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ON THIS PAGE:
> US — Gasoline, p. 19, DSR 1996:I, p. 3 at 18
> Canada — Periodicals, p. 24, DSR 1997:I, p. 449 at
469
> EC — Hormones, para. 222
> EC — Hormones, para. 251
> Australia — Salmon, paras. 117-118
> Argentina — Footwear (EC), para. 98
> Korea — Dairy, para. 92
> Korea — Dairy, para. 102
> Canada — Autos, para. 133
> Canada — Autos, para. 145
> EC — Asbestos, paras. 78-79
> EC — Asbestos, paras. 82-83
> US — Hot-Rolled Steel, paras. 174, 180
> US — Hot-Rolled Steel, paras. 235-236
> Canada — Dairy (Article 21.5 — New Zealand and US),
para. 98
> Canada — Dairy (Article 21.5 — New Zealand and US),
paras. 102-103
> US — Section 211 Appropriations Act, para. 343
> US — Section 211 Appropriations Act, para. 352
> US — Steel Safeguards, para. 431
> US — Softwood Lumber IV, para. 118
> Canada — Wheat Exports and Grain Imports, paras. 162-163
> US — Oil Country Tubular Goods Sunset Reviews,
para. 219
> US — Oil Country Tubular Goods Sunset Reviews,
para. 220
> US — Upland Cotton, para. 693
> US — Upland Cotton, para. 747
> US — Gambling, para. 344
> EC — Export Subsidies on Sugar, paras. 337-341 and
footnote 537 to para. 339
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C.4.1 US — Gasoline, p. 19, DSR 1996:I, p. 3 at 18
back to top
(WT/DS2/AB/R)
The Panel did not find it necessary to deal with the issue of whether
the baseline establishment rules “are made effective in conjunction
with restrictions on domestic production or consumption”, since it had
earlier concluded that those rules had not even satisfied the preceding
requirement of “relating to” in the sense of being “primarily
aimed at” the conservation of clean air. Having been unable to concur
with that earlier conclusion of the Panel, we must now address this
second requirement of Article XX(g), the United States having, in
effect, appealed from the failure of the Panel to proceed further with
its inquiry into the availability of Article XX(g) as a justification
for the baseline establishment rules.
C.4.2 Canada — Periodicals, p. 24, DSR 1997:I, p. 449 at 469
back to top
(WT/DS31/AB/R)
We believe the Appellate Body can, and should, complete the analysis
of Article III:2 of the GATT 1994 in this case by examining the measure
with reference to its consistency with the second sentence of Article III:2, provided that there is a sufficient basis in the Panel Report to
allow us to do so. … An examination of the consistency of Part V.1 of
the Excise Tax Act with Article III:2, second sentence, is therefore
part of a logical continuum.
…
As the legal obligations in the first and second sentences are two
closely-linked steps in determining the consistency of an internal tax
measure with the national treatment obligations of Article III:2, the
Appellate Body would be remiss in not completing the analysis of Article III:2. …
C.4.3 EC — Hormones, para. 222 back to top
(WT/DS26/AB/R, WT/DS48/AB/R)
… Because, however, we have reached a conclusion different from
that of the Panel, we consider it appropriate to complete the Panel’s
analysis in order that we may be in a position to review the Panel’s
conclusion concerning consistency with Article 5.5 as a whole. The
matter of therapeutic and zootechnical uses of hormones was fully argued
before the Panel. Although the failure of the Panel to proceed with this
comparison was not expressly appealed by the United States, the United
States relies markedly upon the fact that the European Communities
treats therapeutic and zootechnical uses of natural hormones differently
from growth promotion use of the same hormones.
C.4.4 EC — Hormones, para. 251 back to top
(WT/DS26/AB/R,
WT/DS48/AB/R)
We have … reversed the Panel’s conclusion under Article 5.5 of
the SPS Agreement. … However, it cannot be assumed that
all the findings of fact necessary to proceed to a determination of
consistency or inconsistency of the EC measures with the requirements of
Article 5.6 have been made by the Panel …
C.4.5 Australia —
Salmon, paras. 117-118 back to top
(WT/DS18/AB/R)
… In certain appeals, when we reverse a panel’s finding on a
legal issue, we may examine and decide an issue that was not
specifically addressed by the panel, in order to complete the legal
analysis and resolve the dispute between the parties. This occurred, for
example, in the appeals in United States — Gasoline, Canada
— Certain Measures Concerning Periodicals, European Communities
— Measures Affecting the Importation of Certain Poultry Products (“European
Communities — Poultry”), and United States — Import Prohibition
of Certain Shrimp and Shrimp Products.
