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REPERTORY OF APPELLATE BODY REPORTS

Prompt Compliance


ON THIS PAGE:

Japan — Alcoholic Beverages II, para. 11
EC — Hormones, para. 39
EC — Hormones, para. 41
Chile — Alcoholic Beverages, para. 38
Canada — Autos, paras. 47-48
US — Section 110(5) Copyright Act, para. 38
Argentina — Hides and Leather, para. 49
Chile — Price Band System, para. 33
US — Offset Act (Byrd Amendment), para. 40
US — Oil Country Tubular Goods Sunset Reviews, para. 27


ARB.2.1 Japan — Alcoholic Beverages II, para. 11     back to top
(WT/DS8/15, WT/DS10/15, WT/DS11/13)

Article 21(1) of the DSU stipulates that “prompt compliance with recommendations and rulings of the DSB is essential in order to ensure effective resolution of disputes to the benefit of all Members” (emphasis added). This obligation is further elaborated in Article 21(3) of the DSU, where it is stipulated that “if it is impracticable to comply immediately with the recommendations and rulings, the Member concerned shall have a reasonable period of time in which to do so” (emphasis added). …

 
ARB.2.2 EC — Hormones,
para. 39     back to top
(WT/DS26/15, WT/DS48/13)

Withdrawal is the preferred means of implementation under Article 3.7 of the DSU, and prompt compliance with the recommendations and rulings of the DSB is essential under Article 21.1. It would not be in keeping with the requirement of prompt compliance to include in the reasonable period of time, time to conduct studies or to consult experts to demonstrate the consistency of a measure already judged to be inconsistent. …

 
ARB.2.3 EC — Hormones,
para. 41     back to top
(WT/DS26/15, WT/DS48/13)

To grant the European Communities a further two years, from the date of adoption by the DSB of the Appellate Body Report and Panel Reports, to conduct the risk assessment that was required as of 1 January 1995 would not be consistent with the provisions of the DSU requiring prompt compliance with DSB recommendations and rulings, nor with the obligations of the European Communities under the SPS Agreement.

 
ARB.2.4 Chile — Alcoholic Beverages,
para. 38     back to top
(WT/DS87/15, WT/DS110/14)

The DSU clearly stressed the systemic interest of all WTO Members in the Member concerned complying “immediately” with the recommendations and rulings of the DSB. Reading Articles 21.1 and 21.3 together, “prompt” compliance is, in principle, “immediate” compliance. At the same time, however, should “immediate” compliance be “impracticable” — it may be noted that the DSU does not use the far more rigorous term “impossible” — the Member concerned becomes entitled to a “reasonable period of time” to bring itself into a state of conformity with its WTO obligations. Clearly, a certain element of flexibility in respect of time is built into the notion of compliance with the recommendations and rulings of the DSB. That element would appear to be essential if “prompt” compliance, in a world of sovereign states, is to be a balanced conception and objective.

 
ARB.2.5 Canada — Autos,
paras. 47-48     back to top
(WT/DS139/12, WT/DS142/12)

After examining Canada’s arguments concerning the “reasonable period of time”, it is clear that certain of the steps proposed by Canada for implementation of the DSB’s recommendations and rulings in this dispute are not fixed either by law or by regulation. Rather, they are estimates made by the Government of Canada. The actual time taken to implement the DSB’s recommendations and rulings in this case is subject to the discretion of the Government of Canada, and Canada has considerable flexibility in this regard. I recall the guidance provided by Article 21.1 of the DSU, which states that “[p]rompt compliance with recommendations or rulings of the DSB is essential in order to ensure effective resolution of disputes to the benefit of all Members” (emphasis added). Thus, it is incumbent upon the Government of Canada to use its discretion to ensure that compliance with the DSB’s recommendations at issue is “prompt”.

 

I am not persuaded that the implementation schedule proposed by Canada properly reflects the objective of “prompt” compliance. In particular, it appears that the Government of Canada could use the discretion inherent in its Regulatory Policy to implement the recommendations of the DSB in this case in a shorter period of time while still following the normal procedures for modifying regulations. …

 
ARB.2.6 US — Section 110(5) Copyright Act,
para. 38     back to top
(WT/DS160/12)

With regard to the specific proposal of the United States, it seems to me that the United States has proposed a longer period of time than is reasonable for implementation in this case. In this regard, I note that the United States Congress appears to have flexibility with regard to the amount of time it takes to enact legislation. In response to questioning at the oral hearing, the United States acknowledged that Congress has “a fair amount of flexibility” in the scheduling of its work. Furthermore, the “vast majority” of steps in the legislative process, according to the United States, are not subject to mandatory time-frames. Thus, when the United States Congress wants to act promptly on a matter, its normal legislative procedures allow it the flexibility to do so. In my view, the time-period proposed by the United States does not take sufficient account of this flexibility.

 
ARB.2.7 Argentina — Hides and Leather,
para. 49     back to top
(WT/DS155/10)

A final point that should be made is that to build into the concept of a “reasonable period of time” to comply with DSB recommendations and rulings, time or opportunity to control and manage economic or social conditions which antedate or are contemporaneous with the adoption of the WTO-inconsistent governmental measure, may, in the generality of instances, be to defer to an indefinitely receding future the duty of compliance. The implications for the multilateral trading system as we know it today, of such an interpretation of “reasonable period of time” for compliance are clear and far-reaching and ominous. Such an interpretation would tend to reduce the fundamental duty of “immediate” or “prompt” compliance to a figure of speech.

 
ARB.2.8 Chile — Price Band System,
para. 33     back to top
(WT/DS207/13)

Article 21.1 of the DSU, which provides relevant context for understanding the remaining paragraphs of Article 21, states that “[p]rompt compliance with recommendations or rulings of the DSB is essential in order to ensure effective resolution of disputes to the benefit of all Members.” Recognizing that “prompt compliance” may not always be “immediate” compliance, however, the chapeau of Article 21.3 provides, “If it is impracticable to comply immediately with the recommendations and rulings [of the DSB], the Member concerned shall have a reasonable period of time in which to do so.” The allowance of a “reasonable period of time” for implementation, therefore, is premised on it being impracticable for the Member to comply “immediately”.

 
ARB.2.9 US — Offset Act (Byrd Amendment),
para. 40     back to top
(WT/DS217/14, WT/DS234/22)

Article 21.3 … makes clear that “prompt compliance”, in principle, implies “immediate ” compliance. Thus, a “reasonable period of time” for implementation is not available unconditionally to an implementing Member. Rather, an implementing Member is entitled to a reasonable period of time for implementation only where, pursuant to Article 21.3, “it is impracticable to comply immediately with the recommendations and rulings” of the DSB.

 
ARB.2.10 US — Oil Country Tubular Goods Sunset Reviews,
para. 27
(WT/DS268/12)     back to top

… whatever be the method of implementation chosen by the implementing Member, that Member must take advantage of the flexibility and discretion available within its legal and administrative system to implement the recommendations and rulings of the DSB as speedily as possible.

 


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