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ON THIS PAGE:
> EC — Hormones, para. 156
> US — Certain EC Products, para. 123
> Chile — Price Band System, paras. 167-168
> Argentina — Footwear (EC), para. 74
> Argentina — Footwear (EC), para. 75
> US — Gambling, paras. 281-282
> Dominican Republic — Import and Sale of Cigarettes, para. 82
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C.2.1 EC — Hormones,
para. 156 back to top
(WT/DS26/AB/R, WT/DS48/AB/R)
… Panels are inhibited from addressing legal claims falling
outside their terms of reference. However, nothing in the DSU limits the
faculty of a panel freely to use arguments submitted by any of the
parties — or to develop its own legal reasoning — to support its own
findings and conclusions on the matter under its consideration. A panel
might well be unable to carry out an objective assessment of the matter,
as mandated by Article 11 of the DSU, if in its reasoning it had to
restrict itself solely to arguments presented by the parties to the
dispute. Given that in this particular case both complainants claimed
that the EC measures were inconsistent with Article 5.5 of the SPS
Agreement, we conclude that the Panel did not make any legal finding
beyond those requested by the parties.
C.2.2 US — Certain EC Products, para.
123 back to top
(WT/DS165/AB/R)
This appeal by the United States raises the question whether a panel
is entitled to develop its own legal reasoning in reaching its findings
and conclusions on the matter under its consideration. In our Report in European
Communities — Hormones, we held:
Panels are inhibited from
addressing legal claims falling outside their terms of reference.
However, nothing in the DSU limits the faculty of a panel freely to use
arguments submitted by any of the parties — or to develop its own
legal reasoning — to support its own findings and conclusions on the
matter under its consideration.
The Panel in this case exercised its discretion to develop its own
legal reasoning. Contrary to what the United States argues, the Panel
was not obliged to limit its legal reasoning in reaching a finding to
arguments presented by the European Communities. We, therefore, do not
consider that the Panel committed a reversible error by developing its
own legal reasoning.
C.2.3 Chile — Price Band System, paras. 167-168
back to top
(WT/DS207/AB/R, WT/DS207/AB/R/Corr.1)
However, Argentina’s reliance on our ruling in EC
— Hormones is
misplaced. In EC — Hormones, and in US — Certain EC Products, we
affirmed the capacity of panels to develop their own legal reasoning in
a context in which it was clear that the complaining party had made a
claim on the matter before the panel. It was also clear, in both those
cases, that the complainant had advanced arguments in support of the
finding made by the panel — even though the arguments in support of
the claim were not the same as the interpretation eventually adopted by
the Panel. The situation in this appeal is altogether different. No
claim was properly made by Argentina under the second sentence of
Article II:1(b). No legal arguments were advanced by Argentina under the
second sentence of Article II:1(b). Therefore, those rulings have
no relevance to the situation here.
Contrary to what Argentina argues, given our finding that Argentina
has not made a claim under the second sentence of Article
II:1(b), the Panel in this case had neither a “right” nor a “duty”
to develop its own legal reasoning to support a claim under the second
sentence. The Panel was not entitled to make a claim for Argentina, or
to develop its own legal reasoning on a provision that was not at issue.
C.2.4 Argentina — Footwear (EC), para.
74 back to top
(WT/DS121/AB/R)
We note that the very terms of Article 4.2(c) of the Agreement on
Safeguards expressly incorporate the provisions of Article 3. Thus,
we find it difficult to see how a panel could examine whether a Member
had complied with Article 4.2(c) without also referring to the
provisions of Article 3 of the Agreement on Safeguards. More
particularly, given the express language of Article 4.2(c), we do not
see how a panel could ignore the publication requirement set out in
Article 3.1 when examining the publication requirement in Article 4.2(c)
of the Agreement on Safeguards. And, generally, we fail to see
how the Panel could have interpreted the requirements of Article 4.2(c) without
taking into account in some way the provisions of Article 3. What is
more, we fail to see how any panel could be expected to make an “objective
assessment of the matter”, as required by Article 11 of the DSU, if it
could only refer in its reasoning to the specific provisions cited by
the parties in their claims.
C.2.5 Argentina — Footwear (EC), para.
75 back to top
(WT/DS121/AB/R)
Consequently, we conclude that the Panel did not exceed its terms of
reference by referring in its reasoning to the provisions of Article 3
of the Agreement on Safeguards. On the contrary, we find that the
Panel was obliged by the terms of Article 4.2(c) to take the
provisions of Article 3 into account. Thus, we do not believe that the
Panel erred in its reasoning relating to the provisions of Article 3 of
the Agreement on Safeguards in making its findings under Article
4.2(c) of that Agreement.
C.2.6 US — Gambling, paras. 281-282
back to top
(WT/DS285/AB/R, WT/DS285/AB/R/Corr.1)
… a panel enjoys … discretion [freely to use arguments
submitted by any of the parties — or to develop its own legal
reasoning — to support its own findings and conclusions] only with
respect to specific claims that are properly before it, for otherwise it
would be considering a matter not within its jurisdiction. Moreover,
when a panel rules on a claim in the absence of evidence and supporting
arguments, it acts inconsistently with its obligations under Article 11
of the DSU.
In the context of affirmative defences, then, a responding party must
invoke a defence and put forward evidence and arguments in support of
its assertion that the challenged measure satisfies the requirements of
the defence. When a responding party fulfils this obligation, a panel
may rule on whether the challenged measure is justified under the
relevant defence, relying on arguments advanced by the parties or
developing its own reasoning. The same applies to rebuttals. A panel may
not take upon itself to rebut the claim (or defence) where the
responding party (or complaining party) itself has not done so.
C.2.7 Dominican Republic — Import and Sale of Cigarettes,
para. 82
(WT/DS302/AB/R)
back to top
The Dominican Republic also submits that the Panel “misunderstood
the proposition for which Exhibit DR-8 was offered”, because “[t]he
Panel … incorrectly focused on the relationship between smuggling
and forgery”, whereas “Exhibit DR-8 was offered as evidence of (a)
smuggling and, separately, (b) forgery of tax stamps of a product in
respect of which the Dominican Republic allows stamps to be affixed
outside its territory.” In our view, the Panel did not act in a manner
inconsistent with Article 11 of the DSU in not finding that Memo DAT-No.
46 “adds any conclusive elements as relate to the relationship between
the seizure of alcoholic beverages and the possible forgery of tax
stamps”. A panel does not act in a manner inconsistent with Article 11
of the DSU simply because it draws inferences from some of the evidence
that do not coincide with the reason for which a party adduced it.
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documents which are entrusted and kept at the WTO Secretariat in Geneva.
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