In this case, we do not consider it either
necessary, or desirable, to attempt to define the scope of the
obligation provided for in Article 12.7 of the DSU. It suffices to state
that the Panel has set out a detailed and thorough rationale for its
findings and recommendations in this case. The Panel went to some length
to take account of competing considerations and to explain why,
nonetheless, it made the findings and recommendations it did. …
P.1.1.2 Chile — Alcoholic Beverages, para. 78
(WT/DS87/AB/R,
WT/DS110/AB/R)
… In our view, in this case, the Panel did
“set out” a “basic rationale” for its finding and recommendation
on the issue of “not similarly taxed”, as required by Article 12.7
of the DSU. The Panel identified the legal standard it applied, examined
the relevant facts, and provided reasons for its conclusion that
dissimilar taxation existed. …
P.1.1.3 Argentina —
Footwear (EC),
para. 149
(WT/DS121/AB/R)
… In this case, the Panel conducted extensive
factual and legal analyses of the competing claims made by the parties,
set out numerous factual findings based on detailed consideration of the
evidence before the Argentine authorities as well as other evidence
presented to the Panel, and provided extensive explanations of how and
why it reached its factual and legal conclusions. Although Argentina may
not agree with the rationale provided by the Panel, and we do not
ourselves agree with all of its reasoning, we have no doubt that the
Panel set out, in its Report, a “basic rationale” consistent with
the requirements of Article 12.7 of the DSU.
P.1.1.4 Mexico — Corn Syrup (Article 21.5
— US),
paras. 106-109
(WT/DS132/AB/RW)
… Article 12.7 establishes a minimum
standard for the reasoning that panels must provide in support of their
findings and recommendations. Panels must set forth explanations and
reasons sufficient to disclose the essential, or fundamental,
justification for those findings and recommendations.
… the duty of panels under Article 12.7 of
the DSU to provide a “basic rationale” reflects and conforms with
the principles of fundamental fairness and due process that underlie and
inform the provisions of the DSU. In particular, in cases where a Member
has been found to have acted inconsistently with its obligations under
the covered agreements, that Member is entitled to know the reasons for
such finding as a matter of due process. In addition, the requirement to
set out a “basic rationale” in the panel report assists such Member
to understand the nature of its obligations and to make informed
decisions about: (i) what must be done in order to implement the
eventual rulings and recommendations made by the DSB; and (ii) whether
and what to appeal. Article 12.7 also furthers the objectives, expressed
in Article 3.2 of the DSU, of promoting security and predictability in
the multilateral trading system and of clarifying the existing
provisions of the covered agreements, because the requirement to provide
“basic” reasons contributes to other WTO Members’ understanding of
the nature and scope of the rights and obligations in the covered
agreements.
… Whether a panel has articulated adequately
the “basic rationale” for its findings and recommendations must be
determined on a case-by-case basis, taking into account the facts of the
case, the specific legal provisions at issue, and the particular
findings and recommendations made by a panel. Panels must identify the
relevant facts and the applicable legal norms. In applying those legal
norms to the relevant facts, the reasoning of the panel must reveal how
and why the law applies to the facts. In this way, panels will, in their
reports, disclose the essential or fundamental justification for their
findings and recommendations.
This does not, however, necessarily imply that
Article 12.7 requires panels to expound at length on the reasons for
their findings and recommendations. We can, for example, envisage cases
in which a panel’s “basic rationale” might be found in reasoning
that is set out in other documents, such as in previous panel or
Appellate Body reports — provided that such reasoning is quoted or, at a
minimum, incorporated by reference. Indeed, a panel acting pursuant to
Article 21.5 of the DSU would be expected to refer to the initial panel
report, particularly in cases where the implementing measure is closely
related to the original measure, and where the claims made in the
proceeding under Article 21.5 closely resemble the claims made in the
initial panel proceedings.
