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S.7.1 General back to top
S.7.1.1 EC — Hormones, para. 114
(WT/DS26/AB/R, WT/DS48/AB/R)
… Only Article 17.6(i) of the Anti-Dumping
Agreement has language on the standard of review to be employed by
panels engaged in the “assessment of the facts of the matter”. We
find no indication in the SPS Agreement of an intent on
the part of the Members to adopt or incorporate into that Agreement
the standard set out in Article 17.6(i) of the Anti-Dumping
Agreement. Textually, Article 17.6(i) is specific to the Anti-Dumping
Agreement.
S.7.1.2 Argentina
— Footwear (EC), para. 118
(WT/DS121/AB/R)
We have stated, on more than one occasion,
that, for all but one of the covered agreements, Article 11 of the DSU
sets forth the appropriate standard of review for panels. The only
exception is the Agreement on Implementation of Article VI of the
General Agreement on Tariffs and Trade 1994, in which a specific
provision, Article 17.6, sets out a special standard of review for
disputes arising under that Agreement.
S.7.1.3 Argentina
— Footwear (EC), para. 120
(WT/DS121/AB/R)
… The Agreement on Safeguards, like
the Agreement on the Application of Sanitary and Phytosanitary
Measures, is silent as to the appropriate standard of review.
Therefore, Article 11 of the DSU, and, in particular, its requirement
that “… a panel should make an objective assessment of the matter
before it, including an objective assessment of the facts of the case
and the applicability of and conformity with the relevant covered
agreements”, sets forth the appropriate standard of review for
examining the consistency of a safeguard measure with the provisions
of the Agreement on Safeguards.
S.7.1.4 US — Lead and Bismuth II, para. 49
(WT/DS138/AB/R)
… [the Declaration on Dispute
Settlement Pursuant to the Agreement on Implementation of Article VI
of the General Agreement on Tariffs and Trade 1994 or Part V of the
Agreement on Subsidies and Countervailing Measures (the “Declaration”)]
does not impose an obligation to apply the standard of review
contained in Article 17.6 of the Anti-Dumping Agreement to
disputes involving countervailing duty measures under Part V of the SCM
Agreement. The Declaration is couched in hortatory
language; it uses the words “Ministers recognize”.
Furthermore, the Declaration merely acknowledges “the need
for the consistent resolution of disputes arising from anti-dumping
and countervailing duty measures.” It does not specify any specific
action to be taken. In particular, it does not prescribe a standard of
review to be applied.
S.7.1.5 US — Hot-Rolled Steel, para. 54
(WT/DS184/AB/R)
Article 11 of the DSU imposes upon panels a
comprehensive obligation to make an “objective assessment of the
matter”, an obligation which embraces all aspects of a panel’s
examination of the “matter”, both factual and legal. Thus, panels
make an “objective assessment of the facts”, of the “applicability”
of the covered agreements, and of the “conformity” of the measure
at stake with those covered agreements. Article 17.6 is divided into
two separate sub-paragraphs, each applying to different aspects of the
panel’s examination of the matter. The first sub-paragraph covers
the panel’s “assessment of the facts of the
matter”, whereas the second covers its “interpret[ation of]
the relevant provisions”. (emphasis added) The structure of
Article 17.6, therefore, involves a clear distinction between a panel’s
assessment of the facts and its legal interpretation of the Anti-Dumping
Agreement.
S.7.1.6 US — Hot-Rolled Steel, para. 55
(WT/DS184/AB/R)
In considering Article 17.6(i) of the Anti-Dumping
Agreement, it is important to bear in mind the different roles of
panels and investigating authorities. Investigating authorities are
charged, under the Anti-Dumping Agreement, with making factual
determinations relevant to their overall determination of dumping and
injury. Under Article 17.6(i), the task of panels is simply to review
the investigating authorities’ “establishment” and “evaluation”
of the facts. To that end, Article 17.6(i) requires panels to make an
“assessment of the facts”. The language of this
phrase reflects closely the obligation imposed on panels under Article 11 of the DSU to make an “objective assessment of the facts”.
Thus the text of both provisions requires panels to “assess” the
facts and this, in our view, clearly necessitates an active review or
examination of the pertinent facts. Article 17.6(i) of the Anti-Dumping
Agreement does not expressly state that panels are obliged to make
an assessment of the facts which is “objective”. However,
it is inconceivable that Article 17.6(i) should require anything other
than that panels make an objective “assessment of the facts
of the matter”. In this respect, we see no “conflict” between
Article 17.6(i) of the Anti-Dumping Agreement and Article 11 of
the DSU.
S.7.1.7 US — Hot-Rolled Steel, para. 62
(WT/DS184/AB/R)
… although the second sentence of Article 17.6(ii) of the Anti-Dumping Agreement imposes obligations on
panels which are not found in the DSU, we see Article 17.6(ii) as
supplementing, rather than replacing, the DSU, and Article 11 in
particular. Article 11 requires panels to make an “objective
assessment of the matter” as a whole. Thus, under the DSU, in
examining claims, panels must make an “objective assessment” of
the legal provisions at issue, their “applicability” to the
dispute, and the “conformity” of the measures at issue with the
covered agreements. Nothing in Article 17.6(ii) of the Anti-Dumping
Agreement suggests that panels examining claims under that
Agreement should not conduct an “objective assessment” of the
legal provisions of the Agreement, their applicability to the dispute,
and the conformity of the measures at issue with the Agreement.
Article 17.6(ii) simply adds that a panel shall find that a measure is
in conformity with the Anti-Dumping Agreement if it rests upon
one permissible interpretation of that Agreement.
S.7.1.8 US — Cotton Yarn, para. 68
(WT/DS192/AB/R)
Article 11 of the DSU lays down the standard
of review for panels in disputes under the covered agreements …
S.7.2 Article 11 of the DSU — Objective
assessment of the matter back to top
S.7.2.1 EC — Hormones, paras. 116-119
(WT/DS26/AB/R, WT/DS48/AB/R)
… Article 11 of the DSU bears directly on
this matter and, in effect, articulates with great succinctness but
with sufficient clarity the appropriate standard of review for panels
in respect of both the ascertainment of facts and the legal
characterization of such facts under the relevant agreements. …
So far as fact-finding by panels is
concerned, their activities are always constrained by the mandate of
Article 11 of the DSU: the applicable standard is neither de novo
review as such, nor “total deference”, but rather the “objective
assessment of the facts”. Many panels have in the past refused to
undertake de novo review, wisely, since under current practice
and systems, they are in any case poorly suited to engage in such a
review. On the other hand, “total deference to the findings of the
national authorities”, it has been well said, “could not ensure an
‘objective assessment’ as foreseen by Article 11 of the DSU”.
