J.2.1.1 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.
J.2.1.2 Brazil — Desiccated Coconut, p.
22, DSR 1997:I, p. 167 at 186
(WT/DS22/AB/R)
… the “matter” referred to a panel for
consideration consists of the specific claims stated by the parties to
the dispute in the relevant documents specified in the terms of
reference. We agree with the approach taken in previous adopted panel
reports that a matter, which includes the claims composing that matter,
does not fall within a panel’s terms of reference unless the claims
are identified in the documents referred to or contained in the terms of
reference.
J.2.1.3 India — Patents (US), paras. 92-93
(WT/DS50/AB/R)
… Although panels enjoy some discretion in
establishing their own working procedures, this discretion does not
extend to modifying the substantive provisions of the DSU. To be sure,
Article 12.1 of the DSU says: “Panels shall follow the Working
Procedures in Appendix 3 unless the panel decides otherwise after
consulting the parties to the dispute”. Yet that is all that it
says. Nothing in the DSU gives a panel the authority either to disregard
or to modify other explicit provisions of the DSU. The jurisdiction of a
panel is established by that panel’s terms of reference, which are
governed by Article 7 of the DSU. A panel may consider only those claims
that it has the authority to consider under its terms of reference. A
panel cannot assume jurisdiction that it does not have. …
… A panel is bound by its terms of
reference.
J.2.1.4 India — Quantitative Restrictions,
paras. 84-86
(WT/DS90/AB/R)
This dispute was brought pursuant to, inter
alia, Article XXIII of the GATT 1994. According to Article XXIII,
any Member which considers that a benefit accruing to it directly or
indirectly under the GATT 1994 is being nullified or impaired as a
result of the failure of another Member to carry out its obligations,
may resort to the dispute settlement procedures of Article XXIII. The
United States considers that a benefit accruing to it under the GATT
1994 was nullified or impaired as a result of India’s alleged failure
to carry out its obligations regarding balance-of-payments restrictions
under Article XVIII: B of the GATT 1994. Therefore, the United States
was entitled to have recourse to the dispute settlement procedures of
Article XXIII with regard to this dispute.
Article XXIII is elaborated and applied by the
DSU. The first sentence of Article 1.1 of the DSU provides:
The rules and procedures of this Understanding
shall apply to disputes brought pursuant to the consultation and dispute
settlement provisions of the agreements listed in Appendix 1 to this
Understanding (referred to in this Understanding as the “covered
agreements”).
We note that Appendix 1 to the DSU lists “Multilateral
Agreements on Trade in Goods”, to which the GATT 1994 belongs, among
the agreements covered by the DSU. A dispute concerning Article XVIII:B
is, therefore, covered by the DSU.
Article 1.2 of the DSU provides in relevant
part:
The rules and procedures of this Understanding
shall apply subject to such special or additional rules and procedures
on dispute settlement contained in the covered agreements as are
identified in Appendix 2 to this Understanding.
Appendix 2 does not identify any special or
additional dispute settlement rules or procedures relating to
balance-of-payments restrictions. It does not mention Article XVIII:B of
the GATT 1994, or any of its paragraphs. The DSU is, therefore, fully
applicable to the current dispute.
J.2.1.5 India — Quantitative Restrictions,
paras. 87-88
(WT/DS90/AB/R)
Any doubts that may have existed in the past
as to whether the dispute settlement procedures under Article XXIII were
available for disputes relating to balance-of-payments restrictions have
been removed by the second sentence of footnote 1 to the BOP Understanding,
…
In our opinion, this provision makes it clear
that the dispute settlement procedures under Article XXIII, as
elaborated and applied by the DSU, are available for disputes
relating to any matters concerning balance-of-payments
restrictions.
J.2.1.6 India — Quantitative Restrictions,
paras. 102-103
(WT/DS90/AB/R)
… Recourse to the dispute settlement
procedures does not call into question either the availability or the
utility of the procedures under Article XVIII:12 and the BOP Understanding.
On the contrary, if panels refrained from reviewing the justification of
balance-of-payments restrictions, they would diminish the explicit
procedural rights of Members under Article XXIII and footnote 1 to the BOP
Understanding, as well as their substantive rights under Article XVIII:11.
We are cognisant of the competence of the BOP
Committee and the General Council with respect to balance-of-payments
restrictions under Article XVIII:12 of the GATT 1994 and the BOP Understanding.
However, we see no conflict between that competence and the competence
of panels. Moreover, we are convinced that, in considering the
justification of balance-of-payments restrictions, panels should take
into account the deliberations and conclusions of the BOP Committee, as
did the panel in Korea — Beef.
J.2.1.7 India — Quantitative Restrictions,
para. 109
(WT/DS90/AB/R)
… we conclude that panels have the
competence to review the justification of balance-of-payments
restrictions. More generally, we conclude that the dispute settlement
provisions of the GATT 1994, as elaborated and applied by the DSU, can
be invoked with respect to any matters relating to balance-of-payments
restrictions. …
J.2.1.8 US — 1916 Act, para. 54
(WT/DS136/AB/R,
WT/DS162/AB/R)
We agree with the Panel that the interim
review was not an appropriate stage in the Panel’s proceedings to
raise objections to the Panel’s jurisdiction for the first time. An
objection to jurisdiction should be raised as early as possible and
panels must ensure that the requirements of due process are met.
