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)
… 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)
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)
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)
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)
… 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)
… 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. …
