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T.6.1 General back to top
T.6.1.1 Brazil — Desiccated Coconut, p. 22, DSR 1997:I, p. 167 at
186
(WT/DS22/AB/R)
A panel’s terms of reference are important for two reasons. First,
terms of reference fulfil an important due process objective — they give
the parties and third parties sufficient information concerning the
claims at issue in the dispute in order to allow them an opportunity to
respond to the complainant’s case. Second, they establish the
jurisdiction of the panel by defining the precise claims at issue in the
dispute.
T.6.1.2 Brazil — Desiccated Coconut, p. 22, DSR 1997:I, p. 167 at
186
(WT/DS22/AB/R)
… the “matter” referred to a panel for consideration consists
of the specific claims stated by the parties to the dispute in the
relevant documents specified in the terms of reference. We agree with
the approach taken in previous adopted panel reports that a matter,
which includes the claims composing that matter, does not fall within a
panel’s terms of reference unless the claims are identified in the
documents referred to or contained in the terms of reference.
T.6.1.3 EC — Bananas III, para. 142
(WT/DS27/AB/R)
We recognize that a panel request will usually be approved
automatically at the DSB meeting following the meeting at which the
request first appears on the DSB’s agenda. As a panel request is
normally not subjected to detailed scrutiny by the DSB, it is incumbent
upon a panel to examine the request for the establishment of the panel
very carefully to ensure its compliance with both the letter and the
spirit of Article 6.2 of the DSU. It is important that a panel request
be sufficiently precise for two reasons: first, it often forms the basis
for the terms of reference of the panel pursuant to Article 7 of the DSU;
and, second, it informs the defending party and the third parties of the
legal basis of the complaint.
T.6.1.4 India — Patents (US), para. 94
(WT/DS50/AB/R)
All parties engaged in dispute settlement under the DSU must be fully
forthcoming from the very beginning both as to the claims involved in a
dispute and as to the facts relating to those claims. Claims must be
stated clearly. Facts must be disclosed freely. This must be so in
consultations as well as in the more formal setting of panel
proceedings. In fact, the demands of due process that are implicit in
the DSU make this especially necessary during consultations. For the
claims that are made and the facts that are established during
consultations do much to shape the substance and the scope of subsequent
panel proceedings. If, in the aftermath of consultations, any party
believes that all the pertinent facts relating to a claim are, for any
reason, not before the panel, then that party should ask the panel in
that case to engage in additional fact-finding. But this additional
fact-finding cannot alter the claims that are before the panel — because
it cannot alter the panel’s terms of reference. And, in the absence of
the inclusion of a claim in the terms of reference, a panel must neither
be expected nor permitted to modify rules in the DSU.
T.6.1.5 Guatemala —
Cement I, para. 72
(WT/DS60/AB/R)
… Thus, “the matter referred to the DSB” for the purposes of
Article 7 of the DSU and Article 17.4 of the Anti-Dumping Agreement
must be the “matter” identified in the request for the establishment
of a panel under Article 6.2 of the DSU. That provision requires the
complaining Member, in a panel request, to “identify the specific
measures at issue and provide a brief summary of the legal basis
of the complaint sufficient to present the problem clearly.”
(emphasis added) The “matter referred to the DSB”, therefore,
consists of two elements: the specific measures at issue and the legal
basis of the complaint (or the claims).
T.6.1.6 Guatemala —
Cement I, para. 76
(WT/DS60/AB/R)
… the word “matter” has the same meaning in Article 17 of the Anti-Dumping
Agreement as it has in Article 7 of the DSU. It consists of two
elements: the specific “measure” and the “claims” relating to
it, both of which must be properly identified in a panel request as
required by Article 6.2 of the DSU.
T.6.1.7 Korea — Dairy, para. 120
(WT/DS98/AB/R)
… When parsed into its constituent parts, Article 6.2 may be seen
to impose the following requirements. The request must: (i) be in
writing; (ii) indicate whether consultations were held; (ii) identify
the specific measures at issue; and (iii) provide a brief summary of the
legal basis of the complaint sufficient to present the problem clearly.
