Legal issues arising in WTO dispute settlement proceedings

10.2 Claims versus arguments; autonomous reasoning of a panel

By its terms of reference (Article 7 of the DSU), a panel is restricted to addressing only those claims that are specifically set out in a Member’s panel request with sufficient precision. The complainant must, therefore, include all the claims it wants the panel to address in the request for the establishment of the panel. If the request does not specify a certain claim, then the original request cannot subsequently be “cured” by a complaining party’s argumentation in the written submissions or in the oral statements to the panel. The panel would be precluded from ruling on such a subsequent claim.

However, there is a significant difference between the claims identified in the panel request, and the arguments supporting those claims.¹ “Claim” means an assertion that the respondent has violated, nullified or impaired benefits accruing under an identified provision of a covered agreement. “Arguments” are put forward by the complainant to demonstrate that the respondent has indeed infringed the identified provision or otherwise nullified or impaired benefits.² Arguments are not required to be included in the request for the establishment of the panel. Rather, the parties usually develop extensive legal arguments only in the further stages of the proceedings (i.e. in their written submissions and oral statements to the panel).

A panel is not limited to using the parties’ arguments. Rather, a panel is free to accept or reject such arguments and has the discretion to develop its own legal reasoning to support its findings and conclusions. In other words, a panel can develop its own autonomous reasoning.³

Notes:

1. Appellate Body Report, India — Patents (US), para. 88; Appellate Body Report, EC — Hormones, para. 156.  back to text

2. Appellate Body Report, Korea — Dairy, para. 139.  back to text

3. Appellate Body Report, EC — Hormones, para. 156; Appellate Body Report, Korea — Dairy, para. 139; Appellate Body Report, US — Certain EC Products, para. 123.  back to text