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REPERTORY OF APPELLATE BODY REPORTS

Waivers


ON THIS PAGE:

EC — Bananas III, para. 183
EC — Bananas III, para. 184
EC — Bananas III, para. 185
US — Stainless Steel (Mexico), para. 158 and footnote 308
EC — Bananas III (Article 21.5 — Ecuador II) / EC — Bananas III (Article 21.5 — US), paras. 380-383


W.1.1 EC — Bananas III, para. 183     back to top
(WT/DS27/AB/R)

… Neither the circumstances surrounding the negotiation of the Lomé Waiver, nor the need to interpret it so as to permit it to achieve its objectives, allow us to disregard the clear and plain wording of the Lomé Waiver by extending its scope to include a waiver from the obligations under Article XIII. Moreover, although Articles I and XIII of the GATT 1994 are both non-discrimination provisions, their relationship is not such that a waiver from the obligations under Article I implies a waiver from the obligations under Article XIII.

 
W.1.2 EC — Bananas III,
para. 184     back to top
(WT/DS27/AB/R)

The Panel’s interpretation of the Lomé Waiver as including a waiver from the GATT 1994 obligations relating to the allocation of tariff quotas is difficult to reconcile with the limited GATT practice in the interpretation of waivers, the strict disciplines to which waivers are subjected under the WTO Agreement, the history of the negotiations of this particular waiver and the limited GATT practice relating to granting waivers from the obligations of Article XIII.

 
W.1.3 EC — Bananas III,
para. 185     back to top
(WT/DS27/AB/R)

… Although the WTO Agreement does not provide any specific rules on the interpretation of waivers, Article IX of the WTO Agreement and the Understanding in Respect of Waivers of Obligations under the General Agreement on Tariffs and Trade 1994, which provide requirements for granting and renewing waivers, stress the exceptional nature of waivers and subject waivers to strict disciplines. Thus, waivers should be interpreted with great care.

 
W.1.4 US — Stainless Steel (Mexico),
para. 158 and footnote 308
(WT/DS344/AB/R)     back to top

It is well settled that Appellate Body reports are not binding, except with respect to resolving the particular dispute between the parties.308 This, however, does not mean that subsequent panels are free to disregard the legal interpretations and the ratio decidendi contained in previous Appellate Body reports that have been adopted by the DSB. …

 
W.1.5 EC — Bananas III (Article 21.5 — Ecuador II) / EC — Bananas III (Article 21.5 — US),
paras. 380-383     back to top
(WT/DS27/AB/RW2/ECU, WT/DS27/AB/RW/USA, WT/DS27/AB/RW2/ECU/Corr.1, WT/DS27/AB/RW/USA/Corr.1)

Article IX:4 requires that the decision granting the waiver state the date on which the waiver shall terminate, thus ensuring that waivers are granted for limited periods of time. A waiver must state the exceptional circumstances justifying the decision, the terms and conditions governing the application of the waiver, and the date it terminates. The Uruguay Round Understanding in Respect of Waivers of Obligations under the General Agreement on Tariffs and Trade 1994 describes, in detail, the contents of a request for a waiver. …

 

These provisions specify the elements that must be included in waiver requests and decisions. The need to state the exceptional circumstances, to specify the terms and conditions governing the application of the waiver, and to describe the specific policy objectives that a Member seeks to pursue, make clear that a waiver is a specific and exceptional instrument subject to strict disciplines. These elements do not suggest that a waiver should be construed as an agreement on issues not explicitly reflected in its terms and conditions, justifying circumstances, and stated policy objectives. …

 

In our view, the function of a waiver is to relieve a Member, for a specified period of time, from a particular obligation provided for in the covered agreements, subject to the terms, conditions, justifying exceptional circumstances or policy objectives described in the waiver decision. Its purpose is not to modify existing provisions in the agreements, let alone create new law or add to or amend the obligations under a covered agreement or Schedule. Therefore, waivers are exceptional in nature, subject to strict disciplines and should be interpreted with great care.

 

Multilateral interpretations of provisions of WTO law are the next method identified above. Article IX:2 of the WTO Agreement sets out specific requirements for decisions that may be taken by the Ministerial Conference or the General Council to adopt interpretations of provisions of the Multilateral Trade Agreements. Such multilateral interpretations are meant to clarify the meaning of existing obligations, not to modify their content. Article IX:2 emphasizes that such interpretations “shall not be used in a manner that would undermine the amendment provisions in Article X”. A multilateral interpretation should also be distinguished from a waiver, which allows a Member to depart from an existing WTO obligation for a limited period of time. We consider that a multilateral interpretation pursuant to Article IX:2 of the WTO Agreement can be likened to a subsequent agreement regarding the interpretation of the treaty or the application of its provisions pursuant to Article 31(3)(a) of the Vienna Convention, as far as the interpretation of the WTO agreements is concerned.

 

308. …While Appellate Body reports adopted by the DSB shall be accepted unconditionally by the parties to the dispute, it is the exclusive authority of the Ministerial Conference and the General Council to adopt, pursuant to Article IX:2 of the WTO Agreement, interpretations that are binding upon the WTO membership.     back to text


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