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ON THIS PAGE:
> General
> Canada — Pharmaceutical Patents, para. 45
> Canada — Pharmaceutical Patents, para. 63
> US — Hot-Rolled Steel, para. 26
> US — Hot-Rolled Steel, para. 39
> US — Offset Act (Byrd Amendment), para. 42
> EC — Tariff Preferences, para. 25
> 15 month
guideline
> EC — Hormones, para. 25
> Australia — Salmon, para. 30
> Korea — Alcoholic Beverages, para. 36
> Chile — Alcoholic Beverages, para. 39
> Canada — Pharmaceutical Patents, para. 45
> Canada — Autos, para. 39
> US — Hot-Rolled Steel, para. 25
> Chile — Price Band System, para. 34
> US — Offset Act (Byrd Amendment), para. 41
> EC — Tariff Preferences, para. 27
> Shortest
period possible within a Member’s legal system
> EC — Hormones, para. 26
> Korea — Alcoholic Beverages, para. 42
> Chile — Alcoholic Beverages, para. 39
> Canada — Pharmaceutical Patents, para. 47
> US — Section 110(5) Copyright Act, para. 32
> Chile — Price Band System, para. 34
> Chile — Price Band System, para. 51
> US — Offset Act (Byrd Amendment), para. 43
> US — Offset Act (Byrd Amendment), para. 74
> EC — Tariff Preferences,
para. 26
> EC — Tariff Preferences, para. 31
> US — Oil Country Tubular Goods Sunset
Reviews, para. 27
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ARB.4.1 General
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ARB.4.1.1
Canada — Pharmaceutical Patents, para. 45
(WT/DS114/13)
… Further, and significantly, a “reasonable
period of time” is not available unconditionally. Article 21.3 makes
it clear that a reasonable period of time is available for
implementation only “[i]f it is impracticable to comply immediately
with the recommendations and rulings” of the DSB. Implicit in the
wording of Article 21.3 seems to me to be the assumption that,
ordinarily, Members will comply with recommendations and rulings of the
DSB “immediately”. The “reasonable period of time” to which
Article 21.3 refers is, thus, a period of time in what is implicitly not
the ordinary circumstance, but a circumstance in which “it is
impracticable to comply immediately …”.
ARB.4.1.2
Canada — Pharmaceutical Patents, para. 63
(WT/DS114/13)
… As I see it, the commitment made by Canada
to the DSB to comply fully with the recommendations and rulings of the
DSB in this case, and thereby to fulfill Canada’s international
obligations as a Member of the WTO, should give rise to, if not equal,
then comparable, urgency in Canada. Whatever their disagreements on a
“reasonable period of time” for implementation in this dispute,
doubtless Canada and the European Communities will agree on this: the
desire of a WTO Member to comply with its treaty obligations under the WTO
Agreement should occasion, domestically, some modicum of dispatch.
ARB.4.1.3 US
— Hot-Rolled Steel, para. 26
(WT/DS184/13)
Although, in [paragraphs 84 and 85 of the
Appellate Body Report] the Appellate Body dealt with the Anti-Dumping
Agreement, and not the DSU, the essence of “reasonableness” so
articulated is, in my view, equally pertinent for an arbitrator faced
with the task of determining what constitutes “a reasonable period of
time” in the context of the DSU.
ARB.4.1.4 US
— Hot-Rolled Steel, para. 39
(WT/DS184/13)
… It appears to me that whether the actions
of the DSB in those two instances have any precedential value in respect
of the present arbitration proceedings, is open to substantial debate.
The present proceedings have been precipitated precisely by the failure
of the parties to the dispute to reach an agreement on a reasonable
period of time to comply under Article 21.3(b) of the DSU.
