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W.2.1 General back to top
W.2.1.1 US — FSC, para. 166
(WT/DS108/AB/R)
… The procedural rules of WTO dispute
settlement are designed to promote, not the development of litigation
techniques, but simply the fair, prompt and effective resolution of
trade disputes.
W.2.1.2 EC — Sardines, para. 139
(WT/DS231/AB/R)
… we emphasize that the Working
Procedures must not be interpreted in a way that could undermine the
effectiveness of the dispute settlement system, for they have been drawn
up pursuant to the DSU and as a means of ensuring that the dispute
settlement mechanism achieves the aim of securing a positive solution to
a dispute. …
W.2.2 Rule 3.1 — Decision making
back to top
W.2.2.1 EC — Asbestos, para. 51
(WT/DS135/AB/R)
… after consultations among all seven
Members of the Appellate Body, we adopted, pursuant to Rule 16(1) of the
Working Procedures, an additional procedure, for the
purposes of this appeal only, to deal with written submissions
received from persons other than the parties and third parties to this
dispute (the “Additional Procedure”). …
W.2.3 Rule 3.2 — Concurring opinion — Article 17.11 of the DSU back to top
W.2.3.1 EC — Asbestos, para. 149
(WT/DS135/AB/R)
One Member of the Division hearing this appeal
wishes to make a concurring statement. At the outset, I would like to
make it abundantly clear that I agree with the findings and conclusions
reached, and the reasoning set out in support thereof, by the Division,
in: Section V (TBT Agreement); Section VII (Article XX(b)
of the GATT 1994 and Article 11 of the DSU); Section VIII (Article XXIII:1(b) of the GATT 1994); and Section IX (Findings and Conclusions)
of the Report. This concurring statement, in other words, relates only
to Section VI (“Like Products” in Article III:4 of the GATT 1994) of
the Report.
W.2.3.2 EC — Asbestos, para. 150
(WT/DS135/AB/R)
More particularly, in respect of Section VI of
the Report, I join in the findings and conclusions set out in:
paragraphs 116, 126, 128, 131, 132, 141, 147 and 148. I am bound to say
that, in truth, I agree with a great deal more than just the bare
findings and conclusions contained in these eight paragraphs of the
Report. It is, however, as a practical matter, not feasible to sort out
and identify which part of which paragraph, of the sixty-odd paragraphs
comprising Section VI of our Report in which I join. Nor is it feasible
to offer a detailed statement with respect to the portions that would
then remain. Accordingly, I set out only two related matters below.
W.2.3.3 EC — Asbestos, para. 154
(WT/DS135/AB/R)
… Moreover, in future concrete contexts, the
line between a “fundamentally” and “exclusively” economic view
of “like products” under Article III:4 may well prove very
difficult, as a practical matter, to identify. It seems to me the better
part of valour to reserve one’s opinion on such an important, indeed,
philosophical matter, which may have unforeseeable implications, and to
leave that matter for another appeal and another day, or perhaps other
appeals and other days. I so reserve my opinion on this matter.
W.2.3A Rule 3.2 — Separate opinion — Article 17.11 of the DSU back to top
W.2.3A.1 US — Upland Cotton, para. 631
(WT/DS267/AB/R)
One Member of the Division hearing this appeal
wishes to set out a brief separate opinion. At the outset, I would like
to make it absolutely clear that I agree with the findings and
conclusions and reasoning set out in all preceding Sections of this
Report, but one, namely, Section C above, which relates to Article 10.2
of the Agreement on Agriculture. It is only on the interpretation
of Article 10.2 that I must respectfully disagree.
W.2.3A.2 US — Upland Cotton, para. 641 and
footnote 952
(WT/DS267/AB/R)
I also recognize that this interpretation of
Article 10.2 has consequential results for some of the other claims on
appeal brought by both the United States and Brazil in connection with
the United States’ export credit guarantee programs. As to the other
Sections of this Report dealing with export credit guarantees, I agree
that the legal interpretation and analyses contained therein follow
logically from the view of my colleagues on the Division with respect to
Article 10.2, as set forth in paragraphs 605 through 630 of this Report.952
W.2.4 Rule 8 — Rules of conduct —
confidentiality. See also Business Confidential Information
(B.4); Confidentiality (C.6)
back to top
W.2.4.1 Brazil — Aircraft, para. 124
(WT/DS46/AB/R)
Canada — Aircraft, para. 146
(WT/DS70/AB/R)
… Members of the Appellate Body and its
staff are covered by Article VII:1 of the Rules of Conduct, which
provides:
Each covered person shall at all times
maintain the confidentiality of dispute settlement deliberations and
proceedings together with any information identified by a party as
confidential. (emphasis added)
W.2.5 Rule 13 — Replacement of Appellate Body
Member on Division. See also Working Procedures for Appellate
Review, Rule 16 — Process (W.2.6) back to top
W.2.5.1 US — Lead and Bismuth II, para. 8
(WT/DS138/AB/R)
On 19 March 2000, Mr. Christopher Beeby, a
Member of the Division hearing this appeal, passed away. On 20 March
2000, the Appellate Body, pursuant to Rule 13 of the Working
Procedures, selected Mr. Julio Lacarte-Muró to replace Mr. Beeby.