In so far as legal questions are concerned
—
that is, consistency or inconsistency of a Member’s measure with the
provisions of the applicable agreement — a standard not found in the
text of the SPS Agreement itself cannot absolve a panel
(or the Appellate Body) from the duty to apply the customary rules of
interpretation of public international law. It may be noted that the
European Communities refrained from suggesting that Article 17.6 of
the Anti-Dumping Agreement in its entirety was applicable to
the present case. Nevertheless, it is appropriate to stress that here
again Article 11 of the DSU is directly on point, requiring a panel to
“make an objective assessment of the matter before it, including an
objective assessment of the facts of the case and the applicability of
and conformity with the relevant covered agreements …”.
We consider, therefore, that the issue of
failure to apply an appropriate standard of review, raised by the
European Communities, resolves itself into the issue of whether or not
the Panel, in making the above and other findings referred to and
appealed by the European Communities, had made an “objective
assessment of the matter before it, including an objective
assessment of the facts …”. …
S.7.2.2 EC — Poultry, para. 133
(WT/DS69/AB/R)
An allegation that a panel has failed to
conduct the “objective assessment of the matter before it”
required by Article 11 of the DSU is a very serious allegation. Such
an allegation goes to the very core of the integrity of the WTO
dispute settlement process itself. …
S.7.2.3 EC — Poultry, para. 135
(WT/DS69/AB/R)
… Just as a panel has the discretion to
address only those claims which must be addressed in order to
dispose of the matter at issue in a dispute, so too does a panel have
the discretion to address only those arguments it deems
necessary to resolve a particular claim. So long as it is clear in a
panel report that a panel has reasonably considered a claim, the fact
that a particular argument relating to that claim is not specifically
addressed in the “Findings” section of a panel report will not, in
and of itself, lead to the conclusion that that panel has failed to
make the “objective assessment of the matter before it” required
by Article 11 of the DSU.
S.7.2.4 Chile — Price Band System, para. 173
(WT/DS207/AB/R)
… Because it made a finding on a provision
that was not before it, the Panel, therefore, did not make an
objective assessment of the matter before it, as required by
Article 11. Rather, the Panel made a finding on a matter that was not
before it. In doing so, the Panel acted ultra petita and
inconsistently with Article 11 of the DSU.
S.7.2.5 US — Gambling, para. 273
(WT/DS285/AB/R)
… as part of their duties, under Article 11 of the DSU, … panels must ensure that the due process rights of
parties to a dispute are respected. A panel may act inconsistently
with this duty if it addresses a defence that a responding party
raised at such a late stage of the panel proceedings that the
complaining party had no meaningful opportunity to respond to it. To
this end, panels are endowed with “sufficient flexibility” in
their working procedures, by virtue of Article 12.2 of the DSU, to
regulate panel proceedings and, in particular, to adjust their
timetables to allow for additional time to respond or for additional
submissions where necessary.
S.7.2.6 US — Gambling, paras. 281-282
(WT/DS285/AB/R)
… a panel enjoys … discretion [freely to
use arguments submitted by any of the parties — or to develop its own
legal reasoning — to support its own findings and conclusions] only
with respect to specific claims that are properly before it, for
otherwise it would be considering a matter not within its
jurisdiction. Moreover, when a panel rules on a claim in the absence
of evidence and supporting arguments, it acts inconsistently with its
obligations under Article 11 of the DSU.
In the context of affirmative defences,
then, a responding party must invoke a defence and put forward
evidence and arguments in support of its assertion that the challenged
measure satisfies the requirements of the defence. When a responding
party fulfils this obligation, a panel may rule on whether the
challenged measure is justified under the relevant defence, relying on
arguments advanced by the parties or developing its own reasoning. The
same applies to rebuttals. A panel may not take upon itself to rebut
the claim (or defence) where the responding party (or complaining
party) itself has not done so.
S.7.2.7 US — Gambling, paras. 342-344
(WT/DS285/AB/R)
In deciding to assess whether the measures
satisfied the requirements of the chapeau, the Panel explained that,
even though such an examination was “not necessary”, it wanted “to
assist the parties in resolving the underlying dispute in this case.”
Antigua alleges that the Panel acted inconsistently with the Appellate
Body’s decision in Korea — Various Measures on Beef in
determining whether the Wire Act, the Travel Act, and the IGBA meet
the requirements of the chapeau after having found that they were not
provisionally justified.
… [the statement by the Appellate Body at
paragraph 156 of Korea — Various Measures on Beef] does not
impose a requirement on panels to stop evaluating a responding
party’s defence once they have determined that a challenged measure
is not provisionally justified under one of the paragraphs of the
general exception provision.
Provided that it complies with its duty to
assess a matter objectively, a panel enjoys the freedom to decide which
legal issues it must address in order to resolve a dispute.
Moreover, in some instances, a panel’s decision to continue its
legal analysis and to make factual findings beyond those that are
strictly necessary to resolve the dispute may assist the Appellate
Body should it later be called upon to complete the analysis, as, for
example, in this case.
S.7.2.8 Dominican Republic
— Import and Sale
of Cigarettes, para. 105
(WT/DS302/AB/R)
Article 11 of the DSU provides that a panel
“should make an objective assessment of the matter before it,
including an objective assessment of the facts of the case and the
applicability of and conformity with the relevant covered agreements”.
The Appellate Body underlined in Chile — Price Band System that
“Article 11 obliges panels not only to make ‘an objective
assessment of the facts of the case’, but also ‘an objective
assessment of the matter before it’ “. The “matter” is
constituted by both the facts of the case (and, in particular, the
specific measures at issue) as well as the legal claims raised. The
corollary is that a panel is not entitled to make an assessment of a
matter that is not before it, for example, by making findings
on a claim not raised by the complainant.
S.7.2.9 Dominican Republic
— Import and Sale
of Cigarettes, para. 125
(WT/DS302/AB/R)
In any event, we note that there is no
obligation upon a panel to consider each and every argument put
forward by the parties in support of their respective cases, so long
as it completes an objective assessment of the matter before it, in
accordance with Article 11 of the DSU.
