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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
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ARB.1.1 EC — Hormones,
paras. 32, 38 back to top
(WT/DS26/15,
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, Ioffer 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
(WT/DS114/13)
back to top
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 wasin 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.
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The texts reproduced here do not have the legal standing of the original
documents which are entrusted and kept at the WTO Secretariat in Geneva.
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