As we have reversed the Panel’s finding that the SPS measure at
issue, erroneously identified as the heat-treatment requirement, is not
based on a risk assessment, we believe that — to the extent possible on
the basis of the factual findings of the Panel and/or of undisputed
facts in the Panel record — we should complete the legal analysis and
determine whether the actual SPS measure at issue, i.e., Australia’s import
prohibition on fresh, chilled or frozen ocean-caught Pacific salmon,
is based on a risk assessment.
C.4.6 Argentina —
Footwear (EC), para. 98 back to top
(WT/DS121/AB/R)
… we uphold the conclusions of the Panel that Argentina’s
investigation in this case was inconsistent with the requirements of
Articles 2 and 4 of the Agreement on Safeguards. As a
consequence, there is no legal basis for the safeguard measures
imposed by Argentina. For this reason, we do not believe that it is
necessary to complete the analysis of the Panel relating to the claim
made by the European Communities under Article XIX of the GATT 1994 by
ruling on whether the Argentine authorities have, in their
investigation, demonstrated that the increased imports in this case
occurred “as a result of unforeseen developments and of the effect of
the obligations incurred by a Member under this Agreement, including
tariff concessions …”.
C.4.7 Korea — Dairy, para. 92 back to top
(WT/DS98/AB/R)
… In the absence of any factual findings by the Panel or undisputed
facts in the Panel record relating to whether the alleged increase in
imports was, indeed, “a result of unforeseen developments and of the
effect of the obligations incurred by a Member under this Agreement,
including tariff concessions …”, we are not in a position, within
the scope of our mandate set forth in Article 17 of the DSU, to complete
the analysis and make a determination as to whether Korea acted
inconsistently with its obligations under Article XIX:1(a). Accordingly,
we are unable to come to a conclusion on whether or not Korea violated
its obligations under Article XIX:1(a) of the GATT 1994.
C.4.8 Korea — Dairy, para. 102 back to top
(WT/DS98/AB/R)
… The Panel did not make any factual findings on the average level
of imports of skimmed milk powder preparations in the last three
representative years. The average level of imports in that period was
also contested by the parties. Accordingly, we are not in a position,
within the scope of our mandate under Article 17 of the DSU, to complete
the analysis in this case and make a determination as to the consistency
of Korea’s safeguard measure with the second sentence of Article 5.1.
C.4.9 Canada — Autos, para. 133 back to top
(WT/DS139/AB/R, WT/DS142/AB/R)
In Australia — Salmon, we stated that where we have reversed a
finding of a panel, we should attempt to complete a panel’s legal
analysis “to the extent possible on the basis of the factual findings
of the Panel and/or of undisputed facts in the Panel record”. Here, as
we have stated, the Panel did not identify the precise levels of the CVA
requirements applicable to specific manufacturers. In addition, there
are not sufficient undisputed facts in the Panel record that would
enable us to examine this issue ourselves. As a result, it is impossible
for us to assess whether the use of domestic over imported goods is a
condition “in law” for satisfying the CVA requirements, and,
therefore, is a condition for receiving the import duty exemption.
C.4.10 Canada — Autos, para. 145 back to top
(WT/DS139/AB/R,
WT/DS142/AB/R)
We stated earlier that the Panel’s incomplete analysis of the
operation of the CVA requirements leaves us with an insufficient basis
on which to examine how the CVA requirements function. Furthermore, as
the Panel concluded that Article 3.1(b) did not extend to contingency
“in fact”, the Panel did not examine the claims of the European
Communities and Japan on this issue. As a result the Panel made no
factual findings relating to the operation of the CVA requirements. In
addition, there are not sufficient undisputed facts in the Panel record
that would enable us to examine this issue ourselves. It is impossible
for us to assess whether the use of domestic over imported goods is “in
fact” a condition for satisfying the CVA requirements, and, therefore,
is a condition for receiving the import duty exemption.