S.7.2A Article 11 of the DSU — Objective
assessment of the measure back to top
S.7.2A.1 Canada
— Wheat Exports and Grain
Imports, paras. 176-177
(WT/DS276/AB/R)
We agree with Canada that [the United States’
claim that the Panel did not examine the measure in its entirety] of
error fits more properly under Article 11 of the DSU [than under
Article XVII:1 of the GATT 1994]. The Appellate Body has stated
previously that the measure at issue (and the claims made by the
complaining Member) make up the “matter referred to the DSB”
for the purpose of Article 7 of the DSU. In this sense, the United
States’ argument that the Panel did not examine the measure in its
entirety relates to the Panel’s examination of the “matter”.
Article 11 of the DSU sets out the duties of a panel, including that
it “should make an objective assessment of the matter before
it”. (emphasis added) Therefore, as we see it, the United States’
allegation that the Panel did not examine the measure in its entirety
amounts to an allegation that the Panel did not “make an objective
assessment of the matter” under Article 11 of the DSU.
Although an appellant is free to determine
how to characterize its claims on appeal, at the same time due process
requires that the legal basis of a claim be sufficiently clear to
allow an appellee to respond effectively. This is especially the case
when the claim is an allegation that the panel did not make an
objective assessment of the matter as required by Article 11 of the
DSU because, by definition, such a claim will not be found in the
request for the establishment of the panel and, therefore, the panel
will not have referred to it in the panel report.
S.7.2A.2 Canada
— Wheat Exports and Grain
Imports, para. 191
(WT/DS276/AB/R)
In our view, it is incumbent upon a party to
identify in its submissions the relevance of the provisions of
legislation — the evidence — on which it relies to support its
arguments. It is not sufficient merely to file an entire piece of
legislation and expect a panel to discover, on its own, what relevance
the various provisions may or may not have for a party’s legal
position. We are not satisfied that the United States argued the
relevance before the Panel of the various provisions of the Canadian
Wheat Board Act on which it now relies. … Therefore, we do not
agree with the United States that the Panel disregarded facts relevant
to the independence of the CWB and we see no failure by the Panel in
this respect to comply with its duty under Article 11 of the DSU.
S.7.2A.3 US — Oil Country Tubular Goods
Sunset Reviews, paras. 209-210
(WT/DS268/AB/R)
In our view, therefore, in order to
objectively assess, as required by Article 11 of the DSU, whether the
three factual scenarios of Section II.A.3 of the SPB are regarded as
determinative/conclusive, it is essential to examine concrete examples
of cases where the likelihood determination of continuation or
recurrence of dumping was based solely on one of the scenarios of
Section II.A.3 of the SPB, even though the probative value of other
factors might have outweighed that of the identified scenario. Such an
examination requires a qualitative assessment of the likelihood
determinations in individual cases.
We find that, in reaching its conclusion on
the USDOC’s consistent application of the SPB, the Panel relied
solely on the overall statistics or aggregate results. The Panel did
not undertake a qualitative analysis of at least some of the
individual cases in Exhibit ARG-63 in order to see whether the USDOC’s
determinations in those cases were objective and rested on a
sufficient factual basis.
S.7.2A.4 US — Oil Country Tubular Goods
Sunset Reviews, para. 212
(WT/DS268/AB/R)
The Panel record does not show that the
Panel undertook any such qualitative assessment of at least some of
the cases of Exhibit ARG-63 with a view to discerning whether the
USDOC regarded the existence of one of the factual scenarios of the
SPB as determinative/conclusive for its determinations. The Panel also
appears not to have examined in how many cases the foreign respondent
parties participated in the proceedings, in how many they introduced
other “good cause” factors, and how the USDOC dealt with those
factors when they were introduced. Such an inquiry would have enabled
the Panel to identify and undertake a qualitative analysis of at least
some of those cases to see whether the affirmative determinations were
made solely on the basis of one of the scenarios to the exclusion of
other factors. The Panel failed to undertake any such qualitative
assessment and relied exclusively on the overall statistics or
aggregated results of Exhibit ARG-63. The fact that affirmative
determinations were made in reliance on one of the three scenarios in
all the sunset reviews of anti-dumping duty orders where domestic
interested parties took part strongly suggests that these scenarios
are mechanistically applied. However, without a qualitative
examination of the reasons leading to such determinations, it is not
possible to conclude definitively that these determinations were based
exclusively on these scenarios in disregard of other factors.
S.7.2A.5 US — Oil Country Tubular Goods
Sunset Reviews, para. 215
(WT/DS268/AB/R)
In the light of the above, we find
that the Panel did not “make an objective assessment of the matter”,
as required by Article 11 of the DSU. It apparently reached its
conclusion — that the three scenarios in Section II.A.3 of the SPB are
perceived by the USDOC to be determinative/conclusive of the
likelihood of continuation or recurrence of dumping — on the sole
basis of the overall statistics in Exhibit ARG-63. The Panel record
reveals no qualitative analysis of even some of the cases in Exhibit
ARG-63, and the Panel Report contains only a single sentence
justifying its conclusion based on the overall statistics. …
S.7.2A.6 US — Gambling, paras. 356-357
(WT/DS285/AB/R)
In our view, the proper significance to be
attached to isolated instances of enforcement, or lack thereof, cannot
be determined in the absence of evidence allowing such instances to be
placed in their proper context. Such evidence might include evidence
on the overall number of suppliers, and on patterns of
enforcement, and on the reasons for particular instances of
non-enforcement. Indeed, enforcement agencies may refrain from
prosecution in many instances for reasons unrelated to discriminatory
intent and without discriminatory effect.
Faced with the limited evidence the parties
put before it with respect to enforcement, the Panel should rather
have focused, as a matter of law, on the wording of the measures at
issue. These measures, on their face, do not discriminate
between United States and foreign suppliers of remote gambling
services. …
S.7.2A.7 US — Gambling, para. 364
(WT/DS285/AB/R)
… the United States’ appeal essentially
challenges the Panel’s failure to accord sufficient weight to the
evidence submitted by the United States with respect to the
relationship under United States law between the IHA and the measures
at issue. The Panel had limited evidence before it, as submitted by
the parties, on which to base its conclusion. This limitation,
however, could not absolve the Panel of its responsibility to arrive
at a conclusion as to the relationship between the IHA and the
prohibitions in the Wire Act, the Travel Act, and the IGBA. The Panel
found that the evidence provided by the United States was not
sufficiently persuasive to conclude that, as regards wagering on
horseracing, the remote supply of such services by domestic
firms continues to be prohibited notwithstanding the plain language of
the IHA. In this light, we are not persuaded that the Panel failed to
make an objective assessment of the facts.
