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REPERTORY OF APPELLATE BODY REPORTS

Mandate of Arbitrator under Article 21.3(c)


ON THIS PAGE:

EC — Hormones, paras. 32, 38
Australia — Salmon, para. 35
Korea — Alcoholic Beverages, para. 45
Canada — Pharmaceutical Patents, para. 40
Canada — Pharmaceutical Patents, para. 41
Canada — Pharmaceutical Patents, para. 42
Canada — Pharmaceutical Patents, para. 43
Canada — Pharmaceutical Patents, footnote 30 to para. 52
US — Hot-Rolled Steel, para. 30
US — Offset Act (Byrd Amendment), para. 48
EC — Tariff Preferences, para. 30
US — Gambling, para. 33
EC — Chicken Cuts, para. 49
EC — Chicken Cuts, para. 62
Japan — DRAMs (Korea) (Article 21.3(c)), para. 26
Brazil — Retreaded Tyres (Article 21.3(c)), para. 47
US — Stainless Steel (Mexico) (Article 21.3(c)), para. 41
US — Stainless Steel (Mexico) (Article 21.3(c)), para. 42
Colombia — Ports of Entry (Article 21.3(c)), para. 64


ARB.1.1 EC — Hormones, paras. 32, 38     back to top
(WTDS26/15, WT/DS48/13)

There is an issue in this arbitration as to what constitutes “implementation of the recommendations and rulings of the DSB” under Article 21.3 of the DSU.

 

 

It is not within my mandate under Article 21.3(c) of the DSU, to suggest ways or means to the European Communities to implement the recommendations and rulings of the Appellate Body Report and Panel Reports. My task is to determine the reasonable period of time within which implementation must be completed. Article 3.7 of the DSU provides, in relevant part, that “the first objective of the dispute settlement mechanism is usually to secure the withdrawal of the measures concerned if these are found to be inconsistent with the provisions of any of the covered agreements” (emphasis added). Although withdrawal of an inconsistent measure is the preferred means of complying with the recommendations and rulings of the DSB in a violation case, it is not necessarily the only means of implementation consistent with the covered agreements. An implementing Member, therefore, has a measure of discretion in choosing the means of implementation, as long as the means chosen are consistent with the recommendations and rulings of the DSB and with the covered agreements.

 
ARB.1.2 Australia — Salmon,
para. 35     back to top
(WT/DS18/9)

I am mindful of the limits of my mandate in this arbitration. I am particularly aware that suggesting ways and means of implementation is not part of my mandate and that my task is confined to the determination of the “reasonable period of time”. Choosing the means of implementation is, and should be, the prerogative of the implementing Member. …

 
ARB.1.3 Korea — Alcoholic Beverages,
para. 45     back to top
(WT/DS75/16, WT/DS84/14)

My mandate in this arbitration relates exclusively to determining the reasonable period of time for implementation under Article 21.3(c) of the DSU. It is not within my mandate to suggest ways and means to implement the recommendations and rulings of the DSB. Choosing the means of implementation is, and should be, the prerogative of the implementing Member, as long as the means chosen are consistent with the recommendations and rulings of the DSB and the provisions of the covered agreements. I consider it, therefore, inappropriate to determine whether, and to what extent, amendments to various regulatory instruments are required before the new tax legislation comes into effect.

 
ARB.1.4 Canada — Pharmaceutical Patents,
para. 40     back to top
(WT/DS114/13)

Moreover, I am of the view that whether the means of implementation chosen by a Member is consistent with that Member’s obligations under the WTO covered agreements is not a question that falls within the jurisdiction of an arbitrator under Article 21.3(c).As the text of the provision makes clear, the sole task of an arbitrator under Article 21.3(c) is to determine a “reasonable period of time” in which a Member must complete implementation. … 

 
ARB.1.5 Canada — Pharmaceutical Patents,
para. 41     back to top
(WT/DS114/13)

As an arbitrator under Article 21.3(c), certainly my responsibility includes examining closely the relevance and duration of each of the necessary steps leading to implementation to determine when a “reasonable period of time” for implementation will end. My responsibility does not, however, include in any respect a determination of the consistency of the proposed implementing measure with the recommendations and rulings of the DSB. The proper concern of an arbitrator under Article 21.3(c) is with when, not what.

