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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
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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 back to top
(WT/DS33/AB/R,
WT/DS33/AB/R/Corr.1)
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 programs 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 program 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 program 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 programs 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)
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.
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