…
W.2.5.2 US — Offset Act (Byrd Amendment),
para. 8
(WT/DS217/AB/R, WT/DS234/AB/R)
In a letter dated 22 November 2002, the
Director of the Appellate Body Secretariat informed the participants and
third participants that, in accordance with Rule 13 of the Working
Procedures, the Appellate Body had selected Mr. Giorgio Sacerdoti to
replace Mr. A.V. Ganesan as Presiding Member of the Division hearing
this appeal. The latter was prevented from continuing to serve on the
Division for serious personal reasons.
W.2.5.3 US — Softwood Lumber IV, para. 10
(WT/DS257/AB/R)
In a letter dated 12 November 2003, the
Director of the Appellate Body Secretariat informed the participants and
third participants that, in accordance with Rule 13 of the Working
Procedures, the Appellate Body had selected Mr. Giorgio Sacerdoti to
replace Mr. A.V. Ganesan as a Member of the Division hearing this appeal
because the latter was prevented from continuing to serve on the
Division for serious personal reasons.
W.2.6 Rule 16 — Process. See also
Amicus Curiae Briefs, Additional Procedure (A.2.3); Working Procedures
for Appellate Review, Rule 26 — Working Schedule (W.2.10); Working
Procedures for Appellate Review, Rule 27 — Oral hearing (W.2.11)
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W.2.6.1 EC — Bananas III, para. 10
(WT/DS27/AB/R)
On 15 July 1997, the Appellate Body notified
the participants and third participants in this appeal of its ruling
that the request by Saint Lucia would be allowed. The Appellate Body
said the following:
… we can find nothing in the Marrakesh
Agreement Establishing the World Trade Organization (the “WTO
Agreement”), the DSU or the Working Procedures, nor
in customary international law or the prevailing practice of
international tribunals, which prevents a WTO Member from determining
the composition of its delegation in Appellate Body proceedings. Having
carefully considered the request made by the government of Saint Lucia,
and the responses dated 14 July 1997 received from Canada; Jamaica;
Ecuador, Guatemala, Honduras, Mexico and the United States, we rule that
it is for a WTO Member to decide who should represent it as members of
its delegation in an oral hearing of the Appellate Body.
W.2.6.2 Guatemala — Cement I, para. 4
(WT/DS60/AB/R)
… On 14 August 1998, Guatemala filed an
appellant’s submission drafted in Spanish. On 31 August 1998, Mexico
filed an appellee’s submission also drafted in Spanish. In order to
ensure that the third participant would have time to prepare its
submission after receiving an English version of the appellant’s
submission, the Appellate Body granted the United States additional time
to file its third participant’s submission. The United States filed
that submission on 14 September 1998. By our ruling of 31 August 1998,
we declined Mexico’s request that its appellee’s submission be
withheld from Guatemala and the United States until the end of the
time-period allowed to the United States to file its third participant’s
submission. …
W.2.6.3 Brazil — Aircraft, para. 9;
mutatis mutandis
(WT/DS46/AB/R)
Canada — Aircraft, para. 6
(WT/DS70/AB/R)
… by joint letter of 27 May 1999, Brazil and
Canada requested that the Appellate Body apply, mutatis mutandis,
the Procedures Governing Business Confidential Information adopted by
the Panel in this case. A preliminary hearing on this issue was held on
10 June 1999, with this Division sitting jointly with the Division of
the Appellate Body hearing the appeal in Canada — Measures Affecting
the Export of Civilian Aircraft (“Canada — Aircraft”),
and a preliminary ruling was issued by this Division on 11 June 1999.
W.2.6.4 Brazil — Aircraft, para. 104; mutatis mutandis
(WT/DS46/AB/R)
Canada — Aircraft, para. 126
(WT/DS70/AB/R)
By letter of 31 May 1999, we invited the
participants to file legal memoranda in support of their request, and
offered each an opportunity to respond to the legal memorandum submitted
by the other. The third participants were also given an opportunity to
file legal memoranda. Brazil and Canada submitted legal memoranda on 2
June 1999. On 4 June 1999, the third participants, the European
Communities and the United States, also filed legal memoranda. On the
same date, Brazil and Canada each filed a written response to the
memorandum previously submitted by the other on 2 June 1999. A
preliminary hearing on this issue was held on 10 June 1999, with this
Division sitting jointly with the Division of the Appellate Body hearing
the appeal in Canada — Aircraft.