ARB.4.1.5 US
— Offset Act (Byrd Amendment), para. 42
(WT/DS217/14, WT/DS234/22)
The final sentence of Article 21.3(c),
moreover, makes clear that the “reasonable period of time” cannot be
determined in the abstract, but rather has to be established on the
basis of the particular circumstances of each case. I therefore agree,
in principle, with the Arbitrator in US — Hot-Rolled Steel, who
found that the term “reasonable” should be interpreted as including
“the notions of flexibility and balance”, in a manner which allows
for account to be taken of the particular circumstances of each case.
…
ARB.4.1.6
EC — Tariff Preferences, para. 25
(WT/DS246/14)
In determining the reasonable period of time
for implementation, I am guided by several provisions of the DSU,
including Article 21 in particular. To begin with, Article 21.1 provides
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”. This is consistent with the expectation in
Article 21.3 … that compliance will be immediate, unless this is
impracticable. …
ARB.4.2 15 month guideline
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ARB.4.2.1 EC
— Hormones, para. 25
(WT/DS26/15,
WT/DS48/13)
The ordinary meaning of the terms of Article 21.3(c) indicates that 15 months is a “guideline for the arbitrator”,
and not a rule. This guideline is stated expressly to be that “the
reasonable period of time … should not exceed 15 months from
the date of adoption of a panel or Appellate Body report” (emphasis
added). In other words, the 15-month guideline is an outer limit or a
maximum in the usual case. Forexample, when implementation can be
effected by administrative means, the reasonable period of time should
be considerably shorter than 15 months. However, the reasonable period
of time could be shorter or longer, depending upon the particular
circumstances, as specified in Article 21.3(c).
ARB.4.2.2
Australia — Salmon, para. 30
(WT/DS18/9)
… When the reasonable period of time is
determined through arbitration, the guideline for the arbitrator is that
it should not exceed 15 months from the date of adoption of the panel
and/or Appellate Body reports. This does not mean, however, that the
arbitrator is obliged to grant 15 months in all cases. The reasonable
period of time may be shorter or longer, depending upon the particular
circumstances.
ARB.4.2.3 Korea
— Alcoholic Beverages, para. 36
(WT/DS75/16,
WT/DS84/14)
… When the reasonable period of time is
determined through arbitration, the guideline for the arbitrator is that
it should not exceed 15 months from the date of adoption of the panel
and/or Appellate Body reports. This does not mean, however, that the
arbitrator is obliged to grant 15 months in all cases. The reasonable
period of time may be shorter or longer, depending upon the particular
circumstances.
ARB.4.2.4 Chile
— Alcoholic Beverages, para. 39
(WT/DS87/15, WT/DS110/14)
… What Article 21.3(c) of the DSU provides
arbitrators with is a “guideline”, not a fixed command, that
the reasonable period should be not more than 15 months from the date of
adoption by the DSB of the pertinent Panel and Appellate Body Reports.
Article 21.3(c) evidently contemplates a case-specific approach and
authorizes the consideration of the “particular circumstances” of a
given case, which may warrant a longer or shorter period.
ARB.4.2.5
Canada — Pharmaceutical Patents, para. 45
(WT/DS114/13)
I note that the 15-month period is a “guideline”,
and not an average, or usual, period. It is expressed also as a maximum
period, subject only to any “particular circumstances” mentioned in
the second sentence. …
ARB.4.2.6
Canada — Autos, para. 39
(WT/DS139/12, WT/DS142/12)
… when the “reasonable period of time”
is determined through arbitration, the guideline for the arbitrator is
that this period should not exceed 15 months from the date of adoption
of the panel report and/or the Appellate Body report. This does not
mean, however, that the arbitrator is obliged to grant 15 months in all
cases. Article 21.3(c) makes clear that the “reasonable period of time”
may be shorter or longer, depending upon the “particular circumstances”.
The “particular circumstances” of a dispute may influence the
determination of what is a “reasonable period of time” for
implementation, as has been stated by previous Arbitrators.
