J

Japan

Enabling Clause notifications

GSP schemes GATT 63

special treatment of least-developed countries GATT 79

Japan — Alcoholic Beverages I (GATT Panel), national treatment, tax discrimination (GATT III:2), “in excess of those applied” (GATT III:2, first sentence), methodology of comparison GATT 266

Japan — Agricultural Products II (AB), WT/DS76/AB/R, DSR 1999:I

ALOPs (SPS 5.4–5.6 and Annex A(5))

measures “not more trade restrictive than required to achieve their appropriate level of … protection” (SPS 5.6)

burden of proof SPS 259

cumulative elements (SPS 5.6 footnote 3) SPS 258

burden of proof (general rules)

impossible burden, proving a negative DSU 566

onus probandi actori incumbit SPS 32

panel’s right to seek information and advice (DSU 13/SPS 11.2), relevance DSU 556

prima facie case requirement, establishment of party’s case by panel, exclusion SPS 278, 421, DSU 556, 766

scientific evidence, sufficiency (SPS 2.2) SPS 34

harmonization of SPS measures (SPS 3), measures which result in a higher level of protection (SPS 3.3), rational relationship between measure and available information as SPS 96

identification of specific measures (DSU 6.2), identification of product, need for DSU 229

information or technical advice, panel’s right to seek (DSU 13.1/SPS 11.2)

burden of proof and DSU 556

comprehensive nature of panel’s authority DSU 737, 766

limitations on panel’s role SPS 39, 121

panel’s rights, right to assess facts SPS 39

judicial economy, “positive solution to dispute” requirement (DSU 3.7)/false judicial economy and DSU 652

“measures at issue” (DSU 6.2), legal instrument as DSU 263

ordinary meaning of terms used in covered agreements, “sufficient” SPS 25

proportionality, risk based on scientific evidence SPS 30

provisional adoption of SPS measures in case of insufficiency of scientific evidence (SPS 5.7) SPS 53

cumulative requirements SPS 293

as qualified exemption/autonomous right SPS 36, 53, 287, 289

review within “a reasonable period of time” SPS 293, 318

“seek to obtain additional information” for more objective assessment of risk SPS 310

relationships within and between agreements

SPS 2/SPS 5, 6, 7 and 8 SPS 67

SPS 2.2/SPS 3.3, 5.1 and 5.7 SPS 27, 96

SPS 2.2/SPS 5.7 SPS 53, 287

risk assessment, need for (SPS 5.1–5.3), “scientific justification” (SPS 3.3) and SPS 96

risk assessment (SPS Annex A(4)(4)), elements/three-pronged test SPS 147 n. 183

scientific evidence, need for sufficient (SPS 2.2)

burden of proof, presumption of no relevant studies or report/proving a negative SPS 34

rational and objective relationship between SPS measure and scientific evidence, need for SPS 30, 96

ad hoc determination SPS 30

“sufficient” SPS 25

context (SPS 3.3, 5.1 and 5.7) SPS 27

patent insufficiency SPS 28

as relational concept SPS 53

SPS Agreement, burden of proof, scientific evidence, sufficiency (SPS 5.7) SPS 36

standard/powers of review (panel) (DSU 11), “objective assessment of the facts”/alleged disregard or distortion of the evidence, egregious error, need for DSU 616

transparency of SPS regulations (SPS 7 and Annex B)

publication of regulations (Annex (B)(1)-(2)) SPS 355, 539

publication requirements (Annex (B)(1)-(2)), “SPS regulations” for purpose of, legal instruments as “measure” DSU 263

