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ON THIS PAGE:
> EC — Hormones, para. 152 and footnote 138
> US — FSC, para. 165
> US — FSC, para. 166
> Thailand — H-Beams, para. 97
> Mexico — Corn Syrup (Article 21.5
— US), para. 47
> Mexico — Corn Syrup (Article 21.5
— US), paras. 49—50
> Mexico — Corn Syrup (Article 21.5
— US), para. 53
> US — Offset Act (Byrd Amendment), para. 208
> Canada — Wheat Exports and Grain Imports, para. 206
> Canada — Wheat Exports and Grain Imports, para. 207
> Canada — Wheat Exports and Grain Imports, para. 210
> Canada — Wheat Exports and Grain Imports, para. 211
> US — Gambling, para. 269
> US — Gambling, para. 270
> US — Gambling, para. 272
> US — Gambling, para. 276
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O.1.1 EC — Hormones, para. 152 and footnote 138
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(WT/DS26/AB/R, WT/DS48/AB/R)
… It is evident to us that a procedural objection raised by a party
to a dispute should be sufficiently specific to enable the panel to address it.138
O.1.2 US — FSC, para. 165
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(WT/DS108/AB/R)
As we have said, a year passed between submission of the request for
consultations by the European Communities and the first mention of this
objection by the United States — despite the fact that the United
States had numerous opportunities during that time to raise its
objection. It seems to us that, by engaging in consultations on three
separate occasions, and not even raising its objections in the two DSB
meetings at which the request for establishment of a panel was on the
agenda, the United States acted as if it had accepted the establishment
of the Panel in this dispute, as well as the consultations preceding
such establishment. In these circumstances, the United States cannot
now, in our view, assert that the European Communities’ claims under
Article 3 of the SCM Agreement should have been dismissed and
that the Panel’s findings on these issues should be reversed.
Accordingly, we decline the United States’ appeal from the Panel’s
refusal to dismiss the European Communities’ claim under Article 3 of
the SCM Agreement due to the European Communities’ alleged
failure to comply with Article 4.2 of that Agreement. Thus, we do not
find it necessary to rule on whether the European Communities’ request
for consultations includes a “statement of available evidence” that
satisfies the requirements of Article 4.2 of the SCM Agreement.
O.1.3 US — FSC, para. 166 back to top
(WT/DS108/AB/R)
… The same principle of good faith requires that responding Members
seasonably and promptly bring claimed procedural deficiencies to the
attention of the complaining Member, and to the DSB or the Panel, so
that corrections, if needed, can be made to resolve disputes. 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.
O.1.4 Thailand — H-Beams, para. 97
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(WT/DS122/AB/R)
… We also note that nothing in the DSU prevents a defending party
from requesting further clarification on the claims raised in a panel
request from the complaining party, even before the filing of the first
written submission. In this regard, we point to Article 3.10 of the DSU
which enjoins Members of the WTO, if a dispute arises, to engage in
dispute settlement procedures “in good faith in an effort to resolve
the dispute”. As we have previously stated, 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”.
O.1.5 Mexico — Corn Syrup (Article 21.5 — US), para. 47
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(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. …
O.1.6 Mexico — Corn Syrup (Article 21.5 — US), paras. 49-50
(WT/DS132/AB/RW)
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… 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. …
… 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.
O.1.7 Mexico — Corn Syrup (Article 21.5 — US), para. 53
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(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. …
O.1.8 US — Offset Act (Byrd Amendment), para. 208
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(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.
O.1.9 Canada — Wheat Exports and Grain Imports, para. 206
(WT/DS276/AB/R)
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As regards objections to the adequacy of panel requests, the
Appellate Body has stated that compliance with the requirements of
Article 6.2 of the DSU must be determined on the merits of each case.
Similarly, it would appear to us that a determination as to the timeliness
of an objection raised under Article 6.2 must be examined on a
case-by-case basis. This is consistent with the discretion given to
panels, under the DSU, to deal with specific situations that may arise
in a particular case and that are not explicitly regulated. Furthermore,
under Article 12 of the DSU, it is the panel that sets the timetable for
the panel proceedings and, therefore, it is the panel that is in the
best position to determine whether, under the particular circumstances
of each case, an objection is raised in a timely manner.
O.1.10 Canada — Wheat Exports and Grain Imports, para. 207
(WT/DS276/AB/R)
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Having said this, we agree with the March Panel that, in the
particular circumstances of this case, Canada’s objection was not
filed in an untimely manner. Canada raised its written objection only
one day after the composition of the March Panel was determined. We see
no error in the March Panel’s view that this constituted the “earliest
possible opportunity” in which Canada could have raised its objection
and sought a ruling from the Panel. Indeed, only a month and a half had
passed between the establishment and the composition of the March Panel,
and a little over two months had passed since the request for the
establishment of the panel was submitted by the United States.
O.1.11 Canada — Wheat Exports and Grain Imports, para. 210
(WT/DS276/AB/R)
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For all these reasons, we find that, in the particular circumstances
of this case, the Panel did not err in declining to dismiss Canada’s
preliminary objection on the grounds that it was untimely.
O.1.12 Canada — Wheat Exports and Grain Imports, para. 211
(WT/DS276/AB/R)
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We do not mean to suggest that a responding party is foreclosed from
seeking clarification of a panel request during the DSB meetings at
which the panel request is considered, or that it would never be useful
to do so. In the particular circumstances of this case, however, the
March Panel found that it would have been unreasonable to conclude that
Canada’s objection was untimely solely because Canada had not
raised the objection at the DSB meetings. …
O.1.13 US — Gambling, para. 269 back to top
(WT/DS285/AB/R, WT/DS285/AB/R/Corr.1)
Article 6.2 of the DSU requires that the legal basis for a dispute,
that is, the claims, be identified in a panel request with
specificity sufficient “to present the problem clearly”, so that a
responding party will be aware, at the time of the establishment of a
panel, of the claims raised by the complaining party to which it might
seek to respond in the course of the panel proceedings. In contrast, the
DSU is silent about a deadline or a method by which a responding party
must state the legal basis for its defence. 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.
O.1.14 US — Gambling, para. 270 back to top
(WT/DS285/AB/R, WT/DS285/AB/R/Corr.1)
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.
O.1.15 US — Gambling, para. 272 back to top
(WT/DS285/AB/R, WT/DS285/AB/R/Corr.1)
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”. …
O.1.16 US — Gambling, para. 276 back to top
(WT/DS285/AB/R, WT/DS285/AB/R/Corr.1)
… 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. …
138. Furthermore, 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. back to text
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