel applied the same principle to the presence of private lawyers before panels: "I wish to inform the parties that having carefully reviewed the letters received in the preliminary matter before us, and having heard the arguments of the parties, the Panel does not agree with the United States' request to exclude from meetings of the Panel certain persons nominated by the Government of Indonesia as members of its delegation. We conclude that it is for the Government of Indonesia to nominate the members of its delegation to meetings of this Panel, and we find no provision in the WTO Agreement or the DSU, including the standard rules of procedure included therein, which prevents a WTO Member from determining the composition of its delegation to WTO panel meetings. Nor does past practice in GATT and WTO dispute settlement point us to a different conclusion in this case. In particular, we note that unlike in this present case, the working procedures of the Bananas III Panel contained a specific provision requiring the presence only of government officials.
We would like to emphasize that all members of parties' delegations - whether or not they are government employees - are present as representatives of their governments, and as such are subject to the provisions of the DSU and of the standard working procedures, including Articles 18.1 and 18.2 of the DSU and paragraphs 2 and 3 of those procedures. In particular, parties are required to treat as confidential all submissions to the Panel and all information so designated by other Members; and, in addition, the Panel meets in closed session. Accordingly, we expect that all delegations will fully respect those obligations and will treat these proceedings with the utmost circumspection and discretion. I would ask the four Heads of Delegation to confirm that all members of their delegations are present as representatives of their governments, and as such will abide by all of the applicable provisions; and therefore that the governments are responsible for the actions of their representatives."(924) (925) 631. In Korea - Alcoholic Beverages, Korea requested the Panel to issue a preliminary ruling with respect to permission to have private counsel attend the Panel meetings and address the Panel. In Korea's view, in order to fully defend its interests and match the much greater resources of the complaining parties, it had to retain the services of expert counsel with long standing experience in matters of international economic law and international economics. The European Communities had no problem with the presence of private counsel provided that Korea assumed full responsibility for any breach of confidentiality which may result from the presence at the Panel meetings of non-governmental persons. The United States, however, indicated, among other things, that the established practice applied in disputes under the GATT 1947 system excluded the routine presence of private lawyers in panel proceedings and asked the Panel that, in the event that it decided to accept Korea's request, to impose appropriate safeguards with respect to those persons. The Panel accepted the presence of private counsel as follows: "Having considered the request of Korea for the right to use private counsel at the panel meetings, and the responses the European Communities and the United States, we decided to permit the appearance of private counsel before the Panel and to allow them to address arguments to the Panel in this case. In our view, it is appropriate to grant such a request in order to ensure that Korea has every opportunity to fully defend its interests in this case. However, such permission is granted based on the representations by Korea that the private counsel concerned are official members of the delegation of Korea, that they are retained by and responsible to the Government of Korea, and that they will fully respect the confidentiality of the proceedings and that Korea assumes full responsibility for confidentiality of the proceedings on behalf of all members of its delegation, including non-government employees.
We note that written submissions of the parties which contain confidential information may, in some cases, be provided to non-government advisors who are not members of an official delegation at a panel meeting. The duty of confidentiality extends to all governments that are parties to a dispute and to all such advisors regardless of whether they are designated as members of delegations and appear at a panel meeting.
The United States offered several suggestions for new rules and procedures in regard to these questions. However, in our view, the broader question of establishing further rules on confidentiality and possibly rules of conduct specifically directed at the role of non-governmental advisors generally is a matter more appropriate for consideration by the Dispute Settlement Body and is not within the terms of reference of this Panel."(926) 632. As regards confidentiality concerns when private lawyers are concerned, see paragraphs 394-396 above. 633. With respect to judicial economy, see paragraphs 302-311 above. 1. Authority to admit amicus curiae briefs 634. In US - Lead and Bismuth II, the Appellate Body considered that as long as it acts consistently with the provisions of the DSU and the covered agreements, it has the legal authority to decide whether or not to accept and consider any information that it believes is relevant and useful in an appeal: "In considering this matter, we first note that nothing in the DSU or the Working Procedures specifically provides that the Appellate Body may accept and consider submissions or briefs from sources other than the participants and third participants in an appeal. On the other hand, neither the DSU nor the Working Procedures explicitly prohibit[s] acceptance or consideration of such briefs. ... [Article 17.9] makes clear that the Appellate Body has broad authority to adopt procedural rules which do not conflict with any rules and procedures in the DSU or the covered agreements. Therefore, we are of the opinion that as long as we act consistently with the provisions of the DSU and the covered agreements, we have the legal authority to decide whether or not to accept and consider any information that we believe is pertinent and useful in an appeal."(927) 635. In US - Lead and Bismuth II, the Appellate Body drew a distinction between, on the one hand, parties and third parties to a dispute, which have a legal right to participate in panel and Appellate Body proceedings, and, on the other hand, private individuals and organizations, which are not Members of the WTO, and which, therefore, do not have a legal right to participate in dispute settlement proceedings: "We wish to emphasize that in the dispute settlement system of the WTO, the DSU envisages participation in panel or Appellate Body proceedings, as a matter of legal right, only by parties and third parties to a dispute. And, under the DSU, only Members of the WTO have a legal right to participate as parties or third parties in a particular dispute. ...
