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REPERTORY OF APPELLATE BODY REPORTS

Due Process


ON THIS PAGE:

Due process in the application of trade measures
Due process in WTO dispute settlement proceedings. See also Request for the Establishment of a Panel (R.2); Rules of Conduct (R.6); Seek Information and Technical Advice (S.4); Terms of Reference of Panels (T.6); Working Procedures for Appellate Review (W.2)


D.2.1 Due process in the application of trade measures     back to top

D.2.1.1 US — Shrimp, para. 182
(WT/DS58/AB/R)

 

… Inasmuch as there are due process requirements generally for measures that are otherwise imposed in compliance with WTO obligations, it is only reasonable that rigorous compliance with the fundamental requirements of due process should be required in the application and administration of a measure which purports to be an exception to the treaty obligations of the Member imposing the measure and which effectively results in a suspension pro hac vice of the treaty rights of other Members.

 
D.2.2 Due process in WTO dispute settlement proceedings. See also Request for the Establishment of a Panel (R.2); Rules of Conduct (R.6); Seek Information and Technical Advice (S.4); Terms of Reference of Panels (T.6); Working Procedures for Appellate Review (W.2)     back to top

D.2.2.1 Brazil — Desiccated Coconut, p. 22, DSR 1997:I, p. 167 at 186
(WT/DS22/AB/R)

 

A panel’s terms of reference are important for two reasons. First, terms of reference fulfil an important due process objective — they give the parties and third parties sufficient information concerning the claims at issue in the dispute in order to allow them an opportunity to respond to the complainant’s case. Second, they establish the jurisdiction of the panel by defining the precise claims at issue in the dispute.

 

D.2.2.2 EC — Hormones, footnote 138 to para. 152
(WT/DS26/AB/R, WT/DS48/AB/R)

 

… the DSU, and in particular its Appendix 3, leave panels a margin of discretion to deal, always in accordance with due process, with specific situations that may arise in a particular case and that are not explicitly regulated. Within this context, an appellant requesting the Appellate Body to reverse a panel’s ruling on matters of procedure must demonstrate the prejudice generated by such legal ruling.

 

D.2.2.3 EC — Hormones, para. 154
(WT/DS26/AB/R, WT/DS48/AB/R)

 

… Although Article 12.1 and Appendix 3 of the DSU do not specifically require the Panel to grant [the opportunity to participate in the second substantial meeting of the proceedings initiated by Canada] to the United States, we believe that this decision falls within the sound discretion and authority of the Panel, particularly if the Panel considers it necessary for ensuring to all parties due process of law. …

 

D.2.2.4 India — Patents (US), para. 94
(WT/DS50/AB/R)

 

All parties engaged in dispute settlement under the DSU must be fully forthcoming from the very beginning both as to the claims involved in a dispute and as to the facts relating to those claims. Claims must be stated clearly. Facts must be disclosed freely. This must be so in consultations as well as in the more formal setting of panel proceedings. In fact, the demands of due process that are implicit in the DSU make this especially necessary during consultations. …

 

D.2.2.5 India — Patents (US), para. 95
(WT/DS50/AB/R)

 

It is worth noting that, with respect to fact-finding, the dictates of due process could better be served if panels had standard working procedures that provided for appropriate factual discovery at an early stage in panel proceedings.

 

D.2.2.6 Argentina — Textiles and Apparel, footnote 68 to para. 79
(WT/DS56/AB/R, WT/DS56/AB/R/Corr.1)

 

As we have observed in two previous Appellate Body Reports, we believe that detailed, standard working procedures for panels would help to ensure due process and fairness in panel proceedings. See European Communities — Regime for the Importation, Sale and Distribution of Bananas, adopted 25 September 1997, WT/DS27/AB/R, para. 144; India — Patent Protection for Pharmaceutical and Agricultural Chemical Products, adopted 16 January 1998, WT/DS50/AB/R, para. 95.