In its fourth requirement, Article 6.2 demands only a summary — and it
may be a brief one — of the legal basis of the complaint; but the
summary must, in any event, be one that is “sufficient to present the
problem clearly”. It is not enough, in other words, that “the legal
basis of the complaint” is summarily identified; the identification
must “present the problem clearly”.
T.6.1.8 US — Carbon Steel, para. 123
(WT/DS213/AB/R, WT/DS213/AB/R/Corr.1)
… we have consistently held that, in the interests of due process,
parties should bring alleged procedural deficiencies to the attention of
a panel at the earliest possible opportunity. In this case, we see no
reason to disagree with the Panel’s view that the United States’
objection was not raised in a timely manner. At the same time, however,
as we have observed previously, certain issues going to the jurisdiction
of a panel are so fundamental that they may be considered at any stage
in a proceeding. In our view, the Panel was correct, therefore, in
turning to consider its terms of reference and in satisfying itself as
to its jurisdiction with respect to this matter.
T.6.1.9 US — Carbon Steel, paras. 124-125
(WT/DS213/AB/R, WT/DS213/AB/R/Corr.1)
… pursuant to Article 7 of the DSU, a panel’s terms of reference
are governed by the request for establishment of a panel. Article 6.2 of
the DSU sets forth the requirements applicable to such requests. …
There are … two distinct requirements, namely identification of the
specific measures at issue, and the provision of a brief summary
of the legal basis of the complaint (or the claims).
Together, they comprise the “matter referred to the DSB”, which
forms the basis for a panel’s terms of reference under Article 7.1 of
the DSU.
T.6.1.10 US — Carbon Steel, para. 126
(WT/DS213/AB/R, WT/DS213/AB/R/Corr.1)
The requirements of precision in the request for the establishment of
a panel flow from the two essential purposes of the terms of reference.
First, the terms of reference define the scope of the dispute. Secondly,
the terms of reference, and the request for the establishment of a panel
on which they are based, serve the due process objective of
notifying the parties and third parties of the nature of a complainant’s
case. When faced with an issue relating to the scope of its terms of
reference, a panel must scrutinize carefully the request for
establishment of a panel “to ensure its compliance with both the
letter and the spirit of Article 6.2 of the DSU.”
T.6.1.11 US — Offset Act (Byrd Amendment), para. 208
(WT/DS217/AB/R, WT/DS234/AB/R)
… “[a]n objection to jurisdiction should be raised as early as
possible” and it would be preferable, in the interests of due process,
for the appellant to raise such issues in the Notice of Appeal, so that
appellees will be aware that this claim will be advanced on appeal.
However, in our view, the issue of a panel’s jurisdiction is so
fundamental that it is appropriate to consider claims that a panel has
exceeded its jurisdiction even if such claims were not raised in the
Notice of Appeal.
T.6.2 Claims and legal basis of the complaint. See also
Burden of Proof, General (B.3.1); Claims and Arguments
(C.1);
Enabling Clause (E.1); Judicial Economy (J.1); Jurisdiction
(J.2);
Request for the Establishment of a Panel, Article 6.2 of the DSU — Claims and legal basis of the complaint (R.2.2) back to top
T.6.2.1 EC — Bananas III, para. 141
(WT/DS27/AB/R)
… We accept the Panel’s view that it was sufficient for the
Complaining Parties to list the provisions of the specific agreements
alleged to have been violated without setting out detailed arguments as
to which specific aspects of the measures at issue relate to which
specific provisions of those agreements. In our view, there is a
significant difference between the claims identified in the
request for the establishment of a panel, which establish the panel’s
terms of reference under Article 7 of the DSU, and the arguments
supporting those claims, which are set out and progressively clarified
in the first written submissions, the rebuttal submissions and the first
and second panel meetings with the parties.
T.6.2.2 EC — Bananas III, para. 143
(WT/DS27/AB/R)
… Article 6.2 of the DSU requires that the claims, but not
the arguments, must all be specified sufficiently in the request
for the establishment of a panel in order to allow the defending party
and any third parties to know the legal basis of the complaint. If a claim
is not specified in the request for the establishment of a panel, then a
faulty request cannot be subsequently “cured” by a complaining party’s
argumentation in its first written submission to the panel or in any
other submission or statement made later in the panel proceeding.
