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R.2.1 Article 6.2 of the DSU — General
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R.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. … 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.
R.2.1.2 EC — Bananas III, para. 142
(WT/DS27/AB/R)
We recognize that a panel request will usually be approved
automatically at the DSB meeting following the meeting at which the
request first appears on the DSB’s agenda. As a panel request is
normally not subjected to detailed scrutiny by the DSB, it is incumbent
upon a panel to examine the request for the establishment of the panel
very carefully to ensure its compliance with both the letter and the
spirit of Article 6.2 of the DSU. It is important that a panel request be
sufficiently precise for two reasons: first, it often forms the basis for
the terms of reference of the panel pursuant to Article 7 of the DSU; and,
second, it informs the defending party and the third parties of the legal
basis of the complaint.
R.2.1.3 Guatemala — Cement I, para. 72
(WT/DS60/AB/R)
… Article 6.2 specifies the requirements under which a complaining
Member may refer a “matter” to the DSB: in order to establish a panel
to hear its complaint, a Member must make, in writing, a “request for
the establishment of a panel” (a “panel request”). In addition to
being the document which enables the DSB to establish a panel, the panel
request is also usually identified in the panel’s terms of reference as
the document setting out “the matter referred to the DSB”. Thus, “the
matter referred to the DSB” for the purposes of Article 7 of the DSU and
Article 17.4 of the Anti-Dumping Agreement must be the “matter”
identified in the request for the establishment of a panel under Article
6.2 of the DSU. That provision requires the complaining Member, in a panel
request, to “identify the specific measures at issue and provide
a brief summary of the legal basis of the complaint sufficient to
present the problem clearly” (emphasis added). The “matter referred
to the DSB”, therefore, consists of two elements: the specific measures
at issue and the legal basis of the complaint (or the claims).
R.2.1.4 Guatemala — Cement I, paras. 75-76
(WT/DS60/AB/R)
… In our view, there is no inconsistency between Article 17.5
of the Anti-Dumping Agreement and the provisions of Article 6.2 of
the DSU. On the contrary, they are complementary and should be applied
together. A panel request made concerning a dispute brought under the Anti-Dumping
Agreement must therefore comply with the relevant dispute settlement
provisions of both that Agreement and the DSU. Thus, when a “matter”
is referred to the DSB by a complaining party under Article 17.4 of the Anti-Dumping
Agreement, the panel request must meet the requirements of Articles
17.4 and 17.5 of the Anti-Dumping Agreement as well as Article 6.2
of the DSU.
… the word “matter” has the same meaning in Article 17 of the Anti-Dumping
Agreement as it has in Article 7 of the DSU. It consists of two
elements: the specific “measure” and the “claims” relating to it,
both of which must be properly identified in a panel request as required
by Article 6.2 of the DSU.
R.2.1.5 Korea — Dairy, para. 120
(WT/DS98/AB/R)
… When parsed into its constituent parts, Article 6.2 may be seen to
impose the following requirements. The request must: (i) be in writing;
(ii) indicate whether consultations were held; (iii) identify the specific
measures at issue; and (iv) provide a brief summary of the legal basis of
the complaint sufficient to present the problem clearly. In its fourth
requirement, Article 6.2 demands only a summary — and it may be a brief
one — of the legal basis of the complaint; but the summary must, in any
event, be one that is “sufficient to present the problem clearly”. It
is not enough, in other words, that “the legal basis of the complaint”
is summarily identified; the identification must “present the problem
clearly”.
R.2.1.6 US — Carbon Steel,
paras. 125-126
(WT/DS213/AB/R, WT/DS213/AB/R/Corr.1)
There are, therefore, two distinct requirements, namely identification
of the specific measures at issue, and the provision of a brief
summary of the legal basis of the complaint (or the claims).
Together, they comprise the “matter referred to the DSB”, which forms
the basis for a panel’s terms of reference under Article 7.1 of the DSU.
The requirements of precision in the request for the establishment of a
panel flow from the two essential purposes of the terms of reference.
First, the terms of reference define the scope of the dispute. Secondly,
the terms of reference, and the request for the establishment of a panel
on which they are based, serve the due process objective of
notifying the parties and third parties of the nature of a complainant’s
case. When faced with an issue relating to the scope of its terms of
reference, a panel must scrutinize carefully the request for establishment
of a panel “to ensure its compliance with both the letter and the spirit
of Article 6.2 of the DSU”.
R.2.1.7 Canada — Wheat Exports and Grain Imports, para. 206
(WT/DS276/AB/R)
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.
R.2.1.8 Canada — Wheat Exports and Grain Imports, para. 211
(WT/DS276/AB/R)
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. …
R.2.1.9 Canada — Wheat Exports and Grain Imports, para. 212
(WT/DS276/AB/R)
Before leaving this issue, we turn to the United States’ assertion
that the March Panel erred by implying that “if the United States had
responded to Canada’s letter of April 7, 2003 … the United States
could have cured the alleged procedural defect in that panel request”.
…
We do not find that this statement carries the “implication”
alleged by the United States. In fact, as the United States acknowledges,
the March Panel expressly rejected such an implication when it stated that
“the United States could not have ‘cured’ any inconsistencies
with Article 6.2 of its panel request subsequent to the establishment of
this Panel”.
R.2.1.10 US — Oil Country Tubular Goods Sunset Reviews, para. 162
(WT/DS268/AB/R)
… in order for a panel request to “present the problem clearly”,
it must plainly connect the challenged measure(s) with the provision(s) of
the covered agreements claimed to have been infringed, so that the
respondent party is aware of the basis for the alleged nullification or
impairment of the complaining party’s benefits. Only by such connection
between the measure(s) and the relevant provision(s) can a respondent “know
what case it has to answer, and … begin preparing its defence”.
R.2.1.11 US — Upland Cotton, para. 293
(WT/DS267/AB/R)
We emphasize that consultations are but the first step in the WTO
dispute settlement process. They are intended to “provide the parties an
opportunity to define and delimit the scope of the dispute between them”.
We also note that Article 4.2 of the DSU calls on a WTO Member that
receives a request for consultations to “accord sympathetic
consideration to and afford adequate opportunity for consultation
regarding any representations made by another Member”. As long as the
complaining party does not expand the scope of the dispute, we hesitate to
impose too rigid a standard for the “precise and exact identity”
between the scope of consultations and the request for the establishment
of a panel, as this would substitute the request for consultations for the
panel request. According to Article 7 of the DSU, it is the request for
the establishment of a panel that governs its terms of reference, unless
the parties agree otherwise.
R.2.1.12 Dominican Republic
— Import and Sale of Cigarettes, para.
120
(WT/DS302/AB/R)
… The Appellate Body has consistently maintained that, where a panel
request fails to identify adequately particular measures or fails to
specify a particular claim, then such measures or claims will not form
part of the matter covered by the panel’s terms of reference.
R.2.1.13 EC — Selected Customs Matters,
paras. 129-130
(WT/DS315/AB/R)
Article 6.2 sets forth the requirements applicable to a request for the
establishment of a panel. As the Appellate Body stated [at paragraph 125]
in US — Carbon Steel, there are two distinct requirements,
namely:
… identification of the specific measures at issue, and the
provision of a brief summary of the legal basis of the complaint (or
the claims). (original emphasis)
These two requirements relate to different aspects of the complainant’s
challenge to measures taken by another Member. The “specific measure”
to be identified in a panel request is the object of the challenge,
namely, the measure that is alleged to be causing the violation of an
obligation contained in a covered agreement. In other words, the measure
at issue is what is being challenged by the complaining Member. In
contrast, the legal basis of the complaint, namely, the “claim”
pertains to the specific provision of the covered agreement that contains
the obligation alleged to be violated. A brief summary of the legal basis
of the complaint required by Article 6.2 of the DSU aims to explain
succinctly how or why the measure at issue is considered by
the complaining Member to be violating the WTO obligation in question.
This brief summary must be sufficient to present the problem clearly.
Taken together, these different aspects of a panel request serve not only
to define the scope of a dispute, but also to meet the due process
requirements.