Individuals and organizations, which are not Members of the WTO, have no legal right to make submissions to or to be heard by the Appellate Body. The Appellate Body has no legal duty to accept or consider unsolicited amicus curiae briefs submitted by individuals or organizations, not Members of the WTO. The Appellate Body has a legal duty to accept and consider only submissions from WTO Members which are parties or third parties in a particular dispute."(928) 636. The Appellate Body in US - Lead and Bismuth II further explained that participation by private individuals and organizations is dependent upon the Appellate Body permitting such participation if it finds it useful to do so: "[W]e have the legal authority under the DSU to accept and consider amicus curiae briefs in an appeal in which we find it pertinent and useful to do so. In this appeal, we have not found it necessary to take the two amicus curiae briefs filed into account in rendering our decision."(929) 2. Admission/rejection of amicus curiae briefs 637. In US - Shrimp, the Appellate Body admitted three amicus curiae briefs that were attached as exhibits to the appellant's submission in that appeal. The Appellate Body concluded that those briefs formed part of the appellant's submission, and observed that it was for a participant in an appeal to determine for itself what to include in its submission.(930) 638. In EC - Asbestos, the Panel received several written submissions from non-governmental organizations. The Panel issued a preliminary ruling informing the parties that, in the light of the European Communities' decision to incorporate into its own submissions the amicus briefs submitted by two organisations, the Panel would consider these two documents on the same basis as the other documents furnished by the European Communities in this dispute. At the second substantive meeting of the Panel with the parties, the Panel gave Canada the opportunity to reply, in writing or orally, to the arguments set forth in these two amicus briefs. At that same meeting, the Panel also informed the parties that it had decided not to take into consideration the other amicus briefs submitted.(931) At the appeal stage, the Appellate Body adopted an additional procedure, for the purposes of this appeal only, pursuant to Rule 16(1) of its Working Procedures, to deal with any possible submissions received from amicus curiae. With respect to the additional procedures, see paragraph 380 above. Pursuant to the additional procedure, the Appellate Body received 17 applications requesting leave to file a written brief in this appeal. Six of these 17 applications were received after the deadline specified in the additional procedure and, for this reason, leave to file a written brief was denied to these six applicants. The other 11 applications were considered by the Appellate Body but finally denied for failure to comply sufficiently with all the requirements set forth in paragraph 3 of the Additional Procedure.(932) 639. 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 issued a preliminary ruling rejecting the amicus brief. See paragraphs 394-396 above. 640. In EC - Sardines, the Appellate Body received for the first time an amicus curiae brief from a WTO Member, Morocco, that had not exercised its third-party rights at the panel stage of the proceedings. The Appellate Body found that it was entitled to accept the amicus curiae brief submitted by Morocco, and to consider it. However, the Appellate Body emphasized that, in accepting the brief filed by Morocco in this appeal, it was not suggesting that each time a Member files such a brief it was required to accept and consider it. The Appellate Body indicated that it could well exercise its discretion to reject an amicus curiae brief if, by accepting it, this would interfere with the "fair, prompt and effective resolution of trade disputes": "As we explained in US - Lead and Bismuth II, the DSU gives WTO Members that are participants and third participants a legal right to participate in appellate proceedings.(933) In particular, WTO Members that are third participants in an appeal have the right to make written and oral submissions. The corollary is that we have a duty, by virtue of the DSU, to accept and consider these submissions from WTO Members. By contrast, participation as amici in WTO appellate proceedings is not a legal right, and we have no duty to accept any amicus curiae brief. We may do so, however, based on our legal authority to regulate our own procedures as stipulated in Article 17.9 of the DSU. The fact that Morocco, as a sovereign State, has chosen not to exercise its right to participate in this dispute by availing itself of its third-party rights at the panel stage does not, in our opinion, undermine our legal authority under the DSU and our Working Procedures to accept and consider the amicus curiae brief submitted by Morocco.
