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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
> EC — Selected Customs Matters, para. 153
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C.1.1 Brazil — Desiccated Coconut, p. 22, DSR 1997:I, p. 167 at 186
(WT/DS22/AB/R)
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… 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
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(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
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(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
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(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, WT/DS207/AB/R/Corr.1)
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)
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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.
C.1.10 EC — Selected Customs Matters,
para. 153 back to top
(WT/DS315/AB/R)
We turn … to the question whether the panel request confines the
measure at issue to areas of customs administration. We read the third
paragraph of the panel request as an illustrative list of areas where
the United States considers European Communities customs law is not
administered in a uniform way. Thus, the substance of the third
paragraph of the panel request should be viewed as an anticipation of
the United States’ arguments. In this paragraph, the United States
explains — briefly and in general terms — why it considers that the
legal instruments listed in the first paragraph of the panel request are
administered in a manner that is inconsistent with the uniformity
requirement in Article X:3(a). Article 6.2 of the DSU requires that the claims
— not the arguments — be set out in a panel request in a
way that is sufficient to present the problem clearly. Nothing in
Article 6.2 prevents a complainant from making statements in the panel
request that foreshadow its arguments in substantiating the claim. If
the complainant chooses to do so, these arguments should not be
interpreted to narrow the scope of the measures or the claims.
Accordingly, we are of the opinion that the Panel erred when it found
that the list of areas of customs administration in the third paragraph
of the panel request limits the scope of the “specific measures at
issue”.
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