R.2.1.14 EC — Selected Customs Matters, para. 153
(WT/DS315/AB/R)
We turn … to the question whether the panel request confines the
measure at issue to areas of customs administration. We read the third
paragraph of the panel request as an illustrative list of areas where the
United States considers European Communities customs law is not
administered in a uniform way. Thus, the substance of the third paragraph
of the panel request should be viewed as an anticipation of the United
States’ arguments. In this paragraph, the United States explains — briefly and in general terms
— why it considers that the legal
instruments listed in the first paragraph of the panel request are
administered in a manner that is inconsistent with the uniformity
requirement in Article X:3(a). Article 6.2 of the DSU requires that the claims
— not the arguments — be set out in a panel request in a
way that is sufficient to present the problem clearly. Nothing in Article
6.2 prevents a complainant from making statements in the panel request
that foreshadow its arguments in substantiating the claim. If the
complainant chooses to do so, these arguments should not be interpreted to
narrow the scope of the measures or the claims. Accordingly, we are of the
opinion that the Panel erred when it found that the list of areas of
customs administration in the third paragraph of the panel request limits
the scope of the “specific measures at issue”.
R.2.1.15 US — Zeroing (Japan) (Article 21.5
— Japan), paras.
118-119
(WT/DS322/AB/RW)
As we observed earlier, one of the purposes of a panel’s terms of
reference is to fulfil the due process objective of notifying respondents
and potential third parties of the nature of the dispute and of the
parameters of the case to which they must begin preparing a response. We
see no error in the Panel having examined whether Japan’s panel request
adequately put the United States “on notice” regarding the case
against it. Nor do we find error in the Panel’s finding that the United
States was reasonably put on notice by Japan’s panel request. … We
consider that the Panel did not err in its analysis of the matter and in
considering the due process objectives as relevant for purposes of
deciding whether Review 9 was within its terms of reference.
Further, we do not believe that the inclusion of Review 9 in the Panel’s
terms of reference adversely affected the United States’ due process
rights. … In our view, … the United States had ample opportunities,
during the course of the Panel proceedings and prior to the Panel’s
deliberations, to make arguments, answer questions, and respond to Japan’s
submission with respect to Review 9. Potential third parties were
sufficiently put on notice by Japan’s panel request … The third
parties also had opportunity to present arguments and respond to the
claims made by Japan with respect to Review 9. Based on the above, we
agree with the Panel’s conclusion that “a finding that the phrase ‘subsequent
closely connected measures’ satisfies the terms of Article 6.2 would not
violate any due process objective of the DSU”.
R.2.2 Article 6.2 of the DSU — Claims and legal basis of the
complaint. See also Burden of Proof, General (B.3.1); Claims
and Arguments (C.1); Claims and Panel Reasoning (C.2); Enabling Clause
(E.1) back to top
R.2.2.1 EC — Bananas III, para. 141
(WT/DS27/AB/R)
… We accept the Panel’s view that it was sufficient for the
Complaining Parties to list the provisions of the specific agreements
alleged to have been violated without setting out detailed arguments as to
which specific aspects of the measures at issue relate to which specific
provisions of those agreements. In our view, there is a significant
difference between the claims identified in the request for the
establishment of a panel, which establish the panel’s terms of reference
under Article 7 of the DSU, and the arguments supporting those
claims, which are set out and progressively clarified in the first written
submissions, the rebuttal submissions and the first and second panel
meetings with the parties.
R.2.2.2 EC — Bananas III, para. 143
(WT/DS27/AB/R)
… Article 6.2 of the DSU requires that the claims, but not the
arguments, must all be specified sufficiently in the request for
the establishment of a panel in order to allow the defending party and any
third parties to know the legal basis of the complaint. If a claim is
not specified in the request for the establishment of a panel, then a
faulty request cannot be subsequently “cured” by a complaining party’s
argumentation in its first written submission to the panel or in any other
submission or statement made later in the panel proceeding.
R.2.2.3 EC — Bananas III, para. 145
(WT/DS27/AB/R)
We do not agree with the Panel’s decisions to exclude certain claims
under Article XVII of the GATS made by Mexico and all of the GATS claims
made by Guatemala and Honduras from the scope of this case. There is no
requirement in the DSU or in GATT practice for arguments on all claims
relating to the matter referred to the DSB to be set out in a complaining
party’s first written submission to the panel. It is the panel’s terms
of reference, governed by Article 7 of the DSU, which set out the claims
of the complaining parties relating to the matter referred to the DSB.
R.2.2.4 EC — Bananas III, para. 147
(WT/DS27/AB/R)
… We do not agree with the Panel’s statement that a “failure to
make a claim in the first written submission cannot be remedied by later
submissions or by incorporating the claims and arguments of other
complainants”. …
R.2.2.5 India — Patents (US), para. 90
(WT/DS50/AB/R)
… the convenient phrase, “including but not necessarily limited to”,
is simply not adequate to “identify the specific measures at issue and
provide a brief summary of the legal basis of the complaint sufficient to
present the problem clearly” as required by Article 6.2 of the DSU. If
this phrase incorporates Article 63, what article of the TRIPS
Agreement does it not incorporate? Therefore, this phrase is not
sufficient to bring a claim relating to Article 63 within the terms of
reference of the Panel.
R.2.2.6 Korea — Dairy,
paras. 123-124
(WT/DS98/AB/R)
… we did not purport in European Communities —
Bananas to
establish the mere listing of the articles of an agreement alleged to have
been breached as a standard of precision, observance of which would always
constitute sufficient compliance with the requirements of Article 6.2,
in each and every case, without regard to the particular
circumstances of such cases. … Close scrutiny of what we in fact said in
European Communities — Bananas shows that we, firstly, restated
the reasons why precision is necessary in a request for a panel; secondly,
we stressed that claims, not detailed arguments, are what need to be set
out with sufficient clarity; and thirdly, we agreed with the conclusion of
the panel that, in that case, the listing of the articles of the
agreements claimed to have been violated satisfied the minimum requirements
of Article 6.2 of the DSU. …
Identification of the treaty provisions claimed to have been violated
by the respondent is always necessary both for purposes of defining the
terms of reference of a panel and for informing the respondent and the
third parties of the claims made by the complainant; such identification
is a minimum prerequisite if the legal basis of the complaint is to be
presented at all. But it may not always be enough. There may be situations
where the simple listing of the articles of the agreement or agreements
involved may, in the light of attendant circumstances, suffice to meet the
standard of clarity in the statement of the legal basis of the
complaint. However, there may also be situations in which the
circumstances are such that the mere listing of treaty articles would not
satisfy the standard of Article 6.2. This may be the case, for instance,
where the articles listed establish not one single, distinct obligation,
but rather multiple obligations. In such a situation, the listing of
articles of an agreement, in and of itself, may fall short of the standard
of Article 6.2.
R.2.2.7 Korea — Dairy, para. 127
(WT/DS98/AB/R)
… we consider that whether the mere listing of the articles claimed
to have been violated meets the standard of Article 6.2 must be examined
on a case-by-case basis. In resolving that question, we take into account
whether the ability of the respondent to defend itself was prejudiced,
given the actual course of the panel proceedings, by the fact that the
panel request simply listed the provisions claimed to have been violated.
R.2.2.8 Thailand — H-Beams, para. 88
(WT/DS122/AB/R)
Article 6.2 of the DSU calls for sufficient clarity with respect to the
legal basis of the complaint, that is, with respect to the “claims”
that are being asserted by the complaining party. A defending party is
entitled to know what case it has to answer, and what violations have been
alleged so that it can begin preparing its defence. Likewise, those
Members of the WTO who intend to participate as third parties in panel
proceedings must be informed of the legal basis of the complaint. This
requirement of due process is fundamental to ensuring a fair and orderly
conduct of dispute settlement proceedings.
R.2.2.9 Thailand — H-Beams, para. 90
(WT/DS122/AB/R)
… Article 3.1, which requires that an injury determination be based
on positive evidence, and that it involve an objective examination of the
relevant injury factors, is a fundamental and substantial obligation that
functions as a chapeau, and informs the rest of Article 3. Thus, in citing
the language of Article 3.1 and in referring to certain key factors
enumerated in Article 3, Poland has sufficiently provided a “brief
summary of the legal basis of the complaint sufficient to present the
problem clearly”, as required by Article 6.2 of the DSU.