W.2.6.5 Brazil — Aircraft, para. 119
(WT/DS46/AB/R)
Canada — Aircraft, para. 141
(WT/DS70/AB/R)
In our preliminary ruling of 11 June 1999, we
concluded that it is not necessary, under all the circumstances of this
case, to adopt additional procedures to protect business
confidential information in these appellate proceedings. …
W.2.6.6 EC — Asbestos, para. 51
(WT/DS135/AB/R)
… after consultations among all seven
Members of the Appellate Body, we adopted, pursuant to Rule 16(1) of the
Working Procedures, an additional procedure, for the
purposes of this appeal only, to deal with written submissions
received from persons other than the parties and third parties to this
dispute (the “Additional Procedure”). The Additional Procedure was
communicated to the parties and third parties. … the Chairman of the
Appellate Body informed the Chairman of the Dispute Settlement Body, in
writing, of the Additional Procedure adopted, and this letter was
circulated, for information, as a dispute settlement document to the
Members of the WTO. …
W.2.6.7 US — FSC (Article 21.5
— EC), para. 8
(WT/DS108/AB/RW)
By letter of 22 October 2001, the United
States requested the Appellate Body pursuant to Rule 16(2) of the Working
Procedures to modify the timetable set out in the Working Schedule
for Appeal for the filing of the appellant’s submissions by the United
States. The United States stated that suspected bioterrorist attacks had
compromised the ability of the United States to conduct the necessary
consultations with the United States Congress with regard to this
appeal. According to the United States, the effect of these
circumstances was such that adhering to the original timetable would
result in manifest unfairness to the United States. In its letter of 23
October 2001, the European Communities did not object to the request
made by the United States, but requested that, in order to preserve the
balance of procedural rights afforded to the participants in this
appeal, the Appellate Body extend the deadline for the filing of the
European Communities’ appellee’s submission by 14 days. In a letter
dated 23 October 2001, the Division of the Appellate Body hearing the
appeal accepted that the circumstances identified by the United States
constituted “exceptional circumstances” within the meaning of Rule
16(2) of the Working Procedures and that maintaining the deadline
for submission of the appellants’ submission would result in “manifest
unfairness” to the United States. Accordingly, the Division agreed to
modify the Working Schedule for this appeal to allow the United States
an additional seven days for the filing of its appellant’s submission.
In the same letter, the Division also extended by seven days the
deadlines for the filing of the other appellant’s submissions, the
appellee’s submission, and the third participants’ submissions.
W.2.6.8 US — Lead and Bismuth II, para. 8
(WT/DS138/AB/R)
On 19 March 2000, Mr. Christopher Beeby, a
Member of the Division hearing this appeal, passed away. On 20 March
2000, the Appellate Body, pursuant to Rule 13 of the Working
Procedures, selected Mr. Julio Lacarte-Muró to replace Mr. Beeby.
In view of these extraordinary circumstances, the newly-constituted
Division decided, pursuant to Rule 16(1) of the Working Procedures,
and in the interests of fairness and orderly procedure in the conduct of
this appeal, to hold another oral hearing on 4 April 2000. On that date,
the participants and third participants presented oral arguments and
responded to questions put to them by the Members of the
newly-constituted Division. Due to these same extraordinary
circumstances, the participants in this appeal, the European Communities
and the United States, agreed to a two week extension of the 90-day time
limit for the consideration of this appeal, and thus agreed that this
Report should be circulated no later than 10 May 2000.
W.2.6.9 US — Countervailing Measures on
Certain EC Products, para. 52
(WT/DS212/AB/R)
On 10 September 2002, the European Communities
the filed a Request for a Preliminary Ruling (the “Request”),
alleging that the United States’ Notice of Appeal “is manifestly not
in conformity with Rule 20(2)(d) of the Working Procedures for
Appellate Review” because it “fails to identify the findings or
the legal interpretations that it considers to be erroneous.” The
European Communities argued that “[a]s a consequence, the European
Communities is unable to prepare its response to the appeal.” The
European Communities asked us to “order the United States, pursuant to
Rule 16(1) of the Working Procedures, immediately to file further and
better particulars to its notice of appeal identifying the precise legal
findings and legal interpretations that it is challenging.”
