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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
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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.
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