R.2.2.10 Thailand — H-Beams,
paras. 92-95
(WT/DS122/AB/R)
In the facts and circumstances of this case, therefore, we consider
that the reference in Poland’s panel request to the “[calculation of]
an alleged dumping margin” was sufficient to bring Poland’s claims
under Article 2 within the panel’s terms of reference, and to inform
Thailand of the nature of Poland’s claims. Thus, with respect to the
claims relating to Article 2 of the Anti-Dumping Agreement, Poland’s
panel request was sufficient to meet the requirements of Article 6.2 of
the DSU.
… Article 5 sets out various but closely related procedural steps
that investigating authorities must comply with in initiating and
conducting an anti-dumping investigation. In view of the interlinked
nature of the obligations in Article 5, we are of the view that, in the
facts and circumstances of this case, Poland’s reference to “the
procedural … requirements” of Article 5 was sufficient to meet the
minimum requirements of Article 6.2 of the DSU.
In assessing the sufficiency of Poland’s panel request with respect
to the claims relating to Articles 2 and 5, the Panel put considerable
emphasis on the fact that the dispute involved “several issues that were
raised before the Thai investigating authorities”. The Panel’s
reasoning seems to assume that there is always continuity between claims
raised in an underlying anti-dumping investigation and claims raised by a
complaining party in a related dispute brought before the WTO. This is not
necessarily the case. The parties involved in an underlying anti-dumping
investigation are generally exporters, importers and other commercial
entities, while those involved in WTO dispute settlement are the Members
of the WTO. Therefore, it cannot be assumed that the range of issues
raised in an anti-dumping investigation will be the same as the claims
that a Member chooses to bring before the WTO in a dispute. Furthermore,
although the defending party will be aware of the issues raised in an
underlying investigation, other parties may not. Thus, the underlying
investigation cannot normally, in and of itself, be determinative in
assessing the sufficiency of the claims made in a request for the
establishment of a panel. We, therefore, are of the view that, in this
case, the Panel erred to the extent that it relied mainly on issues raised
in the underlying anti-dumping investigation in assessing the sufficiency
of Poland’s panel request under Articles 2 and 5.
Thailand argues that it was prejudiced by the lack of clarity of Poland’s
panel request. The fundamental issue in assessing claims of prejudice is
whether a defending party was made aware of the claims presented by the
complaining party, sufficient to allow it to defend itself. In assessing
Thailand’s claims of prejudice, we consider it relevant that, although
Thailand asked the Panel for a preliminary ruling on the sufficiency of
Poland’s panel request with respect to Articles 5 and 6 of the Anti-Dumping
Agreement at the time of filing of its first written submission, it
did not do so at that time with respect to Poland’s claims under
Articles 2 and 3 of that Agreement. We must, therefore, conclude that
Thailand did not feel at that time that it required additional clarity
with respect to these claims, particularly as we note that Poland had
further clarified its claims in its first written submission. This is a
strong indication to us that Thailand did not suffer any prejudice on
account of any lack of clarity in the panel request.
R.2.2.11 Korea — Various Measures on Beef, para. 87
(WT/DS161/AB/R, WT/DS169/AB/R)
… Although the “commitment levels” in Korea’s Schedule and “Annex
3” of the Agreement on Agriculture were not explicitly referred
to in the panel requests in this dispute, it is clear that Articles 3 and
6 of the Agreement on Agriculture, which were referred to
in the panel requests, incorporate those terms, either directly through
Articles 3.2 and 6.3, in the case of the “commitment levels”, or
indirectly through Article 1(a)(ii), in the case of “Annex 3”. In our
view, the commitment levels in Korea’s Schedule and the provisions of
Annex 3 were in effect referred to in the complaining parties’ panel
requests, and were, therefore, within the Panel’s terms of reference.
R.2.2.12 US — Certain EC Products,
paras. 111-112
(WT/DS165/AB/R)
Article 23.1 of the DSU imposes a general obligation of Members to
redress a violation of obligations or other nullification or impairment of
benefits under the covered agreements only by recourse to the rules and
procedures of the DSU, and not through unilateral action. Subparagraphs
(a), (b) and (c) of Article 23.2 articulate specific and clearly defined
forms of prohibited unilateral action contrary to Article 23.1 of the DSU.
There is a close relationship between the obligations set out in
paragraphs 1 and 2 of Article 23. They all concern the obligation
of Members of the WTO not to have recourse to unilateral action. We
therefore consider that, as the request for the establishment of a panel
of the European Communities included a claim of inconsistency with Article
23, a claim of inconsistency with Article 23.2(a) is within the Panel’s
terms of reference.
However, the fact that a claim of inconsistency with Article 23.2(a) of
the DSU can be considered to be within the Panel’s terms of reference
does not mean that the European Communities actually made such a claim. An
analysis of the Panel record shows that, with the exception of two
instances during the Panel proceedings, the European Communities did not
refer specifically to Article 23.2(a) of the DSU. Furthermore, in
response to a request from the United States to clarify the scope of its
claim under Article 23, the European Communities asserted only claims of
violation of Articles 23.1 and 23.2(c) of the DSU; no mention was made of
Article 23.2(a). Our reading of the Panel record shows us that, throughout
the Panel proceedings in this case, the European Communities made
arguments relating only to its claims that the United States acted
inconsistently with Article 23.1 and Article 23.2(c) of the DSU.
R.2.2.13 Chile — Price Band System, paras. 150-151
(WT/DS207/AB/R, WT/DS207/AB/R/Corr.1)
The Panel request refers to Article II of the GATT 1994 in general
terms. No specific reference is made to any of the seven paragraphs or
eight subparagraphs of Article II of the GATT 1994. Argentina’s request
clearly does not limit the scope of Argentina’s claims to the first sentence
of Article II:1(b). Therefore, we find that Article in its entirety — including the second sentence of Article II:1(b)
— is within the Panel’s
terms of reference.
This, however, is not the end of our inquiry on this issue. Chile does
not dispute that Argentina included Article II:1(b) in the request for the
establishment of a panel. However, Chile submits that making a general
reference to Article II in the Panel request is not dispositive of whether
Argentina has actually made a claim under the second sentence
of Article II:1(b), and, thus, of whether the Panel was entitled to make a
finding under that provision.
R.2.2.14 Chile — Price Band System, para. 164
(WT/DS207/AB/R, WT/DS207/AB/R/Corr.1)
… Argentina appears to suggest that a claim may be made implicitly,
and need not be made explicitly. We do not agree. The requirements of due
process and orderly procedure dictate that claims must be made explicitly
in WTO dispute settlement. Only in this way will the panel, other parties,
and third parties understand that a specific claim has been made, be aware
of its dimensions, and have an adequate opportunity to address and respond
to it. WTO Members must not be left to wonder what specific claims have
been made against them in dispute settlement. …
R.2.2.15 US — Carbon Steel, para. 127
(WT/DS213/AB/R, WT/DS213/AB/R/Corr.1)
As we have said previously, compliance with the requirements of Article
6.2 must be demonstrated on the face of the request for the establishment
of a panel. Defects in the request for the establishment of a panel cannot
be “cured” in the subsequent submissions of the parties during the
panel proceedings. Nevertheless, in considering the sufficiency of a panel
request, submissions and statements made during the course of the panel
proceedings, in particular the first written submission of the complaining
party, may be consulted in order to confirm the meaning of the words used
in the panel request and as part of the assessment of whether the ability
of the respondent to defend itself was prejudiced. Moreover, compliance
with the requirements of Article 6.2 must be determined on the merits of
each case, having considered the panel request as a whole, and in the
light of attendant circumstances.