Japan — Agricultural Products II (Panel), WT/DS76/R, DSR 1999:I

ALOPs (SPS 5.4–5.6 and Annex A(5))

measures “not more trade restrictive than required to achieve their appropriate level of … protection” (SPS 5.6)

alternative measure “significantly less restrictive to trade” SPS 277

“appropriate level”, determination

Member’s prerogative SPS 268

Member’s right SPS 268

sufficient scientific evidence (SPS 2.2) and SPS 282–3

arbitrary or unjustifiable discrimination, exclusion (SPS 2.3), elements of violation SPS 38

burden of proof (general rules), prima facie case requirement, presumption of no relevant studies or report/proving a negative SPS 34

provisional adoption of SPS measures in case of insufficiency of scientific evidence (SPS 5.7) SPS 52

as qualified exemption/autonomous right SPS 52

relationships within and between agreements

SPS 2/SPS 5, 6, 7 and 8 SPS 67

SPS 2.2/SPS 5.6 SPS 283

SPS 2.2/SPS 5.7 SPS 52, 283

risk assessment, need for (SPS 5.1–5.3), standard/powers of review (panel) SPS 38

SPS Agreement, burden of proof, scientific evidence, sufficiency (SPS 2.2) SPS 34

standard/powers of review (panel) (DSU 11), risk assessment (SPS Agreement), exclusion SPS 38

transparency of SPS regulations (SPS 7 and Annex B)

publication requirements (Annex (B)(1)-(2))

failure to publish as breach of SPS 5.7 obligations SPS 355

provision of information distinguished SPS 543

“SPS regulations” for purpose of SPS 540

non-mandatory measures SPS 541

Japan — Alcoholic Beverages I (GATT Panel), L/6216, BISD 34S/83, directly competitive or substitutable products (GATT III:2), methodology of comparison, “grouping” approach GATT 301 n. 436

Japan — Alcoholic Beverages II (AB), WT/DS8/AB/R, WT/DS10/ AB/R, WT/DS11/AB/R, DSR 1996:I

AB procedures (DSU 17.9 and ABWP), written reponses (ABWP 28) DSU 1458

customary international law rules of interpretation [as codified in the VCLT] as applicable law (DSU 3.2)

DSU 3.2 AD 249 n. 349

supplementary means of interpretation (VCLT 32) as DSU 55, 1629

directly competitive or substitutable products (GATT III:2)

“like products” distinguished/as sub-category GATT 254–5

methodology of comparison, “grouping” approach GATT 301 n. 436

object and purpose GATT 293–4

relevant factors GATT 298

end-uses GATT 298

nature of product GATT 298

physical properties GATT 298

tariff classifications GATT 298

GATT 1947/WTO continuity

decisions, procedures and customary practices under GATT 1947 (WTO XVI:1) (GATT acquis)

legal status of panel reports, as acquis (WTO Art. XVI:1) WTO 275, GATT 169 n. 240, DSU 820, 899

as means of ensuring continuity WTO 275

panel reports (adopted) WTO 275, 279, GATT 9, 169 n. 240, DSU 820

GATT 1994, constituent elements (GATT 1994 1), “other decisions of the Contracting Parties to GATT 1947” (GATT 1994 1 (b)(iv)), adopted panel reports, whether

General Council (WTO IV:2), functions, interpretation of WTO Agreement WTO 197

interpretation of covered agreements

responsibility for (WTO IX:2)

General Council (WTO IV:2) WTO 197

Ministerial Conference WTO 197

interpretation of covered agreements, applicable law, customary rules of interpretation of public international law [as codified in the VCLT] WTO 8, GATT 314

interpretation of covered agreements, rules relating to including VCLT provisions

“any subsequent practice … which establishes the agreement of the parties regarding its interpretation” (VCLT 31(3)(b)), adopted panel report WTO 197, DSU 1581

certainty of the law/flexibility, balance GATT 314, DSU 42

different language in same agreement, GATT III:2, first and second sentences GATT 306–7

effectiveness principle (ut res magis valeat quam pereat/effet utile) GATT 218, 226

meaning to be attributed to every word and phrase WTO 19, GATT 226, DSU 1612

effectiveness principle (ut res magis valeat quam pereat/effet utile), meaning to be attributed to omissions DSU 1614

evolutionary approach/intertemporal law DSU 42

interpretative notes (Ad Articles) GATT 236

legitimate expectations (including GATT II:5 provisions) WTO 279

panel reports and GATT 169, 169 n. 240, DSU 820

narrow/broad interpretation GATT 241, 260

object and purpose GATT 237

supplementary means (VCLT 32)

as customary international law rule DSU 55, 1629

as rule of customary international law DSU 1629

text/plain language (VCLT 31(2)) DSU 1549

as a whole/holistic/harmonious exercise GATT 330

legal status of panel reports, “other decisions of the Contracting Parties to GATT 1947” (GATT 1994 1(b)(iv)), whether WTO 275, GATT 169 n. 240, DSU 820, 899