T.6.2.3 EC — Bananas III, paras. 145, 147
(WT/DS27/AB/R)
… There is no requirement in the DSU or in GATT practice for
arguments on all claims relating to the matter referred to the DSB to be
set out in a complaining party’s first written submission to the
panel. It is the panel’s terms of reference, governed by Article 7 of
the DSU, which set out the claims of the complaining parties relating to
the matter referred to the DSB.
…
… We do not agree with the Panel’s statement that a “failure to
make a claim in the first written submission cannot be remedied by later
submissions or by incorporating the claims and arguments of other
complainants”. …
T.6.2.4 US — Carbon Steel, para. 127
(WT/DS213/AB/R, WT/DS213/AB/R/Corr.1)
As we have said previously, compliance with the requirements of
Article 6.2 must be demonstrated on the face of the request for the
establishment of a panel. Defects in the request for the establishment
of a panel cannot be “cured” in the subsequent submissions of the
parties during the panel proceedings. Nevertheless, in considering the
sufficiency of a panel request, submissions and statements made during
the course of the panel proceedings, in particular the first written
submission of the complaining party, may be consulted in order to
confirm the meaning of the words used in the panel request and as part
of the assessment of whether the ability of the respondent to defend
itself was prejudiced. Moreover, compliance with the requirements of
Article 6.2 must be determined on the merits of each case, having
considered the panel request as a whole, and in the light of attendant
circumstances.
T.6.2.5 US — Carbon Steel, para. 130
(WT/DS213/AB/R, WT/DS213/AB/R/Corr.1)
… As we have observed, although the listing of the treaty
provisions allegedly violated is always a necessary “minimum
prerequisite” for compliance with Article 6.2, whether such a listing
is sufficient to constitute a “brief summary of the legal basis
of the complaint sufficient to present the problem clearly” within the
meaning of Article 6.2 will depend on the circumstances of each case,
and in particular on the extent to which mere reference to a treaty
provision sheds light on the nature of the obligation at issue. …
T.6.2.6 India — Patents (US), paras. 89-90
(WT/DS50/AB/R)
… a claim must be included in the request for establishment
of a panel in order to come within a panel’s terms of reference in a
given case. …
… the convenient phrase, “including but not necessarily limited
to”, is simply not adequate to “identify the specific measures at
issue and provide a brief summary of the legal basis of the complaint
sufficient to present the problem clearly” as required by Article 6.2
of the DSU. If this phrase incorporates Article 63, what Article of the TRIPS
Agreement does it not incorporate? Therefore, this phrase is not
sufficient to bring a claim relating to Article 63 within the terms of
reference of the Panel.
T.6.2.7 Korea — Dairy, para. 124
(WT/DS98/AB/R)
Identification of the treaty provisions claimed to have been violated
by the respondent is always necessary both for purposes of defining the
terms of reference of a panel and for informing the respondent and the
third parties of the claims made by the complainant; such identification
is a minimum prerequisite if the legal basis of the complaint is to be
presented at all. But it may not always be enough. There may be
situations where the simple listing of the Articles of the agreement or
agreements involved may, in the light of attendant circumstances,
suffice to meet the standard of clarity in the statement of the
legal basis of the complaint. However, there may also be situations in
which the circumstances are such that the mere listing of treaty
Articles would not satisfy the standard of Article 6.2. This may be the
case, for instance, where the Articles listed establish not one single,
distinct obligation, but rather multiple obligations. In such a
situation, the listing of Articles of an agreement, in and of itself,
may fall short of the standard of Article 6.2.
T.6.2.8 Korea — Dairy, para. 127
(WT/DS98/AB/R)
Along the same lines, we consider that whether the mere listing of
the Articles claimed to have been violated meets the standard of Article 6.2 must be examined on a case-by-case basis. In resolving that
question, we take into account whether the ability of the respondent to
defend itself was prejudiced, given the actual course of the panel
proceedings, by the fact that the panel request simply listed the
provisions claimed to have been violated.
