Topics handled by WTO committees and agreements
Issues covered by the WTO’s committees and agreements

REPERTORY OF APPELLATE BODY REPORTS

Temporal Application of Rights and Obligations


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/DS22/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.…

 


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