“like product” (GATT III:2 and III:4)

determination of “likeness”, as a relative concept (“accordion”)/case-by-case approach GATT 241, 260, 344

directly competitive or substitutable products distinguished GATT 254–5, 305

narrow/broad indetermination of “likeness” interpretation, narrow interpretation GATT 241, 260

relevant factors

Border Tax Adjustment, Working Party on GATT 241, 260

consumer preferences GATT 241

cross-price elasticity GATT 286

end-uses GATT 241

physical properties GATT 241

tariff bindings GATT 246

tariff classifications GATT 245–6, 343 n. 503

national treatment, general principle (GATT III:1)

applicability to products not subject of tariff concession under GATT II GATT 205

interpretation of GATT III as a whole and

effectiveness principle GATT 226

GATT III:1 as context GATT 226

interpretation of WTO Agreement as a whole and GATT 413

“so as to afford protection” GATT 201

equality of competitive conditions, protection of competitive relationship GATT 220

omission from GATT III:2, first sentence, relevance GATT 237

national treatment, tax discrimination (GATT III:2)

customary rules of interpretation of public international law and GATT 314

determination of violation, elements (GATT III:2, first sentence), aims and effects test/policy purpose GATT 213, 215–16, 274

determination of violation, elements (GATT III:2, second sentence)

GATT III:2, first sentence test distinguished GATT 283

“not similarly taxed” distinguished GATT 311

as separate elements GATT 283

determination of violoation, elements (GATT III:2, first sentence), “like product” and “in excess of” GATT 237

first and second sentences distinguished GATT 230, 283

general principle (GATT III:1) and GATT 218, 226, 237

“in excess of those applied” (GATT III:2, first sentence)

“not similarly taxed” distinguished GATT 306–7

regulatory objectives, relevance GATT 274

Interpretative Note Ad Article III:2, status GATT 236, 282

“not similarly taxed” (Ad Article III) GATT 283

“so as to afford protection” distinguished GATT 311

threshold/de minimis differential GATT 306–7, 313

“so as to afford protection”

design and structure of measure as evidence of protective application GATT 312

intention of legislators/regulators, relevance GATT 316

tariff roles as evidence of GATT 315

tax differentials as evidence of protective application GATT 313

as strict standard GATT 265

precedent, GATT panel reports GATT 237

preparatory work (VCLT 32), AD 3.4 AD 249 n. 349

relationships within and between agreements

GATT III/WTO Agreement GATT 413

GATT III:1/GATT III as a whole GATT 218, 226

rules of origin disciplines (RO 2) (transition period), trade objectives, exclusion as instrument of (RO 2(b)), intention, relevance RO 5

security and predictability of WTO obligations (DSU 3.2), evolutionary approach/intertemporal law and GATT 314, DSU 42

sovereignty, sovereignty/treaty benefits balance DSU 1733

WTO Agreement, preamble, “secure and predictable” WTO 8

Japan — Alcoholic Beverages II (Panel), WT/DS8/R, WT/DS10/R, WT/DS11/R, DSR 1996:I

directly competitive or substitutable products (GATT III:2), as dynamic relationship (including possibility of latent demand) GATT 294

interim review (DSU 15), “precise aspects of the interim report”, limitation to (DSU 15.2) DSU 778

interpretation of covered agreements, rules relating to including VCLT provisions, “any subsequent practice …which establishes the agreement of the parties regarding its interpretation” (VCLT 31(3)(b)), panel report (adopted) WTO 279, DSU 1581