However, we also agree with the Panel’s consideration that “some
issues of jurisdiction may be of such a nature that they have to be
addressed by the Panel at any time.” We do not share the European
Communities’ view that objections to the jurisdiction of a panel are
appropriately regarded as simply “procedural objections”. The
vesting of jurisdiction in a panel is a fundamental prerequisite for
lawful panel proceedings. We, therefore, see no reason to accept the
European Communities’ argument that we must reject the United States’
appeal because the United States did not raise its jurisdictional
objection before the Panel in a timely manner.
J.2.1.9 US — 1916 Act, paras. 60-61
(WT/DS136/AB/R,
WT/DS162/AB/R)
Prior to the entry into force of the WTO
Agreement, it was firmly established that Article XXIII:1(a) of
the GATT 1947 allowed a Contracting Party to challenge legislation as
such, independently from the application of that legislation in specific
instances. While the text of Article XXIII does not expressly address
the matter, panels consistently considered that, under Article XXIII,
they had the jurisdiction to deal with claims against legislation
as such. In examining such claims, panels developed the concept
that mandatory and discretionary legislation should be distinguished
from each other, reasoning that only legislation that mandates a
violation of GATT obligations can be found as such to be inconsistent
with those obligations. We consider the application of this distinction
to the present cases in section IV(B) below.
Thus, that a Contracting Party could challenge
legislation as such before a panel was well-settled under the GATT 1947.
We consider that the case law articulating and applying this practice
forms part of the GATT acquis which, under Article XVI:1 of the WTO
Agreement, provides guidance to the WTO and, therefore, to panels
and the Appellate Body. Furthermore, in Article 3.1 of the DSU, Members
affirm “their adherence to the principles for the management of
disputes heretofore applied under Articles XXII and XXIII of GATT 1947”.
We note that, since the entry into force of the WTO Agreement,
a number of panels have dealt with dispute settlement claims brought
against a Member on the basis of its legislation as such, independently
from the application of that legislation in specific instances.
J.2.1.10 US — 1916 Act, paras. 62, 68
(WT/DS136/AB/R,
WT/DS162/AB/R)
Turning to the issue of the legal basis for
claims brought under the Anti-Dumping Agreement, we note that
Article 17 of the Anti-Dumping Agreement addresses dispute
settlement under that Agreement. Just as Articles XXII and XXIII of the
GATT 1994 create a legal basis for claims in disputes relating to
provisions of the GATT 1994, so also Article 17 establishes the basis
for dispute settlement claims relating to provisions of the Anti-Dumping
Agreement. In the same way that Article XXIII of the GATT 1994
allows a WTO Member to challenge legislation as such, Article 17
of the Anti-Dumping Agreement is properly to be regarded as
allowing a challenge to legislation as such, unless this possibility is
excluded. No such express exclusion is found in Article 17 or
elsewhere in the Anti-Dumping Agreement.
Article 17.3 does not explicitly address
challenges to legislation as such. As we have seen above, Articles XXII
and XXIII allow challenges to be brought under the GATT 1994 against
legislation as such. Since Article 17.3 is the “equivalent provision”
to Articles XXII and XXIII of the GATT 1994, Article 17.3 provides
further support for our view that challenges may be brought under the Anti-Dumping
Agreement against legislation as such, unless such challenges are
otherwise excluded.
J.2.1.11 US — 1916 Act, para. 72
(WT/DS136/AB/R,
WT/DS162/AB/R)
Nothing in our Report in Guatemala — Cement
[Appellate Body Report, paras. 79-80] suggests that Article 17.4
precludes review of anti-dumping legislation as such. Rather, in that
case, we simply found that, for Mexico to challenge Guatemala’s
initiation and conduct of the anti-dumping investigation, Mexico was
required to identify one of the three anti-dumping measures listed in
Article 17.4 in its request for establishment of a panel. Since it did
not do so, the panel in that case did not have jurisdiction.
J.2.1.12 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.
J.2.1.13 Mexico — Corn Syrup (Article 21.5
— US), para. 53
(WT/DS132/AB/RW)
… our task is simply to determine whether
the “objections” that Mexico now raises before us are of such a
nature that they could have deprived the Panel of its authority to deal
with and dispose of the matter. If so, then the Panel was bound to
address them on its own motion. …
J.2.1.14 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.
J.2.1.15 US — Offset Act (Byrd Amendment),
para. 208
(WT/DS217/AB/R,
WT/DS234/AB/R)
… “[a]n objection to jurisdiction should
be raised as early as possible” and it would be preferable, in the
interests of due process, for the appellant to raise such issues in the
Notice of Appeal, so that appellees will be aware that this claim will
be advanced on appeal. However, in our view, the issue of a panel’s
jurisdiction is so fundamental that it is appropriate to consider claims
that a panel has exceeded its jurisdiction even if such claims were not
raised in the Notice of Appeal.
Appellate Body. See Scope of
Appellate Review (S.3)
Panels. See Standard of Review
(S.7); Terms of Reference of Panels (T.6)