 

D.2.2.7 EC — Computer Equipment, para. 70
(WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R)

 

… We do not see how the alleged lack of precision of the terms, LAN equipment and PCs with multimedia capability, in the request for the establishment of a panel affected the rights of defence of the European Communities in the course of the panel proceedings. As the ability of the European Communities to defend itself was not prejudiced by a lack of knowing the measures at issue, we do not believe that the fundamental rule of due process was violated by the Panel.

 

D.2.2.8 US — FSC, para. 166
(WT/DS108/AB/R)

 

… The procedural rules of WTO dispute settlement are designed to promote, not the development of litigation techniques, but simply the fair, prompt and effective resolution of trade disputes.

 

D.2.2.9 Australia — Salmon, para. 272
(WT/DS18/AB/R)

 

… We note that Article 12.2 of the DSU provides that “[p]anel procedures should provide sufficient flexibility so as to ensure high-quality panel reports, while not unduly delaying the panel process.” However, a panel must also be careful to observe due process, which entails providing the parties adequate opportunity to respond to the evidence submitted. …

 

D.2.2.10 Australia — Salmon, para. 278
(WT/DS18/AB/R)

 

… A fundamental tenet of due process is that a party be provided with an opportunity to respond to claims made against it. In this case, we believe that the Panel did accord Australia a proper opportunity to respond by allowing Australia to submit a third written submission. We cannot see how the Panel failed to accord due process to Australia by granting the extra time it had requested.

 

D.2.2.11 US — 1916 Act, para. 150
(WT/DS136/AB/R, WT/DS162/AB/R)

 

A panel’s decision whether to grant “enhanced” participatory rights to third parties is thus a matter that falls within the discretionary authority of that panel. Such discretionary authority is, of course, not unlimited and is circumscribed, for example, by the requirements of due process. In the present cases, however, the European Communities and Japan have not shown that the Panel exceeded the limits of its discretionary authority. …

 

D.2.2.12 Mexico — Corn Syrup (Article 21.5 — US), para. 36
(WT/DS132/AB/RW)

 

… We believe that a panel comes under a duty to address issues in at least two instances. First, as a matter of due process, and the proper exercise of the judicial function, panels are required to address issues that are put before them by the parties to a dispute. Second, panels have to address and dispose of certain issues of a fundamental nature, even if the parties to the dispute remain silent on those issues. In this regard, we have previously observed that “[t]he vesting of jurisdiction in a panel is a fundamental prerequisite for lawful panel proceedings.” For this reason, panels cannot simply ignore issues which go to the root of their jurisdiction — that is, to their authority to deal with and dispose of matters. Rather, panels must deal with such issues — if necessary, on their own motion — in order to satisfy themselves that they have authority to proceed.

 

D.2.2.13 Mexico — Corn Syrup (Article 21.5 — US), para. 47
(WT/DS132/AB/RW)

 

… the “observations” raised by Mexico were not expressed in a fashion that indicated that Mexico was raising an objection to the authority of the Panel. The requirements of good faith, due process and orderly procedure dictate that objections, especially those of such potential significance, should be explicitly raised. Only in this way will the panel, the other party to the dispute, and the third parties, understand that a specific objection has been raised, and have an adequate opportunity to address and respond to it. …

 

D.2.2.14 Mexico — Corn Syrup (Article 21.5 — US), para. 49
(WT/DS132/AB/RW)

 

… had we been satisfied that Mexico did, in fact, explicitly raise its objections before the Panel, then the Panel may well have been required to “address” those objections, whether by virtue of Articles 7.2 and 12.7 of the DSU, or the requirements of due process. …

 

D.2.2.15 Mexico — Corn Syrup (Article 21.5 — US), para. 50
(WT/DS132/AB/RW)

 

… When a Member wishes to raise an objection in dispute settlement proceedings, it is always incumbent on that Member to do so promptly. A Member that fails to raise its objections in a timely manner, notwithstanding one or more opportunities to do so, may be deemed to have waived its right to have a panel consider such objections.

