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REPERTORY OF APPELLATE BODY REPORTS

Working Procedures for Panels


ON THIS PAGE:

EC — Bananas III, paras. 143-144
EC — Hormones, para. 148
EC — Hormones, footnote 138 to para. 152
India — Patents (US), para. 92
India — Patents (US), para. 95
Argentina — Textiles and Apparel, para. 79 and footnote 68
FSC (Article 21.5 — EC), para. 240
US — FSC (Article 21.5 — EC), para. 247


W.3.1 EC — Bananas III, paras. 143-144     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.

 

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.

 
W.3.2 EC — Hormones
, para. 148     back to top
(WT/DS26/AB/R, WT/DS48/AB/R)

… The rules and procedures set forth in Appendix 4 of the DSU apply in situations in which expert review groups have been established. However, this is not the situation in this particular case. Consequently, once the panel has decided to request the opinion of individual scientific experts, there is no legal obstacle to the panel drawing up, in consultation with the parties to the dispute, ad hoc rules for those particular proceedings.

 
W.3.3 EC — Hormones
, footnote 138 to para. 152     back to top
(WT/DS26/AB/R, WT/DS48/AB/R)

… the 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.

 
W.3.4 India — Patents (US)
, para. 92     back to top
(WT/DS50/AB/R)

… Although panels enjoy some discretion in establishing their own working procedures, this discretion does not extend to modifying the substantive provisions of the DSU. To be sure, Article 12.1 of the DSU says: “Panels shall follow the Working Procedures in Appendix 3 unless the panel decides otherwise after consulting the parties to the dispute”. Yet that is all that it says. Nothing in the DSU gives a panel the authority either to disregard or to modify other explicit provisions of the DSU. The jurisdiction of a panel is established by that panel’s terms of reference, which are governed by Article 7 of the DSU. A panel may consider only those claims that it has the authority to consider under its terms of reference. …

 
W.3.5 India — Patents (US)
, para. 95     back to top
(WT/DS50/AB/R)

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.

 
W.3.6 Argentina — Textiles and Apparel
, para. 79 and footnote 68
(WT/DS56/AB/R, WT/DS56/AB/R/Corr.1)     back to top

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.68 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. …

 
W.3.7 US — FSC (Article 21.5 — EC)
, para. 240     back to top
(WT/DS108/AB/RW)

…We observe, first, that the DSU and, in particular, paragraphs 5, 6 and 7 of Appendix 3 to the DSU, “contemplate two distinguishable stages in a proceeding before a panel”. The “first stage” comprises the first written submissions by the parties and the first meeting of the panel, while the “second stage” consists of the second written submissions — or “rebuttal” submissions — and the second meeting with the panel. However, no provision of the DSU explicitly requires panels to hold two meetings with the parties, or to oblige the parties to submit two written submissions.

 
W.3.8 US — FSC (Article 21.5 — EC)
, para. 247     back to top
(WT/DS108/AB/RW)

… The DSU allows panels the flexibility, in determining their procedures, to request more than one submission in advance of the first meeting, and the DSU also allows for the possibility that panels may, ultimately, hold only one meeting. …

 

68. 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.     back to text


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