“like product”(GATT III:2 and III:4)

burden of proof GATT 240

GATT III:4 compared GATT 258

national treatment, general principle (GATT III:1), applicability to products not subject of tariff concession under GATT II GATT 205

national treatment, tax discrimination (GATT III:2)

determination of violation, elements (GATT III:2, second sentence), burden of proof GATT 284

“in excess of those applied” (GATT III:2, first sentence), burden of proof GATT 240

“so as to afford protection” GATT 315

Japan — Alcoholic Beverages II (Article 21.3(c)), WT/DS8/15, WT/DS10/15, WT/DS11/13, DSR 1997:I

“reasonable period” for implementation of recommendations and rulings (Article 21.3(c) arbitrations)

participation of all original parties DSU 1092

“particular circumstances” DSU 1042

limited role of executive DSU 1077

structural adjustment, relevance of need for DSU 1062 n. 1647

Japan — Apples dispute (WT/DS245)

expert evidence, Article 21.5 proceedings DSU 1172

review of implementation of DSB rulings (DSU 21.5)

ad hoc procedural agreements

appointment of panellist DSU 1171

experts DSU 1172

“sequencing” (interrelationship between Article 21.5 and Article 22.6 arbitration, ad hoc procedural agreements), agreement not to object to Article 22.6 arbitration DSU 1165

Japan — Apples (AB), WT/DS245/AB/R, DSR 2003:IX SPS 132

burden of proof (general rules)

burden of proof (general rules), panel’s rights, to assess facts SPS 39

prima facie case requirement SPS 40

evidence necessary to establish, determination case-by-case approach SPS 35

expert evidence (DSU 13.2)

establishment of prima facie case and SPS 40

expert evidence/Member’s scientific evidence, primacy SPS 41, DSU 609

expert evidence (DSU 13.2/SPS 11.2), establishment of prima facie case and SPS 40

margin of discretion [in accordance with due process] (panel) (DSU 12.1 and Appendix 3), evaluation of evidence (DSU 11) and DSU 609, 613 n. 1002

notice of appeal, requirements (ABWP 20(2)), notification of allegation of panel’s failure to make objective assessment (DSU 11) DSU 1429

notice of appeal, requirements (ABWP 20(2)(d)), clear allegation of panel’s failure to make objective assessment (DSU 11) DSU 1429

provisional adoption of SPS measures in case of insufficiency of scientific evidence (SPS 5.7)

“insufficient” SPS 295–6

scientific uncertainty/controversy, relevance SPS 296

relationships within and between agreements

SPS 2.2/SPS 5.7 SPS 41

SPS 5.1/SPS 5.7 SPS 132, 295

risk assessment, need for (SPS 5.1–5.3)

ascertainable and theoretical risk distinguished (SPS 5.1)

quantitative threshold, relevance SPS 163

scientific prudence SPS 163

methodology, parties’ right to choose SPS 520

specificity of assessment, need for (SPS 5.1 and 5.2) SPS 514, 520

“sufficient scientific evidence” requirement (SPS 2.2) and, divergence of expert views, relevance SPS 40

types of risk (“likelihood” vs “potential”), “likelihood”, “according to SPS measures which might be applied” SPS 511

risk assessment (SPS Annex A(4)(4)), specificity of assessment, need for SPS 157, 514

scientific evidence, need for sufficient (SPS 2.2), standard of review, “objective assessment of matter before it” SPS 41

standard/powers of review (AB) (issues of law and legal interpretations) (DSU 17.6), law vs fact, panel as trier of facts DSU 609

standard/powers of review (panel) (DSU 11)

DSU 11 (function of panel) claims and claims relating to substantive provisions distinguished DSU 1429

“objective assessment of the facts” /alleged disregard or distortion of the evidence, discretion in assessment of evidence DSU 609

“objective assessment of matter before it”, expert evidence, panel’s obligation to make independent assessment SPS 41, DSU 609

Japan — Apples (Panel), WT/DS245/R, DSR 2003:IX

ALOPs (SPS 5.4–5.6 and Annex A(5))

measures “not more trade restrictive than required to achieve their appropriate level of … protection” (SPS 5.6)

alternative measure “significantly less restrictive to trade”, “taking into account technical and economic feasibility” SPS 264

