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ARB.4.1 General back to top
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 fulfil 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.4.1.7 EC — Export Subsidies on Sugar, para. 61
(WT/DS265/33, WT/DS266/33, WT/DS283/14)
[The] governing principles at issue are:
- the reasonable period of time should be the shortest period of time possible within the legal system of the implementing Member;
- the implementing Member must utilize all the flexibility and
discretion available within its legal and administrative system in order
to implement within the shortest period of time possible; and
- the “particular circumstances” of the case must be taken
into account in determining the reasonable period of time.
ARB.4.1.8 EC — Chicken Cuts,
paras. 55-56
(WT/DS269/13, WT/DS286/15)
… The European Communities states that it will not take any action
internally until it receives a [World Customs Organization (the “WCO”)]
decision. Thus, conceivably, a finding of the WCO on tariff
classification in response to a request for such a finding by the
European Communities could have the effect of prolonging this dispute
rather than contributing to its resolution through implementation of the
recommendations and rulings of the DSB. In fulfilling my obligations as
arbitrator under the DSU, I am naturally reluctant to take into account,
in my determination of the reasonable period of time, the time needed to
obtain from another international organization a decision that may not
contribute to — or may possibly even hinder — the implementation of
the recommendations and rulings of the DSB.
… Therefore … I cannot accept recourse to the WCO as an element
of the European Communities’ proposed implementation that I must
factor into my calculation of the reasonable period of time simply
because the European Communities has proposed it. …
ARB.4.1.9 Brazil — Retreaded Tyres (Article 21.3(c)),
paras. 71-72
(WT/DS332/16)
I do not consider that the approach of calculating the average
duration of a sample of proceedings from a past 5-year period under a
different procedure than the one at issue in the present case provides
an accurate and pertinent estimate of the time that the Federal Supreme
Court will need to complete the pending [Allegation of Violation of
Fundamental Precept] proceeding. … previous arbitrators have
refused to rely on average time periods in determining the reasonable
period of time because an average figure “inherently” represents
more than the shortest possible period of time necessary within an
implementing Member’s legal system. For these reasons, I consider
Brazil’s estimate of the likely duration of the pending [Allegation of
Violation of Fundamental Precept] proceeding on the basis of an average
of a sample of [Direct Unconstitutionality Action] proceedings not
appropriate.
Instead, I believe that an assessment of the state of affairs in the
particular ADPF proceeding permits a more accurate estimation of the
time required for its completion, and thus a more appropriate basis for
determining the reasonable period of time needed for the implementation
of the DSB recommendations and rulings. …
ARB.4.2 15-month guideline back to top
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.
For example, 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
(WTDS26/15, 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 Article 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.
ARB.4.3.13 US — Gambling, para. 44
(WT/DS285/13)
Antigua and the United States agree that … the “reasonable period
of time” under Article 21.3(c) 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. Yet, it is useful to recall that the
DSU does not refer to the “shortest period possible for implementation
within the legal system” of the implementing Member. Rather, this is a
convenient phrase that has been used by previous arbitrators to describe
their task. I do not, however, view this standard as one that stands in
isolation from the text of the DSU. In my view, the determination of the
“shortest period possible for implementation” can, and must, also
take due account of the two principles that are expressly mentioned in
Article 21 of the DSU, namely reasonableness and the need for prompt
compliance. Moreover, as differences in previous awards involving
legislative implementation by the United States have shown, and as the
text of Article 21.3(c) prescribes, each arbitrator must take account of
“particular circumstances” relevant to the case at hand. Strict
insistence on the “shortest period possible for implementation within
the legal system” of the implementing Member would, in my view, tie an
arbitrator’s hands and prevent him or her from properly identifying
and weighing the particular circumstances that are determinative of “reasonableness”
in each individual case.
ARB.4.3.14 EC — Chicken Cuts, para. 49
(WT/DS269/13, WT/DS286/15)
… Furthermore, I agree with previous arbitrators who have carried
out like mandates under Article 21.3 that I should base my determination
on the shortest period of time possible within the legal system of the
implementing Member, and that in doing so I should bear in mind that the
implementing Member is expected to use whatever flexibility is available
within its legal system in its efforts to fulfil its WTO obligations.