T.6.2.9 Thailand — H-Beams, para. 88
(WT/DS122/AB/R)
Article 6.2 of the DSU calls for sufficient clarity with respect to
the legal basis of the complaint, that is, with respect to the “claims”
that are being asserted by the complaining party. A defending party is
entitled to know what case it has to answer, and what violations have
been alleged so that it can begin preparing its defence. Likewise, those
Members of the WTO who intend to participate as third parties in panel
proceedings must be informed of the legal basis of the complaint. This
requirement of due process is fundamental to ensuring a fair and orderly
conduct of dispute settlement proceedings.
T.6.2.10 Thailand
— H-Beams, para. 92
(WT/DS122/AB/R)
In the facts and circumstances of this case, therefore, we consider
that the reference in Poland’s panel request to the “[calculation
of] an alleged dumping margin” was sufficient to bring Poland’s
claims under Article 2 within the panel’s terms of reference, and to
inform Thailand of the nature of Poland’s claims. Thus, with respect
to the claims relating to Article 2 of the Anti-Dumping Agreement,
Poland’s panel request was sufficient to meet the requirements of
Article 6.2 of the DSU.
T.6.2.11 Korea — Various Measures on Beef, para. 87
(WT/DS161/AB/R, WT/DS169/AB/R)
… Although the “commitment levels” in Korea’s Schedule and
“Annex 3” of the Agreement on Agriculture were not
explicitly referred to in the panel requests in this dispute, it is
clear that Articles 3 and 6 of the Agreement on Agriculture,
which were referred to in the panel requests, incorporate those
terms, either directly through Articles 3.2 and 6.3, in the case of the
“commitment levels”, or indirectly through Article 1(a)(i), in the
case of “Annex 3”. In our view, the commitment levels in Korea’s
Schedule and the provisions of Annex 3 were in effect referred to in the
complaining parties’ panel requests, and were, therefore, within the
Panel’s terms of reference.
T.6.2.12 US — Certain EC Products, para. 111
(WT/DS165/AB/R)
Article 23.1 of the DSU imposes a general obligation of Members to
redress a violation of obligations or other nullification or impairment
of benefits under the covered agreements only by recourse to the rules
and procedures of the DSU, and not through unilateral action.
Subparagraphs (a), (b) and (c) of Article 23.2 articulate specific and
clearly-defined forms of prohibited unilateral action contrary to
Article 23.1 of the DSU. There is a close relationship between the
obligations set out in paragraphs 1 and 2 of Article 23. They all
concern the obligation of Members of the WTO not to have recourse to
unilateral action. We therefore consider that, as the request for the
establishment of a panel of the European Communities included a claim of
inconsistency with Article 23, a claim of inconsistency with Article 23.2(a) is within the Panel’s terms of reference.
T.6.2.13 US — Certain EC Products, para. 112
(WT/DS165/AB/R)
However, the fact that a claim of inconsistency with Article 23.2(a)
of the DSU can be considered to be within the Panel’s terms of
reference does not mean that the European Communities actually made such
a claim. An analysis of the Panel record shows that, with the exception
of two instances during the Panel proceedings, the European Communities
did not refer specifically to Article 23.2(a) of the DSU.
Furthermore, in response to a request from the United States to clarify
the scope of its claim under Article 23, the European Communities
asserted only claims of violation of Articles 23.1 and 23.2(c) of the
DSU; no mention was made of Article 23.2(a). Our reading of the Panel
record shows us that, throughout the Panel proceedings in this case, the
European Communities made arguments relating only to its claims that the
United States acted inconsistently with Article 23.1 and Article 23.2(c)
of the DSU.
T.6.2.14 US — Certain EC Products, para. 113
(WT/DS165/AB/R)
The Panel record does show that the European Communities made several
references to what it termed the “unilateral determination” of the
United States. However, in those references, the European Communities
did not specifically link the alleged “unilateral determination” to
a claim of violation of Article 23.2(a) per se. The European
Communities’ arguments relating to the alleged “unilateral
determination” of the United States were made with reference to the
alleged failure on the part of the United States to redress a perceived
WTO violation through recourse to the DSU as required by Article 23.1 of
the DSU. At no point did the European Communities link the notion of a
“unilateral determination” on the part of the United States with a
violation of Article 23.2(a).