W.2.6.10 US — Countervailing Measures on
Certain EC Products, para. 55
(WT/DS212/AB/R)
On 12 September 2002, we invited the United
States “to identify the precise findings and interpretations of the
Panel which are alleged, in the Notice of Appeal filed on 9 September
2002, to constitute errors.” The United States responded by letter
dated 13 September 2002. In an attachment to that letter, the United
States quoted in full the paragraphs of the Panel Report to which it had
merely referred by number in the Notice of Appeal. The United States
also provided information as to legal errors allegedly committed by the
Panel.
W.2.7 Rule 20 — Notice of appeal
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W.2.7.1 GENERAL
W.2.7.1.1 US — Countervailing Measures on
Certain EC Products, para. 62
(WT/DS212/AB/R)
… [we] have underscored the important
balance that must be maintained between the right of Members to exercise
the right of appeal meaningfully and effectively, and the right of
appellees to receive notice through the Notice of Appeal of the findings
under appeal, so that they may exercise their right of defence
effectively. Hence, we disagree with the contention of the United States
here that the Notice of Appeal “serves a limited purpose” as “simply
a formal trigger for initiating the appeal.” Indeed, if this were the
only objective of the notice, our Working Procedures would have
included only the first paragraph of Rule 20, which refers to
commencement of an appeal through written notification to the Dispute
Settlement Body and Appellate Body Secretariat. However, Rule 20 also
prescribes additional requirements for commencing an appeal; it provides
that the Notice of Appeal must include “a brief statement of the
nature of the appeal, including the allegations of errors in the issues
of law covered in the panel report and legal interpretations developed
by the panel.” The notification under Rule 20(1) serves as the “trigger”
to which the United States refers. The additional requirements under
Rule 20(2) serve to ensure that the appellee also receives notice,
albeit brief, of the “nature of the appeal” and the “allegations
of errors” by the panel.
W.2.7.1.2 US — Offset Act (Byrd Amendment),
para. 200
(WT/DS217/AB/R, WT/DS234/AB/R)
… the Notice of Appeal “serve[s] to ensure
that the appellee also receives notice, albeit brief, of the ‘nature
of the appeal’ and the ‘allegations of errors’ by the panel.”
Generic statements such as that relied upon by the United States cannot
serve to give the appellees adequate notice that they will be required
to defend against a claim that the Panel exceeded its terms of
reference. This is particularly so for procedural errors; it can be
especially difficult to discern a claim of procedural error by a panel
from general references to panel findings or from extracts of a panel
report, because allegations of procedural error by a panel may not
necessarily be raised until the appellate stage.
W.2.7.1.3 US — Offset Act (Byrd Amendment),
para. 208
(WT/DS217/AB/R, WT/DS234/AB/R)
… we have said, “[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.
W.2.7.2 CONTENT. See also Claims and
Arguments (C.1)
W.2.7.2.1 US — Shrimp, para. 95
(WT/DS58/AB/R)
… The Working Procedures for Appellate
Review enjoin the appellant to be brief in its notice of
appeal in setting out “the nature of the appeal, including the
allegations of errors”. We believe that, in principle, the “nature
of the appeal” and “the allegations of errors” are sufficiently
set out where the notice of appeal adequately identifies the findings or
legal interpretations of the Panel which are being appealed as
erroneous. The notice of appeal is not expected to contain the reasons
why the appellant regards those findings or interpretations as
erroneous. The notice of appeal is not designed to be a summary or
outline of the arguments to be made by the appellant. The legal
arguments in support of the allegations of error are, of course, to be
set out and developed in the appellant’s submission.
W.2.7.2.2 Chile — Price Band System, para. 182
(WT/DS207/AB/R)
In our view, this distinction between claims
and legal arguments under Article 6.2 of the DSU is also relevant to the
distinction between “allegations of error” and legal arguments as
contemplated by Rule 20 of the Working Procedures. Bearing this
distinction in mind, we do not agree with Argentina that Chile’s
arguments regarding the order of analysis chosen by the Panel amount to
a separate “allegation of error” that Chile should have
— or could have — included in its Notice of Appeal. In
fact, we do not see, nor has Argentina explained, what separate
“allegation of error” could have been made, or what legal basis for
such “allegation of error” there could have been. Rather than making
a separate “allegation of error”, Chile has, in our view, simply set
out a legal argument in support of the issues it raised on appeal
relating to Article 4.2 of the Agreement on Agriculture and
Article II:1(b) of the GATT 1994.
