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ON THIS PAGE:
> Japan — Alcoholic Beverages II, pp.
14-15, DSR 1996:I, p. 97 at 107-108
> US — Shrimp (Article 21.5 — Malaysia),
paras. 107-109
> US — Softwood Lumber V, para. 112
> US — Oil Country Tubular Goods Sunset
Reviews, para. 188
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S.8.1 Japan — Alcoholic Beverages II,
pp. 14-15, DSR 1996:I, p. 97 at 107-108 back to top
(WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R)
Article XVI:1 of the WTO Agreement
and paragraph 1(b)(iv) of the language of Annex 1A incorporating the
GATT 1994 into the WTO Agreement bring the legal history
and experience under the GATT 1947 into the new realm of the WTO in a
way that ensures continuity and consistency in a smooth transition
from the GATT 1947 system. This affirms the importance to the Members
of the WTO of the experience acquired by the CONTRACTING PARTIES to
the GATT 1947 — and acknowledges the continuing relevance of that
experience to the new trading system served by the WTO. Adopted panel
reports are an important part of the GATT acquis. They are
often considered by subsequent panels. They create legitimate
expectations among WTO Members, and, therefore, should be taken into
account where they are relevant to any dispute. However, they are not
binding, except with respect to resolving the particular dispute
between the parties to that dispute. In short, their character and
their legal status have not been changed by the coming into force of
the WTO Agreement.
For these reasons, we do not agree with the
Panel’s conclusion in paragraph 6.10 of the Panel Report that “panel
reports adopted by the GATT CONTRACTING PARTIES and the WTO Dispute
Settlement Body constitute subsequent practice in a specific case”
as the phrase “subsequent practice” is used in Article 31 of the Vienna
Convention. Further, we do not agree with the Panel’s conclusion
in the same paragraph of the Panel Report that adopted panel reports
in themselves constitute “other decisions of the CONTRACTING PARTIES
to GATT 1947” for the purposes of paragraph 1(b)(iv) of the language
of Annex 1A incorporating the GATT 1994 into the WTO Agreement.
However, we agree with the Panel’s
conclusion in that same paragraph of the Panel Report that unadopted
panel reports “have no legal status in the GATT or WTO system since
they have not been endorsed through decisions by the CONTRACTING
PARTIES to GATT or WTO Members”. Likewise, we agree that “a panel
could nevertheless find useful guidance in the reasoning of an
unadopted panel report that it considered to be relevant”.
S.8.2 US — Shrimp (Article 21.5 — Malaysia),
paras. 107-109 back to top
(WT/DS58/AB/RW)
Malaysia also objects to the frequent
references made by the Panel to our reasoning in our Report in United
States — Shrimp. The reasoning in our Report in United States
— Shrimp on which the Panel relied was not dicta; it was
essential to our ruling. The Panel was right to use it, and right to
rely on it. Nor are we surprised that the Panel made frequent
references to our Report in United States — Shrimp. Indeed, we
would have expected the Panel to do so. The Panel had, necessarily, to
consider our views on this subject, as we had overruled certain
aspects of the findings of the original panel on this issue and, more
important, had provided interpretative guidance for future panels,
such as the Panel in this case.
… we note that in our Report in Japan
— Taxes on Alcoholic Beverages, we stated that:
Adopted panel reports are an important part
of the GATT acquis. They are often considered by subsequent
panels. They create legitimate expectations among WTO Members, and,
therefore, should be taken into account where they are relevant to any
dispute.
This reasoning applies to adopted Appellate
Body Reports as well. Thus, in taking into account the reasoning in an
adopted Appellate Body Report — a Report, moreover, that was directly
relevant to the Panel’s disposition of the issues before it — the
Panel did not err. The Panel was correct in using our findings as a
tool for its own reasoning. Further, we see no indication that, in
doing so, the Panel limited itself merely to examining the new measure
from the perspective of the recommendations and rulings of the DSB.
S.8.3 US — Softwood Lumber V,
para. 112 back to top
(WT/DS264/AB/R)
Bearing [the findings in Japan — Alcoholic Beverages II and US
— Shrimp (Article 21.5 — Malaysia)] in mind, and noting Article 3.2 of the Understanding
on Rules and Procedures Governing the Settlement of Disputes (the
“DSU”), which states that “the dispute settlement system of the
WTO is a central element in providing security and predictability to
the multilateral trading system,” we have given full consideration
to the particular facts of this case and to the arguments raised by
the United States on appeal, as well as to those raised by Canada and
the third participants. In doing so, we have taken into account the
reasoning and findings contained in the Appellate Body Report in EC
— Bed Linen, as appropriate.
S.8.4 US — Oil Country Tubular Goods Sunset
Reviews,
para. 188
(WT/DS268/AB/R)
back to top
… The Panel had before it exactly the same
instrument that had been examined by the Appellate Body in US — Corrosion-Resistant Steel Sunset Review; thus, it was appropriate
for the Panel, in determining whether the SPB is a measure, to rely on
the Appellate Body’s conclusion in that case. Indeed, following the
Appellate Body’s conclusions in earlier disputes is not only
appropriate, but is what would be expected from panels, especially
where the issues are the same. …
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