 

D.2.2.16 US — FSC (Article 21.5 — EC), para. 243
(WT/DS108/AB/RW)

 

… the rights of third parties in panel proceedings are limited to the rights granted under Article 10 and Appendix 3 to the DSU. Beyond those minimum guarantees, panels enjoy a discretion to grant additional participatory rights to third parties in particular cases, as long as such “enhanced” rights are consistent with the provisions of the DSU and the principles of due process. However, panels have no discretion to circumscribe the rights guaranteed to third parties by the provisions of the DSU.

 

D.2.2.17 Chile — Price Band System, para. 144
(WT/DS207/AB/R)

 

We emphasize that we do not mean to condone a practice of amending measures during dispute settlement proceedings if such changes are made with a view to shielding a measure from scrutiny by a panel or by us. We do not suggest that this occurred in this case. However, generally speaking, the demands of due process are such that a complaining party should not have to adjust its pleadings throughout dispute settlement proceedings in order to deal with a disputed measure as a “moving target”. If the terms of reference in a dispute are broad enough to include amendments to a measure — as they are in this case — and if it is necessary to consider an amendment in order to secure a positive solution to the dispute — as it is here — then it is appropriate to consider the measure as amended in coming to a decision in a dispute.

 

D.2.2.18 US — Carbon Steel, para. 123
(WT/DS213/AB/R, WT/DS213/AB/R/Corr.1)

 

… we have consistently held that, in the interests of due process, parties should bring alleged procedural deficiencies to the attention of a panel at the earliest possible opportunity. In this case, we see no reason to disagree with the Panel’s view that the United States’ objection was not raised in a timely manner. At the same time, however, as we have observed previously, certain issues going to the jurisdiction of a panel are so fundamental that they may be considered at any stage in a proceeding. In our view, the Panel was correct, therefore, in turning to consider its terms of reference and in satisfying itself as to its jurisdiction with respect to this matter.

 

D.2.2.19 Canada — Wheat Exports and Grain Imports, para. 177
(WT/DS276/AB/R)

 

Although an appellant is free to determine how to characterize its claims on appeal, at the same time due process requires that the legal basis of a claim be sufficiently clear to allow an appellee to respond effectively. This is especially the case when the claim is an allegation that the panel did not make an objective assessment of the matter as required by Article 11 of the DSU because, by definition, such a claim will not be found in the request for the establishment of the panel and, therefore, the panel will not have referred to it in the panel report.

 

D.2.2.20 US — Gambling, para. 269
(WT/DS285/AB/R, WT/DS285/AB/R/Corr.1)

 

… This does not mean that a responding party may put forward its defence whenever and in whatever manner it chooses. Article 3.10 of the DSU provides that “all Members will engage in these procedures in good faith in an effort to resolve the dispute”, which implies the identification by each party of relevant legal and factual issues at the earliest opportunity, so as to provide other parties, including third parties, an opportunity to respond.

 

D.2.2.21 US — Gambling, para. 270
(WT/DS285/AB/R, WT/DS285/AB/R/Corr.1)

 

At the same time, the opportunity afforded to a Member to respond to claims and defences made against it is also a “fundamental tenet of due process”. A party must not merely be given an opportunity to respond, but that opportunity must be meaningful in terms of that party’s ability to defend itself adequately. A party that considers it was not afforded such an opportunity will often raise a due process objection before the panel. The Appellate Body has recognized in numerous cases that a Member’s right to raise a claim or objection, as well as a panel’s exercise of discretion, are circumscribed by the due process rights of other parties to a dispute. Those due process rights similarly serve to limit a responding party’s right to set out its defence at any point during the panel proceedings.

 

D.2.2.22 US — Gambling, para. 271
(WT/DS285/AB/R, WT/DS285/AB/R/Corr.1)

 

Due process may be of particular concern in cases where a party raises new facts at a late stage of the panel proceedings. The Appellate Body has observed that, under the standard working procedures of panels, complaining parties should put forward their cases — with “a full presentation of the facts on the basis of submission of supporting evidence” — during the first stage of panel proceedings. We see no reason why this expectation would not apply equally to responding parties, which, once they have received the first written submission of a complaining party, are likely to be aware of the defences they might invoke and the evidence needed to support them.