ARB.4.2.7 US
— Hot-Rolled Steel, para. 25
(WT/DS184/13)
… I do not see any basis for reading the
15-month guideline as establishing a fixed maximum or “outer
limit” for “a reasonable period of time.” …
ARB.4.2.8 Chile
— Price Band System, para. 34
(WT/DS207/13)
Article 21.3(c) provides for an arbitrator a
“guideline” of a maximum of 15 months from the date of adoption of
the panel and Appellate Body reports when establishing a “reasonable
period of time” for implementation. Notwithstanding this “guideline”,
I must ultimately be informed, as Article 21.3(c) instructs, by the “particular
circumstances” of a given case, which may counsel in favour of shorter
or longer periods. …
ARB.4.2.9 US
— Offset Act (Byrd Amendment), para. 41
(WT/DS217/14, WT/DS234/22)
The 15-month period set forth in Article 21.3(c) is a “guideline”, expressed as a maximum period, and does
not represent an average, or usual, period. Rather, as previous
arbitrators have recognized, it is ultimately the relevant “particular
circumstances” that influence what is a “reasonable period of time”
for implementation.
ARB.4.2.10 EC
— Tariff Preferences, para. 27
(WT/DS246/14)
India has argued that the implementing Member
— in this case, the European Communities — bears the burden of
demonstrating that the period it proposes is reasonable and that “the
already great burden becomes even greater” if this period is more than
15 months. In my view, the European Communities must demonstrate that
the period it proposes is reasonable; but I do not find it necessary in
this arbitration to determine whether the burden of proof becomes
greater if the period proposed is more than 15 months. I have found the
evidence and arguments presented by both the European Communities and
India very helpful in determining whether, in the particular
circumstances of this case, the period of time for implementation should
be 15 months or a shorter or longer period.
ARB.4.3 Shortest period possible within a Member’s
legal system back to top
ARB.4.3.1 EC
— Hormones, para. 26
(WT/DS26/15,
WT/DS48/13)
Article 21.3(c) also should be interpreted in
its context and in light of the object and purpose of the DSU. Relevant
considerations in this respect include other provisions of the DSU,
including, in particular, Articles 21.1 and 3.3. … Read in context, it
is clear that the reasonable period of time, as determined under Article 21.3(c), should be the shortest period possible within the legal system
of the Member to implement the recommendations and rulings of the DSB.
In the usual case, this should not be greater than 15 months, but could
also be less.
ARB.4.3.2 Korea
— Alcoholic Beverages, para. 42
(WT/DS75/16,
WT/DS84/14)
Although the reasonable period of time should
be the shortest period possible within the legal system of the Member to
implement the recommendations and rulings of the DSB, this does not
require a Member, in my view, to utilize an extraordinary legislative
procedure, rather than the normal legislative procedure, in every
case. Taking into account all of the circumstances of the present case,
I believe that it is reasonable to allow Korea to follow its normal
legislative procedure for the consideration and adoption of a tax bill
with budgetary implications. …
ARB.4.3.3 Chile
— Alcoholic Beverages, para. 39
(WT/DS87/15, WT/DS110/14)
… Thus, the shortest period of time theoretically
possible for the completion of the legislative process, even assuming
the bill enjoys the necessary parliamentary majority from the beginning
and is never the subject of serious debate, is not the sole criterion
that I should take into account in determining the reasonable period.
…
ARB.4.3.4
Canada — Pharmaceutical Patents, para. 47
(WT/DS114/13)
Based on the wording of Articles 21.3, and on
the context provided in Articles 3.3, 21.1 and 21.4 of the DSU, I agree
with the arbitrator in European Communities — Hormones that “the
reasonable period of time, as determined under Article 21.3(c), should
be the shortest period possible within the legal system of the Member to
implement the recommendations and rulings of the DSB.”…
ARB.4.3.5 US
— Section 110(5) Copyright Act, para. 32
(WT/DS160/12)
The “shortest period possible within the
legal system of the Member” generally refers to the “normal
legislative procedures”, and does not require a Member to utilize an
“extraordinary legislative procedure” in every case.
