|
ON THIS PAGE:
> US — Wool Shirts and Blouses, p. 18, DSR 1997:I, p.
323 at 339
> US — Wool Shirts and Blouses, p. 19, DSR 1997:I, p.
323 at 340
> US — Wool Shirts and Blouses, p. 19, DSR 1997:I, p. 323
at 339-340
> EC — Hormones, para. 250
> India — Patents (US), para. 87
> Australia — Salmon, para. 223
> Japan — Agricultural Products II, para. 111
> US — Lead and Bismuth II, para. 71
> Canada — Autos, paras. 112-114
> Canada — Autos,
paras. 116-117
> US — Wheat Gluten, para. 183
> US — Lamb, para. 194
> Mexico — Corn Syrup (Article 21.5 — US),
para. 36
> Canada — Wheat Exports and Grain Imports,
paras. 133-134
> US — Upland Cotton, para. 717
> US — Upland Cotton, para. 718
> US — Upland Cotton, para. 731
> US — Upland Cotton, para. 732
> US — Gambling, paras. 342-344
> EC — Export Subsidies on Sugar, para. 331
> EC — Export Subsidies on Sugar, para. 335
> US — Zeroing (EC), para. 250
> Brazil — Retreaded Tyres, para. 257
|
J.1.1 US — Wool Shirts and Blouses, p. 18, DSR 1997:I, p. 323
at 339
(WT/DS33/AB/R, WT/DS33/AB/R/Corr.1) back to top
Nothing in [Article 11 of the DSU] or in previous GATT practice requires
a panel to examine all legal claims made by the complaining
party. Previous GATT 1947 and WTO panels have frequently addressed only
those issues that such panels considered necessary for the resolution of
the matter between the parties, and have declined to decide other
issues. Thus, if a panel found that a measure was inconsistent with a
particular provision of the GATT 1947, it generally did not go on to
examine whether the measure was also inconsistent with other GATT
provisions that a complaining party may have argued were violated. In
recent WTO practice, panels likewise have refrained from examining each
and every claim made by the complaining party and have made findings
only on those claims that such panels concluded were necessary to
resolve the particular matter.
J.1.2 US — Wool Shirts and Blouses, p. 19, DSR 1997:I, p. 323
at 340
(WT/DS33/AB/R, WT/DS33/AB/R/Corr.1) back to top
… Given the explicit aim of dispute settlement that permeates the
DSU, we do not consider that Article 3.2 of the DSU is
meant to encourage either panels or the Appellate Body to “make law”
by clarifying existing provisions of the WTO Agreement outside
the context of resolving a particular dispute. A panel need only address
those claims which must be addressed in order to resolve the matter in
issue in the dispute.
J.1.3 US — Wool Shirts and Blouses, p. 19, DSR 1997:I, p. 323
at 339-340
(WT/DS33/AB/R, WT/DS33/AB/R/Corr.1) back to top
Although a few GATT 1947 and WTO panels did make broader rulings, by
considering and deciding issues that were not absolutely necessary to
dispose of the particular dispute, there is nothing anywhere in the DSU
that requires panels to do so.
Furthermore, such a requirement is not consistent with the aim of the
WTO dispute settlement system. …
J.1.4 EC — Hormones, para. 250
back to top
(WT/DS26/AB/R, WT/DS48/AB/R)
We agree with the Panel’s application of the notion of judicial
economy. We have affirmed the Panel’s conclusion that the EC measures
are inconsistent with Article 5.1 in view of the failure of the European
Communities to provide a risk assessment that reasonably supports such
measures. Under the circumstances, the necessity or propriety of
proceeding to determine whether Article 2.2 of the SPS Agreement has
also been violated is not at all clear to us. …
J.1.5 India — Patents (US), para. 87
back to top
(WT/DS50/AB/R)
… a panel has the discretion to determine the claims it must
address in order to resolve the dispute between the parties — provided
that those claims are within that panel’s terms of reference. …
J.1.6 Australia — Salmon, para. 223
back to top
(WT/DS18/AB/R)
The principle of judicial economy has to be applied keeping in mind
the aim of the dispute settlement system. This aim is to resolve the
matter at issue and “to secure a positive solution to a dispute”. To
provide only a partial resolution of the matter at issue would be false
judicial economy. A panel has to address those claims on which a finding
is necessary in order to enable the DSB to make sufficiently precise
recommendations and rulings so as to allow for prompt compliance by a
Member with those recommendations and rulings “in order to ensure
effective resolution of disputes to the benefit of all Members”.