C.4.11 EC — Asbestos, paras. 78-79 back to top
(WT/DS135/AB/R)
… In previous appeals, we have, on occasion, completed the legal
analysis with a view to facilitating the prompt settlement of the
dispute, pursuant to Article 3.3 of the DSU. However, we have insisted
that we can do so only if the factual findings of the panel and the
undisputed facts in the panel record provide us with a sufficient basis
for our own analysis. If that has not been the case, we have not
completed the analysis.
The need for sufficient facts is not the only limit on our ability to
complete the legal analysis in any given case. In Canada — Periodicals, we reversed the panel’s conclusion that the measure
at issue was inconsistent with Article III:2, first sentence, of the
GATT 1994, and we then proceeded to examine the United States’ claims
under Article III:2, second sentence, which the panel had not examined
at all. However, in embarking there on an analysis of a provision that
the panel had not considered, we emphasized that “the first and second
sentences of Article III:2 are closely related” and that those
two sentences are “part of a logical continuum.” (emphasis
added)
C.4.12 EC — Asbestos, paras. 82-83 back to top
(WT/DS135/AB/R)
In light of their novel character, we consider that Canada’s claims
under the TBT Agreement have not been explored before us
in depth. As the Panel did not address these claims, there are no “issues
of law” or “legal interpretations” regarding them to be analyzed
by the parties, and reviewed by us under Article 17.6 of the DSU. We
also observe that the sufficiency of the facts on the record depends on
the reach of the provisions of the TBT Agreement claimed
to apply — a reach that has yet to be determined.
With this particular collection of circumstances in mind, we consider
that we do not have an adequate basis properly to examine Canada’s
claims under Articles 2.1, 2.2, 2.4 and 2.8 of the TBT Agreement
and, accordingly, we refrain from so doing.
C.4.13 US — Hot-Rolled Steel, paras. 174, 180
back to top
(WT/DS184/AB/R)
In these circumstances, Japan requests that we rule on its claim,
under Article 2.4 of the Anti-Dumping Agreement, that, in relying
on downstream sales, USDOC failed to make proper “allowances” in
respect of the additional costs and profits of the downstream sellers,
reflected in the price of these sales. …
…
Our examination of this issue must be based on the factual findings
of the Panel or uncontested facts in the Panel record. As the Panel did
not examine this issue, and as the parties do not agree on the relevant
facts, we find that there is not an adequate factual record for us to
complete the analysis by examining Japan’s claim under Article 2.4 of
the Anti-Dumping Agreement.
C.4.14 US — Hot-Rolled Steel, paras. 235-236
back to top
(WT/DS184/AB/R)
Having reversed the Panel’s finding on Japan’s claim, we must now
consider whether it is appropriate for us to complete the analysis and
facilitate the prompt settlement of the dispute, under Article 3.3 of
the DSU, by examining Japan’s claim ourselves. In previous Reports, we
have emphasized that, after reversing a finding of the panel, we can
complete the analysis only if the factual findings of the panel, or the
undisputed facts in the panel record, provide us with a sufficient basis
to do so.
… In our view, key aspects of these factual assertions were not the
subject of findings by the Panel or were not agreed by the United
States. We, therefore, find that, in the absence of an adequate factual
record, there is no basis for us to complete the analysis of Japan’s
claim under Article 3.5 of the Anti-Dumping Agreement.
C.4.15 Canada — Dairy (Article 21.5
— New Zealand and US), para. 98
(WT/DS103/AB/RW, WT/DS113/AB/RW)
back to top
As we have reversed the Panel’s findings regarding the standard for
determining the existence of “payments” and have, instead,
identified the appropriate standard for these proceedings, namely, the
average total cost of production, we now consider whether we can resolve
this aspect of the dispute by completing the analysis. The Panel found
that, in these proceedings, Article 10.3 of the Agreement on
Agriculture reverses the burden of proof so that Canada must
establish “that no export subsidy … has been granted”. Although
the burden of proof is on Canada, we must nonetheless complete the
analysis solely on the basis of factual findings made by the Panel and
uncontested facts in the Panel record.