SPS 2.2 and SPS 51

burden of proof (general rules)

burden of proof (general rules), allocation, responding party SPS 33

onus probandi actori incumbit SPS 33, DSU 542

prima facie case requirement

establishment of party’s case by panel, exclusion SPS 548

evidence necessary to establish, determination case-by-case approach SPS 35

scientific evidence, sufficiency (SPS 2.2) SPS 32–6

due process (dispute settlement proceedings), opportunity to respond to evidence/presentations of other parties, timing of submission of evidence (DS 12) and DSU 627

evidence (panel) (DSU 12), time–limits for submission, panel’s right to admit “late” /new evidence, opportunity to comment, need for DSU 627

expert evidence (DSU 13.2/SPS 11.2), need for experts, determination by panel with the agreement of the parties SPS 398

interpretation of covered agreements, rules relating to including VCLT provisions, effectiveness principle (ut res magis valeat quam pereat/effet utile), meaning to be attributed to every word and phrase SPS 29

legal basis of claim / “claim” / “matter referred” (DSU 6.2/7.1), arguments distinguished DSU 412

“measures at issue”(DSU 6.2), several instruments as single measure DSU 276

provisional adoption of SPS measures in case of insufficiency of scientific evidence (SPS 5.7), burden of proof, SPS 5.7 as alternative defence, relevance SPS 326

relationships within and between agreements

SPS 2.2 and 2.3/SPS 5.4–5.6 SPS 51

SPS 2.2/SPS 4 SPS 43, 121

risk assessment, need for (SPS 5.1–5.3)

ascertainable and theoretical risk distinguished (SPS 5.1), scientific prudence SPS 163

explanation for measure allegedly in breach of SPS 5, burden of proof, relevance SPS 341 n. 426

types of risk (“likelihood” vs “potential”), “likelihood”, according to SPS measures which might be applied SPS 511

risk assessment (SPS Annex A(4)(4)), types of risk (“likelihood” vs “potential”), “potential”, “probable” distinguished SPS 509

scientific evidence, need for sufficient (SPS 2.2)

burden of proof SPS 32–6

cumulative test SPS 31

equivalence (SPS 4), relevance SPS 43

rational and objective relationship between SPS measure and scientific evidence, need for SPS 31

“scientific evidence” SPS 29

scientific evidence, sufficiency (SPS 2.2) SPS 35

“sufficient”, context (SPS 4) SPS 43, 121

SPS Agreement, burden of proof, scientific evidence, sufficiency (SPS 5.7) SPS 323

SPS measure, definition/classification as (Annex A(1)), trade effects, relevance SPS 451

terms of reference of panels (DSU 7)

as definition of jurisdiction/legal claims at issue

consideration of issues outside terms of reference, exclusion SPS 548

elaboration in first written submission, relevance DSU 412

transparency of SPS regulations (SPS 7 and Annex B)

notification procedures, obligation to “notify changes” SPS 356–7, 357, 360, 547–8

notification procedures (Annex B(5)-(10)), obligation to “provide information”, burden of proof SPS 548

publication of regulations (Annex (B)(1)-(2)), two-pronged test for establishing requirement SPS 357

Japan — Apples (Article 21.5 — US) (Panel), WT/DS245/RW, DSR 2005:XVI

interim review (DSU 15)

“precise aspects of the interim report”, limitation to (DSU 15.2) DSU 780

reargument of case, exclusion DSU 783

“measures at issue” (DSU 6.2)

measure in existence at time of establishment of panel, limitation to, measures not in existence as evidence DSU 404

prompt settlement of the dispute considerations DSU 404

prompt and satisfactory settlement (DSU 3.3), determination of “measures at issue” (DSU 6.2), and DSU 404

risk assessment, need for (SPS 5.1–5.3)

factors to be taken into account including “available scientific evidence” (SPS 2), format of assessment SPS 150

measures “appropriate to the circumstances” (SPS 5.1), direct causality between substance and possible adverse health effects SPS 173

measures based on, need for (SPS 5.1), “appropriate to the circumstances” (SPS 5.1) SPS 150