S.7.3 Article 11 of the DSU — Objective
assessment of the facts back to top
S.7.3.1 EC — Hormones, para. 132
(WT/DS26/AB/R, WT/DS48/AB/R)
Under Article 17.6 of the DSU, appellate
review is limited to appeals on questions of law covered in a panel
report and legal interpretations developed by the panel. Findings of
fact, as distinguished from legal interpretations or legal
conclusions, by a panel are, in principle, not subject to review by
the Appellate Body. The determination of whether or not a certain
event did occur in time and space is typically a question of fact; for
example, the question of whether or not Codex has adopted an
international standard, guideline or recommendation on MGA is a
factual question. Determination of the credibility and weight properly
to be ascribed to (that is, the appreciation of) a given piece of
evidence is part and parcel of the fact finding process and is, in
principle, left to the discretion of a panel as the trier of facts.
The consistency or inconsistency of a given fact or set of facts with
the requirements of a given treaty provision is, however, a legal
characterization issue. It is a egal question. …
S.7.3.2 EC — Hormones, para. 133
(WT/DS26/AB/R, WT/DS48/AB/R)
… when may a panel be regarded as having
failed to discharge its duty under Article 11 of the DSU to make an
objective assessment of the facts before it? Clearly, not every error
in the appreciation of the evidence (although it may give rise to a
question of law) may be characterized as a failure to make an
objective assessment of the facts … The duty to make an objective
assessment of the facts is, among other things, an obligation to
consider the evidence presented to a panel and to make factual
findings on the basis of that evidence. The deliberate disregard of,
or refusal to consider, the evidence submitted to a panel is
incompatible with a panel’s duty to make an objective assessment of
the facts. The wilful distortion or misrepresentation of the evidence
put before a panel is similarly inconsistent with an objective
assessment of the facts. “Disregard” and “distortion” and “misrepresentation”
of the evidence, in their ordinary signification in judicial and
quasi-judicial processes, imply not simply an error of judgment in the
appreciation of evidence but rather an egregious error that calls into
question the good faith of a panel. A claim that a panel disregarded
or distorted the evidence submitted to it is, in effect, a claim that
the panel, to a greater or lesser degree, denied the party submitting
the evidence fundamental fairness, or what in many jurisdictions is
known as due process of law or natural justice.
S.7.3.3 EC — Hormones, paras. 135-136
(WT/DS26/AB/R, WT/DS48/AB/R)
… it is generally within the discretion of
the Panel to decide which evidence it chooses to utilize in making
findings. …
The European Communities argues that the
Panel failed to request the submission of data on MGA and contends
that this failure constituted a violation of Article 11 of the DSU.
However, we see nothing in Article 11 to suggest that there is an
obligation on the Panel to gather data relating to MGA and that it was
therefore required to request the submission of this data.
S.7.3.4 EC — Hormones, para. 138
(WT/DS26/AB/R, WT/DS48/AB/R)
… The Panel cannot realistically refer to
all statements made by the experts advising it and should be allowed a
substantial margin of discretion as to which statements are useful to
refer to explicitly. …
S.7.3.5 Australia
— Salmon, para. 267
(WT/DS18/AB/R)
… in response to Australia’s contention
that the Panel failed to accord “due deference” to matters of fact
it put forward, we note that Article 11 of the DSU calls upon panels
to “make an objective assessment of the matter before it, including
an objective assessment of the facts of the case and the applicability
of and conformity with the relevant covered agreements”. Therefore,
the function of this Panel was to assess the facts in a manner
consistent with its obligation to make such an “objective assessment
of the matter before it”. We believe the Panel has done so in this
case. Panels, however, are not required to accord to factual evidence
of the parties the same meaning and weight as do the parties.
S.7.3.6 Korea — Alcoholic Beverages,
para. 164
(WT/DS75/AB/R, WT/DS84/AB/R)
We are bound to conclude that Korea has not
succeeded in showing that the Panel has committed any egregious errors
that can be characterized as a failure to make an objective assessment
of the matter before it. Korea’s arguments, when read together with
the Panel Report and the record of the Panel proceedings, do not
disclose that the Panel has distorted, misrepresented or disregarded
evidence, or has applied a “double standard” of proof in this
case. It is not an error, let alone an egregious error, for the Panel
to fail to accord the weight to the evidence that one of the parties
believes should be accorded to it.
S.7.3.7 Japan — Agricultural Products II,
para. 127
(WT/DS76/AB/R)
… Article 13 of the DSU allows a panel to
seek information from any relevant source and to consult
individual experts or expert bodies to obtain their opinion on
certain aspects of the matter before it. In our Report in United
States — Import Prohibition of Certain Shrimp and Shrimp
Products (“United States — Shrimp”), we noted
the “comprehensive nature” of this authority, and stated that this
authority is “indispensably necessary” to enable a panel to
discharge its duty imposed by Article 11 of the DSU to “make an
objective assessment of the matter before it, including an objective
assessment of the facts of the case and the applicability of
and conformity with the relevant covered agreements. …”
[Appellate Body Report, para. 106]
S.7.3.8 Japan — Agricultural Products II,
para. 129
(WT/DS76/AB/R)
Article 13 of the DSU and Article 11.2 of
the SPS Agreement suggest that panels have a significant
investigative authority. However, this authority cannot be used by a
panel to rule in favour of a complaining party which has not
established a prima facie case of inconsistency based on
specific legal claims asserted by it. A panel is entitled to seek
information and advice from experts and from any other relevant source
it chooses, pursuant to Article 13 of the DSU and, in an SPS case,
Article 11.2 of the SPS Agreement, to help it to
understand and evaluate the evidence submitted and the arguments made
by the parties, but not to make the case for a complaining party.
S.7.3.9 Japan — Agricultural Products II,
para. 141
(WT/DS76/AB/R)
… not every failure by the Panel in the
appreciation of the evidence before it can be characterized as failure
to make an objective assessment of the facts as required by Article 11
of the DSU. Only egregious errors constitute a failure to make an
objective assessment of the facts as required by Article 11 of the DSU.
S.7.3.10 India —
Quantitative Restrictions,
paras. 149, 151
(WT/DS90/AB/R)
… The Panel gave considerable weight to
the views expressed by the IMF in its reply to these questions.
However, nothing in the Panel Report supports India’s argument that
the Panel delegated to the IMF its judicial function to make an
objective assessment of the matter. A careful reading of the Panel
Report makes clear that the Panel did not simply accept the views of
the IMF. The Panel critically assessed these views and also considered
other data and opinions in reaching its conclusions.