Such flexibility, however, need not necessarily include recourse to “extraordinary”
procedures. As is made clear by Article 21.3(c), the “particular
circumstances” of this dispute may also affect my calculation of the
reasonable period of time, and may make it “shorter or longer”. …
ARB.4.3.15 Brazil — Retreaded Tyres (Article 21.3(c)), para. 73
(WT/DS332/16)
… I recall that the implementing WTO Member is expected to use
whatever flexibility is available within its legal system to ensure that
implementation takes place promptly in accordance with Article 21 of the
DSU. Brazil explained that, according to Internal Rules of the Federal
Supreme Court, the reporting judge may request the President to give
priority to certain types of cases and that the President has discretion
to grant such request. Brazil further explained that according to
Article 145 of the Internal Rules of the Federal Supreme Court, ADPF
proceedings are eligible for such priority action. The existence of such
a rule and practice demonstrates that there is flexibility to expedite
proceedings before the Federal Supreme Court. I am mindful of previous
arbitrators’ statements that recourse to “extraordinary”
proceedings cannot be expected. Yet, in the context of the present case,
I do not consider that treating a specific case with priority at the
Federal Supreme Court can be regarded as recourse to “extraordinary”
procedures. I further note that, on 31 January 2008, the Government of
Brazil asked the Federal Supreme Court to take note of the WTO decision
and to expedite proceedings.
ARB.4.3.16 Colombia —
Ports of Entry (Article 21.3(c)), paras.
64-65
(WT/DS366/13)
… In addition, while the implementing Member is free to initiate
wider reforms of its municipal law in the process of implementing the
DSB’s recommendations and rulings, such objectives do not justify a
longer implementation period. My determination as to the reasonable
period of time for implementation of these recommendations and rulings
must focus on the shortest period possible within the legal system of
the implementing Member to bring the particular measures found to be
inconsistent into conformity with its WTO obligations.
… I also consider that the implementing Member is expected to use
whatever flexibility is available within its legal system to promptly
implement the recommendations and rulings of the DSB. This is justified
by the importance of fulfilling the obligation to comply immediately
with the recommendations and rulings of the DSB, which have established
that certain measures are inconsistent with a Member’s WTO
obligations. However, this does not necessarily include recourse to “extraordinary”
procedures.
ARB.4.3.17 Colombia —
Ports of Entry (Article 21.3(c)), para.
78
(WT/DS366/13)
… I make my determination on the basis of the shortest period of
time possible within Colombia’s domestic legal system to modify the
indicative prices mechanism and the ports of entry measure so as to
bring them into conformity with its WTO obligations. In so doing, I
follow the guidance of the arbitrator in Canada — Pharmaceutical
Patents that “the legally binding, as opposed to the
discretionary, nature of the component steps leading to implementation
should be taken into account”, and have weighed each of the component
steps and timeframes proposed by Colombia accordingly.
ARB.4.4 Single or multiple period(s) of time? back to top
ARB.4.4.1 US — Gambling, para. 41
(WT/DS285/13)
… I need not, in this proceeding, resolve the issue of whether it
is permissible for an arbitrator under Article 21.3(c) of the DSU to
determine more than one reasonable period of time for implementation. I
am not persuaded that the mere use of the indefinite article “a” in
the phrase “a reasonable period of time” suffices, as the United
States suggests, to establish definitively that an arbitrator is
authorized only to determine a single reasonable period of time
for implementation in a dispute. At the same time, conceptually, I have
difficulty accepting that it may be possible to determine, as Antigua
seems to request me to do, two separate reasonable periods of time in
respect of the same measure. I would not, however, want to
exclude a priori, and without having carried out a thorough
interpretative analysis of the relevant provisions of the DSU, the
possibility that an arbitrator might be able to fix separate reasonable
periods of time for separate measures. It is true that, to date, no
arbitrator has done so. Yet it is also true that, to date, no arbitrator
has been asked to do so.
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