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REPERTORY OF APPELLATE BODY REPORTS

Objections


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. 207Canada — 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


O.1.1 EC — Hormones, para. 152 and footnote 138      back to top
(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      back to top
(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      back to top
(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      back to top
(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)      back to top

… 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      back to top
(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      back to top
(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)      back to top

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)      back to top

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)      back to top

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)      back to top

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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