…
We conclude that the Panel made an objective
assessment of the matter before it. …
S.7.3.11 Korea —
Dairy, para. 137
(WT/DS98/AB/R)
… However, under Article 11 of the DSU, a
panel is charged with the mandate to determine the facts of the case
and to arrive at factual findings. In carrying out this mandate, a
panel has the duty to examine and consider all the evidence before it,
not just the evidence submitted by one or the other party, and to
evaluate the relevance and probative force of each piece thereof. …
… The determination of the significance
and weight properly pertaining to the evidence presented by one party
is a function of a panel’s appreciation of the probative value of
all the evidence submitted by both parties considered together.
S.7.3.11A US — Wheat Gluten, para. 151
(WT/DS166/AB/R)
… although the task of panels under
Article 11 relates, in part, to its assessment of the facts,
the question whether a panel has made an “objective assessment” of
the facts is a legal one, that may be the subject of an appeal.
(emphasis added) However, in view of the distinction between the
respective roles of the Appellate Body and panels, we have taken care
to emphasize that a panel’s appreciation of the evidence falls, in
principle, “within the scope of the panel’s discretion as the
trier of facts”. (emphasis added) In assessing the panel’s
appreciation of the evidence, we cannot base a finding of
inconsistency under Article 11 simply on the conclusion that we might
have reached a different factual finding from the one the panel
reached. Rather, we must be satisfied that the panel has exceeded the
bounds of its discretion, as the trier of facts, in its appreciation
of the evidence. As is clear from previous appeals, we will not
interfere lightly with the panel’s exercise of its discretion.
S.7.3.12 US — Shrimp (Article 21.5
— Malaysia), para. 95
(WT/DS58/AB/RW)
There is no way of knowing or predicting
when or how that particular legal proceeding will conclude in the
United States. The Turtle Island case has been appealed and
could conceivably go as far as the Supreme Court of the United States.
It would have been an exercise in speculation on the part of the Panel
to predict either when or how that case may be concluded, or to assume
that injunctive relief ultimately would be granted and that the United
States Court of Appeals or the Supreme Court of the United States
eventually would compel the Department of State to modify the Revised
Guidelines. The Panel was correct not to indulge in such speculation,
which would have been contrary to the duty of the Panel, under Article 11 of the DSU, to make “an objective assessment of the matter …
including an objective assessment of the facts of the case”.
S.7.3.12A EC — Asbestos, para. 161
(WT/DS135/AB/R)
The same holds true in this case. The Panel
enjoyed a margin of discretion in assessing the value of the evidence,
and the weight to be ascribed to that evidence. The Panel was
entitled, in the exercise of its discretion, to determine that certain
elements of evidence should be accorded more weight than other
elements — that is the essence of the task of appreciating the
evidence.
S.7.3.12B EC — Sardines, para. 299
(WT/DS231/AB/R)
… As we have stated in several previous
appeals, panels enjoy a discretion as the trier of facts; they enjoy
“a margin of discretion in assessing the value of the evidence, and
the weight to be ascribed to that evidence.” We have also said that
we will not “interfere lightly” with the Panel’s appreciation of
the evidence: we will not intervene solely because we might have
reached a different factual finding from the one the panel reached; we
will intervene only if we are “satisfied that the panel has exceeded
the bounds of its discretion, as the trier of facts, in its
appreciation of the evidence”.
S.7.3.13 EC — Sardines, para. 301
(WT/DS231/AB/R)
… The interim review stage is not an
appropriate time to introduce new evidence. We recall that Article 15
of the DSU governs the interim review. Article 15 permits parties,
during that stage of the proceedings, to submit comments on the draft
report issued by the panel, and to make requests “for the panel to
review precise aspects of the interim report”. At that time, the
panel process is all but completed; it is only — in the words of
Article 15 — “precise aspects” of the report that must be verified
during the interim review. And this, in our view, cannot properly
include an assessment of new and unanswered evidence. Therefore, we
are of the view that the Panel acted properly in refusing to take into
account the new evidence during the interim review, and did not
thereby act inconsistently with Article 11 of the DSU.
S.7.3.14 US — Carbon Steel, para. 142
(WT/DS213/AB/R, WT/DS213/AB/R/Corr.1)
… Article 11 requires panels to take
account of the evidence put before them and forbids them to wilfully
disregard or distort such evidence. Nor may panels make affirmative
findings that lack a basis in the evidence contained in the panel
record. Provided that panels’ actions remain within these
parameters, however, we have said that “it is generally within the
discretion of the Panel to decide which evidence it chooses to utilize
in making findings”, and, on appeal, we “will not interfere
lightly with a panel’s exercise of its discretion”.
S.7.3.15 US — Carbon Steel, para. 153
(WT/DS213/AB/R, WT/DS213/AB/R/Corr.1)
We also wish to underline that although
panels enjoy a discretion, pursuant to Article 13 of the DSU,
to seek information “from any relevant source”, Article 11 of the
DSU imposes no obligation on panels to conduct their own
fact-finding exercise, or to fill in gaps in the arguments made by
parties. In consequence, given that the European Communities itself
had submitted no evidence —f other than the text of the provision
— on
this point, the Panel did not act inconsistently with Article 11 in
refraining from seeking additional information on its own initiative.
S.7.3.16 EC — Bed Linen (Article 21.5
— India), para. 177
(WT/DS141/AB/RW)
India has not persuaded us that the Panel in
this case exceeded its discretion as the trier of facts. In our view,
the Panel assessed and weighed the evidence submitted by both parties,
and ultimately concluded that the European Communities had information
on all relevant economic factors listed in Article 3.4. It is not “an
error, let alone an egregious error”, for the Panel to have declined
to accord to the evidence the weight that India sought to have
accorded to it. We, therefore, reject India’s argument that, by
failing to shift the burden of proof, the Panel did not
properly discharge its duty to assess objectively the facts of the
case as required by Article 11 of the DSU.
S.7.3.17 EC — Bed Linen (Article 21.5
— India), para. 181
(WT/DS141/AB/RW)
… Specifically, India argues that the
Panel did not make an objective assessment of the facts of the case
because the Panel distorted the evidence by placing greater
weight on the statements made by the European Communities than on
those made by India. As we stated earlier, the weighing of the
evidence is within the discretion of the Panel as the trier of facts,
and there is no indication in this case that the Panel exceeded the
bounds of this discretion. …
S.7.3.18 Japan —
Apples, para. 221
(WT/DS245/AB/R)
… Since EC — Hormones, the
Appellate Body has consistently emphasized that, within the bounds of
their obligation under Article 11 to make an objective assessment of
the facts of the case, panels enjoy a “margin of discretion” as
triers of fact. Panels are thus “not required to accord to factual
evidence of the parties the same meaning and weight as do the parties”
and may properly “determine that certain elements of evidence should
be accorded more weight than other elements”.