T.6.2.15 US — Certain EC Products, para. 114
(WT/DS165/AB/R)
On the basis of our review of the European Communities’ submissions
and statements to the Panel, we conclude that the European Communities
did not specifically claim before the Panel that, by adopting the 3
March Measure, the United States acted inconsistently with Article 23.2(a) of the DSU. As the European Communities did not make a specific
claim of inconsistency with Article 23.2(a), it did not adduce any
evidence or arguments to demonstrate that the United States made a “determination
as to the effect that a violation has occurred” in breach of Article 23.2(a) of the DSU. And, as the European Communities did not adduce any
evidence or arguments in support of a claim of violation of Article 23.2(a) of the DSU, the European Communities could not have established,
and did not establish, a prima facie case of violation of Article 23.2(a) of the DSU.
T.6.2.16 Chile — Price Band System, paras. 150-151
(WT/DS207/AB/R)
The Panel request refers to Article of the GATT 1994 in general
terms. No specific reference is made to any of the seven paragraphs or
eight subparagraphs of Article of the GATT 1994. Argentina’s request
clearly does not limit the scope of Argentina’s claims to the first
sentence of Article II:1(b). Therefore, we find that Article in its
entirety — including the second sentence of Article II:1(b) — is within
the Panel’s terms of reference.
This, however, is not the end of our inquiry on this issue. Chile
does not dispute that Argentina included Article II:1(b) in the request
for the establishment of a panel. However, Chile submits that making a
general reference to Article in the Panel request is not dispositive of
whether Argentina has actually made a claim under the second
sentence of Article II:1(b), and, thus, of whether the Panel was
entitled to make a finding under that provision.
T.6.2.17 Chile — Price Band System, para. 164
(WT/DS207/AB/R)
… Argentina appears to suggest that a claim may be made implicitly,
and need not be made explicitly. We do not agree. The requirements of
due process and orderly procedure dictate that claims must be made
explicitly in WTO dispute settlement. Only in this way will the panel,
other parties, and third parties understand that a specific claim has
been made, be aware of its dimensions, and have an adequate opportunity
to address and respond to it. WTO Members must not be left to wonder
what specific claims have been made against them in dispute settlement.
…
T.6.2.18 US — Offset Act (Byrd Amendment), para. 212
(WT/DS217/AB/R, WT/DS234/AB/R)
In our view, these statements do not constitute a finding by the
Panel that was outside its terms of reference. The Panel was merely
reflecting in its reasoning the fact that the CDSOA does not operate in
a vacuum but, rather, operates in a context that includes other laws and
regulations. The Panel’s view was that the combination of anti-dumping
duties (or countervailing duties) and CDSOA offset payments distorts the
competitive relationship between dumped (subsidized) and domestic
products, to the detriment of dumped (subsidized) products. This led the
Panel to find that the CDSOA — alone — has an adverse bearing on dumping
(subsidization) and, therefore, operates “against” dumping
(subsidies) within the meaning of Article 18.1 of the Anti-Dumping
Agreement (and Article 32.1 of the SCM Agreement).
Therefore, we dismiss the claim of the United States that the
Panel exceeded its terms of reference by examining claims concerning the
CDSOA “in combination” with other United States laws and
regulations.
T.6.2.19 EC — Tariff Preferences, para. 113
(WT/DS246/AB/R)
In the light of the extensive requirements set forth in the Enabling
Clause, we are of the view that, when a complaining party considers that
a preference scheme of another Member does not meet one or more of those
requirements, the specific provisions of the Enabling Clause with which
the scheme allegedly falls afoul, form critical components of the “legal
basis of the complaint” and, therefore, of the “matter” in
dispute. Accordingly, a complaining party cannot, in good faith, ignore
those provisions and must, in its request for the establishment of a
panel, identify them and thereby “notif[y] the parties and third
parties of the nature of [its] case”. For the failure of such a
complaining party to raise the relevant provisions of the Enabling
Clause would place an unwarranted burden on the responding party. This
due process consideration applies equally to the elaboration of a
complaining party’s case in its written submissions, which must “explicitly”
articulate a claim so that the panel and all parties to a dispute “understand
that a specific claim has been made, [are] aware of its dimensions, and
have an adequate opportunity to address and respond to it”.