J.1.7 Japan — Agricultural Products II, para. 111
back to top
(WT/DS76/AB/R)
… By not making a finding under Article 5.1 with regard to the
varietal testing requirement as it applies to apricots, pears, plums and
quince, the Panel improperly applied the principle of judicial economy.
We believe that a finding under Article 5.1 with respect to apricots,
pears, plums and quince is necessary “in order to ensure effective
resolution” of the dispute.
J.1.8 US — Lead
and Bismuth II, para. 71 back to top
(WT/DS138/AB/R)
The United States seems to consider that our Report in United
States — Shirts and Blouses sets forth a general principle that
panels may not address any issues that need not be addressed in order to
resolve the dispute between the parties. We do not agree with this
characterization of our findings. In that appeal, India had argued that
it was entitled to a finding by the Panel on each of the legal claims
that it had made. We, however, found that the principle of judicial
economy allows a panel to decline to rule on certain claims.
J.1.9 Canada — Autos, paras. 112-114
back to top
(WT/DS139/AB/R, WT/DS142/AB/R)
In assessing this allegation of legal error made by the European
Communities, we refer to the obligations of panels set out in very
general terms in Article 11 of the DSU. …
The standard terms of reference of a panel, set out in Article 7.1 of
the DSU, speak in very similar terms. A panel should make “such
findings as will assist the DSB” in making recommendations or rulings.
Under Article 7.2 of the DSU, a panel “shall address the relevant
provisions in any covered agreement or agreements cited by the parties
to the dispute”.
In discharging its functions under Articles 7 and 11 of the DSU, a
panel is not, however, required to examine all legal claims made
before it. A panel may exercise judicial economy. …
J.1.10 Canada — Autos, paras. 116-117
back to top
(WT/DS139/AB/R, WT/DS142/AB/R)
In our view, it was not necessary for the Panel to make a
determination on the European Communities’ alternative claim
relating to the CVA requirements under Article 3.1(a) of the SCM
Agreement in order “to secure a positive solution” to this
dispute. The Panel had already found that the CVA requirements violated
both Article III:4 of the GATT 1994 and Article XVII of the GATS. Having
made these findings, the Panel, in our view, exercising the discretion
implicit in the principle of judicial economy, could properly decide not
to examine the alternative claim of the European Communities that
the CVA requirements are inconsistent with Article 3.1(a) of the SCM
Agreement.
We are bound to add that, for purposes of transparency and fairness
to the parties, a panel should, however, in all cases, address expressly
those claims which it declines to examine and rule upon for reasons of
judicial economy. Silence does not suffice for these purposes.
J.1.11 US — Wheat Gluten, para. 183
back to top
(WT/DS166/AB/R)
… The Panel found and we have upheld, albeit for different
reasons, that the measure is inconsistent with Articles 2.1 and 4.2 of
the Agreement on Safeguards. Thus, the Panel found, in effect,
that the safeguard measure at issue in this case, like the measure at
issue in Argentina — Footwear Safeguard, has no legal basis.
The reasons for which the Panel found an inconsistency with Articles 2.1
and 4.2 of the Agreement on Safeguards do not alter that
conclusion. The Panel was, therefore, entitled to decline to examine the
claim of the European Communities regarding “unforeseen developments”.
A finding on that issue would not, in our view, have added anything to
the ability of the DSB to make sufficiently precise recommendations and
rulings in this dispute. …
J.1.12 US — Lamb, para. 194
back to top
(WT/DS177/AB/R,
WT/DS178/AB/R)
… Having found that the safeguard measure applied by the United
States lacked a legal basis, the Panel was entitled to decline to
address further claims that the same measure is inconsistent with other
provisions of the Agreement on Safeguards. We also observe that a
finding on New Zealand’s claim under Article 5.1 of the Agreement
on Safeguards would not have enhanced the ability of the DSB to make
sufficiently precise recommendations and rulings in this dispute.
