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> Article 21.5 of the DSU — “measures taken
to comply”
> Article 21.5 of the DSU — “new claims”
> Article 21.5 of the DSU — Effect of DSB
rulings in the original dispute. See also Status
of Panel and Appellate Body Reports (S.8)
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R.4.1 Article 21.5 of the DSU — “measures
taken to comply” back to top
R.4.1.1 Canada — Aircraft (Article 21.5
— Brazil), para. 36
(WT/DS70/AB/RW)
Proceedings under Article 21.5 do not concern
just any measure of a Member of the WTO; rather, Article 21.5
proceedings are limited to those “measures taken to comply with
the recommendations and rulings” of the DSB. In our view, the phrase
“measures taken to comply” refers to measures which have been, or
which should be, adopted by a Member to bring about compliance with the
recommendations and rulings of the DSB. In principle, a measure which
has been “taken to comply with the recommendations and rulings” of
the DSB will not be the same measure as the measure which was the
subject of the original dispute, so that, in principle, there would be
two separate and distinct measures: the original measure which gave
rise to the recommendations and rulings of the DSB, and the “measures
taken to comply” which are — or should be — adopted to implement
those recommendations and rulings. In these Article 21.5 proceedings,
the measure at issue is a new measure, the revised TPC programme,
which became effective on 18 November 1999 and which Canada presents as
a “measure taken to comply with the recommendations and rulings” of
the DSB.
R.4.1.2 Canada — Aircraft (Article 21.5
— Brazil), para. 38
(WT/DS70/AB/RW)
We add also that the examination of “measures
taken to comply” is based on the relevant facts proved, by the
complainant, to the Article 21.5 panel, during the panel proceedings.
Therefore, the “minimum implementation standard” that the Article 21.5 Panel expressed and which, it said, was “effectively” agreed
between the parties, should be viewed with caution. The Article 21.5
Panel said that Canada’s implementation should “ ’ensure’
that future TPC assistance to the Canadian regional aircraft
industry will not be de facto contingent on export performance.”
(emphasis added) The use in this standard of the words “ensure” and
“future”, if taken too literally, might be read to mean that the
Panel was seeking a strict guarantee or absolute assurance as to the future
application of the revised TPC programme. A standard which, if so read,
would, however, be very difficult, if not impossible, to satisfy since
no one can predict how unknown administrators would apply, in the
unknowable future, even the most conscientiously crafted compliance
measure.
R.4.1.3 EC — Bed Linen (Article 21.5
— India),
para. 78
(WT/DS141/AB/RW)
… As in original dispute settlement
proceedings, the “matter” in Article 21.5 proceedings consists of
two elements: the specific measures at issue and the legal basis
of the complaint (that is, the claims). If a claim
challenges a measure which is not a “measure taken to comply”,
that claim cannot properly be raised in Article 21.5 proceedings.
We agree with the Panel that it is, ultimately, for an Article 21.5
panel — and not for the complainant or the respondent — to determine
which of the measures listed in the request for its establishment are
“measures taken to comply”. …
R.4.1.4 EC — Bed Linen (Article 21.5
— India),
para. 79
(WT/DS141/AB/RW)
… We explained there that the mandate of
Article 21.5 panels is to examine either the “existence” of “measures
taken to comply” or, more frequently, the “consistency with a
covered agreement” of implementing measures. This implies that an
Article 21.5 panel is not confined to examining the “measures taken to
comply” from the perspective of the claims, arguments, and factual
circumstances relating to the measure that was the subject of the original
proceedings. Moreover, the relevant facts bearing upon the “measure
taken to comply” may be different from the facts relevant to the
measure at issue in the original proceedings. It is to be expected,
therefore, that the claims, arguments, and factual circumstances
relating to the “measure taken to comply” will not, necessarily, be
the same as those relating to the measure in the original dispute.
Indeed, a complainant in Article 21.5 proceedings may well raise new
claims, arguments, and factual circumstances different from those raised
in the original proceedings, because a “measure taken to comply” may
be inconsistent with WTO obligations in ways different from the
original measure. In our view, therefore, an Article 21.5 panel could
not properly carry out its mandate to assess whether a “measure taken
to comply” is fully consistent with WTO obligations if
it were precluded from examining claims additional to, and different
from, the claims raised in the original proceedings.