 

D.2.2.23 US — Gambling, para. 272
(WT/DS285/AB/R, WT/DS285/AB/R/Corr.1)

 

It follows that the principles of good faith and due process oblige a responding party to articulate its defence promptly and clearly. This will enable the complaining party to understand that a specific defence has been made, “be aware of its dimensions, and have an adequate opportunity to address and respond to it.” …

 

D.2.2.24 US — Gambling, para. 273
(WT/DS285/AB/R, WT/DS285/AB/R/Corr.1)

 

… as part of their duties, under Article 11 of the DSU, … panels must ensure that the due process rights of parties to a dispute are respected. A panel may act inconsistently with this duty if it addresses a defence that a responding party raised at such a late stage of the panel proceedings that the complaining party had no meaningful opportunity to respond to it. To this end, panels are endowed with “sufficient flexibility” in their working procedures, by virtue of Article 12.2 of the DSU, to regulate panel proceedings and, in particular, to adjust their timetables to allow for additional time to respond or for additional submissions where necessary.

 

D.2.2.25 US — Gambling, para. 276
(WT/DS285/AB/R, WT/DS285/AB/R/Corr.1)

 

… we are of the view that, although the United States could have raised its defence earlier, the Panel did not err in deciding to assess whether the United States’ measures are justified under Article XIV. From the outset, Antigua was apparently aware that the United States might argue that its measures satisfy the requirements of Article XIV. Antigua admitted that it raised no objection to the timing of the United States’ defence before the Panel. Antigua also acknowledged that it did have an opportunity to respond adequately to the United States’ defence, albeit at a late stage of the proceeding. …

 

D.2.2.26 US — Continued Suspension / Canada — Continued Suspension, para. 433
(WT/DS320/AB/R, WT/DS321/AB/R)

 

The Appellate Body has previously found that the obligation to afford due process is “inherent in the WTO dispute settlement system” and it has described due process requirements as “fundamental to ensuring a fair and orderly conduct of dispute settlement proceedings”. In our view, the protection of due process is an essential feature of a rules-based system of adjudication, such as that established under the DSU. Due process protection guarantees that the proceedings are conducted with fairness and impartiality, and that one party is not unfairly disadvantaged with respect to other parties in a dispute.

 

D.2.2.27 US — Continued Suspension / Canada — Continued Suspension, para. 435
(WT/DS320/AB/R, WT/DS321/AB/R)

 

These due process considerations are reflected in the Rules of Conduct. Section II (Governing Principle) of the Rules of Conduct provides that all covered persons, such as panellists and experts advising panels:

 

… shall be independent and impartial, shall avoid direct or indirect conflicts of interest and shall respect the confidentiality of proceedings of bodies pursuant to the dispute settlement mechanism, so that through the observance of such standards of conduct the integrity and impartiality of that mechanism are preserved.

 

D.2.2.28 US — Continued Suspension / Canada — Continued Suspension, para. 436
(WT/DS320/AB/R, WT/DS321/AB/R)

 

Scientific experts and the manner in which their opinions are solicited and evaluated can have a significant bearing on a panel’s consideration of the evidence and its review of a domestic measure, especially in cases like this one involving highly complex scientific issues. Fairness and impartiality in the decision-making process are fundamental guarantees of due process. Those guarantees would not be respected where the decision-makers appoint and consult experts who are not independent or impartial. Such appointments and consultations compromise a panel’s ability to act as an independent adjudicator. For these reasons, we agree with the view of the European Communities that the protection of due process applies to a panel’s consultations with experts. This due process protection applies to the process for selecting experts and to the panel’s consultations with the experts, and continues throughout the proceedings.