“sufficient scientific evidence” requirement (SPS 2.2) and SPS 26

Japan — DRAMS (Korea) (AB), WT/DS336/AB/R and Corr.1, DSR 2007:VII

AB procedures (DSU 17.9 and ABWP), appellant’s submission (ABWP 21), grounds for allegation of specific errors (ABWP 21:2) DSU 1433

business confidential information (BCI), parallel confidential/non-confidential reports DSU 709, 923

countervailing duties (SCM Part V), calculation of countervailing duty / “not in excess” (SCM 19.4), “found to exist” SCM 470

determination of injury (SCM 15)

causal relationship between subsidized imports and injury to domestic injury (SCM 15.5 and footnote 47)

non-attribution of other factors SCM 444

“through the effects of subsidies” SCM 444

“subsidization” and injury caused by “subsidized imports” distinguished SCM 444

evidence (countervailing duty investigation) (SCM 12)

“interested parties” (SCM 12.9)

“allowing”SCM 399

non-exhaustive nature of SCM 12.9 examples SCM 397

resort to “facts available” (SCM 12.7) SCM 391

resort to “facts available” (SCM 12.7), designation of “interested party” (SCM 12.9) and SCM 391

investigation of dumping (AD 5)/subsidy (SCM 11), “sufficient evidence of” (SCM 11.2), causal link SCM 361

notice of appeal, requirements (ABWP 20(2)(d)), statement of allegation of error on issues of law/legal interpretations (ABWP 20(2)(d)), statement of grounds (ABWP 21:2) DSU 1434

standard/powers of review (AB) (issues of law and legal interpretations) (DSU 17.6), completion of the legal analysis in case of, contentiousness/omission/insufficiency of facts DSU 877

subsidy, calculation in terms of benefit to recipient (SCM 14)

“any” method (chapeau) SCM 404

national legislation/implementing regulations SCM 404

transparency requirement SCM 404

“usual investment practice” (SCM 14(a)), inside/outsider investor distinction SCM 410

subsidy, definition (SCM 1.1(a)(1)) (financial contribution)

“direct transfer of funds”(SCM 1.1(a)(1)) debt forgiveness/debt-for-equity swaps SCM 24, 27 n. 44

“private body” (SCM 1.1(a)(1)(iv)), government entrustment or direction, effect SCM 55

Japan — DRAMS (Korea) (Panel), WT/DS336/R

business confidential information (BCI), parallel confidential/non-confidential reports DSU 923

countervailing duties (SCM Part V)

calculation of countervailing duty / “not in excess” (SCM 19.4), “found to exist” SCM 469

duration (SCM 21.1) SCM 479

imposition and collection (SCM 19), “through the effects of the subsidies” (SCM 15.5), identity of meaning SCM 461

determination of injury (SCM 15)

causal relationship between subsidized imports and injury to domestic injury (SCM 15.5 and footnote 47)

“subsidization” and injury caused by “subsidized imports” distinguished SCM 443

“through the effects of subsidies” SCM 443

“through the effects of the subsidy” (SCM 19.1), identity of meaning SCM 461

due process (dispute settlement proceedings), prejudice to party, relevance DSU 202

evidence (countervailing duty investigation) (SCM 12)

“interested parties” (SCM 12.9)

“allowing”SCM 398

non-exhaustive nature of SCM 12.9 examples SCM 396

resort to “facts available” (SCM 12.7) and SCM 391, 400

resort to “facts available” (SCM 12.7), designation of “interested party” (SCM 12.9) and SCM 391, 400

standard of review (investigating authority) SCM 581

interim review (DSU 15), re-argument of case, exclusion DSU 784

ordinary meaning of terms used in covered agreements, “through the effects of subsidies” (SCM 15.1/footnote 47) SCM 443

preparatory work (VCLT 32), SCM GATS 7

request for establishment of panel, requirements (DSU 6.2), due process/ability to defend itself considerations DSU 202