T.6.3 Specific measure at issue. See also Burden of
Proof (B.3); Jurisdiction (J.2); Legislation as such vs. Specific
Application (L.1); Mandatory and Discretionary Legislation
(M.1);
Request for the Establishment of a Panel — Specific measures at issue (R.2.3) back to top
T.6.3.1 Japan — Alcoholic Beverages II, p. 26, DSR 1996:I, p. 97
at 117-118
(WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R)
We note that the Panel’s conclusions on “like products” and on
“directly competitive or substitutable products” … fail to address
the full range of alcoholic beverages included in the Panel’s Terms of
Reference. … We consider this failure to incorporate into its
conclusions all the products referred to in the Terms of Reference,
consistent with the matters referred to the DSB in WT/DS8/5, WT/DS10/5
and WT/DS11/2, to be an error of law by the Panel.
T.6.3.2 Australia —
Salmon, para. 103
(WT/DS18/AB/R)
… In our view, the … measure at issue can only be the measure
which is actually applied to the product at issue. …
T.6.3.3 US — Certain EC Products, para. 70
(WT/DS165/AB/R)
… in our Report in Brazil — Export Financing Programme for
Aircraft, we stated that:
Articles 4 and 6 of the DSU … set forth a process by which a
complaining party must request consultations, and consultations must be
held, before a matter may be referred to the DSB for the establishment
of a panel.
The European Communities’ request for consultations of 4 March 1999
did not, of course, refer to the action taken by the United States on 19
April 1999, because that action had not yet been taken at the time. At
the oral hearing in this appeal, in response to questioning by the
Division, the European Communities acknowledged that the 19 April
action, as such, was not formally the subject of the
consultations held on 21 April 1999. We, therefore, consider that the 19
April action is also, for that reason, not a measure at issue in this
dispute and does not fall within the Panel’s terms of reference.
T.6.3.4 US — Carbon Steel, para. 171
(WT/DS213/AB/R, WT/DS213/AB/R/Corr.1)
… the references in the panel request to “certain aspects of the
sunset review procedure”, to the United States statutory provisions
governing sunset reviews, to related regulatory provisions, and to the
Sunset Policy Bulletin, can be read to refer, generally, to United
States law regarding the determination to be made in a sunset review.
However, we do not believe they can be read to refer to distinct
measures, consisting of United States law, as such, and as applied,
relating to the submission of evidence. Accordingly, we agree with the
Panel that the matters relating to the submission of evidence in a
sunset review were not within its terms of reference because the specific
measures at issue were not adequately identified in the request for
the establishment of the panel, as required by Article 6.2 of the DSU.
T.6.3.5 Chile — Price Band System, para. 139
(WT/DS207/AB/R)
… Chile’s price band system remains essentially the same after
the enactment of Law 19.772. The measure is not, in its essence, any
different because of that Amendment. Therefore, we conclude that the
measure before us in this appeal includes Law 19.772, because that law
amends Chile’s price band system without changing its essence.
T.6.3.6 Chile — Price Band System, para. 144
(WT/DS207/AB/R)
We emphasize that we do not mean to condone a practice of amending
measures during dispute settlement proceedings if such changes are made
with a view to shielding a measure from scrutiny by a panel or by us. We
do not suggest that this occurred in this case. However, generally
speaking, the demands of due process are such that a complaining party
should not have to adjust its pleadings throughout dispute settlement
proceedings in order to deal with a disputed measure as a “moving
target”. If the terms of reference in a dispute are broad enough to
include amendments to a measure — as they are in this case — and if it
is necessary to consider an amendment in order to secure a positive
solution to the dispute — as it is here — then it is appropriate to
consider the measure as amended in coming to a decision in a
dispute.