Therefore, we find that we are entitled to accept the amicus curiae brief submitted by Morocco, and to consider it. We wish to emphasize, however, that, in accepting the brief filed by Morocco in this appeal, we are not suggesting that each time a Member files such a brief we are required to accept and consider it. To the contrary, acceptance of any amicus curiae brief is a matter of discretion, which we must exercise on a case-by-case basis. We recall our statement that:
The procedural rules of WTO dispute settlement are designed to promote ... the fair, prompt and effective resolution of trade disputes.(934)
Therefore, we could exercise our discretion to reject an amicus curiae brief if, by accepting it, this would interfere with the "fair, prompt and effective resolution of trade disputes." This could arise, for example, if a WTO Member were to seek to submit an amicus curiae brief at a very late stage in the appellate proceedings, with the result that accepting the brief would impose an undue burden on other participants."(935) 641. In response to India's assertion that municipal law is a fact that must be established before an international tribunal by the party relying on it and that the Panel should have sought guidance from India on matters relating to the interpretation of Indian law, the Appellate Body in India - Patents (US) stated: "In public international law, an international tribunal may treat municipal law in several ways. Municipal law may serve as evidence of facts and may provide evidence of state practice. However, municipal law may also constitute evidence of compliance or non-compliance with international obligations. For example, in Certain German Interests in Polish Upper Silesia, the Permanent Court of International Justice observed:
'It might be asked whether a difficulty does not arise from the fact that the Court would have to deal with the Polish law of July 14th, 1920. This, however, does not appear to be the case. From the standpoint of International Law and of the Court which is its organ, municipal laws are merely facts which express the will and constitute the activities of States, in the same manner as do legal decisions and administrative measures. The Court is certainly not called upon to interpret the Polish law as such; but there is nothing to prevent the Court's giving judgment on the question whether or not, in applying that law, Poland is acting in conformity with its obligations towards Germany under the Geneva Convention.(936) (emphasis added)'
... It is clear that an examination of the relevant aspects of Indian municipal law and, in particular, the relevant provisions of the Patents Act as they relate to the 'administrative instructions', is essential to determining whether India has complied with its obligations under Article 70.8(a). There was simply no way for the Panel to make this determination without engaging in an examination of Indian law. But, as in the case cited above before the Permanent Court of International Justice, in this case, the Panel was not interpreting Indian law 'as such'; rather, the Panel was examining Indian law solely for the purpose of determining whether India had met its obligations under the TRIPS Agreement. To say that the Panel should have done otherwise would be to say that only India can assess whether Indian law is consistent with India's obligations under the WTO Agreement. This, clearly, cannot be so.
Previous GATT/WTO panels also have conducted a detailed examination of the domestic law of a Member in assessing the conformity of that domestic law with the relevant GATT/WTO obligations. For example, in United States - Section 337 of the Tariff Act of 1930, the panel conducted a detailed examination of the relevant United States' legislation and practice, including the remedies available under Section 337 as well as the differences between patent-based Section 337 proceedings and federal district court proceedings, in order to determine whether Section 337 was inconsistent with Article III:4 of the GATT 1947. This seems to us to be a comparable case."(937) 642. In connection with the examination of Section 301-310 of the US Trade Act of 1974, the Panel in US - Section 301 Trade Act stated that it would not "interpret US law 'as such', the way we would, say, interpret provisions of the covered agreements." Rather, the Panel held that it was instead "called upon to establish the meaning of Sections 301-310 as factual elements": "Our mandate is to examine Sections 301-310 solely for the purpose of determining whether the US meets its WTO obligations. In doing so, we do not, as noted by the Appellate Body in India - Patents (US), interpret US law 'as such', the way we would, say, interpret provisions of the covered agreements. We are, instead, called upon to establish the meaning of Sections 301-310 as factual elements and to check whether these factual elements constitute conduct by the US contrary to its WTO obligations. The rules on burden of proof for the establishment of facts referred to above also apply in this respect.(938) ... We note, finally, that terms used both in Sections 301-310 and in WTO provisions, do not necessarily have the same meaning. For example, the word 'determination' need not always have the same meaning in Sections 304 and 306 as it has in Article 23.2(a) of the DSU. Thus, conduct not meeting, say, the threshold of a 'determination' under Sections 304 and 306, is not by this fact alone precluded from meeting the threshold of a 'determination' under Article 23.2(a) of the DSU. By contrast, the fact that a certain act is characterized as a 'determination' under domestic legislation, does not necessarily mean that it must be construed as a determination under the covered agreements."