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REPERTORY OF APPELLATE BODY REPORTS

Claims and Arguments


ON THIS PAGE:

Brazil — Desiccated Coconut, p. 22, DSR 1997:I, p. 167 at 186
EC — Bananas III, para. 141
EC — Bananas III, para. 143
EC — Bananas III, paras. 145, 147
India — Patents (US), para. 88
Korea — Dairy, para. 139
US — Lead and Bismuth II, para. 73
Chile — Price Band System, para. 182
Dominican Republic — Import and Sale of Cigarettes, para. 121
EC — Selected Customs Matters, para. 153


C.1.1 Brazil — Desiccated Coconut, p. 22, DSR 1997:I, p. 167 at 186
(WT/DS22/AB/R)      back to top

… the “matter” referred to a panel for consideration consists of the specific claims stated by the parties to the dispute in the relevant documents specified in the terms of reference. We agree with the approach taken in previous adopted panel reports that a matter, which includes the claims composing that matter, does not fall within a panel’s terms of reference unless the claims are identified in the documents referred to or contained in the terms of reference.

 
C.1.2 EC — Bananas III, para. 141      back to top
(WT/DS27/AB/R)

… In our view, there is a significant difference between the claims identified in the request for the establishment of a panel, which establish the panel’s terms of reference under Article 7 of the DSU, and the arguments supporting those claims, which are set out and progressively clarified in the first written submissions, the rebuttal submissions and the first and second panel meetings with the parties.

 
C.1.3 EC — Bananas III,
para. 143      back to top
(WT/DS27/AB/R)

… Article 6.2 of the DSU requires that the claims, but not the arguments, must all be specified sufficiently in the request for the establishment of a panel in order to allow the defending party and any third parties to know the legal basis of the complaint. If a claim is not specified in the request for the establishment of a panel, then a faulty request cannot be subsequently “cured” by a complaining party’s argumentation in its first written submission to the panel or in any other submission or statement made later in the panel proceeding.

 
C.1.4 EC — Bananas III, paras. 145, 147      back to top
(WT/DS27/AB/R)

… There 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.

 

 

 … We do not agree with the Panel’s statement that a “failure to make a claim in the first written submission cannot be remedied by later submissions or by incorporating the claims and arguments of other complainants”.…

 
C.1.5 India — Patents (US), para. 88      back to top
(WT/DS50/AB/R)

… we observed that there is a significant difference between the claims identified in the request for the establishment of a panel, which establish the panel’s terms of reference under Article 7 of the DSU, and the arguments supporting those claims, which are set out and progressively clarified in the first written submissions, the rebuttal submissions, and the first and second panel meetings with the parties as a case proceeds.…

 
C.1.6 Korea — Dairy, para. 139      back to top
(WT/DS98/AB/R)

… By “claim” we mean a claim that the respondent party has violated, or nullified or impaired the benefits arising from, an identified provision of a particular agreement. Such a claim of violation must, as we have already noted, be distinguished from the arguments adduced by a complaining party to demonstrate that the responding party’s measure does indeed infringe upon the identified treaty provision. Arguments supporting a claim are set out and progressively clarified in the first written submissions, the rebuttal submissions and the first and second panel meetings with the parties. Both “claims” and “arguments” are distinct from the “evidence” which the complainant or respondent presents to support its assertions of fact and arguments.

 
C.1.7 US — Lead and Bismuth II, para. 73      back to top
(WT/DS138/AB/R)

In order to resolve the claim of the European Communities, the Panel deemed it necessary to address the two principal arguments made in support of this claim. In doing so, the Panel acted within the context of resolving this particular dispute and, therefore, within the scope of its mandate under the DSU.

 
C.1.8 Chile — Price Band System, para. 182      back to top
(WT/DS207/AB/R, WT/DS207/AB/R/Corr.1)

In our view, this distinction between claims and legal arguments under Article 6.2 of the DSU is also relevant to the distinction between “allegations of error” and legal arguments as contemplated by Rule 20 of the Working Procedures. Bearing this distinction in mind, we do not agree with Argentina that Chile’s arguments regarding the order of analysis chosen by the Panel amount to a separate “allegation of error” that Chile should have — or could have — included in its Notice of Appeal. In fact, we do not see, nor has Argentina explained, what separate “allegation of error” could have been made, or what legal basis for such “allegation of error” there could have been. Rather than making a separate “allegation of error”, Chile has, in our view, simply set out a legal argument in support of the issues it raised on appeal relating to Article 4.2 of the Agreement on Agriculture and Article II:1(b) of the GATT 1994.

 
C.1.9 Dominican Republic — Import and Sale of Cigarettes, para. 121
(WT/DS302/AB/R)      back to top

We also observe that the Appellate Body has consistently distinguished between the claims of a Member regarding the application of the various provisions of the WTO Agreement, and the arguments presented in support of those claims. Claims, which are typically allegations of violation of the substantive provisions of the WTO Agreement, must be set out clearly in the request for the establishment of a panel. Arguments, by contrast, are the means whereby a party progressively develops and supports its claims. These do not need to be set out in detail in a panel request; rather, they may be developed in the submissions made to the panel.

 
C.1.10 EC — Selected Customs Matters, para. 153      back to top
(WT/DS315/AB/R)

We turn … to the question whether the panel request confines the measure at issue to areas of customs administration. We read the third paragraph of the panel request as an illustrative list of areas where the United States considers European Communities customs law is not administered in a uniform way. Thus, the substance of the third paragraph of the panel request should be viewed as an anticipation of the United States’ arguments. In this paragraph, the United States explains — briefly and in general terms — why it considers that the legal instruments listed in the first paragraph of the panel request are administered in a manner that is inconsistent with the uniformity requirement in Article X:3(a). Article 6.2 of the DSU requires that the claims — not the arguments — be set out in a panel request in a way that is sufficient to present the problem clearly. Nothing in Article 6.2 prevents a complainant from making statements in the panel request that foreshadow its arguments in substantiating the claim. If the complainant chooses to do so, these arguments should not be interpreted to narrow the scope of the measures or the claims. Accordingly, we are of the opinion that the Panel erred when it found that the list of areas of customs administration in the third paragraph of the panel request limits the scope of the “specific measures at issue”.

 


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