J.1.13 Mexico — Corn Syrup (Article 21.5 — US), para. 36
back to top
(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.
J.1.14 Canada — Wheat Exports and Grain Imports,
paras. 133-134
(WT/DS276/AB/R) back to top
The practice of judicial economy, which was first employed by a
number of GATT panels, allows a panel to refrain from making multiple
findings that the same measure is inconsistent with various
provisions when a single, or a certain number of findings of
inconsistency, would suffice to resolve the dispute. Although the
doctrine of judicial economy allows a panel to refrain from
addressing claims beyond those necessary to resolve the dispute, it does
not compel a panel to exercise such restraint. At the same time,
if a panel fails to make findings on claims where such findings are
necessary to resolve the dispute, then this would constitute a false
exercise of judicial economy and an error of law.
In this case, the Panel itself did not claim to be exercising
judicial economy when it made an assumption concerning the relationship
between subparagraphs (a) and (b) of Article XVII:1. The Panel made no
finding of inconsistency with respect to the CWB Export Regime that
would have entitled it to exercise judicial economy with respect to
other claims. Moreover, neither Canada nor the United States argues that
the Panel’s approach is properly classified as an exercise of judicial
economy, nor that the concept of judicial economy must be understood
otherwise than as set out above. In sum, we see no reason to
characterize the Panel’s use of an assumption concerning the
relationship between subparagraphs (a) and (b) of Article XVII:1 as an
exercise of judicial economy. …
J.1.15 US — Upland Cotton, para. 717
back to top
(WT/DS267/AB/R)
We believe the Panel was within its discretion in declining to
examine whether scheduled products other than rice and unscheduled
products supported by the programmes are applied in a manner that “threatens
to lead to” circumvention. The Panel had already found that the United
States acted inconsistently with Article 10.1 of the Agreement on
Agriculture because it applied its export credit guarantee programme
in a manner that “results in” (actual) circumvention of its export
subsidy commitments for these products. We do not see why the Panel had
to examine also whether the United States acted inconsistently with the same
provision in respect of the same products, but on the basis
of there being a threat of circumvention, rather than actual circumvention.
J.1.16 US — Upland Cotton, para. 718
back to top
(WT/DS267/AB/R)
The Appellate Body has stated that panels may exercise judicial
economy and refrain from addressing claims beyond those necessary to
resolve the dispute. In this case, the Panel did not expressly state it
was exercising judicial economy. We agree with the United States,
however, that the Panel’s approach can be properly characterized as an
exercise of judicial economy. Moreover, we believe that the Panel was
within its discretion in refraining from making additional findings and
it was not improper for the Panel to have exercised judicial economy
given that its finding of actual circumvention resolved the
matter.
J.1.17 US — Upland Cotton, para. 731
back to top
(WT/DS267/AB/R)
We need not decide, in this case, whether an export credit guarantee
programme that meets the standard of item (j) of the Illustrative List
of Export Subsidies — because the premiums charged are adequate to
cover long-term operating costs and losses — may nevertheless be
challenged as a prohibited export subsidy under Article 3.1(a) on the
basis that it confers a benefit. This is because, even if we were to
assume that such a claim were possible, we would conclude that the Panel
was within its discretion in exercising judicial economy in respect of
Brazil’s claim.
J.1.18 US — Upland Cotton, para. 732
back to top
(WT/DS267/AB/R)
As we explained earlier, panels may refrain from ruling on every
claim as long as it does not lead to a “partial resolution of the
matter”. The Panel found that the United States’ export credit
guarantee programmes constitute a prohibited export subsidy under
Article 3.1(a) because they do not meet the criteria in item (j) of the
Illustrative List of Export Subsidies. This finding, in our view, is
sufficient to resolve the matter. Therefore, we are not persuaded that
the Panel’s exercise of judicial economy was improper, as Brazil has
not demonstrated that it has led to “a partial resolution of the
matter”.