R.4.2 Article 21.5 of the DSU — “new
claims” back to top
R.4.2.1 Canada — Aircraft (Article 21.5
— Brazil), paras. 40-41
(WT/DS70/AB/RW)
We have already noted that these proceedings,
under Article 21.5 of the DSU, concern the “consistency” of the
revised TPC programme with Article 3.1(a) of the SCM Agreement.
Therefore, we disagree with the Article 21.5 Panel that the scope of
these Article 21.5 dispute settlement proceedings is limited to “the
issue of whether or not Canada has implemented the DSB recommendation”.
… It follows then that the task of the Article 21.5 Panel in this case
is, in fact, to determine whether the new measure — the revised TPC
programme — is consistent with Article 3.1(a) of the SCM Agreement.
Accordingly, in carrying out its review under
Article 21.5 of the DSU, a panel is not confined to examining the “measures
taken to comply” from the perspective of the claims, arguments and
factual circumstances that related to the measure that was the subject
of the original proceedings. Although these may have some relevance in
proceedings under Article 21.5 of the DSU, Article 21.5 proceedings
involve, in principle, not the original measure, but rather a new and
different measure which was not before the original panel. In addition,
the relevant facts bearing upon the “measure taken to comply” may be
different from the relevant facts relating to the measure at issue in
the original proceedings. It is natural, therefore, that the claims,
arguments and factual circumstances which are pertinent to the “measure
taken to comply” will not, necessarily, be the same as those which
were pertinent in the original dispute. Indeed, the utility of the
review envisaged under Article 21.5 of the DSU would be seriously
undermined if a panel were restricted to examining the new measure from
the perspective of the claims, arguments and factual circumstances that
related to the original measure, because an Article 21.5 panel would
then be unable to examine fully the “consistency with a covered
agreement of the measures taken to comply”, as required by Article 21.5 of the DSU.
R.4.2.2 US — Shrimp (Article 21.5
— Malaysia),
paras. 86-88
(WT/DS58/AB/RW)
As we ruled in our Report in Canada — Aircraft (21.5), panel proceedings pursuant to Article 21.5 of the
DSU involve, in principle, not the original measure, but a new and
different measure that was not before the original panel. Therefore, “in
carrying out its review under Article 21.5 of the DSU, a panel is not
confined to examining the ‘measure[] taken to comply’ from the
perspective of the claims, arguments and factual circumstances that
related to the measure that was the subject of the original proceedings.”
When the issue concerns the consistency of a
new measure “taken to comply”, the task of a panel in a matter
referred to it by the DSB for an Article 21.5 proceeding is to consider
that new measure in its totality. The fulfilment of this task requires
that a panel consider both the measure itself and the measure’s
application. As the title of Article 21 makes clear, the task of panels
under Article 21.5 forms part of the process of the “Surveillance
of Implementation of the Recommendations and Rulings” of
the DSB. Toward that end, the task of a panel under Article 21.5 is to
examine the “consistency with a covered agreement of measures taken to
comply with the recommendations and rulings” of the DSB. That task is
circumscribed by the specific claims made by the complainant when the
matter is referred by the DSB for an Article 21.5 proceeding. It is not
part of the task of a panel under Article 21.5 to address a claim that
has not been made.
Malaysia relies in this appeal on our ruling
in Canada — Aircraft (21.5). We understand Malaysia to argue,
based in part on our ruling in Canada — Aircraft (21.5), that the
Panel in this case had a duty to review the totality of the
United States measure, and to assess it for its consistency with the
relevant provisions of the GATT 1994. That is indeed a panel’s task
under Article 21.5 of the DSU. Yet, as we have said, it is not part of a
panel’s task to go beyond the particular claims that have been made
with respect to the consistency of a new measure with a covered
agreement when a matter is referred to it by the DSB for an Article 21.5
proceeding. Thus, it would not have been appropriate in this case for
the Panel to address a claim that was not made by Malaysia when
requesting that this matter be referred by the DSB for an Article 21.5
proceeding.
