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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
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ARB.2.1 Japan — Alcoholic Beverages II, para. 11, 38 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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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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