R.2.2.16 US — Carbon Steel, para. 130
(WT/DS213/AB/R, WT/DS213/AB/R/Corr.1)
… As we have observed, although the listing of the treaty provisions
allegedly violated is always a necessary “minimum prerequisite”
for compliance with Article 6.2, whether such a listing is sufficient to
constitute a “brief summary of the legal basis of the complaint
sufficient to present the problem clearly” within the meaning of Article
6.2 will depend on the circumstances of each case, and in particular on
the extent to which mere reference to a treaty provision sheds light on
the nature of the obligation at issue. …
R.2.2.17 EC — Tariff Preferences, para. 110
(WT/DS246/AB/R)
… we are of the view that a complaining party challenging a measure
taken pursuant to the Enabling Clause must allege more than mere
inconsistency with Article I:1 of the GATT 1994, for to do only that would
not convey the “legal basis of the complaint sufficient to present the
problem clearly”. In other words, it is insufficient in WTO dispute
settlement for a complainant to allege inconsistency with Article I:1 of
the GATT 1994 if the complainant seeks also to argue that the measure is
not justified under the Enabling Clause. …
R.2.2.18 EC — Tariff Preferences, para. 113
(WT/DS246/AB/R)
In the light of the extensive requirements set forth in the Enabling
Clause, we are of the view that, when a complaining party considers that a
preference scheme of another Member does not meet one or more of those
requirements, the specific provisions of the Enabling Clause with which
the scheme allegedly falls afoul, form critical components of the “legal
basis of the complaint” and, therefore, of the “matter” in dispute.
Accordingly, a complaining party cannot, in good faith, ignore those
provisions and must, in its request for the establishment of a panel,
identify them and thereby “notif[y] the parties and third parties of the
nature of [its] case”. For the failure of such a complaining party to
raise the relevant provisions of the Enabling Clause would place an
unwarranted burden on the responding party. This due process consideration
applies equally to the elaboration of a complaining party’s case in its
written submissions, which must “explicitly” articulate a claim so
that the panel and all parties to a dispute “understand that a specific
claim has been made, [are] aware of its dimensions, and have an adequate
opportunity to address and respond to it”.
R.2.2.19 EC — Tariff Preferences, para. 118
(WT/DS246/AB/R)
… In the light of the above considerations, we are of the view that
India was required to (i) identify, in its request for the establishment
of a panel, which obligations in the Enabling Clause the Drug Arrangements
are alleged to have contravened, and (ii) make written submissions in
support of this allegation. The requirement to make such an argument,
however, does not mean that India must prove inconsistency with a
provision of the Enabling Clause, because the ultimate burden of
establishing the consistency of the Drug Arrangements with the Enabling
Clause lies with the European Communities.
R.2.2.20 US — Gambling, para. 269
(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.
R.2.2.21 Mexico — Anti-Dumping Measures on Rice, para. 136
(WT/DS295/AB/R)
The Appellate Body has previously explained that the term “legal
basis”, which appears in both Article 4.4 and Article 6.2, refers to the
claims made by the complaining party. It does not follow from the use of
the same term in both provisions, however, that the claims made at the
time of the panel request must be identical to those indicated in the
request for consultations. …
R.2.2.22 Mexico — Anti-Dumping Measures on Rice, para. 138
(WT/DS295/AB/R)
… A complaining party may learn of additional information during
consultations — for example, a better understanding of the operation of
a challenged measure — that could warrant revising the list of treaty
provisions with which the measure is alleged to be inconsistent. Such a
revision may lead to a narrowing of the complaint, or to a reformulation
of the complaint that takes into account new information such that
additional provisions of the covered agreements become relevant. The
claims set out in a panel request may thus be expected to be shaped by,
and thereby constitute a natural evolution of, the consultation process.
Reading the DSU, as Mexico does, to limit the legal basis set out in the
panel request to what was indicated in the request for consultations,
would ignore an important rationale behind the requirement to hold
consultations — namely, the exchange of information necessary to refine
the contours of the dispute, which are subsequently set out in the panel
request. In this light, we consider that it is not necessary that the
provisions referred to in the request for consultations be identical to
those set out in the panel request, provided that the “legal basis” in
the panel request may reasonably be said to have evolved from the “legal
basis” that formed the subject of consultations. In other words, the
addition of provisions must not have the effect of changing the essence of
the complaint.
R.2.2.23 Mexico — Anti-Dumping Measures on Rice,
paras. 139-140
(WT/DS295/AB/R)
… the Panel made no findings of inconsistency — and indeed,
undertook no analysis at all — with respect to four of the 13 claims
that Mexico alleges on appeal were not properly identified by the United
States in the request for consultations as part of the “legal basis”
of the complaint.
In the absence of any findings of inconsistency by the Panel or an
appeal by the United States on these four claims, we see no need to decide
whether they were sufficiently identified as part of the “legal basis”
for the complaint, because doing so “would not serve ‘to secure a
positive solution’ to this dispute”. At the oral hearing, Mexico and
the United States agreed with this approach. We therefore decline to
examine whether these four claims evolved out of the “legal basis”
indicated in the request for consultations. …
R.2.2.24 EC — Selected Customs Matters, para. 166
(WT/DS315/AB/R)
We agree with the Panel that “there is nothing in the DSU nor in the
other WTO agreements that would prevent a complaining Member from
challenging a responding Member’s system as a whole or overall”. We
also agree with the Panel that a challenge that a system “as a whole or
overall” is WTO-inconsistent must be presented in a manner that meets
the two distinct requirements in Article 6.2 of the DSU. …
R.2.2.25 EC — Selected Customs Matters, para. 168
(WT/DS315/AB/R)
The United States’ appeal requires us to examine the wording and
content of the panel request. Determining the scope of the claims that are
set out in a panel request requires that the panel request be construed as
a whole. We will be able to conclude that the panel request included a
challenge to the European Communities’ system of customs administration
as a whole or overall only if we are convinced that the panel request,
read as a whole, states this claim in a way that is “sufficient to
present the problem clearly”.
R.2.3 Article 6.2 of the DSU — Specific measures at issue. See
also Legislation as such vs. Specific Application (L.1); Mandatory and
Discretionary Legislation (M.1); Terms of Reference of Panels, Specific
measure at issue (T.6.3) back to top
R.2.3.1 Australia — Salmon, para. 103
(WT/DS18/AB/R)
… In our view, the … measure at issue can only be the measure which
is actually applied to the product at issue. …
R.2.3.2 Guatemala — Cement I, para. 77
(WT/DS60/AB/R)
… Where a complaining Member wishes to make any claims concerning an
action taken, or not taken, in the course of an anti-dumping investigation
under the provisions of the Anti-Dumping Agreement, Article 6.2 of
the DSU requires “the specific measures at issue” to be identified in
the panel request.
R.2.3.3 Guatemala — Cement I, para. 80
(WT/DS60/AB/R)
… We find that in disputes under the Anti-Dumping Agreement relating
to the initiation and conduct of anti-dumping investigations, a definitive
anti-dumping duty, the acceptance of a price undertaking or a provisional
measure must be identified as part of the matter referred to the DSB
pursuant to the provisions of Article 17.4 of the Anti-Dumping
Agreement and Article 6.2 of the DSU.
R.2.3.4 EC — Computer Equipment, para. 65
(WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R)
We consider that “measures” within the meaning of Article 6.2 of
the DSU are not only measures of general application, i.e., normative
rules, but also can be the application of tariffs by customs authorities.
…
R.2.3.5 EC — Computer Equipment, para. 67
(WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R)
… Article 6.2 of the DSU does not explicitly require that the
products to which the “specific measures at issue” apply be
identified. However with respect to certain WTO obligations, in order to
identify “the specific measures at issue” it may also be necessary to
identify the products subject to the measures in dispute.
R.2.3.6 EC — Computer Equipment, para. 68
(WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R)
LAN equipment and PCs with multimedia capacity are both generic terms.
Whether these terms are sufficiently precise to “identify the specific
measure at issue” under Article 6.2 of the DSU depends, in our view,
upon whether they satisfy the purposes of the requirements of that
provision.
R.2.3.7 EC — Computer Equipment, para. 70
(WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R)
… As the ability of the European Communities to defend itself was not
prejudiced by a lack of knowing the measures at issue, we do not believe
that the fundamental rule of due process was violated by the Panel.
