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ON THIS PAGE:
> Brazil — Desiccated Coconut, p. 22, DSR 1997:I, p. 167 at 186
> EC — Bananas III, para. 141
> EC — Bananas III, para. 143
> EC — Bananas III, paras. 145, 147
> India — Patents (US), para. 88
> Korea — Dairy, para. 139
> US — Lead and Bismuth II, para. 73
> Chile — Price Band System, para. 182
> Dominican Republic — Import and Sale of Cigarettes,
para. 121
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C.1.1 Brazil — Desiccated Coconut,
p. 22, DSR 1997:I, p. 167 at 186
(WT/DS22/AB/R) back to top
… the “matter” referred to a panel for
consideration consists of the specific claims stated by the parties to
the dispute in the relevant documents specified in the terms of
reference. We agree with the approach taken in previous adopted panel
reports that a matter, which includes the claims composing that
matter, does not fall within a panel’s terms of reference unless the
claims are identified in the documents referred to or contained in the
terms of reference.
C.1.2 EC — Bananas III, para. 141
back to top
(WT/DS27/AB/R)
… In our view, there is a significant
difference between the claims identified in the request for the
establishment of a panel, which establish the panel’s terms of
reference under Article 7 of the DSU, and the arguments
supporting those claims, which are set out and progressively clarified
in the first written submissions, the rebuttal submissions and the
first and second panel meetings with the parties.
C.1.3 EC — Bananas III, para. 143 back to top
(WT/DS27/AB/R)
… Article 6.2 of the DSU requires that the
claims, but not the arguments, must all be specified
sufficiently in the request for the establishment of a panel in order
to allow the defending party and any third parties to know the legal
basis of the complaint. If a claim is not specified in the
request for the establishment of a panel, then a faulty request cannot
be subsequently “cured” by a complaining party’s argumentation
in its first written submission to the panel or in any other
submission or statement made later in the panel proceeding.
C.1.4 EC — Bananas III, paras. 145, 147 back to top
(WT/DS27/AB/R)
… There is no requirement in the DSU or in
GATT practice for arguments on all claims relating to the matter
referred to the DSB to be set out in a complaining party’s first
written submission to the panel. It is the panel’s terms of
reference, governed by Article 7 of the DSU, which set out the claims
of the complaining parties relating to the matter referred to the DSB.
…
… We do not agree with the Panel’s
statement that a “failure to make a claim in the first written
submission cannot be remedied by later submissions or by incorporating
the claims and arguments of other complainants”. …
C.1.5 India — Patents (US), para. 88 back to top
(WT/DS50/AB/R)
… we observed that there is a significant
difference between the claims identified in the request for the
establishment of a panel, which establish the panel’s terms of
reference under Article 7 of the DSU, and the arguments
supporting those claims, which are set out and progressively clarified
in the first written submissions, the rebuttal submissions, and the
first and second panel meetings with the parties as a case proceeds.
…
C.1.6 Korea — Dairy, para. 139 back to top
(WT/DS98/AB/R)
… By “claim” we mean a claim
that the respondent party has violated, or nullified or impaired the
benefits arising from, an identified provision of a particular
agreement. Such a claim of violation must, as we have already
noted, be distinguished from the arguments adduced by a
complaining party to demonstrate that the responding party’s measure
does indeed infringe upon the identified treaty provision. Arguments
supporting a claim are set out and progressively clarified in the
first written submissions, the rebuttal submissions and the first and
second panel meetings with the parties. …
… Both “claims” and “arguments”
are distinct from the “evidence” which the complainant or
respondent presents to support its assertions of fact and arguments.
C.1.7 US — Lead and Bismuth II, para. 73 back to top
(WT/DS138/AB/R)
In order to resolve the claim of the
European Communities, the Panel deemed it necessary to address the two
principal arguments made in support of this claim. In doing so, the
Panel acted within the context of resolving this particular dispute
and, therefore, within the scope of its mandate under the DSU.
C.1.8 Chile — Price Band System, para. 182 back to top
(WT/DS207/AB/R)
In our view, this distinction between claims
and legal arguments under Article 6.2 of the DSU is also relevant to
the distinction between “allegations of error” and legal arguments
as contemplated by Rule 20 of the Working Procedures. Bearing
this distinction in mind, we do not agree with Argentina that
Chile’s arguments regarding the order of analysis chosen by the
Panel amount to a separate “allegation of error” that Chile should have — or could have — included in its Notice of
Appeal. In fact, we do not see, nor has Argentina explained, what separate
“allegation of error” could have been made, or what legal basis
for such “allegation of error” there could have been. Rather than
making a separate “allegation of error”, Chile has, in our view,
simply set out a legal argument in support of the issues it
raised on appeal relating to Article 4.2 of the Agreement on
Agriculture and Article II:1(b) of the GATT 1994.
C.1.9 Dominican Republic
— Import and Sale
of Cigarettes, para. 121
(WT/DS302/AB/R)
back to top
We also observe that the Appellate Body has
consistently distinguished between the claims of a Member
regarding the application of the various provisions of the WTO
Agreement, and the arguments presented in support of those
claims. Claims, which are typically allegations of violation of the
substantive provisions of the WTO Agreement, must be set out
clearly in the request for the establishment of a panel. Arguments, by
contrast, are the means whereby a party progressively develops and
supports its claims. These do not need to be set out in detail in a
panel request; rather, they may be developed in the submissions made
to the panel.
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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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