C.4.16 Canada — Dairy (Article 21.5
— New Zealand and US), paras. 102-103 back to top
(WT/DS103/AB/RW,
WT/DS113/AB/RW)
… the Panel did not find it necessary to make any factual findings
on the costs of production and the facts relating to this issue were not
the subject of agreement between the parties. Moreover, the Panel
proceedings were conducted without the parties arguing their case, or
the Panel making enquiries, from the perspective of the average total
cost of production standard we have adopted.
In these circumstances, we are unable to complete the analysis by
determining whether the supply of CEM involves “payments” under
Article 9.1(c) of the Agreement on Agriculture. Yet, we do not
wish to be understood as holding that the supply of CEM does not
involve “payments” under Article 9.1(c). We are simply not in a
position to make a ruling on this issue.
C.4.17 US — Section 211 Appropriations Act, para. 343
back to top
(WT/DS176/AB/R)
In the past, we have completed the analysis where there were
sufficient factual findings in the panel report or undisputed facts in
the panel record to enable us to do so, and we have not completed the
analysis where there were not. In one instance, we declined to complete
the analysis with respect to a “novel” issue that had not been
argued in sufficient detail before the panel.
C.4.18 US — Section 211 Appropriations Act, para. 352
back to top
(WT/DS176/AB/R)
On the basis of:
- the fact that Sections 211(a)(2) and (b) do not distinguish on
their face between trade marks and trade names;
- the participants’ approach in submitting the same arguments and
using the same analyses regarding trade name and trademark protection,
suggesting that the obligations regarding protection of one are no
different from those regarding protection of the other;
- the information in the Panel record about the participants’
interpretation of Article 8 of the Paris Convention (1967); and
- the information in the Panel record about trade name protection
under United States law;
we conclude that the Panel record contains sufficient factual
findings and facts undisputed between the participants to permit us to
complete the analysis regarding the consistency of Sections 211(a)(2)
and (b) — in respect of trade names — with Article 2.1 of the TRIPS
Agreement in conjunction with Article 2(1) of the Paris
Convention (1967) and Article 3.1 of the TRIPS Agreement,
with Article 4 of the TRIPS Agreement, with Article 42 of
the TRIPS Agreement, and with Article 2.1 of that
Agreement in conjunction with Article 8 of the Paris Convention (1967).
C.4.19 US — Steel Safeguards, para. 431 back to top
(WT/DS248/AB/R, WT/DS249/AB/R, WT/DS251/AB/R, WT/DS252/AB/R,
WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R, WT/DS259/AB/R)
In previous appeals, we have, when appropriate, completed the legal
analysis with a view to facilitating the prompt settlement of disputes.
However, in the dispute before us, we have already upheld the Panel’s
finding that the United States acted inconsistently with Article XIX:1(a) of the GATT 1994, as well as with Article 3.1 of the Agreement
on Safeguards, with regard to all ten measures at issue. We also
find in the following section of this Report dealing with the issue of
“parallelism”, that the United States has acted inconsistently with
Articles 2.1 and 4.2 of the Agreement on Safeguards with respect
to all product categories, because the United States failed to establish
that imports covered by the safeguard measures, alone, satisfy
the conditions for the imposition of a safeguard measure. Therefore, the
Panel’s finding that the safeguard measures applied to tin mill
products and stainless steel wire are both “deprived of a legal basis”
remains undisturbed. As a result, it is not necessary for us to complete
the analysis and determine whether the USITC report provided a reasoned
and adequate explanation that imports of tin mill products and stainless
steel wire had increased within the meaning of Article 2.1 of the Agreement
on Safeguards.
C.4.20 US — Softwood Lumber IV, para. 118 back to top
(WT/DS257/AB/R)
… we are unable to complete the legal analysis of Canada’s claim
that the United States acted inconsistently with Article 14(d) of the SCM Agreement. We observe, in this regard, that panels sometimes make
alternative factual findings that serve to assist the Appellate Body in
completing the legal analysis should it disagree with legal
interpretations developed by the panel, but this is not the case in the
Panel Report before us.
