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ON THIS PAGE:
> India — Patents (US), paras. 65-67
> Brazil — Aircraft (Article 21.5 — Canada),
para. 46
> US — Shrimp (Article 21.5 — Malaysia), paras. 94-95
> US — Hot-Rolled Steel, para. 200
> US — Section 211 Appropriations Act, paras. 105-106
> US — Line Pipe, para. 158
> US — Offset Act (Byrd Amendment), para. 259
> US — Carbon Steel, para. 157
> US — Corrosion-Resistant Steel Sunset Review,
para. 168
> US — Softwood Lumber IV, para. 56
> US — Oil Country Tubular Goods Sunset Reviews,
para. 187
> US — Gambling, paras. 361-362
> US — Gambling, para. 364
> Dominican Republic — Import and Sale of
Cigarettes, para. 112
> Dominican Republic — Import and Sale of
Cigarettes, para. 114
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M.5.1 India — Patents (US), paras. 65-67 back to top
(WT/DS50/AB/R)
In public international law, an international
tribunal may treat municipal law in several ways. Municipal law may
serve as evidence of facts and may provide evidence of state practice.
However, municipal law may also constitute evidence of compliance or
non-compliance with international obligations. For example, in Certain
German Interests in Polish Upper Silesia, the Permanent Court of
International Justice observed:
It might be asked whether a difficulty does
not arise from the fact that the Court would have to deal with the
Polish law of July 14th, 1920. This, however, does not appear to be
the case. From the standpoint of International Law and of the Court
which is its organ, municipal laws are merely facts which express the
will and constitute the activities of States, in the same manner as do
legal decisions and administrative measures. The Court is certainly
not called upon to interpret the Polish law as such; but there is
nothing to prevent the Court’s giving judgment on the question whether
or not, in applying that law, Poland is acting in conformity with its
obligations towards Germany under the Geneva Convention. (emphasis
added)
… It is clear that an examination of the
relevant aspects of Indian municipal law … is essential to determining
whether India has complied with its obligations under Article 70.8(a).
There was simply no way for the Panel to make this determination without
engaging in an examination of Indian law. But, as in the case cited
above before the Permanent Court of International Justice, in this case,
the Panel was not interpreting Indian law “as such”; rather, the
Panel was examining Indian law solely for the purpose of determining
whether India had met its obligations under the TRIPS Agreement.
…
Previous GATT/WTO panels also have conducted a
detailed examination of the domestic law of a Member in assessing the
conformity of that domestic law with the relevant GATT/WTO obligations.
…
M.5.2 Brazil — Aircraft (Article 21.5
— Canada), para. 46 back to top
(WT/DS46/AB/RW)
We note Brazil’s argument before the Article 21.5 Panel that Brazil has a contractual obligation under domestic law
to issue PROEX bonds pursuant to commitments that have already been
made, and that Brazil could be liable for damages for breach of contract
under Brazilian law if it failed to respect its contractual obligations.
In response to a question from us at the oral hearing, however, Brazil
conceded that a WTO Member’s domestic law does not excuse that Member
from fulfilling its international obligations. Like the Article 21.5
Panel, we do not consider that any private contractual obligations,
which Brazil may have under its domestic law, are relevant to the issue
of whether the DSB’s recommendation to “withdraw” the prohibited
export subsidies permits the continued issuance of NTN-I bonds under
letters of commitment issued before 18 November 1999.
M.5.3 US — Shrimp (Article 21.5
— Malaysia),
paras. 94-95 back to top
(WT/DS58/AB/RW)
The CIT ruling in the Turtle Island
case addressed the Revised Guidelines: that ruling made no change to the
interpretation of Section 609. Moreover, as stated by the Panel, the
ruling in the Turtle Island case is declaratory: the CIT has not
ordered the United States Department of State to modify either the
content or the interpretation of the Revised Guidelines; in the legal
interpretation of the United States authorities entrusted with enforcing
them, the Revised Guidelines remain the same. Rightly, when examining
the United States measure, the Panel took into account the status of
municipal law at the time. In particular, the Panel took note of the
fact that the CIT ruling in the Turtle Island case has not
altered the content of the Revised Guidelines, and has not prevented the
United States government from authorizing the importation of TED-caught
shrimp from uncertified countries. In response to our questions at the
oral hearing, the United States confirmed that the Department of State
has received no order from the CIT to change its practice, and,
therefore, the Department of State continues to apply the Revised
Guidelines as before. Malaysia has not shown otherwise.
There is no way of knowing or predicting when
or how that particular legal proceeding will conclude in the United
States. The Turtle Island case has been appealed and could
conceivably go as far as the Supreme Court of the United States. It
would have been an exercise in speculation on the part of the Panel to
predict either when or how that case may be concluded, or to assume that
injunctive relief ultimately would be granted and that the United States
Court of Appeals or the Supreme Court of the United States eventually
would compel the Department of State to modify the Revised Guidelines.