 

D.2.2.29 US — Continued Suspension / Canada — Continued Suspension, para. 473
(WT/DS320/AB/R, WT/DS321/AB/R)

 

The United States emphasizes the fact that the Panel consulted with the parties when it adopted the Experts Working Procedures and in the expert selection process. We agree with the United States that consultation with the parties in the adoption of working procedures for selecting the experts and in the expert selection process is a means for ensuring that the parties’ due process rights are respected. However, as we explained earlier, the obligation to afford the protection of due process to the parties is not circumscribed to the expert selection stage and does not end with the appointment of the experts. Due process protection continues to apply throughout the consultations with the experts. Thus, the fact that the Panel may have consulted with the parties in this case when preparing the Experts Working Procedures and in selecting the experts does not provide a basis for concluding that due process was also respected in the subsequent stages of the proceedings, including the consultations with the experts. …

 

D.2.2.30 US — Continued Suspension / Canada — Continued Suspension, para. 481
(WT/DS320/AB/R, WT/DS321/AB/R)

 

For these reasons, we consider that there was an objective basis to conclude that the institutional affiliation with JECFA of Drs Boisseau and Boobis, and their participation in JECFA’s evaluations of the six hormones at issue, was likely to affect or give rise to justifiable doubts as to their independence or impartiality given that the evaluations conducted by JECFA lie at the heart of the controversy between the parties. The appointment and consultations with Drs Boisseau and Boobis compromised the adjudicative independence and impartiality of the Panel. Therefore, we find that the Panel infringed the European Communities’ due process rights as a result of the Panel having consulted with Drs Boisseau and Boobis as scientific experts.

 

D.2.2.31 US — Zeroing (EC) (Article 21.5 — EC), paras. 169, 172
(WT/DS294/AB/RW, WT/DS294/AB/RW/Corr.1)

 

On appeal, the European Communities alleges that the Panel acted inconsistently with the basic requirements of due process and the full exercise of the judicial function by failing to address properly its claim that the Panel was composed in a manner inconsistent with Articles 8.3 and 21.5 of the DSU. The European Communities submits that, because panels, and ultimately the Appellate Body, have the authority and the obligation to rule on the correct interpretation of the DSU, defects that could arise during panel composition are subject to judicial review by them. The European Communities requests the Appellate Body to complete the analysis and to find that the Panel’s composition in this case was inconsistent with Articles 8.3 and 21.5 of the DSU.

 

 

On the substance of the European Communities’ appeal, we note that, on 28 November 2007, the Director-General was requested to determine the composition of the compliance panel under Article 8.7 of the DSU. In our view, Article 8.7 confers on the Director-General the discretion to compose panels, which was properly exercised in this case. We therefore find that the Panel did not err in refraining, in paragraphs 8.17 and 9.1(a) of the Panel Report, from making a finding on whether it was improperly composed. …

 

D.2.2.32 US — Zeroing (Japan) (Article 21.5 — Japan), paras. 118-119
(WT/DS322/AB/RW)

 

As we observed earlier, one of the purposes of a panel’s terms of reference is to fulfil the due process objective of notifying respondents and potential third parties of the nature of the dispute and of the parameters of the case to which they must begin preparing a response. We see no error in the Panel having examined whether Japan’s panel request adequately put the United States “on notice” regarding the case against it. Nor do we find error in the Panel’s finding that the United States was reasonably put on notice by Japan’s panel request. … We consider that the Panel did not err in its analysis of the matter and in considering the due process objectives as relevant for purposes of deciding whether Review 9 was within its terms of reference.

 

Further, we do not believe that the inclusion of Review 9 in the Panel’s terms of reference adversely affected the United States’ due process rights. … In our view,… the United States had ample opportunities, during the course of the Panel proceedings and prior to the Panel’s deliberations, to make arguments, answer questions, and respond to Japan’s submission with respect to Review 9. Potential third parties were sufficiently put on notice by Japan’s panel request … The third parties also had opportunity to present arguments and respond to the claims made by Japan with respect to Review 9. Based on the above, we agree with the Panel’s conclusion that “a finding that the phrase ‘subsequent closely connected measures’ satisfies the terms of Article 6.2 would not violate any due process objective of the DSU”.

 


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