C.4.21 Canada — Wheat Exports and Grain Imports, paras. 162-163
(WT/DS276/AB/R)
back to top
Canada states that it would welcome “guidance” from the Appellate
Body as to whether a conditional request to complete the analysis of a
particular issue should be raised in an appellee’s submission filed
pursuant to Rule 22 of the Working Procedures, or in another
appellant’s submission filed pursuant to Rule 23. …
As we have not reversed the Panel’s interpretation of subparagraph
(b) of Article XVII:1, the condition on which Canada’s request to
complete the analysis is made has not been satisfied. … In the
circumstances of this appeal, it is neither necessary nor appropriate
for us to provide “guidance” on the issue of how conditional
requests to complete the analysis are properly brought before the
Appellate Body.
C.4.22 US — Oil Country Tubular Goods Sunset Reviews, para. 219
(WT/DS268/AB/R)
back to top
… The factual premise of Argentina’s claim under Article X:3(a)
is thus not undisputed. We therefore find that the record does
not allow us to complete the analysis of Argentina’s conditional
appeal with respect to Article X:3(a) of the GATT 1994.
C.4.23 US — Oil Country Tubular Goods Sunset Reviews, para. 220
(WT/DS268/AB/R)
back to top
We move now to Argentina’s conditional appeal concerning the “practice”
of the USDOC. … Here again, we note that the Panel record reveals no
qualitative assessment of individual cases found in Exhibit ARG-63. As
we noted above, this factual premise (particularly “without
considering additional factors”) is challenged by the United States
and is not undisputed. Therefore, even assuming arguendo that a
“practice” may be challenged as a “measure” in WTO dispute
settlement — an issue on which we express no view here — we find
that the record does not allow us to complete the analysis of Argentina’s
conditional appeal with respect to the “practice” of the USDOC
regarding the likelihood determination in sunset reviews.
C.4.24 US — Upland Cotton, para. 693 back to top
(WT/DS267/AB/R)
We must determine next whether there are sufficient uncontested facts
in the record to permit us to complete the analysis with respect to the
other commodities. In our view, there are not. First, the parties
disagree about the time period covered by Brazil’s claim. The United
States asserts that Brazil’s claim was limited to the period July 2001
to June 2002, while Brazil contends that its claim was not limited to
that period. Second, as we noted previously, different time periods are
used for the sets of data that have to be compared. The data regarding
United States exports under the export credit guarantee programs are
maintained on a fiscal year basis, which extends from 1 October to 30
September of the following year. The United States’ export subsidy
commitments are registered based on a year that extends from 1 July to
30 June of the following year. Both Brazil and the United States have
sought to reconcile the data. In each case, Brazil and the United States
assert that the data support their position. Given the differences
between the participants in respect of the data that we would have to
examine to determine whether the United States applied export credit
guarantees in a manner that results in circumvention of its export
subsidy commitments for pig meat and poultry meat, we do not believe
there are sufficient undisputed facts in the record to enable us to
complete the analysis.
C.4.25 US — Upland Cotton, para. 747 back to top
(WT/DS267/AB/R)
In this case, Brazil’s claim on appeal is limited to the Panel’s
application of the burden of proof. Brazil has expressly stated that it
is not requesting us to complete the analysis. In view of Brazil’s
request, our ruling would not result in recommendations or rulings by
the DSB in respect of the ETI Act of 2000. In these circumstances, we
fail to see how our examination of Brazil’s claim would contribute to
the “prompt” or “satisfactory settlement” of this matter or
would contribute to “secure a positive solution” to this dispute.
Even if we were to disagree with the manner in which the Panel applied
the burden of proof, we would not make any findings in respect of the
WTO-consistency of the ETI Act of 2000. We recognize that there may be
cases in which it would be useful for us to make a finding on an issue,
despite the fact that our decision would not result in rulings and
recommendations by the DSB. In this case, however, we find no compelling
reason for doing so on this particular issue.
C.4.26 US — Gambling, para. 344 back to top
(WT/DS285/AB/R)
Provided that it complies with its duty to assess a matter
objectively, a panel enjoys the freedom to decide which legal issues it
must address in order to resolve a dispute. Moreover, in some instances,
a panel’s decision to continue its legal analysis and to make factual
findings beyond those that are strictly necessary to resolve the dispute
may assist the Appellate Body should it later be called upon to complete
the analysis, as, for example, in this case.