 
ARB.1.6 Canada — Pharmaceutical Patents,
para. 42     back to top
(WT/DS114/13)

… If there is any question about whether what a Member chooses as a means of implementation is sufficient to comply with the recommendations and rulings of the DSB, as opposed to when that Member proposes to do it, then Article 21.5 applies, not Article 21.3. The reasons are many and obvious. For example, if the consistency of implementing measures could also be examined during arbitrations under Article 21.3(c), then Article 21.5 would lose much of its effect. Parties would have little to lose in requesting also from an arbitrator under Article 21.3(c) an immediate ruling on the consistency of a proposed measure. Also, the more elaborate Article 21.5 procedures, involving a panel of three or five members and a report adopted by the DSB, seem more suitable than the more constrained legal domain of Article 21.3(c) for assessing the consistency of substantive obligations under WTO covered agreements.

 
ARB.1.7 Canada — Pharmaceutical Patents,
para. 43     back to top
(WT/DS114/13)

… Accordingly, I conclude that the “reasonable period of time” for implementation that must be determined in this Article 21.3 proceeding is the “reasonable period of time” for implementing what has been proposed by Canada, and nothing else. Thus, I offer no opinion whatsoever on whether Canada’s proposed regulatory change is sufficient, or whether legislative change may be required instead for consistency with the recommendations and rulings of the DSB.

 
ARB.1.8 Canada — Pharmaceutical Patents,
footnote 30 to para. 52     back to top
(WT/DS114/13)

In paras. 3 and 10 of its submission, the European Communities stated that, during earlier consultations, Canada had offered to implement the recommendations and rulings of the DSB in nine months. Canada argued in the oral hearing in this arbitration that this offer had been made without prejudice during confidential consultations, and that, by submitting this evidence to me, the European Communities was in breach of Article 4.6 of the DSU. … It is not clear to me that my mandate allows me to rule on whether submission by the European Communities of evidence of an earlier offer by Canada on defining “a reasonable period of time” in this case is inconsistent with Article 4.6 of the DSU. … Therefore, I make no ruling on Canada’s argument relating to Article 4.6.

 
ARB.1.9 US — Hot-Rolled Steel,
para. 30     back to top
(WT/DS184/13)

… I do not believe that an arbitrator acting under Article 21.3(c) of the DSU is vested with jurisdiction to make any determination of the proper scope and content of implementing legislation, and hence do not propose to deal with it. The degree of complexity of the contemplated implementing legislation may be relevant for the arbitrator, to the extent that such complexity bears upon the length of time that may reasonably be allocated to the enactment of such legislation. But the proper scope and content of anticipated legislation are, in principle, left to the implementing WTO Member to determine.

 
ARB.1.10 US — Offset Act (Byrd Amendment),
para. 48     back to top
(WT/DS217/14, WT/DS234/22)

I recall that my mandate, under Article 21.3(c), is confined to the determination of the reasonable period of time for implementation of the recommendations and rulings of the DSB. I am particularly aware that it is not part of my mandate to determine or even to suggest the manner in which the United States is to implement the recommendations and rulings of the DSB. …

 
ARB.1.11 EC — Tariff Preferences,
para. 30     back to top
(WT/DS246/14)

It is, of course, beyond the scope of my mandate to determine how the European Communities should implement the recommendations and rulings of the DSB. It is for the European Communities to choose the method of implementation, provided that the method chosen is consistent with the relevant recommendations and rulings and with the provisions of the covered agreements. Within these limitations, the European Communities is thus entitled to bring the Drug Arrangements into conformity through whatever method it deems appropriate, be it at the same time and within the same instrument as its GSP scheme, or otherwise.

 
ARB.1.12 US — Gambling,
para. 33     back to top
(WT/DS285/13 )

It is not the role of an arbitrator under Article 21.3(c) to identify a particular method of implementation and to determine the “reasonable period of time” on the basis of that method. Rather, the implementing Member retains the discretion to choose its preferred method of implementation. Nevertheless, it will be necessary for me to consider certain aspects of the means of implementation proposed by each of the parties, as explained in more detail below.