R.2.3.8 Brazil — Aircraft, para. 132
(WT/DS46/AB/R)
We do not believe, however, that Articles 4 and 6 of the DSU, or
paragraphs 1 to 4 of Article 4 of the SCM Agreement, require a precise
and exact identity between the specific measures that were the subject
of consultations and the specific measures identified in the request for
the establishment of a panel. …
R.2.3.9 Chile — Price Band System, para. 139
(WT/DS207/AB/R, WT/DS207/AB/R/Corr.1)
… Chile’s price band system remains essentially the same after the
enactment of Law 19.772. The measure is not, in its essence, any different
because of that Amendment. Therefore, we conclude that the measure before
us in this appeal includes Law 19.772, because that law amends Chile’s
price band system without changing its essence.
R.2.3.10 Chile — Price Band System, para. 144
(WT/DS207/AB/R, WT/DS207/AB/R/Corr.1)
We emphasize that we do not mean to condone a practice of amending
measures during dispute settlement proceedings if such changes are made
with a view to shielding a measure from scrutiny by a panel or by us. We
do not suggest that this occurred in this case. However, generally
speaking, the demands of due process are such that a complaining party
should not have to adjust its pleadings throughout dispute settlement
proceedings in order to deal with a disputed measure as a “moving target”.
If the terms of reference in a dispute are broad enough to include
amendments to a measure — as they are in this case — and if it is
necessary to consider an amendment in order to secure a positive solution
to the dispute — as it is here — then it is appropriate to consider
the measure as amended in coming to a decision in a dispute.
R.2.3.11 US — Carbon Steel, para. 171
(WT/DS213/AB/R, WT/DS213/AB/R/Corr.1)
In our view, the references in the panel request to “certain aspects
of the sunset review procedure”, to the United States statutory
provisions governing sunset reviews, to related regulatory provisions, and
to the Sunset Policy Bulletin, can be read to refer, generally, to United
States law regarding the determination to be made in a sunset review.
However, we do not believe they can be read to refer to distinct measures,
consisting of United States law, as such, and as applied, relating to the
submission of evidence. Accordingly, we agree with the Panel that the
matters relating to the submission of evidence in a sunset review were not
within its terms of reference because the specific measures at issue
were not adequately identified in the request for the establishment of
the panel, as required by Article 6.2 of the DSU.
R.2.3.12 US — Oil Country Tubular Goods Sunset Reviews, para. 173
(WT/DS268/AB/R)
We also expect that measures subject to “as such” challenges would
normally have undergone, under municipal law, thorough scrutiny through
various deliberative processes to ensure consistency with the Member’s
international obligations, including those found in the covered
agreements, and that the enactment of such a measure would implicitly
reflect the conclusion of that Member that the measure is not inconsistent
with those obligations. The presumption that WTO Members act in good faith
in the implementation of their WTO commitments is particularly apt in the
context of measures challenged “as such”. We would therefore urge
complaining parties to be especially diligent in setting out “as
such” claims in their panel requests as clearly as possible. In
particular, we would expect that “as such” claims state unambiguously
the specific measures of municipal law challenged by the complaining party
and the legal basis for the allegation that those measures are not
consistent with particular provisions of the covered agreements. Through
such straightforward presentations of “as such” claims, panel requests
should leave respondent parties in little doubt that, notwithstanding
their own considered views on the WTO-consistency of their measures,
another Member intends to challenge those measures, as such, in WTO
dispute settlement proceedings.
R.2.3.13 US — Upland Cotton, para. 262
(WT/DS267/AB/R)
Whether or not a measure is still in force is not dispositive of
whether that measure is currently affecting the operation of any covered
agreement. Therefore, we disagree with the United States’ argument that
measures whose legislative basis has expired are incapable of affecting
the operation of a covered agreement in the present and that, accordingly,
expired measures cannot be the subject of consultations under the
DSU. In our view, the question of whether measures whose legislative basis
has expired affect the operation of a covered agreement currently is an
issue that must be resolved on the facts of each case. The outcome of such
an analysis cannot be prejudged by excluding it from consultations and
dispute settlement proceedings altogether.
R.2.3.14 US — Upland Cotton, para. 269
(WT/DS267/AB/R)
The only temporal connotation contained in the ordinary meaning of the
expression “at issue”, as used in Article 6.2 of the DSU, is expressed
by its present tense: measures must be “at issue” — or, putting it
another way, “in dispute” — at the time the request is made.
Certainly, nothing inherent in the term “at issue” sheds light on
whether measures at issue must be currently in force, or whether they may
be measures whose legislative basis has expired.
R.2.3.15 US — Gambling, paras. 120-123
(WT/DS285/AB/R, WT/DS285/AB/R/Corr.1)
The question before us, therefore, is whether an alleged “total
prohibition” on the cross-border supply of gambling and betting services
constitutes a measure that may be challenged under the GATS. The DSU
provides for the “prompt settlement” of situations where Members
consider that their benefits under the covered agreements “are being
impaired by measures taken by another Member”. Two elements of
this reference to “measures” that may be the subject of dispute
settlement are relevant. First, as the Appellate Body has stated, a “nexus”
must exist between the responding Member and the “measure”, such that
the “measure” — whether an act or omission — must be “attributable”
to that Member. Secondly, the “measure” must be the source of
the alleged impairment, which is in turn the effect resulting from
the existence or operation of the “measure”.
Similarly [Article 4.2 of the DSU] contemplates that “measures”
themselves will “affect” the operation of a covered agreement.
Finally, we note that this distinction between measures and their effects
is also evident in the scope of application of the GATS, namely, to “measures
by Members affecting trade in services”.
We are therefore of the view that the DSU and the GATS focus on “measures”
as the subject of challenge in WTO dispute settlement. To the extent that
a Member’s complaint centres on the effects of an action taken by
another Member, that complaint must nevertheless be brought as a challenge
to the measure that is the source of the alleged effects.
R.2.3.16 US — Gambling, paras. 125-126
(WT/DS285/AB/R, WT/DS285/AB/R/Corr.1)
We note also that, if the “total prohibition” were a measure, a
complaining party could fulfil its obligation to identify the “specific
measure at issue”, pursuant to Article 6.2 of the DSU, merely by
explicitly mentioning the “prohibition”. Yet, without knowing the
precise source of the “prohibition”, a responding party would not be
in a position to prepare adequately its defence, particularly where, as
here, it is alleged that numerous federal and state laws underlie the “total
prohibition”.
Therefore, we conclude that, without demonstrating the source of the
prohibition, a complaining party may not challenge a “total prohibition”
as a “measure”, per se, in dispute settlement proceedings under
the GATS. …
R.2.3.17 US — Gambling, paras. 129, 131-132
(WT/DS285/AB/R, WT/DS285/AB/R/Corr.1)
… the Panel relied on certain Appellate Body decisions in support of
its view that “‘practice’ can be considered as an autonomous measure
that can be challenged in and of itself”. …
…
We disagree with the participants’ characterization of the Panel’s
statement on “practice”, in paragraph 6.197 of the Panel Report, as a
“finding” of the Panel. The Panel itself acknowledged that, in any
case, Antigua was not challenging a practice, as such. In this light, the
Panel’s statement on “practice”, in our view, was a mere obiter
dictum, and we need not rule on it.
We nevertheless express our disagreement with the Panel’s
understanding of previous Appellate Body decisions. The Appellate Body has
not, to date, pronounced upon the issue of whether “practice”
may be challenged, as such, as a “measure” in WTO dispute settlement.
R.2.3.18 EC — Chicken Cuts,
paras. 155-157
(WT/DS269/AB/R, WT/DS286/AB/R, WT/DS269/AB/R/Corr.1,
WT/DS286/AB/R/Corr.1)
… In our view, the clear identification of the specific measures at
the outset is central to define the scope of the dispute to be addressed
by a panel.
The term “specific measures at issue” in Article 6.2 suggests that,
as a general rule, the measures included in a panel’s terms of reference
must be measures that are in existence at the time of the establishment of
the panel. However, measures enacted subsequent to the establishment of
the panel may, in certain limited circumstances, fall within a panel’s
terms of reference. Indeed, the Appellate Body addressed such a
circumstance in Chile — Price Band System [at paragraphs 126-144].
…
… the Appellate Body found that, where an original measure had merely
been amended by a subsequent measure and the amendment did not, in any
way, change the essence of the original measure, the measure in its
amended form could constitute the “specific measure … at issue”
identified in the panel request.