SCM Agreement, object and purpose (SCM 1), interpretation and clarification of GATT VI SCM 7

standard/powers of review (panel) (DSU 11), “objective assessment of the facts” /alleged disregard or distortion of the evidence, obligation to examine and evaluate all the evidence available to it DSU 600

subsidy, calculation in terms of benefit to recipient (SCM 14)

provision of goods or services (SCM 14(d)), prior subsidization in the relevant market SCM 420

“usual investment practice” (SCM 14(a)), inside/outsider investor distinction SCM 410

subsidy, definition (SCM 1.1(a)(1)) (financial contribution), “direct transfer of funds” (SCM 1.1(a)(1)), debt forgiveness/debt-for-equity swaps SCM 22–3

subsidy, definition (SCM 1.1(b)) (conferral of benefit)

“benefit”, market test SCM 67–9

burden/standard of proof SCM 67–9

subsidy, specificity (SCM 2), individual payments under a generalized programme SCM 105–6

terms of reference of panels (DSU 7), request for establishment of panel as basis DSU 202

Japan — DRAMs (Korea) (Article 21.3(c)), WT/DS336/16

implementation of DSB recommendations and rulings (DSU 21), prompt compliance (DSU 21.1), modification of underlying economic or social conditions distinguished DSU 999

“reasonable period” for implementation of recommendations and rulings (Article 21.3(c) arbitrations), administrative measures as means of implementation, relevance DSU 1051 n. 1635

Japan — Film (Panel), WT/DS44/R, DSR 1998:IV

burden of proof (general rules),onus probandi actori incumbit GATT 967

GATT 1947/WTO continuity

incorporation of GATT 1947 provisions into WTO Agreement GATT 4

“legal instruments” (GATT 1994 1(b)), “protocols and certifications relating to tariff concessions” (GATT 1994, 1(b)(i) and 1(d)) GATT 4

identification of specific measures (DSU 6.2), government action, limitation to DSU 247–9

interim review (DSU 15), termination of measures following, effect DSU 384 n. 623

interpretation of covered agreements, rules relating to including VCLT provisions, dictionaries DSU 248 n. 357

“measures at issue” (DSU 6.2)

government action, limitation to, administrative guidance DSU 248

prospective measure, “of the same essence” DSU 383 n. 620

terminated measures, GATT practice DSU 384

national treatment, regulatory discrimination (GATT III:4)

burden of proof GATT 325

“laws, regulations or requirements”, “measures” (GATT XXIII: 1(b)) distinguished GATT 350

“less favourable treatment”

equality of competitive conditions as test GATT 370

GATT XXIII:1(b) compared GATT 374, 387

non-violation claims (GATT XXIII:1(b))

“any measure”

government measures, limitation to GATT 972

measure currently in force, limitation to GATT 973

non-binding action GATT 971

“benefit”, legitimate expectation of improved market access as norm GATT 974–6

“benefit” /legitimate expectation of improved market access as arising out of successive rounds of negotiation GATT 974–7 reasonable anticipation and GATT 979–80, 986

burden of proof GATT 967, DSU 1349

constituent elements GATT 965

as exceptional remedy GATT 961, DSU 1349

“measure”

affecting the competitive relationship, GATT III:4 compared GATT 374

government action, limitation to DSU 247–9

“law, regulations or requirements” (GATT III:4) compared GATT 350

measure in “conflict” with GATT provisions, applicability to, concurrent application to measures falling under other provisions of GATT GATT 963

nullification or impairment, need for GATT 986–7

causality and GATT 986–7

competitive relationship as key factor GATT 986

object and purpose GATT 962

non-violation claims (GATT XXIII:1(b)) (DSU 26.1), burden of proof / “detailed justification” (DSU 26.1(a)) DSU 1349

ordinary meaning of terms used in covered agreements

“measure”(GATT XXIII:1(b)) DSU 248

“protocols and certifications relating to tariff concessions” (GATT 1994, 1(b)(i) and 1(d)) GATT 4

“specific measures” (DSU 6.2) DSU 215

publication and administration of trade regulations (GATT X)

burden of proof GATT 519

measures of general application (GATT X:1) GATT 519

quantitative restrictions, elimination (GATT XI)

