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REPERTORY OF APPELLATE BODY REPORTS

Claims and Panel Reasoning


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


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.

 


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.