|
ON THIS PAGE:
> SCM Agreement
> SPS Agreement
> TBT Agreement. See also Principles and
Concepts of General Public International Law, No
retroactive application of treaties (P.3.4)
|
T.5.1 SCM Agreement
back to top
T.5.1.1 Brazil — Desiccated Coconut, p. 15, DSR 1997:I, p. 167 at
179-180
(WT/DS22/AB/R)
Article 28 [of the Vienna Convention on the Law of Treaties]
states the general principle that a treaty shall not be applied
retroactively “unless a different intention appears from the treaty or
is otherwise established”. Absent a contrary intention, a treaty
cannot apply to acts or facts which took place, or situations which
ceased to exist, before the date of its entry into force. Article 32.3
of the SCM Agreement is an express statement of intention
which we will now examine.
T.5.1.2 Brazil — Desiccated Coconut, pp. 18-19, DSR 1997:I, p.
167 at 182-183
(WT/DS22/AB/R)
The Appellate Body sees Article 32.3 of the SCM Agreement
as a clear statement that for countervailing duty investigations or
reviews, the dividing line between the application of the GATT 1947
system of agreements and the WTO Agreement is to be
determined by the date on which the application was made for the
countervailing duty investigation or review. Article 32.3 has limited
application only in specific circumstances where a countervailing duty
proceeding, either an investigation or a review, was underway at the
time of entry into force of the WTO Agreement. This does
not mean that the WTO Agreement does not apply as of 1
January 1995 to all other acts, facts and situations which come within
the provisions of the SCM Agreement and Article VI of the
GATT 1994. However, the Uruguay Round negotiators expressed an explicit
intention to draw the line of application of the new WTO Agreement
to countervailing duty investigations and reviews at a different point
in time from that for other general measures. …
T.5.2 SPS Agreement back to top
T.5.2.1 EC — Hormones, para. 128
(WT/DS26/AB/R, WT/DS48/AB/R)
… We agree with the Panel that the SPS Agreement
would apply to situations or measures that did not cease to exist, such
as the 1981 and 1988 Directives, unless the SPS Agreement
reveals a contrary intention. We also agree with the Panel that the SPS Agreement does not reveal such an intention. The SPS Agreement
does not contain any provision limiting the temporal application of the SPS Agreement, or of any provision thereof, to SPS measures adopted
after 1 January 1995. …
T.5.3 TBT Agreement. See also Principles and
Concepts of General Public International Law, No retroactive application
of treaties (P.3.4)
back to top
T.5.3.1 EC — Sardines, para. 200
(WT/DS231/AB/R)
We recall that Article 28 of the Vienna Convention on the Law of
Treaties (the “Vienna Convention”) provides that treaties
generally do not apply retroactively. …
… As we have said in previous disputes, the interpretation
principle codified in Article 28 is relevant to the interpretation of
the covered agreements.
T.5.3.2 EC — Sardines, para. 205
(WT/DS231/AB/R)
… We fail to see how the terms “where technical regulations are
required”, “exist”, “imminent”, “use”, and “as a basis
for” give any indication that Article 2.4 applies only to the two
stages of preparation and adoption of technical
regulations. To the contrary, as the Panel noted, the use of the present
tense suggests a continuing obligation for existing measures, and not
one limited to regulations prepared and adopted after the TBT Agreement
entered into force. …
TRIPS Agreement. See TRIPS Agreement, Article 70
(T.9.11-15)
|
The texts reproduced here do not have the legal standing of the original
documents which are entrusted and kept at the WTO Secretariat in Geneva.
|