(939) 643. In US - 1916 Act (EC), in connection with the examination of the 1916 Act, the European Communities argued that the Panel should not be influenced by the terms used by the United States courts whereas the United States argued that "the proper interpretation of the 1916 Act is a question of fact to be established, as it is an accepted principle of international law that municipal law is a fact to be proven before international tribunals."(940) Referring to paragraph 66 of the Appellate Body Report in India - Patents (US), the Panel stated: "[O]ur understanding of the term 'examination' as used by the Appellate Body is that panels need not accept at face value the characterisation that the respondent attaches to its law. A panel may analyse the operation of the domestic legislation and determine whether the description of the functioning of the law, as made by the respondent, is consistent with the legal structure of that Member. This way, it will be able to determine whether or not the law as applied is in conformity with the obligations of the Member concerned under the WTO Agreement.(941)"(942) 644. The Panel on US - 1916 Act (EC) then noted that both complaining parties and the defending party rely on United States court cases in their claims. In connection with the consideration of the case law relating to the 1916 Act, the Panel stated: "We recall that the International Court of Justice, in the Elettronica Sicula S.p.A (ELSI) case, referred to the judgement of the Permanent Court of International Justice in the Brazilian Loans case - to which the United States also refers in its submissions - and noted that:
'Where the determination of a question of municipal law is essential to the Court's decision in a case, the Court will have to weigh the jurisprudence of the municipal courts, and 'If this is uncertain or divided, it will rest with the Court to select the interpretation which it considers most in conformity with the law' (Brazilian Loans, PCIJ, Series A, Nos. 20/21, p. 124).'(943)
We are fully aware that our role is to clarify the existing provisions of the covered agreements so as to determine the compatibility of a domestic law with those agreements. We are also aware that, in the Brazilian Loans case, the PCIJ was asked to apply domestic legislation to a given case. We are nevertheless of the view that there is nothing in the text of the DSU, nor in the practice of the Appellate Body, that prevents us from 'weigh[ing] the jurisprudence of municipal [US] courts' if it is 'uncertain or divided'. This would not require us to develop our own independent interpretation of US law, but simply to select among the relevant judgements the interpretation most in conformity with the US law, as necessary in order to resolve the matter before us.(944)"(945) 645. The Panel also examined the legislative history to determine the intent of Congress to assist their understanding of the actual scope and operation of the 1916 Act. In so doing, the Panel considered public declarations of various United States officials and stated: "[W]e should determine whether they could actually generate legal obligations for the United States under international law. For instance, since they are subsequent to the notification by the United States of its 'grandfathered' legislation under the GATT 1947, it might be argued that they implicitly modified that notification by stating that the 1916 Act was 'grandfathered'. We recall that the International Court of Justice has developed, inter alia in its judgement in the Nuclear tests case,(946) criteria on when a statement by a representative of a State could generate international obligations for that State. In the present case, we are reluctant to consider the statements made by senior US officials in testimonies or letters to the US Congress or to members thereof as generating international obligations for the United States. First, we recall that the constitution of the United States provides for a strict separation of the judicial and executive branches. With the exception of criminal prosecutions, the application of the 1916 Act falls within the exclusive responsibility of the federal courts. Under those circumstances, a statement by the executive branch of government in a domestic forum can only be of limited value. Second, with the possible exception of the statement of US Trade Representative Clayton Yeutter, they were not made at a sufficiently high level compared with the statements considered by the International Court of Justice in the Nuclear Tests case, where essentially declarations by a head of State and of members of the French government were at issue. Moreover, the statements referred to in the present case were not directly addressed to the general public. Finally, they were not made on behalf of the United States, but - at best - on behalf of the executive branch of government. This aspect would not be essential if the statements had been made in an international forum, where the executive branch represents the State.(947) However, in the present case, the statements were addressed to the US legislative branch. Therefore, we cannot consider them as creating obligations for the United States under international law."(948)
Footnotes: 875. Appellate Body Report on EC
- Hormones, fn. 138.
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