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ON THIS PAGE:
> EC — Hormones, para. 27
> Canada — Pharmaceutical Patents, para. 47
> Canada — Pharmaceutical Patents, para. 55
> US — 1916 Act, para. 33
> US — Offset Act (Byrd Amendment), para. 44
> US — Offset Act (Byrd Amendment), para. 66
> EC — Tariff Preferences, para. 27
> US — Gambling, para. 31
> EC — Export Subsidies on Sugar, para. 59
> EC — Chicken Cuts, para. 52
> Brazil — Retreaded Tyres (Article 21.3(c)), para. 51
> Colombia — Ports of Entry (Article 21.3(c)), para. 67
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ARB.6.1 EC — Hormones,
para. 27 back to top
(WT/DS26/15, WT/DS48/13)
In my view, the party seeking to prove that there are “particular
circumstances” justifying a shorter or a longer time has the burden of
proof under Article 21.3(c). In this arbitration, therefore, the onus is
on the European Communities to demonstrate that there are particular
circumstances which call for a reasonable period of time of 39 months,
and it is likewise up to the United States and Canada to demonstrate
that there are particular circumstances which lead to the conclusion
that 10 months is reasonable.
ARB.6.2 Canada — Pharmaceutical Patents,
para. 47 back to top
(WT/DS114/13)
… as immediate compliance is clearly the preferred option under
Article 21.3, it is, in my view, for the implementing Member to bear the
burden of proof in showing — “[i]f it is impracticable to comply
immediately” — that the duration of any proposed period of
implementation, including its supposed component steps, constitutes a
“reasonable period of time”. And the longer the proposed period of
implementation, the greater this burden will be.
ARB.6.3 Canada — Pharmaceutical Patents,
para. 55 back to top
(WT/DS114/13)
However, certain of the time periods specified by Canada for certain
steps toward implementation are not fixed by either law or regulation.
Rather, they have been estimated by Canada for purposes of this
proceeding. As these estimates are not fixed by either law or
regulation, but are only estimates, Canada bears a greater burden of
proof in demonstrating their accuracy and legitimacy. And here Canada,
in my view, has fallen short.
ARB.6.4 US — 1916 Act, para. 33
back to top
(WT/DS136/11, WT/DS162/14)
The parties do not dispute that “immediate” implementation is “impracticable”
in this case. I, therefore, consider that the United States bears the
burden of proof in showing that the period of 15 months proposed by it
is the “shortest period possible” within its legislative system to
implement the recommendations and rulings of the DSB in this particular
case. I wish to emphasize that my task as an Arbitrator is to determine
the “reasonable period of time” in light of the facts and
circumstances of this particular case.
ARB.6.5 US — Offset Act (Byrd Amendment),
para. 44 back to top
(WT/DS217/14, WT/DS234/22)
… I also agree with statements by previous arbitrators that it is
for the implementing Member to establish that the duration of the
implementation period it proposes constitutes the “shortest period
possible” within its legal system to implement the recommendations and
rulings of the DSB. Where the implementing Member fails to establish
that the period of time requested by it is indeed the shortest period
possible within its legal system, the arbitrator must determine the “shortest
period possible” for implementation, which will be shorter than
proposed by the implementing Member, on the basis of the evidence
presented by all parties in their submissions, and taking into account
the 15-month guideline provided by Article 21.3(c).
ARB.6.6 US — Offset Act (Byrd Amendment),
para. 66 back to top
(WT/DS217/14, WT/DS234/22)
I recognize that estimating the duration of the various steps
involved in a domestic legislative process is not an exact science. It
would be unrealistic to expect an implementing Member to provide, as the
basis for its request for a reasonable period of time, a definitive
day-by-day schedule of the prospective implementing legislative process.
Some of the steps in a legislative process, such as pre-legislative
consultations, by their very nature, may prove particularly difficult to
estimate. At the same time, however, I fail to see how it would be
possible to arrive at a reasoned, and non-speculative, estimate of the
total duration of a process without referring, at a minimum, to rough
estimates of the time periods required for at least the key component
steps of this process. Logically, the total time required for any
process must be the sum of the time periods required for each of the
component steps of this process. If the request for a total time period
of 15 months, as argued by the United States, is based on “logical”
and “rigorous” factors, such as the complexity of implementing
legislation, or the general experience under the United States’
legislative system, then I believe that such factors would necessarily
provide the same relevant, and non-speculative, guidance with respect to
at least some of the component steps of the legislative process. Put
differently, I do not agree that an estimate of the total duration of
the legislative process can be qualified as “logical” and “rigorous”
if such an estimate is not based, at least to some extent, on an
accumulation of the timeframes for the component steps. Moreover, if any
possible estimates of the time periods required under the various
component steps of the legislative process would be, as the United
States stated at the oral hearing, mere “speculation”, then it
appears difficult to see how the total time period of 15 months,
requested by the United States, would equally constitute anything other
than “speculation”.
ARB.6.7 EC — Tariff Preferences, para. 27
back to top
(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.6.8 US — Gambling, para. 31
back to top
(WT/DS285/13)
Both of the parties to this dispute agree that the United States, as
the implementing Member, bears the burden of establishing that its
proposed implementation period is a “reasonable period of time”. I
do not disagree with the principle that when an implementing Member
seeks a reasonable period of time for implementation, then it is
appropriate for that Member to carry the burden of demonstrating the
reasonableness of its proposal.
ARB.6.9 EC — Export Subsidies on Sugar,
para. 59 back to top
(WT/DS265/33, WT/DS266/33, WT/DS283/14)
… I would observe, as have other arbitrators before me, that, in
arbitrations conducted pursuant to Article 21.3(c), the implementing
Member bears the burden of proof to demonstrate that the period of time
it seeks is a reasonable period of time within the meaning of Article
21.3 of the DSU.
ARB.6.10 EC — Chicken Cuts, para. 52
back to top
(WT/DS269/13, WT/DS286/15)
… an implementing Member seeking to go outside its domestic
decision-making processes bears the burden of establishing that this
external element of its proposed implementation is necessary for, and
therefore indispensable to, that Member’s full and effective
compliance with its obligations under the covered agreements by
implementing the recommendations and rulings of the DSB.
ARB.6.11 Brazil — Retreaded Tyres (Article 21.3(c)),
para. 51 back to top
(WT/DS332/16)
… I consider that it is for the Member seeking a reasonable period
of time for implementation to establish that the proposed period indeed
constitutes the “shortest period possible” within its legal system
to implement the recommendations and rulings of the DSB. Failing that,
the arbitrator must determine the “shortest period possible” for
implementation, which will be “shorter than proposed by the
implementing Member, on the basis of the evidence presented by all
parties”.
ARB.6.12 Colombia — Ports of Entry (Article 21.3(c)),
para. 67 back to top
(WT/DS366/13)
I am guided by previous arbitrators’ awards that place the burden
on the implementing Member to demonstrate that, if immediate compliance
is impracticable, the period of time it proposes constitutes a “reasonable
period of time”. However, this does not absolve the other Member from
producing evidence in support of its contention that the period of time
requested by the implementing Member is not “reasonable”, and a
shorter period of time for implementation is warranted.
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