R.4.2.3 EC — Bed Linen (Article 21.5
— India),
paras. 80, 87
(WT/DS141/AB/RW)
This appeal, however, raises an issue
different from the issue that was before us in Canada — Aircraft
(Article 21.5 — Brazil). Here, India did not raise a new
claim before the Article 21.5 Panel; rather, India reasserted in the
Article 21.5 proceedings the same claim that it had raised before
the original panel in respect of a component of the
implementation measure which was the same as in the original measure.
…
…
We conclude, therefore, that, in these Article 21.5 proceedings, India has raised the same claim under Article 3.5 relating to “other factors” as it did in the original
proceedings. In doing so, India seeks to challenge an aspect of the
original measure which has not changed, and which the European
Communities did not have to change, in order to comply with the DSB
recommendations and rulings to make that measure consistent with the
European Communities’ WTO obligations.
R.4.2.4 EC — Bed Linen (Article 21.5
— India),
paras. 88-89
(WT/DS141/AB/RW)
… We agree with the Panel that the Canada
— Aircraft (Article 21.5 — Brazil) dispute involved a new
claim challenging a new component of the measure taken to comply
which was not part of the original measure. The situation in Canada
— Aircraft (Article 21.5 — Brazil) was thus different from the
situation in this appeal.
… In other words, the US — FSC
(Article 21.5 — EC) dispute involved a new claim
challenging a changed component of the measure taken to comply,
while this dispute, by contrast, concerns the same claim against
an unchanged component of the implementation measure that was
part of the original measure and that was not found to be inconsistent
with WTO obligations. Therefore, the situation in US — FSC
(Article 21.5 — EC) was different from the situation in
this appeal.
R.4.3 Article 21.5 of the DSU — Effect of DSB
rulings in the original dispute. See also Status of Panel and
Appellate Body Reports (S.8) back to top
R.4.3.1 US — Shrimp (Article 21.5
— Malaysia),
paras. 89, 96-97
(WT/DS58/AB/RW)
With respect to a claim that has been
made when a matter is referred by the DSB for an Article 21.5
proceeding, Malaysia seems to suggest as well that a panel must
re-examine, for WTO-consistency, even those aspects of a new measure
that were part of a previous measure that was the subject of a dispute,
and were found by the Appellate Body to be WTO-consistent in that
dispute, and that remain unchanged as part of the new measure.
…
As we see it, then, the Panel properly
examined Section 609 as part of its examination of the totality of the
new measure, correctly found that Section 609 had not been changed since
the original proceedings, and rightly concluded that our ruling in United
States — Shrimp with respect to the consistency of Section 609,
therefore, still stands.
We wish to recall that panel proceedings under
Article 21.5 of the DSU are, as the title of Article 21 states, part of
the process of the “Surveillance of Implementation of
Recommendations and Rulings” of the DSB. This includes Appellate
Body Reports. To be sure, the right of WTO Members to have recourse to
the DSU, including under Article 21.5, must be respected. Even so, it
must also be kept in mind that Article 17.14 of the DSU provides not
only that Reports of the Appellate Body “shall be” adopted by the
DSB, by consensus, but also that such Reports “shall be …
unconditionally accepted by the parties to the dispute. …” Thus,
Appellate Body Reports that are adopted by the DSB are, as Article 17.14
provides, “… unconditionally accepted by the parties to the dispute”,
and, therefore, must be treated by the parties to a particular dispute
as a final resolution to that dispute. In this regard, we recall, too,
that Article 3.3 of the DSU states that the “prompt settlement” of
disputes “is essential to the effective functioning of the WTO”.
R.4.3.2 Mexico — Corn Syrup (Article 21.5
— US), para. 79
(WT/DS132/AB/RW)
With respect to the first element, we note
that the original panel report, regarding the initial measure (SECOFI’s
original determination), has been adopted and that these Article 21.5
proceedings concern a subsequent measure (SECOFI’s
redetermination). We also note that Mexico did not appeal the original
panel’s report, and that Articles 3.2 and 3.3 of the DSU reflect the
importance to the multilateral trading system of security,
predictability and the prompt settlement of disputes. We see no basis
for us to examine the original panel’s treatment of the alleged
restraint agreement.