The Panel was correct not to indulge in such speculation, which would
have been contrary to the duty of the Panel, under Article 11 of the DSU,
to make “an objective assessment of the matter … including an
objective assessment of the facts of the case”.
M.5.4 US — Hot-Rolled Steel, para. 200
back to top
(WT/DS184/AB/R)
Although it is not the role of panels or the
Appellate Body to interpret a Member’s domestic legislation as such,
it is permissible, indeed essential, to conduct a detailed examination
of that legislation in assessing its consistency with WTO law. …
M.5.5 US — Section 211 Appropriations Act,
paras. 105-106 back to top
(WT/DS176/AB/R)
Our rulings in these previous appeals are
clear: the municipal law of WTO Members may serve not only as evidence
of facts, but also as evidence of compliance or non-compliance with
international obligations. Under the DSU, a panel may examine the
municipal law of a WTO Member for the purpose of determining whether
that Member has complied with its obligations under the WTO Agreement.
Such an assessment is a legal characterization by a panel. And,
therefore, a panel’s assessment of municipal law as to its consistency
with WTO obligations is subject to appellate review under Article 17.6
of the DSU.
To address the legal issues raised in this
appeal, we must, therefore, necessarily examine the Panel’s
interpretation of the meaning of Section 211 under United States law.
… The meaning given by the Panel to Section 211 is, thus, clearly
within the scope of our review as set out in Article 17.6 of the DSU.
M.5.6 US — Line Pipe, para. 158
back to top
(WT/DS202/AB/R)
… we are not concerned with how the
competent authorities of WTO Members reach their determinations in
applying safeguard measures. The Agreement on Safeguards does not
prescribe the internal decision-making process for making such a
determination. That is entirely up to WTO Members in the exercise of
their sovereignty. We are concerned only with the determination itself,
which is a singular act for which a WTO Member may be accountable in WTO
dispute settlement. It is of no matter to us whether that singular act
results from a decision by one, one hundred, or — as here — six
individual decision-makers under the municipal law of that WTO Member.
What matters to us is whether the determination, however it is decided
domestically, meets the requirements of the Agreement on Safeguards.
M.5.7 US — Offset Act (Byrd Amendment),
para. 259 back to top
(WT/DS217/AB/R, WT/DS234/AB/R)
… We note that the Panel referred to the “Findings
of Congress”, not as a basis for its conclusion that the CDSOA
constitutes a specific action against dumping or subsidies, but rather
as a consideration confirming that conclusion. We agree with the Panel
that the intent, stated or otherwise, of the legislators is not
conclusive as to whether a measure is “against” dumping or subsidies
under Article 18.1 of the Anti-Dumping Agreement or Article 32.1
of the SCM Agreement. Thus, it was not necessary for the
Panel to inquire into the intent pursued by United States legislators in
enacting the CDSOA and to take this into account in the analysis. The
text of the CDSOA provides sufficient information on the structure and
design of the CDSOA, that is to say, on the manner in which it operates,
to permit an analysis whether the measure is “against” dumping or a
subsidy. …
M.5.8 US — Carbon Steel, para. 157
back to top
(WT/DS213/AB/R, WT/DS213/AB/R/Corr.1)
… a responding Member’s law will be
treated as WTO-consistent until proven otherwise. The party
asserting that another party’s municipal law, as such, is inconsistent
with relevant treaty obligations bears the burden of introducing
evidence as to the scope and meaning of such law to substantiate that
assertion. Such evidence will typically be produced in the form of the
text of the relevant legislation or legal instruments, which may be
supported, as appropriate, by evidence of the consistent application of
such laws, the pronouncements of domestic courts on the meaning of such
laws, the opinions of legal experts and the writings of recognized
scholars. The nature and extent of the evidence required to satisfy the
burden of proof will vary from case to case.
M.5.9 US — Corrosion-Resistant Steel Sunset
Review, para. 168
(WT/DS244/AB/R)
back to top
When a measure is challenged “as such”,
the starting point for an analysis must be the measure on its face. If
the meaning and content of the measure are clear on its face, then the
consistency of the measure as such can be assessed on that basis alone.
If, however, the meaning or content of the measure is not evident on its
face, further examination is required. …
M.5.10 US — Softwood Lumber IV, para. 56
back to top
(WT/DS257/AB/R)
… we observe that the arguments put forward
by Canada relating to the nature of “personal property”, raise
issues concerning the relevance, for WTO dispute settlement, of the way
in which the municipal law of a WTO Member classifies or regulates
things or transactions. Previous Appellate Body Reports confirm that an
examination of municipal law or particular transactions governed by it
might be relevant, as evidence, in ascertaining whether a financial
contribution exists. However, municipal laws — in particular those
relating to property — vary amongst WTO Members. Clearly, it would be
inappropriate to characterize, for purposes of applying any provisions
of the WTO covered agreements, the same thing or transaction
differently, depending on its legal categorization within the
jurisdictions of different Members. Accordingly, we emphasize that
municipal law classifications are not determinative of the issues raised
in this appeal.