T.6.3.7 US — Oil Country Tubular Goods Sunset Reviews, para. 173
(WT/DS268/AB/R)
We also expect that measures subject to “as such” challenges
would normally have undergone, under municipal law, thorough scrutiny
through various deliberative processes to ensure consistency with the
Member’s international obligations, including those found in the
covered agreements, and that the enactment of such a measure would
implicitly reflect the conclusion of that Member that the measure is not
inconsistent with those obligations. The presumption that WTO Members
act in good faith in the implementation of their WTO commitments is
particularly apt in the context of measures challenged “as such”. We
would therefore urge complaining parties to be especially diligent
in setting out “as such” claims in their panel requests as clearly
as possible. In particular, we would expect that “as such” claims
state unambiguously the specific measures of municipal law challenged by
the complaining party and the legal basis for the allegation that those
measures are not consistent with particular provisions of the covered
agreements. Through such straightforward presentations of “as such”
claims, panel requests should leave respondent parties in little doubt
that, notwithstanding their own considered views on the WTO-consistency
of their measures, another Member intends to challenge those measures,
as such, in WTO dispute settlement proceedings.
T.6.3.8 US — Oil Country Tubular Goods Sunset Reviews, para. 220
(WT/DS268/AB/R)
… Therefore, even assuming arguendo that a “practice”
may be challenged as a “measure” in WTO dispute settlement — an
issue on which we express no view here — we find that the record
does not allow us to complete the analysis of Argentina’s conditional
appeal with respect to the “practice” of the USDOC regarding the
likelihood determination in sunset reviews.
T.6.3.9 US — Upland Cotton, para. 262
(WT/DS267/AB/R)
Whether or not a measure is still in force is not dispositive of
whether that measure is currently affecting the operation of any covered
agreement. Therefore, we disagree with the United States’ argument
that measures whose legislative basis has expired are incapable of
affecting the operation of a covered agreement in the present and that,
accordingly, expired measures cannot be the subject of
consultations under the DSU. In our view, the question of whether
measures whose legislative basis has expired affect the operation of a
covered agreement currently is an issue that must be resolved on the
facts of each case. The outcome of such an analysis cannot be prejudged
by excluding it from consultations and dispute settlement proceedings
altogether.
T.6.3.10 US — Upland Cotton, para. 269
(WT/DS267/AB/R)
The only temporal connotation contained in the ordinary meaning of
the expression “at issue”, as used in Article 6.2 of the DSU, is
expressed by its present tense: measures must be “at issue” — or,
putting it another way, “in dispute” — at the time the request is
made. Certainly, nothing inherent in the term “at issue” sheds light
on whether measures at issue must be currently in force, or whether they
may be measures whose legislative basis has expired.
T.6.3.11 US — Gambling, paras. 121-123
(WT/DS285/AB/R)
The DSU provides for the “prompt settlement” of situations where
Members consider that their benefits under the covered agreements “are
being impaired by measures taken by another Member”. Two
elements of this reference to “measures” that may be the subject of
dispute settlement are relevant. First, as the Appellate Body has
stated, a “nexus” must exist between the responding Member and the
“measure”, such that the “measure” — whether an act or omission
— must be “attributable” to that Member. Secondly, the “measure”
must be the source of the alleged impairment, which is in turn
the effect resulting from the existence or operation of the “measure”.
Similarly [Article 4.2 of the DSU] contemplates that “measures”
themselves will “affect” the operation of a covered agreement.
Finally, we note that this distinction between measures and their
effects is also evident in the scope of application of the GATS, namely,
to “measures by Members affecting trade in services”.
We are therefore of the view that the DSU and the GATS focus on “measures”
as the subject of challenge in WTO dispute settlement. To the extent
that a Member’s complaint centres on the effects of an action taken by
another Member, that complaint must nevertheless be brought as a
challenge to the measure that is the source of the alleged
effects.
T.6.3.12 US — Gambling, paras. 129, 131-132
(WT/DS285/AB/R)
… the Panel relied on certain Appellate Body decisions in support
of its view that “ ‘practice’ can be considered as an autonomous
measure that can be challenged in and of itself”. …
…
We disagree with the participants’ characterization of the Panel’s
statement on “practice”, in paragraph 6.197 of the Panel Report, as
a “finding” of the Panel. The Panel itself acknowledged that, in any
case, Antigua was not challenging a practice, as such. In this light,
the Panel’s statement on “practice”, in our view, was a mere obiter
dictum, and we need not rule on it.
We nevertheless express our disagreement with the Panel’s
understanding of previous Appellate Body decisions. The Appellate Body
has not, to date, pronounced upon the issue of whether “practice”
may be challenged, as such, as a “measure” in WTO dispute
settlement.
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