R.4.3.3 Mexico — Corn Syrup (Article 21.5
— US), para. 121
(WT/DS132/AB/RW)
The Panel was charged, under Article 21.5 of
the DSU, with assessing the claims made by the United States with
respect to the consistency of the redetermination with Mexico’s
obligations under the Anti-Dumping Agreement. In proceeding under
Article 21.5 of the DSU, the Panel conducted its work against the
background of the original proceedings, and with full cognizance of the
reasons provided by the original panel. The original determination and
original panel proceedings, as well as the redetermination and the panel
proceedings under Article 21.5, form part of a continuum of events. We
consider that the Panel Report cannot be read in isolation from those
events.
R.4.3.4 EC — Bed Linen (Article 21.5
— India),
paras. 92-93
(WT/DS141/AB/RW)
The issue raised in this appeal is similar to
the issue we resolved in US — Shrimp (Article 21.5 — Malaysia).
In this appeal, however, the original panel’s finding on India’s
claim under Article 3.5 relating to “other factors” was not appealed
in the original dispute. Accordingly, the finding of the original panel
relating to that claim was adopted by the DSB as part of a panel
report, and, therefore, Article 17.14, which deals with the adoption of Appellate
Body Reports, does not dispose of the issue before us.
All the same, in our view, an unappealed
finding included in a panel report that is adopted by the DSB
must be treated as a final resolution to a dispute between the
parties in respect of the particular claim and the specific
component of a measure that is the subject of that claim. This
conclusion is supported by Articles 16.4 and 19.1, paragraphs 1 and 3 of
Article 21, and Article 22.1 of the DSU. Where a panel concludes that a
measure is inconsistent with a covered agreement, that panel shall recommend,
according to Article 19.1, that the Member concerned bring that measure
into conformity with that agreement. A panel report, including the recommendations
contained therein, shall be adopted by the DSB within the time
period specified in Article 16.4 — unless appealed. Members are to comply
with recommendations and rulings adopted by the DSB promptly, or
within a reasonable period of time, in accordance with paragraphs 1 and
3 of Article 21 of the DSU. A Member that does not comply with the
recommendations and rulings adopted by the DSB within these time periods
must face the consequences set out in Article 22.1, relating to
compensation and suspension of concessions. Thus, a reading of Articles 16.4 and 19.1, paragraphs 1 and 3 of Article 21, and Article 22.1, taken
together, makes it abundantly clear that a panel finding which is not
appealed, and which is included in a panel report adopted by the
DSB, must be accepted by the parties as a final resolution to the
dispute between them, in the same way and with the same finality as a
finding included in an Appellate Body Report adopted by the DSB — with
respect to the particular claim and the specific component of the
measure that is the subject of the claim. …
R.4.3.5 EC — Bed Linen (Article 21.5
— India),
para. 96
(WT/DS141/AB/RW)
We consider next whether the fact that the
Panel dismissed India’s claim because India had not established a prima
facie case has any relevance for our decision on the effect of the
adoption by the DSB of a finding of a panel report that was not
appealed. … Here, however, the original panel ruled that India had
failed to present a prima facie case in respect of its claim
under Article 3.5 relating to “other factors”. In our view, the
effect, for the parties, of findings adopted by the DSB as part of a
panel report is the same, regardless of whether a panel found that the
complainant failed to establish a prima facie case that the
measure is inconsistent with WTO obligations, that the Panel found that
the measure is fully consistent with WTO obligations, or that the Panel
found that the measure is not consistent with WTO obligations. …
R.4.3.6 EC — Bed Linen (Article 21.5
— India),
paras. 98-99
(WT/DS141/AB/RW)
… It would be incompatible with the function
and purpose of the WTO dispute settlement system if a claim could be
reasserted in Article 21.5 proceedings after the original panel or the
Appellate Body has made a finding that the challenged aspect of the
original measure is not inconsistent with WTO obligations, and
that report has been adopted by the DSB. At some point, disputes must be
viewed as definitely settled by the WTO dispute settlement
system.
In the light of the foregoing, we conclude
that the original panel’s finding on India’s claim under Article 3.5
relating to “other factors” provides a “final resolution” to the
dispute in this respect between the parties, because it was not
appealed, and forms part of a panel report adopted by the DSB. …
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