ARB.4.3.6 Chile
— Price Band System, para. 34
(WT/DS207/13)
… the controlling principle is that the “reasonable
period of time” should be “the shortest period possible within the
legal system of the Member to implement the relevant recommendations and
rulings of the DSB”, in the light of the “particular circumstances”
of the dispute.
ARB.4.3.7 Chile
— Price Band System, para. 51
(WT/DS207/13)
I referred earlier to the special status of
the PBS in Chile’s agricultural policy and the consequent difficulties
imposed on the formulation of legislation to implement the
recommendations and rulings of the DSB in this case. Having recognized
the need for thorough discussion on any implementing measure modifying
the PBS, it would not be right for me to expect that the
President of Chile will necessarily seek truncated review of such a
measure in the very legislative body intended for deliberation and
debate on behalf of the public it represents. This severe reduction of
legislative deliberation is precisely what Argentina seeks when
suggesting that I factor the strict time limits of the “urgency
procedure” into my determination of the “reasonable period of time”
for implementation. Therefore, I find it unreasonable for me to expect
or assume that Chile will necessarily make use of the “flexibility”
arguably provided by the extraordinary “urgency procedure” when
implementing legislation that modifies the PBS. Indeed, there is
sufficient flexibility within the ordinary legislative procedure
of Chile to enable it to implement the recommendations and rulings of
the DSB in this case within a time frame of less than the 18 months
which it seeks.
ARB.4.3.8 US
— Offset Act (Byrd Amendment), para. 43
(WT/DS217/14, WT/DS234/22)
I recall that the “shortest period possible
within the legal system of the Member” generally refers, in the case
of implementation by legislative means, to normal legislative
procedures. Therefore, I concur with the view of previous arbitrators
that, when implementing recommendations and rulings of the DSB, a Member
is not required to have recourse to extraordinary legislative procedures
in every case.
ARB.4.3.9 US
— Offset Act (Byrd Amendment), para. 74
(WT/DS217/14, WT/DS234/22)
… it is … important to recall that an
implementing Member, in principle, is to use its “normal”
legislative procedure and should not be required to utilize “extraordinary
legislative procedures” in every case. In the light of this principle,
I confirm that I do not, in this case, propose the United States to
utilize extraordinary legislative procedures. …
ARB.4.3.10 EC
— Tariff Preferences, para. 26
(WT/DS246/14)
Reading Article 21.3(c) together with Article 21.1, and referring for guidance to the Awards issued in previous
arbitrations under Article 21.3(c), it is clear that the reasonable
period of time should be “the shortest period possible within the
legal system of the Member to implement the relevant recommendations and
rulings of the DSB”, in the light of the “particular circumstances”
of the dispute. …
ARB.4.3.11 EC
— Tariff Preferences, para. 31
(WT/DS246/14)
However, as the European Communities itself
acknowledges, the relevant recommendations and rulings of the DSB
require the European Communities to bring into conformity solely the
Drug Arrangements, and not any other part of the European Communities’
GSP scheme. Therefore, my determination as to the reasonable period of
time for implementation in this arbitration must have regard only to the
shortest period possible within the legal system of the European
Communities to bring the Drug Arrangements into conformity with its WTO
obligations. The mere fact that the European Communities has decided to
incorporate the task of implementation within the larger objective of
reforming its overall GSP scheme cannot lead to a determination of a
shorter, or longer, period of time. In other words, my task is not to
determine the reasonable period of time for reforming the overall GSP
scheme. Rather, my determination must be confined to the reasonable
period of time for implementing the recommendations and rulings of the
DSB with respect to the Drug Arrangements.
ARB.4.3.12 US
— Oil Country Tubular Goods Sunset Reviews, para. 27
(WT/DS268/12)
… 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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