R.2.3.19 EC — Chicken Cuts, para. 160
(WT/DS269/AB/R, WT/DS286/AB/R, WT/DS269/AB/R/Corr.1,
WT/DS286/AB/R/Corr.1)
Brazil and Thailand also argue that the two subsequent measures fall
within the Panel’s terms of reference, because they have the “same
effect” and bring about the same result as the two original measures,
namely the (re)classification of the products at issue. Even assuming that
Brazil and Thailand are correct that the two subsequent measures have the
“same effect” as the two original measures insofar as frozen boneless
chicken cuts are concerned, we fail to see a legal basis for applying such
a test. In our view, the notion of measures having the “same effect”
is too vague and could undermine the requirement of specificity and the
due process objective enshrined in Article 6.2.
R.2.3.20 EC — Chicken Cuts, para. 161
(WT/DS269/AB/R, WT/DS286/AB/R, WT/DS269/AB/R/Corr.1,
WT/DS286/AB/R/Corr.1)
Brazil and Thailand also refer to Articles 3.4 and 3.7 of the DSU and
argue that the principle of “satisfactory settlement of the matter”
and of “secur[ing] a positive solution to the dispute” supports the
inclusion of the two subsequent measures in the Panel’s terms of
reference in this case. We agree that a positive and effective resolution
of a dispute is one of the key objectives of the WTO dispute settlement
system. However, this objective cannot be pursued at the expense of
complying with the specific requirements and obligations of Article 6.2.
Moreover, in this case, we believe that the non-inclusion of the two
subsequent measures in the Panel’s terms of reference would not hinder a
positive resolution of this dispute.
R.2.3.21 EC — Chicken Cuts, paras. 165-167
(WT/DS269/AB/R, WT/DS286/AB/R, WT/DS269/AB/R/Corr.1,
WT/DS286/AB/R/Corr.1)
… Article 6.2 of the DSU does not refer to the identification of the
products at issue; rather, it refers to the identification of the specific
measures at issue. Article 6.2 contemplates that the identification of the
products at issue must flow from the specific measures identified in the
panel request. Therefore, the identification of the product at issue is
generally not a separate and distinct element of a panel’s terms of
reference; rather, it is a consequence of the scope of application of the
specific measures at issue. In other words, it is the measure at
issue that generally will define the product at issue.
At the same time, we acknowledge that the Appellate Body held, in EC
— Computer Equipment, that, with respect to certain WTO obligations,
in order to identify the specific measures at issue, it may be necessary
also to identify the products at issue. In that case, however, the
measures at issue were individual classification decisions by customs
authorities in the European Communities, rather than legislative or
regulatory measures of general application as in this case. …
We believe that, in circumstances in which a series of decisions of
customs authorities are under challenge, it may be necessary to identify
the products at issue in order to distinguish the contested measures (for
example, individual classification decisions by customs authorities) from
other measures (different individual classification decisions by customs
authorities). By contrast, in the present dispute, the contested measures
are not individual classification decisions by customs authorities but,
rather, (i) a generally applicable legal instrument (EC Regulation
1223/2002), as well as (ii) a decision requiring a Member State of the
European Communities to withdraw a series of BTIs (EC Decision
2003/97/EC). These two measures define the products to which they apply,
namely frozen boneless chicken cuts with a salt content of 1.2 to 1.9 per
cent, and frozen boneless chicken cuts with a salt content of 1.9 to 3 per
cent, respectively. Thus, it is evident that these products, which are
explicitly mentioned in the specific measures identified in the panel
requests, are the ones at issue in the present dispute.
R.2.3.22 EC — Selected Customs Matters,
paras. 131-132
(WT/DS315/AB/R)
… The question of whether a measure falls within a panel’s terms of
reference is a threshold issue, distinct from the question of whether the
measure is consistent or not with the legal provision(s) of the covered
agreement(s) to which the panel request refers. Therefore, questions
pertaining to the identification of the “measures at issue” and the
“claims” relating to alleged violation of WTO obligations, set out in
a panel request, should be analysed separately.
At the heart of the Panel’s reasoning stands the proposition that the
term “measure at issue” in Article 6.2 of the DSU should be
interpreted in the light of the specific WTO obligation that is raised in
a particular claim. This reasoning appears to us to be flawed. The Panel’s
proposition would introduce uncertainty because the identification of the
measure would vary depending on the substance of the legal provision
invoked by a complainant and the interpretation that a panel might give to
that provision. … In finding that the term “measures at issue” in
Article 6.2 should be interpreted in the light of the specific WTO
obligation that is alleged to be violated, the Panel blurred the
distinction between measures and claims.
R.2.3.23 EC — Selected Customs Matters, para. 133
(WT/DS315/AB/R)
In our view, a complainant is entitled to include in its panel request
an allegation of inconsistency with a covered agreement of any measure
that may be submitted to WTO dispute settlement. In US — Corrosion-Resistant Steel Sunset Review, the Appellate Body provided
guidance on the types of measures that may be the subject of dispute
settlement. Relying on, inter alia, Article 3.3 of the DSU, which
refers to “situations in which a Member considers that any benefits
accruing to it directly or indirectly under the covered agreements are
being impaired by measures taken by another Member”, the
Appellate Body stated that “[i]n principle, any act or omission
attributable to a WTO Member can be a measure of that Member for purposes
of dispute settlement proceedings.” As long as the specificity
requirements of Article 6.2 are met, we see no reason why a Member should
be precluded from setting out in a panel request “any act or omission”
attributable to another Member as the measure at issue.
R.2.3.24 EC — Selected Customs Matters,
paras. 134-135
(WT/DS315/AB/R)
The Panel considered that, when a violation of Article X:3(a) of the
GATT 1994 is claimed, the measure at issue must necessarily be a “manner
of administration” because, if such a violation is found, the WTO Member
concerned would need to alter the manner of administration in order to
comply with a recommendation made pursuant to Article 19.1 of the DSU. In
our view, this reasoning of the Panel is flawed because it conflates the
threshold question of whether a measure falls within a panel’s terms of
reference with the question of the means of implementation in the event
that a violation is found. Through the recommendation under Article 19.1,
the Member found to have violated a provision of a covered agreement is
required to take corrective action to remove the violation. The
recommendation envisaged in Article 19.1 concerns the stage of
implementation and not the question of whether a measure falls within a
panel’s terms of reference. Moreover, the Member concerned has a degree
of discretion with respect to the nature and type of action that it
undertakes in order to achieve compliance. Therefore, we have difficulty
in understanding how the means of compliance with a recommendation under
Article 19.1 of the DSU should govern the identification of the specific
measure at issue in a panel request. We agree, in this respect, with the
United States that “[t]he mere fact that a breach of Article X:3(a) may
be removed by changing a law’s administration is not a basis for
concluding that the law is not the measure at issue.”
… In [US — Upland Cotton], the Appellate Body had to address
the issue of whether an expired measure can be a “measure at issue”
within the meaning of Article 6.2 of the DSU. The Appellate Body rejected
the United States’ argument that, because an expired measure is not
susceptible to a recommendation under Article 19.1 of the DSU, it cannot
be a “measure at issue” under Article 6.2. For the Appellate Body, the
question of whether a panel can address claims in respect of an expired
measure is to be distinguished from the question of whether that measure
is susceptible to a recommendation under Article 19.1. … the Appellate
Body’s reasoning in US — Upland Cotton supports our position
that Article 19.1 of the DSU does not place restrictions on the type of
measure that can be identified in a panel request under Article 6.2 of the
DSU.
R.2.3.25 EC — Selected Customs Matters, para. 184
(WT/DS315/AB/R)
We begin our analysis by recalling the Appellate Body’s statement [at
paragraph 156] in EC — Chicken Cuts:
The term “specific measures at issue” in Article 6.2 suggests that,
as a general rule, the measures included in a panel’s terms of reference
must be measures that are in existence at the time of the establishment of
the panel. (footnote omitted)
This general rule, however, is qualified by at least two exceptions.