 
ARB.1.13 EC — Chicken Cuts,
para. 49     back to top
(WT/DS269/13, WT/DS286/15)

My role as arbitrator in this dispute is limited. My sole mandate under Article 21.3 of the DSU is to determine the “reasonable period of time” needed for implementation of the recommendations and rulings of the DSB in this dispute. Thus, in fulfilling this limited mandate, I acknowledge that the implementing Member has a measure of discretion in selecting the means of implementation that it deems most appropriate; in other words, with respect to the implementing measure, my task focuses on the when, not the what. My concern is with time, not technique. … 

 
ARB.1.14 EC — Chicken Cuts,
para. 62     back to top
(WT/DS269/13, WT/DS286/15)

… Where the Panel and the Appellate Body have expressed one view on issues relating to the substance of this dispute, I am not free, in fulfilling my limited mandate as arbitrator, to express another. I am certainly not free in this limited role to contradict the reasoning of the Panel and Appellate Body that led to the recommendations and rulings that have been adopted by the DSB. The purpose of an Article 21.3 arbitration is not to question the recommendations and rulings of the DSB; it is to establish the reasonable period of time a Member should have to implement them. …

 
ARB.1.15 Japan — DRAMs (Korea) (Article 21.3(c)),
para. 26     back to top
(WT/DS336/16)

Whilst my task is to determine by when an implementing Member must comply, to do so requires that some consideration be given to the means of implementation chosen by the implementing Member. As one arbitrator has explained: “[t]urning to the question of what would constitute the ‘reasonable period of time’ for implementation in this case, I need to look first at the type of measure proposed to be used for implementation.” In other words, to determine when a Member must comply, it may be necessary to consider how a Member proposes to do so.

 
ARB.1.16 Brazil — Retreaded Tyres (Article 21.3(c)),
para. 47     back to top
(WT/DS332/16)

… my mandate relates to the time by when the implementing Member must have achieved compliance, not to the manner in which that Member achieves compliance. Yet, I consider that when a Member must comply cannot be determined in isolation from the chosen means of implementation. It closely relates to the question of how a Member intends to comply with the recommendations and rulings of the DSB. …

 
ARB.1.17 US — Stainless Steel (Mexico) (Article 21.3(c)),
para. 41     back to top
(WT/DS344/15)

My mandate relates to the time by which the implementing Member must have achieved compliance, not to the manner in which that Member achieves compliance. I am mindful that it is beyond my mandate to determine the consistency with WTO law of the measure eventually taken to comply; this can only be assessed in Article 21.5 proceedings. Yet, I consider that when a Member must comply with the recommendations and rulings of the DSB cannot be determined in isolation from the chosen means of implementation. In order “to determine when a Member must comply, it may be necessary to consider how a Member proposes to do so”. In making my determination pursuant to Article 21.3(c), the means of implementation chosen by the Member concerned is, therefore, a relevant consideration. …

 
ARB.1.18 US — Stainless Steel (Mexico) (Article 21.3(c)),
para. 42     back to top
(WT/DS344/15)

While the implementing Member enjoys a certain discretion in choosing the means and method of implementation, this discretion is not without bounds. As stated by previous arbitrators, “the implementing Member does not have an unfettered right to choose any method of implementation”. I must consider, in particular, “whether the implementing action falls within the range of permissible actions that can be taken in order to implement the DSB’s recommendations and rulings”. …

 
ARB.1.19 Colombia — Ports of Entry (Article 21.3(c)),
para. 64     back to top
(WT/DS366/13)

While an implementing Member has discretion in selecting the means of implementation, this discretion is not “an unfettered right to choose any method of implementation”. In my view, implementation of the recommendations and rulings of the DSB in this case is an “obligation of result”, and therefore the means of implementation chosen must be apt in form, nature, and content to effect compliance, and should otherwise be consistent with the covered agreements. Thus, although I am mindful that it falls within the scope of Article 21.5 proceedings to assess whether the measures eventually taken to comply are WTO-consistent, in making my determination under Article 21.3(c) I must consider “whether the implementing action falls within the range of permissible actions that can be taken in order to implement the DSB’s recommendations and rulings”. …

 


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