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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.
R.2.1.2 Brazil — Desiccated Coconut, p.
22, DSR 1997:I, p. 167 at 186
(WT/DS22/AB/R)
… 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.2.1.3 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.2.1.4 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.2.1.5 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.2.1.6 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.2.1.7 US — Carbon Steel, paras. 125-126
(WT/DS213/AB/R)
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.2.1.8 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.2.1.9 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.2.1.10 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.2.1.11 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.2.1.12 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.2.1.13 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.2.2 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)
The Panel request refers to Article of the
GATT 1994 in general terms. No specific reference is made to any of the
seven paragraphs or eight subparagraphs of Article 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 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)
… 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)
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.2.3 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)
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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)
… 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)
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)
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)
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)
… 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.2.4 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.
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