J.1.19 US — Gambling, paras. 342-344
back to top
(WT/DS285/AB/R, WT/DS285/AB/R/Corr.1)
In deciding to assess whether the measures satisfied the requirements
of the chapeau, the Panel explained that, even though such an
examination was “not necessary”, it wanted “to assist the parties
in resolving the underlying dispute in this case”. Antigua alleges
that the Panel acted inconsistently with the Appellate Body’s decision
in Korea — Various Measures on Beef in determining whether the
Wire Act, the Travel Act, and the IGBA meet the requirements of the
chapeau after having found that they were not provisionally justified.
… [the statement by the Appellate Body at paragraph 156 of Korea
— Various Measures on Beef] does not impose a requirement on
panels to stop evaluating a responding party’s defence once they have
determined that a challenged measure is not provisionally justified
under one of the paragraphs of the general exception provision.
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.
J.1.20 EC — Export Subsidies on Sugar, para. 331
back to top
(WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R)
Thus, in addition to ruling on the matter before it, a panel is
required [under Article 11 of the DSU] to “make such other findings as
will assist the DSB in making the recommendations or in giving the
rulings provided for in the covered agreements”. Such “other
findings” could, for instance, relate to implementation, to the extent
that such findings “will assist the DSB in making the recommendations
or in giving the rulings provided for in the covered agreements”.
J.1.21 EC — Export Subsidies on Sugar, para. 335
back to top
(WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R)
In this case, the Panel’s findings under Articles 3 and 8 of the Agreement
on Agriculture were not sufficient to “fully resolve” the
dispute. This is because, in declining to rule on the Complaining
Parties’ claims under Article 3 of the SCM Agreement, the Panel
precluded the possibility of a remedy being made available to the
Complaining Parties, pursuant to Article 4.7 of the SCM Agreement,
in the event of the Panel finding in favour of the Complaining Parties
with respect to their claims under Article 3 of the SCM Agreement.
Moreover, in declining to rule on the Complaining Parties’ claims
under Article 3 of the SCM Agreement, the Panel failed to
discharge its obligation under Article 11 of the DSU by failing to make
“such other findings as will assist the DSB in making the
recommendations or in giving the rulings provided for in the covered
agreements”, namely, a recommendation or ruling by the DSB pursuant to
Article 4.7. This constitutes false judicial economy and legal error.
J.1.22 US — Zeroing (EC), para. 250
back to top
(WT/DS294/AB/R, WT/DS294/AB/R/Corr.1)
We fail to see why additional findings on the European Communities’
claims under Articles 2.4 and 9.3 of the Anti-Dumping Agreement would
be necessary to secure a “positive solution” to the dispute or a “satisfactory
settlement of the matter”. In our view, the Panel did not commit an
error of law in deciding to exercise judicial economy with regard to
those claims, as it had already found that zeroing as applied by the
United States in the original investigations at issue is inconsistent
with Article 2.4.2 of the Anti-Dumping Agreement. Thus, in our
view, the Panel had made sufficient findings to resolve the dispute once
it had made this finding under Article 2.4.2.
J.1.23 Brazil — Retreaded Tyres, para. 257
back to top
(WT/DS332/AB/R)
… [W]e observe that it might have been appropriate for the Panel
to address the European Communities’ separate claims that the MERCOSUR
exemption was inconsistent with Article I:1 and Article XIII:1. We have
previously indicated that the principle of judicial economy “allows a
panel to refrain from making multiple findings that the same measure is
inconsistent with various provisions when a single, or a certain number
of findings of inconsistency, would suffice to resolve the dispute”,
and it seems that the Panel assumed this to be the case in the present
dispute. However, the Panel found that the MERCOSUR exemption resulted
in the Import Ban being applied consistently with the
requirements of the chapeau of Article XX. In view of this finding, we
must acknowledge that we have difficulty seeing how the Panel could have
been justified in not addressing the separate claims of inconsistency
under Article I:1 and Article XIII:1 directed at the MERCOSUR exemption.
We emphasize that panels must be mindful, when applying the principle of
judicial economy, that the aim of the dispute settlement mechanism under
Article 3.7 of the DSU is to secure a positive solution to the dispute.
Therefore, a panel’s discretion to decline to rule on different claims
of inconsistency adduced in relation to the same measure is limited by
its duty to make findings that will allow the DSB to make sufficiently
precise recommendations and rulings “in order to ensure effective
resolution of disputes to the benefit of all Members”.
|
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.
|