C.4.27 EC — Export Subsidies on Sugar, paras. 337-341 and
footnote 537 to para. 339 back to top
(WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R)
In several previous disputes, the Appellate Body examined an issue
“not specifically addressed by the panel, in order to complete the
legal analysis and resolve the dispute between the parties”. However,
the Appellate Body has declined to complete the legal analysis where “the
factual findings of the panel and the undisputed facts in the panel
record” did not provide a sufficient basis for the legal analysis by
the Appellate Body. Moreover, as Article 17.6 of the DSU limits appeals
to “issues of law covered in the panel report and legal
interpretations developed by the panel”, the Appellate Body has also
previously declined to complete the legal analysis of a panel in
circumstances where that would involve addressing claims “which the
panel had not examined at all”. In addition, the Appellate Body has
indicated that it may complete the analysis only if the provision that a
panel has not examined is “closely related” to a provision
that the panel has examined, and that the two are “part of a logical
continuum”.
Turning to the specific case before us, we note that the Complaining
Parties argue that their claims under the SCM Agreement are
closely related to their claims under the Agreement on Agriculture.
We are not persuaded, however, that Articles 3, 8, and 9.1 of the Agreement
on Agriculture, on the one hand, and Articles 3.1(a), 3.2, and items
(a) and (d) of the Illustrative List of the SCM Agreement, on the
other hand, are “closely related”, because the issues presented
under the two Agreements are different in several respects.
Furthermore, in the instant case, we note that the Panel made
reference to the limited arguments made by the Complaining Parties under
the SCM Agreement: … Although, on appeal, the Complaining
Parties did argue their claims under the SCM Agreement to some
extent, they did not address, in a sufficient manner, the question
whether Article 3 of the SCM Agreement applies to export
subsidies listed in Article 9.1 of the Agreement on Agriculture that
are provided to scheduled agricultural products in excess of a
responding Member’s commitment levels. We believe that, in the light
of Article 21 of the Agreement on Agriculture and the chapeau of
Article 3 of the SCM Agreement, the question of the applicability
of the SCM Agreement to the export subsidies in this dispute
raises a number of complex issues.537
We also consider that, in the
absence of a full exploration of these issues, completing the analysis
might affect the due process rights of the participants.
Moreover, we do not have the requisite factual findings to complete
the legal analysis. In particular, we do not have sufficient facts
before us, as would be necessary to specify the period of time for
withdrawal, as required by Article 4.7 of the SCM Agreement. We
note in this respect that, when specifying what period would represent
“without delay”, panels have taken into account, inter alia,
“the nature of the measures and the difficulties likely to be faced in
implementing the recommendation”. Based on our reading of the Panel
Reports and the Panel record, we fail to see any evidence therein
regarding the nature of the measures that would be required to “withdraw”
the subsidy, which would permit us to make a recommendation under
Article 4.7. Hence, even if we were able to examine the
Complaining Parties’ claims under the SCM Agreement and, even
if we were to conclude that the SCM Agreement applies in the
circumstances of this dispute and that the European Communities acted
inconsistently with its obligations under the SCM Agreement, we
would not necessarily be in a position to make a recommendation under
Article 4.7 as to the time period for withdrawal of the subsidy.
For all these reasons, we are not in a position, and we therefore
decline, to complete the legal analysis and to examine the Complaining
Parties’ claims under the SCM Agreement left unaddressed by the
Panel.
537. These issues include, for instance, whether the Agreement
on Agriculture contains “specific provisions dealing specifically with the
same matter” (Appellate Body Report, US — Upland Cotton, paras. 532-533 (quoting Appellate Body Report, EC — Bananas III, para. 155;
and referring to Appellate Body Report, Chile — Price Band System, para. 186)); whether the SCM Agreement applies to the subsidy as a whole, or
whether it applies to the subsidy only to the extent that the subsidy exceeds
the responding Members’ commitment levels as specified in its Schedule; and
whether, in the event the SCM Agreement applies, a panel could make a
recommendation to withdraw the subsidy in whole, or whether that recommendation
would apply to the subsidy only to the extent that it exceeds the responding
Member’s commitment levels. back to text
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