First, in Chile — Price Band System, the Appellate Body held that
a panel has the authority to examine a legal instrument enacted after the
establishment of the panel that amends a measure identified in the panel
request, provided that the amendment does not change the essence of the
identified measure. Secondly, in US — Upland Cotton, the
Appellate Body held that panels are allowed to examine a measure “whose
legislative basis has expired, but whose effects are alleged to be
impairing the benefits accruing to the requesting Member under a covered
agreement” at the time of the establishment of the panel. …
R.2.3.26 Brazil — Retreaded Tyres,
paras. 124-127
(WT/DS332/AB/R)
Following the approach of the parties, the Panel analysed the claim
made against the Import Ban separately from the claims made against the
MERCOSUR exemption. …
… the European Communities does not appeal the Panel’s analytical
approach. More specifically, the European Communities does not contend
that the Panel erred in identifying and separately treating as two
distinct matters before it: a claim relating to the Import Ban; and a
claim concerning the discrimination introduced by the MERCOSUR exemption.
We observe, nonetheless, that the Panel might have opted for a more
holistic approach to the measure at issue by examining the two elements of
Article 40 of Portaria SECEX 14/2004 that relate to retreaded tyres together.
The Panel could, under such an approach, have analysed whether the Import
Ban in combination with the MERCOSUR exemption violated Article XI:1, and
whether that combined measure, or the resulting partial import ban,
could be considered “necessary” within the meaning of Article XX(b).
Yet, the Panel’s approach reflects the manner in which the European
Communities formulated its claims to the Panel, and the fact that the
MERCOSUR exemption was not part of the original ban on the importation of
retreaded tyres adopted by Brazil (Portaria SECEX 8/2000), but was only
introduced following a ruling in 2002 by a MERCOSUR arbitral tribunal.
These considerations prompt us to examine the issues appealed on the basis
of the conceptual approach adopted by the Panel in defining the scope of
the measure at issue, which, as indicated above, has not specifically been
appealed by the European Communities.
R.2.3.27 US — Continued Zeroing, paras. 168-169
(WT/DS350/AB/R)
… the specificity requirement under Article 6.2 is intended to ensure
the sufficiency of a panel request in “present[ing] the problem clearly”.
The identification of the measure, together with a brief summary of the
legal basis of the complaint, serves to demarcate the scope of a panel’s
jurisdiction and allows parties to engage in the subsequent panel
proceedings. Thus, the specificity requirement means that the measures at
issue must be identified with sufficient precision so that what is
referred to adjudication by a panel may be discerned from the panel
request. The Panel, however, appeared to attribute a more substantive
meaning to the specificity requirement, whereby the existence and precise
content of a measure must be demonstrated for a panel request to fulfil
this requirement.
Yet, the identification of the specific measures at issue, pursuant to
Article 6.2, is different from a demonstration of the existence of such
measures. For the latter, a complainant would be expected to present
relevant arguments and evidence during the panel proceedings showing the
existence of the measures, for example, in the case of challenges brought
against unwritten norms. Moreover, although a measure cannot be identified
without some indication of its contents, the identification of a measure
within the meaning of Article 6.2 need be framed only with sufficient
particularity so as to indicate the nature of the measure and the gist of
what is at issue. Thus, an examination regarding the specificity of a
panel request does not entail substantive consideration as to what types
of measures are susceptible to challenge in WTO dispute settlement. Such
consideration may have to be explored by a panel and the parties during
the panel proceedings, but is not prerequisite for the establishment of a
panel. To impose such prerequisite would be inconsistent with the function
of a panel request in commencing panel proceedings and setting the
jurisdictional boundaries of such proceedings. Therefore, we reject the
proposition that an examination of the specificity requirement under
Article 6.2 of the DSU must involve a substantive inquiry as to the
existence and precise content of the measure.
R.2.3.28 US — Continued Zeroing,
paras. 170-171
(WT/DS350/AB/R)
Furthermore, in the Panel’s view, the European Communities’ panel
request did “not sufficiently distinguish between the continued
application of the 18 duties and the use of zeroing in the 52 specific
proceedings at issue”. The Panel reasoned that, “if the European
Communities wishes to raise claims in connection with the continued
application of the 18 duties at issue, it has to, in the first place,
identify that measure independently from other measures with regard to
which it raises other claims”. We have some sympathy for the view that
the panel request could have been formulated with greater precision and
clarity. Nonetheless, so long as each measure is discernible in the panel
request, the complaining party is not required to identify in its panel
request each challenged measure independently from other measures in order
to comply with the specificity requirement in Article 6.2 of the DSU.
For the Panel, “another flaw” in the European Communities’
arguments was that “the remedy sought by the European Communities will
affect the determinations that the USDOC might make in anti-dumping
proceedings that may be conducted in the future”. The Panel reasoned
that “Article 6.2 of the DSU, in principle, does not allow a panel to
make findings regarding measures that do not exist as of the date of the
panel’s establishment” unless they “come into existence during the
panel proceedings”. The Panel appeared to consider that, because the
remedy sought by the European Communities was prospective in nature, the
“measures” with respect to which such remedy was sought could not be
regarded as specifically identified in the panel request. In our view, the
remedy sought by the complainant may provide further confirmation as to
the measure that is the subject of the complaint. As discussed, we are of
the view that it can be discerned from the panel request, read as a whole,
that the measures at issue consist of an ongoing conduct, that is, the use
of the zeroing methodology in successive proceedings in each of the 18
cases whereby anti-dumping duties are maintained. The prospective nature
of the remedy sought by the European Communities is congruent with the
fact that the measures at issue are alleged to be ongoing, with
prospective application and a life potentially stretching into the future.
Moreover, it is not uncommon for remedies sought in WTO dispute settlement
to have prospective effect, such as a finding against laws or regulations,
as such, or a subsidy programme with regularly recurring payments.
R.2.3.29 US — Zeroing (Japan) (Article 21.5
— Japan), para. 116
(WT/DS322/AB/RW)
… Further, the text of Article 6.2 of the DSU does not require that a
measure be referred to individually in order to be properly identified for
purposes of that Article. The Appellate Body has stated that the measures
at issue must be identified with sufficient precision in order that the
matter referred to a panel may be discerned from the panel request.
Whereas a more precise way to identify a measure would be to indicate its
name and title in the panel request, there may be circumstances in which a
party describes a measure in a more generic way, which nonetheless allows
the measure to be discerned. …
R.2.3.30 US — Zeroing (Japan) (Article 21.5
— Japan), para. 125
(WT/DS322/AB/RW)
… the United States relies on the Appellate Body’s statement in EC
— Chicken Cuts that “[t]he term ‘specific measures at issue’
in Article 6.2 suggests that, as a general rule, the measures included in
a panel’s terms of reference must be measures that are in existence at
the time of the establishment of the panel”, and that only in “certain
limited circumstances” will measures enacted subsequent to a panel’s
establishment fall within the Panel’s terms of reference. According to
the United States, the circumstances of this case, including the fact that
it is a compliance proceeding, do not justify the inclusion of Review 9 in
the Panel’s terms of reference. As the United States itself recognizes,
however, in EC — Chicken Cuts, the Appellate Body did not rule
that Article 6.2 categorically prohibits the inclusion, within a panel’s
terms of reference, of measures that come into existence or are completed
after the panel is requested. Rather, the Appellate Body noted explicitly
that, in certain circumstances, such measures could be included in a panel’s
terms of reference. Moreover, whereas the statement in EC — Chicken
Cuts to which the United States refers was made in the context of
original WTO proceedings, we are dealing here with Article 21.5
proceedings. As we explained earlier, the requirements of Article 6.2 must
be adapted to a panel request under Article 21.5, and the scope and
function of Article 21.5 proceedings necessarily inform the interpretation
of the Article 6.2 requirements in such proceedings. The proceedings
before us present circumstances in which the inclusion of Review 9 was
necessary for the Panel to assess whether compliance had been achieved,
and thereby resolve the “disagreement as to the existence or consistency
with a covered agreement of measures taken to comply with the
recommendations and rulings”.