S.7.3.19 Japan —
Apples, para. 222
(WT/DS245/AB/R)
Consistent with this margin of discretion,
the Appellate Body has recognized that “not every error in the
appreciation of the evidence (although it may give rise to a question
of law) may be characterized as a failure to make an objective
assessment of the facts.” When addressing claims under Article 11 of
the DSU, the Appellate Body does not “second-guess the Panel in
appreciating either the evidentiary value of … studies or the
consequences, if any, of alleged defects in [the evidence]”. …
… Where parties challenging a panel’s
fact-finding under Article 11 have failed to establish that a panel
exceeded the bounds of its discretion as the trier of facts, the
Appellate Body has not “interfere[d]” with the findings of the
panel.
S.7.3.20 US — Oil Country Tubular Goods
Sunset Reviews, para. 313
(WT/DS268/AB/R)
In any event, we consider that the Panel’s
decision not to rely on the statements of the USITC before domestic
courts and before a NAFTA panel relates to the weighing of evidence.
…
…
The Appellate Body has consistently
emphasized that, within the confines of their obligation under Article 11 of the DSU to make “an objective assessment of the facts of the
case”, panels enjoy a “margin of discretion” as triers of facts.
Accordingly, we see no reason to interfere with the Panel’s
treatment of the USITC’s statements before domestic courts and
before a NAFTA panel.
S.7.3.21 US — Upland Cotton, para. 399
(WT/DS267/AB/R)
… Pursuant to Article 17.6 of the DSU,
appeals are “limited to issues of law covered in the panel report
and legal interpretations developed by the panel”. To the extent
that the United States’ arguments concern the Panel’s appreciation
and weighing of the evidence, we note from the outset that the
Appellate Body will not interfere lightly with the Panel’s
discretion “as the trier of facts”. At the same time, the
Appellate Body has previously pointed out that the “consistency or
inconsistency of a given fact or set of facts with the requirements of
a given treaty provision is … a legal characterization issue”.
Whether the Panel properly interpreted the requirements of Article 6.3(c) of the SCM Agreement and properly applied that
interpretation to the facts in this case is a legal question. This
question is different from whether the Panel made “an objective
assessment of the matter before it, including an objective assessment
of the facts of the case”, in accordance with Article 11 of the DSU.
Therefore, the Panel’s application of the legal requirements of
Article 6.3(c) of the SCM Agreement to the facts of this case
falls within the scope of our review in this appeal, despite the fact
that the United States does not claim that the Panel erred under
Article 11 of the DSU.
S.7.3.22 US — Upland Cotton, para. 458
(WT/DS267/AB/R)
Unlike in certain other instances under the
WTO agreements, a panel conducting an analysis under Article 6.3(c) of
the SCM Agreement is the first trier of facts, rather than a
reviewer of factual determinations made by a domestic investigating
authority. Bearing this in mind, we underline the responsibility of
panels in gathering and analyzing relevant factual data and
information in assessing claims under Article 6.3(c) in order to
arrive at reasoned conclusions. In this case, the voluminous
evidentiary record before the Panel included several economic studies,
and substantial data and information. For its part, the Panel posed a
large number of questions to which the parties submitted detailed
answers. Overall, the Panel evidently conducted an extensive analysis,
but we believe that, in its reasoning, the Panel could have provided a
more detailed explanation of its analysis of the complex facts and
economic arguments arising in this dispute. The Panel could have done
so in order to demonstrate precisely how it evaluated the different
factors bearing on the relationship between the price-contingent
subsidies and significant price suppression. Nevertheless, in the
light of the Panel’s examination of the relevant evidence, coupled
with its legal reasoning, we find no legal error in the Panel’s
causation analysis.
S.7.3.23 US — Upland Cotton, para. 663
(WT/DS267/AB/R)
… The United States is not asking us to
review the Panel’s factual findings, nor is it arguing that the
Panel’s assessment of the matter was not objective. Instead, the
United States’ claim relates to the application of the legal
standard set out in item (j) of the Illustrative List of Export
Subsidies to the specific facts of this case. It is an issue of legal
characterization. Thus, we do not agree with Brazil’s contention
that the United States was under an obligation to bring its claim
under Article 11 of the DSU. Consequently, our inquiry will be limited
to the Panel’s application of the law to the facts in this case.
S.7.3.24 US — Upland Cotton, para. 686
(WT/DS267/AB/R)
We understand Brazil to argue that the Panel
erred both in the application of Article 10.1 of the Agreement on
Agriculture and in its assessment of the matter pursuant to
Article 11 of the DSU. As we explained earlier, the application of a
legal rule to the specific facts of a case is an issue of legal
characterization. In this case, we understand that Brazil’s claim
under Article 11 of the DSU is additional to its claim of legal error
in respect of Article 10.1. We thus turn first to Brazil’s claim
that the Panel erred in its application of Article 10.1 of the Agreement
on Agriculture to the facts before it.
S.7.3.25 US — Gambling, para. 363
(WT/DS285/AB/R)
… the Panel had before it conflicting
evidence as to the relationship between the IHA, on the one hand, and
the measures at issue, on the other. We have already referred to the
discretion accorded to panels, as fact-finders, in the assessment of
the evidence. As the Appellate Body has observed on previous
occasions, “not every error in the appreciation of the evidence
(although it may give rise to a question of law) may be characterized
as a failure to make an objective assessment of the facts.”
S.7.3.26 Dominican Republic
— Import and
Sale of Cigarettes, para. 82
(WT/DS302/AB/R)
The Dominican Republic also submits that the
Panel “misunderstood the proposition for which Exhibit DR-8 was
offered”, because “[t]he Panel … incorrectly focused on the
relationship between smuggling and forgery”, whereas “Exhibit DR-8
was offered as evidence of (a) smuggling and, separately, (b) forgery
of tax stamps of a product in respect of which the Dominican Republic
allows stamps to be affixed outside its territory.” In our view, the
Panel did not act in a manner inconsistent with Article 11 of the DSU
in not finding that Memo DAT-No. 46 “adds any conclusive elements as
relate to the relationship between the seizure of alcoholic beverages
and the possible forgery of tax stamps”. A panel does not act in a
manner inconsistent with Article 11 of the DSU simply because it draws
inferences from some of the evidence that do not coincide with the
reason for which a party adduced it.
