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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
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(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)
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)
… 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)
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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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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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