R.2.4 Article 6.2 of the DSU — “whether consultations were held”
back to top
R.2.4.1 Brazil — Aircraft, para. 131
(WT/DS46/AB/R)
In our view, Articles 4 and 6 of the DSU, as well as paragraphs 1 to 4
of Article 4 of the SCM Agreement, set forth a process by which a
complaining party must request consultations, and consultations must be
held, before a matter may be referred to the DSB for the establishment of
a panel. Under Article 4.3 of the SCM Agreement, moreover, the
purpose of consultations is “to clarify the facts of the situation and
to arrive at a mutually agreed solution”.
R.2.4.2 Mexico — Corn Syrup (Article 21.5
— US), paras. 69-70
(WT/DS132/AB/RW)
… in previous appeals, we have observed that Article 6.2 imposes four
requirements on Members requesting establishment of a panel, one of which
obliges Members requesting the establishment of a panel to “indicate”,
in that request, “whether consultations were held”. The issue which we
examine here is not whether Members come under such an obligation, for it
is clear that they do. Rather, we must consider the nature of that
obligation, and the consequences that ensue when a requesting Member does
not “indicate whether consultations were held” in its request for
establishment of a panel and a responding Member does not object to that
omission. …
… we observe that the requirement will be satisfied by the inclusion,
in the request for establishment of a panel, of a statement as to whether
consultations occurred or not. The purpose of the requirement seems
to be primarily informational — to inform the DSB and Members as to
whether consultations took place. We also recall that the DSU expressly
contemplates that, in certain circumstances, a panel can deal with and
dispose of the matter referred to it even if no consultations took place.
Similarly, the authority of the panel cannot be invalidated by the
absence, in the request for establishment of the panel, of an indication
“whether consultations were held”. Indeed, it would be curious if the
requirement in Article 6.2 to inform the DSB whether consultations were
held was accorded more importance in the dispute settlement process than
the requirement actually to hold those consultations.
R.2.5 Relationship between Article 6.2 and Article 21.5 of the DSU
back to top
R.2.5.1 US — FSC (Article 21.5
— EC II), para. 59 and footnote
116
(WT/DS108/AB/RW2)
The Appellate Body has, to date, not been called upon to determine the
precise scope of the phrase “these dispute settlement procedures” in
Article 21.5 and how it relates to Article 6.2 of the DSU.116 We do
not consider it necessary, for purposes of resolving the present dispute,
to determine the precise scope of this phrase. However, we are of the view
that the phrase “these dispute settlement procedures” does encompass
Article 6.2 of the DSU, and that Article 6.2 is generally applicable to
panel requests under Article 21.5. At the same time, given that Article
21.5 deals with compliance proceedings, Article 6.2 needs to be
interpreted in the light of Article 21.5. In other words, the requirements
of Article 6.2, as they apply to an original panel request, need to be
adapted to a panel request under Article 21.5.
R.2.5.2 US — FSC (Article 21.5
— EC II), para. 61
(WT/DS108/AB/RW2)
It is important to note that the text of Article 21.5 expressly links
the “measures taken to comply” with the recommendations and rulings of
the DSB. Therefore, the “specific measures at issue” to be identified
in Article 21.5 proceedings are measures that have a bearing on compliance
with the recommendations and rulings of the DSB. This, in our view,
indicates that the requirements of Article 6.2 of the DSU, as they apply
to an Article 21.5 panel request, must be assessed in the light of the
recommendations and rulings of the DSB in the original panel proceedings
that dealt with the same dispute.
R.2.5.3 US — FSC (Article 21.5
— EC II), para. 62 and footnote
119
(WT/DS108/AB/RW2)
Hence, in order to identify the “specific measures at issue” and to
provide “a brief summary of the legal basis of the complaint” in a
panel request under Article 21.5, the complaining party must identify, at
a minimum, the following elements in its panel request. First, the
complaining party must cite the recommendations and rulings that the DSB
made in the original dispute as well as in any preceding Article 21.5
proceedings, which, according to the complaining party, have not yet been
complied with. Secondly, the complaining party must either identify, with
sufficient detail, the measures allegedly taken to comply with those
recommendations and rulings, as well as any omissions or deficiencies
therein, or state that no such measures have been taken by the
implementing Member. Thirdly, the complaining party must provide a legal
basis for its complaint, by specifying how the measures taken, or not
taken, fail to remove the WTO-inconsistencies found in the previous
proceedings, or whether they have brought about new WTO-inconsistencies.
We note that this latter issue is not before us in this case.119
R.2.5.4 US — Zeroing (Japan) (Article 21.5
— Japan), para. 109
(WT/DS322/AB/RW)
In order to evaluate whether Japan’s panel request complies with the
requirements of Article 6.2 of the DSU, we must also take into account
that these are compliance proceedings brought pursuant to Article 21.5 of
the DSU. …
R.2.5.5 US — Zeroing (Japan) (Article 21.5
— Japan), para. 114
(WT/DS322/AB/RW)
The object of these Article 21.5 proceedings is to determine whether
the United States has complied with the DSB’s recommendations and
rulings. The Appellate Body in the original proceedings found that the
United States acts inconsistently with Articles 2.4 and 9.3 of the Anti-Dumping
Agreement and Article VI:2 of the GATT 1994 by maintaining zeroing
procedures in periodic reviews. In addition to this “as such” finding,
the Appellate Body found that the United States acted inconsistently with
Articles 2.4 and 9.3 of the Anti-Dumping Agreement and Article VI:2
of the GATT 1994 by applying zeroing procedures in the 11 periodic reviews
at issue in that appeal. If zeroing were used in Review 9, it would mean
that the United States has not ceased using zeroing procedures in periodic
reviews, contrary to the DSB’s recommendations and rulings. Thus, Review
9 is a measure that has “a bearing on compliance with the
recommendations and rulings of the DSB” and this must be taken into
account in assessing whether Japan’s panel request meets the
requirements of Article 6.2, read in the light of Article 21.5.
R.2.5.6 US — Zeroing (Japan) (Article 21.5
— Japan), para. 122
(WT/DS322/AB/RW)
We observed earlier that the requirements of Article 6.2 must be read
in the light of the specific function of Article 21.5 proceedings and that
the “specific measures at issue” to be identified in these proceedings
are measures that have a bearing on compliance with the recommendations
and rulings of the DSB. A measure that is initiated before there has been
recourse to an Article 21.5 panel, and which is completed during those
Article 21.5 panel proceedings, may have a bearing on whether there is
compliance with the DSB’s recommendations and rulings. Thus, if such a
measure incorporates the same conduct that was found to be WTO-inconsistent
in the original proceedings, it would show non-compliance with the DSB’s
recommendations and rulings. To exclude such a measure from an Article
21.5 panel’s terms of reference because the measure was not completed at
the time of the panel request but, rather, was completed during the
Article 21.5 proceedings, would mean that the disagreement “as to the
existence or consistency with a covered agreement of measures taken to
comply” would not be fully resolved by that Article 21.5 panel. New
Article 21.5 proceedings would therefore be required to resolve the
disagreement and establish whether there is compliance. Thus, an a
priori exclusion of measures completed during Article 21.5 proceedings
could frustrate the function of compliance proceedings. It would also be
inconsistent with the objectives of the DSU to provide for the “prompt
settlement of situations in which a Member considers that any benefits
accruing to it directly or indirectly under the covered agreements are
being impaired”, as reflected in Article 3.3, and to “secure a
positive solution to a dispute”, as contemplated in Article 3.7.
116. In Mexico — Corn Syrup (Article 21.5
— US), the
Appellate Body made certain findings assuming, arguendo, that
Article 6.2 applied in the context of Article 21.5 proceedings. The
Appellate Body did not make a finding whether Article 6.2 actually
applied in the context of Article 21.5 proceedings and, if so, to what
extent (see Appellate Body Report, Mexico — Corn Syrup (Article 21.5 —
US), paras. 52-53 and 67). back to text
119. In this respect, we recall that the Appellate Body stated, in EC
— Bed Linen (Article 21.5 — India), that the measure taken to
comply may be inconsistent with WTO law “in ways different from” the
original measure (Appellate Body Report, EC — Bed Linen (Article 21.5
— India), para. 79). See also Appellate Body Report, Canada — Aircraft (Article 21.5
— Brazil), para. 40. back to text
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