S.7.3.27 Dominican Republic
— Import and
Sale of Cigarettes, para. 84
(WT/DS302/AB/R)
The Dominican Republic disagrees with the
Panel’s position that Exhibits DR-8 and DR-29 do not establish a
causal link between allowing stamps to be affixed abroad and forgery
of tax stamps. It contends that such a causal link exists, basing its
contention on an inference it draws from evidence of smuggling and
forgery of tax stamps with respect to alcohol products. However, a
mere divergence of views between a party and a panel on the inferences
to be drawn from pieces of evidence is not a sufficient ground to
conclude that the Panel failed to “make … an objective assessment
of the facts of the case”. …
S.7.4 Article 11 of the DSU — Objective
assessment of whether the investigating authority’s explanation is
reasoned and adequate back to top
S.7.4.1 US — Wheat Gluten, paras. 161-162
(WT/DS166/AB/R)
… We consider that the Panel’s
conclusion is at odds with its treatment and description of the
evidence supporting that conclusion. We do not see how the Panel could
conclude that the USITC Report did provide an adequate
explanation of the allocation methodologies, when it is clear that the
Panel itself saw such deficiencies in that Report that it placed
extensive reliance on “clarifications” that were not contained in
the USITC Report.
By reaching a conclusion regarding the USITC
Report, which relied so heavily on supplementary information provided
by the United States during the Panel proceedings — information not
contained in the USITC Report — the Panel applied a standard of review
which falls short of what is required by Article 11 of the DSU.
S.7.4.2 US — Lamb, para. 103
(WT/DS177/AB/R, WT/DS178/AB/R)
Thus, an “objective assessment” of a
claim under Article 4.2(a) of the Agreement on Safeguards has,
in principle, two elements. First, a panel must review whether
competent authorities have evaluated all relevant factors, and,
second, a panel must review whether the authorities have provided a reasoned
and adequate explanation of how the facts support their
determination. Thus, the panel’s objective assessment involves a formal
aspect and a substantive aspect. The formal aspect is whether
the competent authorities have evaluated “all relevant factors”.
The substantive aspect is whether the competent authorities have given
a reasoned and adequate explanation for their determination.
S.7.4.3 US — Lamb, para. 104
(WT/DS177/AB/R, WT/DS178/AB/R)
… Under Article 4.2(a), competent
authorities must, as a formal matter, evaluate “all relevant factors”.
However, that evaluation is not simply a matter of form, and the list
of relevant factors to be evaluated is not a mere “check-list”.
…
S.7.4.4 US — Lamb, para. 105
(WT/DS177/AB/R, WT/DS178/AB/R)
It follows that the precise nature of the
examination to be conducted by a panel, in reviewing a claim under
Article 4.2 of the Agreement on Safeguards, stems, in part,
from the panel’s obligation to make an “objective assessment of
the matter” under Article 11 of the DSU and, in part, from the
obligations imposed by Article 4.2, to the extent that those
obligations are part of the claim. Thus, as with any claim under the
provisions of a covered agreement, panels are required to examine, in
accordance with Article 11 of the DSU, whether the Member has complied
with the obligations imposed by the particular provisions identified
in the claim. By examining whether the explanation given by the
competent authorities in their published report is reasoned and
adequate, panels can determine whether those authorities have acted
consistently with the obligations imposed by Article 4.2 of the Agreement
on Safeguards.
S.7.4.5 US — Cotton Yarn, para. 74
(WT/DS192/AB/R)
Our Reports in … disputes under the Agreement
on Safeguards spell out key elements of a panel’s standard of
review under Article 11 of the DSU in assessing whether the competent
authorities complied with their obligations in making their
determinations. This standard may be summarized as follows: panels
must examine whether the competent authority has evaluated all
relevant factors; they must assess whether the competent authority has
examined all the pertinent facts and assessed whether an adequate
explanation has been provided as to how those facts support the
determination; and they must also consider whether the competent
authority’s explanation addresses fully the nature and complexities
of the data and responds to other plausible interpretations of the
data. However, panels must not conduct a de novo review of the
evidence nor substitute their judgement for that of the competent
authority.
S.7.5 Article 11 of the DSU — No de novo
review back to top
S.7.5.1 US — Lamb, paras. 106-107
(WT/DS177/AB/R, WT/DS178/AB/R)
We wish to emphasize that, although panels
are not entitled to conduct a de novo review of the evidence,
nor to substitute their own conclusions for those of the
competent authorities, this does not mean that panels must
simply accept the conclusions of the competent authorities. To
the contrary, in our view, in examining a claim under Article 4.2(a),
a panel can assess whether the competent authorities’ explanation
for its determination is reasoned and adequate only if the
panel critically examines that explanation, in depth, and in the light
of the facts before the panel. Panels must, therefore, review whether
the competent authorities’ explanation fully addresses the nature,
and, especially, the complexities, of the data, and responds to other
plausible interpretations of that data. A panel must find, in
particular, that an explanation is not reasoned, or is not adequate,
if some alternative explanation of the facts is plausible, and
if the competent authorities’ explanation does not seem adequate in
the light of that alternative explanation. Thus, in making an “objective
assessment” of a claim under Article 4.2(a), panels must be open to
the possibility that the explanation given by the competent
authorities is not reasoned or adequate.
In this respect, the phrase “de novo
review” should not be used loosely. If a panel concludes that the
competent authorities, in a particular case, have not provided
a reasoned or adequate explanation for their determination, that panel
has not, thereby, engaged in a de novo review. Nor has that
panel substituted its own conclusions for those of the competent
authorities. Rather, the panel has, consistent with its obligations
under the DSU, simply reached a conclusion that the determination made
by the competent authorities is inconsistent with the specific
requirements of Article 4.2 of the Agreement on Safeguards.
S.7.5.2 US — Lamb, para. 113
(WT/DS177/AB/R, WT/DS178/AB/R)
… In arguing claims in dispute settlement,
a WTO Member is not confined merely to rehearsing
arguments that were made to the competent authorities by the interested
parties during the domestic investigation, even if the WTO
Member was itself an interested party in that investigation. Likewise,
panels are not obliged to determine, and confirm themselves the nature
and character of the arguments made by the interested parties to the
competent authorities. Arguments before national competent authorities
may be influenced by, and focused on, the requirements of the national
laws, regulations and procedures. On the other hand, dispute
settlement proceedings brought under the DSU concerning safeguard
measures imposed under the Agreement on Safeguards may involve
arguments that were not submitted to the competent authorities by the
interested parties.