P.1.1.5 Mexico — Corn Syrup (Article 21.5
— US),
paras. 124, 126
(WT/DS132/AB/RW)
Having regard to these circumstances, we are
of the view that the Panel Report, read together with the original panel
report, leaves no doubt about the reasons for the Panel’s additional
finding under Article 3.1 of the Anti-Dumping Agreement. …
…
We wish to add that for purposes of
transparency and fairness to the parties, even a panel proceeding under
Article 21.5 of the DSU should strive to present the essential
justification for its findings and recommendations in its own report. In
this case, in particular, we consider that the Panel’s finding under
Article 3.1 of the Anti-Dumping Agreement would have been better
supported by a direct quotation from or, at least, an explicit reference
to, the relevant reasoning set out in the original panel report.
P.1.1.6 US — Steel Safeguards, paras. 503-504
(WT/DS248/AB/R, WT/DS249/AB/R, WT/DS251/AB/R,
WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R,
WT/DS259/AB/R)
… Based on our review of the Panel’s
reasoning, it appears to us that the Panel considered in detail the
evidence that was before the USITC, and provided detailed explanations
of how and why it concluded that the USITC had failed to demonstrate,
through a reasoned and adequate explanation, that the alleged “unforeseen
developments” resulted in increased imports of each
product subject to a safeguard measure. …
In our view, in making these statements, the
Panel has sufficiently set out in its Reports the “basic rationale”
for its finding that the USITC failed to explain how, though “plausible”,
the “unforeseen developments” identified in the report in fact resulted
in increased imports of the specific products subject to the safeguard
measures at issue.
Duty to address issues. See
Completion of the Legal Analysis by the Appellate Body (C.4); Judicial
Economy (J.1); Jurisdiction (J.2); Objections
(O.1)
P.1.3.1 US — Offset Act (Byrd Amendment),
para. 311
(WT/DS217/AB/R, WT/DS234/AB/R)
Having made these observations, we note that
Article 9.2 must not be read in isolation from other provisions of the
DSU, and without taking into account the overall object and purpose of
that Agreement. The overall object and purpose of the DSU is expressed
in Article 3.3 of that Agreement which provides, relevantly, that the
“prompt settlement” of disputes is “essential to the effective
functioning of the WTO.” If the right to a separate panel report under
Article 9.2 were “unqualified”, this would mean that a panel would
have the obligation to submit a separate panel report, pursuant to the
request of a party to the dispute, at any time during the panel
proceedings. Moreover, a request for such a report could be made for
whatever reason — or indeed, without any reason — even on the day
that immediately precedes the day the panel report is due to be
circulated to WTO Members at large. Such an interpretation would clearly
undermine the overall object and purpose of the DSU to ensure the “prompt
settlement” of disputes.
P.1.3.2 US — Offset Act (Byrd Amendment),
paras. 315-316
(WT/DS217/AB/R, WT/DS234/AB/R)
… we note that the first sentence in Article 9.2 provides that it is for the panel to “organize its examination and
present its findings in such a manner that the rights which the parties
to the dispute would have enjoyed had separate panels examined the
complaints are in no way impaired.” Our comments in EC — Hormones about panels’ discretion in dealing with procedural
issues are pertinent here:
… 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. (emphasis added)
In our view, the Panel acted within its “margin
of discretion” by denying the United States’ request for a separate
panel report. We do not believe that we should lightly disturb panels’
decisions on their procedure, particularly in cases such as the one at
hand, in which the Panel’s decision appears to have been reasonable
and in accordance with due process. We observe that, on appeal, the
United States is not claiming that it suffered any prejudice from the
denial of its request for a separate panel report. We also note that the
first sentence of Article 9.2 refers to the rights of all the parties to
the dispute. The Panel correctly based its decision on an assessment of
the rights of all the parties, and not of one alone.
Status of GATT panel reports. See
Review of Implementation of DSB Rulings, Article 21.5 of the DSU — Effect of DSB rulings in the original dispute (R.4.3); Status of Panel
and Appellate Body Reports (S.8)