“prohibition or restriction” (GATT XI:1)

de facto restriction GATT 603

private action, relevance GATT 603

relationships within and between agreements, GATT III:4/GATT XXIII:1(b) GATT 350, 374, 387

request for establishment of panel, requirements (DSU 6.2), “identify”, sufficiency of, identification of specific measures (DSU 6.2), “identify”, sufficiency of, reference to instruments implementing challenged measures DSU 215

State responsibility as rule/general principle of international law (ILC Articles), responsibility for act or omission of, private parties GATT 603, DSU 247–9

successive treaties relating to the same subject matter (VCLT 30), Schedules DSU 1530

terms of reference of panels (DSU 7), terminated measures DSU 384

Japan — Semi-conductors (GATT Panel) L/6309, BISD 35S/116,

quantitative restrictions, elimination (GATT XI),

“prohibition or restriction” (GATT XI:1) GATT 600

JITAP: see Joint Integrated Technical Assistance Programme (JITAP) identification of ways of enhancing and rationalizing (Doha)

joint action (GATT XXV), GATT practice GATT 1062

joint action (GATT XXXVIII), GATT practice GATT 1114

Joint Integrated Technical Assistance Programme (JITAP), identification of ways of enhancing and rationalizing (Doha) WTO 111

core agencies’ joint communiqué reaf.rming support (13 July 2003) WTO 112

judicial and administrative assistance, non-applicability of GATS II (MFN) provisions GATS 6

judicial decisions, conformity with WTO obligations, obligation to ensure (WTO XVI:4) WTO 288

judicial economy

see also order of analysis; relationships within and between agreements

arguendo assumptions and GATT 1041, DSU 646, 660

avoidance of de novo review and AD 330

de.nition DSU 641–3, 655

discretionary nature SG 174, DSU 641, 644–7

reasons for not exercising SG 129, 181

explicit reference to, relevance DSU 649–50

GATT practice DSU 639

irrelevant considerations DSU 656

limitation of concept to panel’s handling of claims DSU 643

limitation of consideration to claims essential to resolution of dispute (DSU 3.2) GATT 423, TRIMs 11, AD 307, 348, 647, DSU 52, 386, 638–9, 891

“make such other .ndings as will assist …” (DSU 11) and DSU 637–43, 649

order of analysis and DSU 648

“positive solution to dispute” requirement (DSU 3.7)/false judicial economy and DSU 638, 649, 651–5

precise recommendations and rulings by DSB and DSU 653

prior decision on another point rendering discussion otiose GATT 399, 400, 404, 405, 745, 749, 824–5, AG 64, SPS 494, 592–3, TBT 23, TRIMs 6, 11, 12–13, 16, AD 84, 321, 620, 749, 831, 838–40, LIC 29, 32–3, SCM 180, 218, 326, SG 84, 89, 175, 216, 229–31, 233, 242, 243, 245, 252, GATS 70, TRIPS 215

finding of non-compliance in .rst situation, need for SCM 504, DSU 642

prompt compliance (DSU 21.1) and DSU 653

security and predictability of WTO obligations (DSU 3.2) and DSU 52

“shall address the relevant provisions/each issue” (DSU 7.2/DSU 17.12) DSU 422, 890–1

judicial review (AD 13)

Members’ descriptions of their systems AD 848

special or additional rules and procedures (DSU 1.2 and Appendix 2) and DSU 16

judicial review (SCM 23), Members’ discretion to define own procedure SCM 377, 507

July package: see also under Doha Round/Work Programme (Doha 17–52), July package (2004)

jura novit curia DSU 324, 326, 328, 416, 574–5, 1710

jurisdiction: see competence of panels and AB (DSU 3.2/DSU 11/ DSU 17); request for establishment of panel, requirements (DSU 6.2); standard/powers of review (AB) (issues of law and legal interpretations) (DSU 17.6); standard/powers of review (panel) (AD 17.6); standard/powers of review (panel) (DSU 11); terms of reference of panels (DSU 7)

> back to top