S.7.5.3 US — Steel Safeguards, paras. 298-299
(WT/DS248/AB/R, WT/DS249/AB/R,
WT/DS251/AB/R, WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R,
WT/DS258/AB/R, WT/DS259/AB/R)
… A panel must not be left to wonder
why a safeguard measure has been applied.
It is precisely by “setting forth findings
and reasoned conclusions on all pertinent issues of fact and law”,
under Article 3.1, and by providing “a detailed analysis of the case
under investigation as well as a demonstration of the relevance of the
factors examined”, under Article 4.2(c), that competent authorities
provide panels with the basis to “make an objective assessment of
the matter before it” in accordance with Article 11. As we have said
before, a panel may not conduct a de novo review of the
evidence or substitute its judgement for that of the competent
authorities. Therefore, the “reasoned conclusions” and “detailed
analysis” as well as “a demonstration of the relevance of the
factors examined” that are contained in the report of a competent
authority, are the only bases on which a panel may assess whether a
competent authority has complied with its obligations under the Agreement
on Safeguards and Article XIX:1(a) of the GATT 1994. This is all
the more reason why they must be made explicit by a competent
authority.
S.7.5.4 US — Steel Safeguards, para. 303
(WT/DS248/AB/R, WT/DS249/AB/R,
WT/DS251/AB/R, WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R,
WT/DS258/AB/R, WT/DS259/AB/R)
… we cannot accept the United States’
interpretation that a failure to explain a finding does not support
the conclusion that the USITC “did not actually perform the
analysis correctly, thereby breaching Article 2.1, 4.2, or 4.2(b) [of
the Agreement on Safeguards]”. As we stated above, because a
panel may not conduct a de novo review of the evidence before
the competent authority, it is the explanation given by the
competent authority for its determination that alone enables panels to
determine whether there has been compliance with the requirements of
Article XIX of the GATT 1994 and of Articles 2 and 4 of the Agreement
on Safeguards. It may well be that, as the United States argues,
the competent authorities have performed the appropriate analysis
correctly. However, where a competent authority has not provided a
reasoned and adequate explanation to support its determination, the
panel is not in a position to conclude that the relevant requirement
for applying a safeguard measure has been fulfilled by that competent
authority. …
S.7.6 Article 11 of the DSU — Temporal scope
of review back to top
S.7.6.1 US — Cotton Yarn, paras. 76-79
(WT/DS192/AB/R)
Unlike Article 3 of the Agreement on
Safeguards, which provides explicitly for an investigation by
competent authorities of a Member, Article 6 of the ATC does
not specify either the organ or the procedure through which a Member
makes its “determination”. Nevertheless, the above principles
concerning the standard of review under Article 11 of the DSU with
respect to the Agreement on Safeguards apply equally, in our
view, to a panel’s review of a Member’s determination under
Article 6 of the ATC. We note that Article 6 does not require
the participation of all interested parties in the process leading to
the determination. We consider, therefore, that the exercise of due
diligence by a Member is all the more important in reaching a
determination under Article 6 of the ATC.
The exercise of due diligence by a Member
cannot imply, however, the examination of evidence that did not exist
and that, therefore, could not possibly have been taken into account
when the Member made its determination. The demonstration by a Member
that a particular product is being imported into its territory in such
increased quantities as to cause serious damage (or actual threat
thereof) to the domestic industry can be based only on facts and
evidence which existed at the time the determination was made. The
urgent nature of such an investigation may not permit the Member to
delay its determination in order to take into account evidence that
might be available only at a future date. Even a determination on the
existence of threat of serious injury must be based on projections
extrapolating from existing data.
In our view, a panel reviewing the
due diligence exercised by a Member in making its determination under
Article 6 of the ATC has to put itself in the place of that
Member at the time it makes its determination. Consequently, a panel
must not consider evidence which did not exist at that point in
time. A Member cannot, of course, be faulted for not having taken
into account what it could not have known when making its
determination. If a panel were to examine such evidence, the panel
would, in effect, be conducting a de novo review and it would
be doing so without having had the benefit of the views of the
interested parties. The panel would be assessing the due diligence of
a Member in reaching its conclusions and making its projections with
the benefit of hindsight and would, in effect, be reinvestigating the
market situation and substituting its own judgement for that of the
Member. In our view, this would be inconsistent with the standard of a
panel’s review under Article 11 of the DSU.
Moreover, if a Member that has exercised due
diligence in complying with its obligations of investigation,
evaluation and explanation, were held responsible before a panel for
what it could not have known at the time it made its
determination, this would undermine the right afforded to importing
Members under Article 6 to take transitional safeguard action when the
determination demonstrates the fulfilment of the specific conditions
provided for in this Article .
S.7.7 Article 11 of the DSU — “make such
other findings [to] assist the DSB … in giving the rulings”
back to top
S.7.7.1 EC — Export Subsidies on Sugar,
para. 331
(WT/DS265/AB/R, WT/DS266/AB/R,
WT/DS283/AB/R)
Thus, in addition to ruling on the matter
before it, a panel is required [under Article 11 of the DSU] to “make
such other findings as will assist the DSB in making the
recommendations or in giving the rulings provided for in the covered
agreements.” Such “other findings” could, for instance, relate
to implementation, to the extent that such findings “will assist the
DSB in making the recommendations or in giving the rulings provided
for in the covered agreements”.
S.7.7.2 EC — Export Subsidies on Sugar,
para. 335
(WT/DS265/AB/R, WT/DS266/AB/R,
WT/DS283/AB/R)
In this case, the Panel’s findings under
Articles 3 and 8 of the Agreement on Agriculture were not
sufficient to “fully resolve” the dispute. This is because, in
declining to rule on the Complaining Parties’ claims under Article 3
of the SCM Agreement, the Panel precluded the possibility of a
remedy being made available to the Complaining Parties, pursuant to
Article 4.7 of the SCM Agreement, in the event of the Panel
finding in favour of the Complaining Parties with respect to their
claims under Article 3 of the SCM Agreement. Moreover, in
declining to rule on the Complaining Parties’ claims under Article 3
of the SCM Agreement, the Panel failed to discharge its
obligation under Article 11 of the DSU by failing to make “such
other findings as will assist the DSB in making the recommendations or
in giving the rulings provided for in the covered agreements”,
namely, a recommendation or ruling by the DSB pursuant to Article 4.7.
This constitutes false judicial economy and legal error.
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