M.5.11 US — Oil Country Tubular Goods Sunset
Reviews, para. 187
(WT/DS268/AB/R)
back to top
We note the argument of the United States that
the SPB is not a legal instrument under United States law. This
argument, however, is not relevant to the question before us. The issue
is not whether the SPB is a legal instrument within the domestic legal
system of the United States, but rather, whether the SPB is a measure
that may be challenged within the WTO system. The United States has
explained that, within the domestic legal system of the United States,
the SPB does not bind the USDOC and that the USDOC “is entirely free
to depart from [the] SPB at any time”. However, it is not for us to
opine on matters of United States domestic law. Our mandate is confined
to clarifying the provisions of the WTO Agreement and to
determining whether the challenged measures are consistent with those
provisions. …
M.5.12 US — Gambling, paras. 361-362
back to top
(WT/DS285/AB/R)
… according to Antigua, the IHA, on its
face, authorizes domestic service suppliers, but not foreign service
suppliers, to offer remote betting services in relation to certain horse
races. To this extent, in Antigua’s view, the IHA “exempts”
domestic service suppliers from the prohibitions of the Wire Act, the
Travel Act, and the IGBA.
The United States disagreed, claiming that the
IHA — a civil statute — cannot “repeal” the Wire Act, the Travel
Act, or the IGBA — which are criminal statutes — by implication,
that is, merely by virtue of the IHA’s adoption subsequent to
that of the Wire Act, the Travel Act, and the IGBA. Rather, under
principles of statutory interpretation in the United States, such a
repeal could be effective only if done explicitly, which was not
the case with the IHA.
M.5.13 US — Gambling, para. 364
back to top
(WT/DS285/AB/R)
… the United States’ appeal essentially
challenges the Panel’s failure to accord sufficient weight to the
evidence submitted by the United States with respect to the relationship
under United States law between the IHA and the measures at issue. The
Panel had limited evidence before it, as submitted by the parties, on
which to base its conclusion. This limitation, however, could not
absolve the Panel of its responsibility to arrive at a conclusion as to
the relationship between the IHA and the prohibitions in the Wire Act,
the Travel Act, and the IGBA. The Panel found that the evidence provided
by the United States was not sufficiently persuasive to conclude that,
as regards wagering on horseracing, the remote supply of such services
by domestic firms continues to be prohibited notwithstanding the
plain language of the IHA. In this light, we are not persuaded that the
Panel failed to make an objective assessment of the facts.
M.5.14 Dominican Republic
— Import and Sale of
Cigarettes, para. 112
(WT/DS302/AB/R)
back to top
Against this background, and consistent with
the view expressed by the Appellate Body in US — Carbon Steel, we
agree with Honduras that consideration of the express wording of the
text of legislation establishing a measure is a fundamental element of
an assessment of that legislation. That said, however, we see no merit
in the proposition advanced by Honduras that a panel must limit itself,
in considering a claim against legislation as such, exclusively
to the wording of legislation itself. Indeed, in US — Carbon Steel,
the Appellate Body recognized that different types of evidence may
support assertions as to the meaning and scope of an impugned measure. A
panel enjoys a margin of discretion in weighing such evidence,
commensurate with its role as trier of fact.
M.5.15 Dominican Republic
— Import and Sale of
Cigarettes, para. 114
(WT/DS302/AB/R)
back to top
Finally, we observe that the situation in this
appeal is different from that prevailing in India — Patents (US),
upon which Honduras relies. India — Patents (US) was a case in
which certain “administrative instructions” were held to be
insufficient evidence of India’s compliance with its obligations under
the “mailbox” requirements of the TRIPS Agreement, whereas
certain legislative provisions were clearly inconsistent with those
obligations. The panel and the Appellate Body were not required in India
— Patents (US) to interpret the words of the relevant legislation alone,
in isolation from other evidence, as Honduras would have had the Panel
do in this case. Indeed, in India — Patents (US), there was a
considerable amount of evidence available regarding the proper
interpretation of the express terms of the Indian Patents Act, which
included, but was not limited to, the text of the legislation itself.
The panel in that case was thus able to balance India’s assertion that
its “administrative instructions” — which required officials to
disregard certain mandatory provisions of the Patents Act — were
sufficient to implement India’s WTO obligations, against evidence that
the Indian government itself considered that legislative amendment was
necessary. Thus, in India — Patents (US), the panel made full use
of the record that was before it. Although the record in that case
appears to have been considerably richer than the one available in these
proceedings (which appears to consist only of the text of the measure
and the letter from the Director-General of Internal Taxes), it appears
to us that the Panel in this case also considered all of the evidence
that was before it. Accordingly, although the facts of this case differ
from India — Patents (US), the panels in each case followed the
same — correct — approach in taking into account relevant factual
information presented by the parties.
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