W.2.7.3 INSUFFICIENT NOTICE
W.2.7.3.1 EC — Bananas III, para. 152
(WT/DS27/AB/R)
In our view, the claims of error by the
European Communities set out in paragraphs (c) and (d) of the Notice of
Appeal do not cover the Panel’s finding in paragraph 7.93 of the Panel
Reports. The finding in that paragraph explicitly deals with Ecuador’s
right to invoke Article XIII:2 or XIII:4 of the GATT 1994, given that
Ecuador acceded to the WTO after the WTO Agreement
entered into force and after the tariff quota for the BFA
countries had been negotiated and inscribed in the EC Schedule to the
GATT 1994. There is no specific mention of this Panel finding in either
the Notice of Appeal or in the main arguments of the appellant’s
submission by the European Communities. Therefore, Ecuador had no notice
that the European Communities was appealing this finding. For these
reasons, we conclude that the Panel’s finding in paragraph 7.93 of the
Panel Reports should be excluded from the scope of this appeal.
W.2.7.3.2 US — Countervailing Measures on
Certain EC Products, para. 70
(WT/DS212/AB/R)
We observe that, in coming to these
conclusions, we have before us a rather unusual example of the “Conclusions
and Recommendations” section of a panel report. In most panel reports,
the “Conclusions and Recommendations” section is relatively brief,
setting out findings in summary fashion. Detailed legal interpretations
and reasoning upon which panels rely are usually found only in the “Findings”
sections of panel reports. In this case, however, the Panel’s “Conclusions
and Recommendations” are more detailed than usual. Paragraphs
8.1(a)-8.1(d) of the Panel Report include, not only the Panel’s
findings, but also certain of the reasons leading to those findings.
Hence, in this case, it is possible, by reading the “Conclusions and
Recommendations” section from the Panel Report, to discern alleged
errors of law appealed by the United States. We emphasize, however, that
generally, a Notice of Appeal that refers simply to the paragraph
numbers found in the “Conclusions and Recommendations” section of a
panel report, or that quotes them in full, will be insufficient to
provide adequate notice of the allegations of error on appeal, and,
hence, will fall short of the requirements set out in Rule 20(2)(d) of
the Working Procedures.
W.2.7.3.3 US — Upland Cotton, para. 495
(WT/DS267/AB/R)
We acknowledge that the wording of paragraph
10 of the United States’ Notice of Appeal (and, in particular, the use
of the words “for example”) suggests that the findings listed in
this paragraph are simply examples of findings challenged in
connection with Article 12.7 of the DSU, and that the United States’
claim of error under Article 12.7 extends to other Panel findings. In
other words, paragraph 10 purports to provide an illustrative rather
than exhaustive list of the findings that the United States intends to
challenge under Article 12.7 of the DSU. However, the fact that
paragraph 10 purports to provide an illustrative list is not conclusive
as to whether the Notice of Appeal contains a sufficient reference to
the Panel’s findings described in paragraph 493 above for us to
conclude that these findings are included in the United States’
appeal. The significance of terms such as “for example” is likely to
depend on the particular claim in question and the particular context in
which the term is used in a given appeal. In our view, the United States’
Notice of Appeal did not provide adequate notice to Brazil, as
contemplated by Rule 20(2) of the Working Procedures for Appellate
Review (the “Working Procedures”), that the United States
intended to make a claim of error under Article 12.7 of the DSU with
respect to the Panel’s findings described in paragraph 493 above. We
therefore decline to rule on these findings in connection with Article 12.7 of the DSU.
W.2.7.3.4 EC — Export Subsidies on Sugar,
para. 344
(WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R)
In its Notice of Appeal, the European
Communities “seeks review” of six “conclusion[s]” and “related
legal findings and interpretations” set out in certain specified
paragraphs of the Panel Reports. The European Communities summarizes the
substance of each contested conclusion and the related legal findings
and interpretations. The Notice of Appeal also contains a list of the
legal provisions of the covered agreements that the Panel is alleged to
have erred in interpreting or applying. In our view, the Notice of
Appeal gives adequate notice to the Complaining Parties of the content
of its appeal so as to allow them to make a proper defence, as required
by Rule 20(2)(d) of the Working Procedures.
W.2.7.4 AMENDMENT. See also Working
Procedures for Appellate Review, Rule 30 — Withdrawal, Withdrawal and
re-filing notice of appeal (W.2.13.1)
W.2.7.4.1 US — Countervailing Measures on
Certain EC Products, para. 52
(WT/DS212/AB/R)
On 10 September 2002, the European Communities
the filed a Request for a Preliminary Ruling (the “Request”),
alleging that the United States’ Notice of Appeal “is manifestly not
in conformity with Rule 20(2)(d) of the Working Procedures for
Appellate Review” because it “fails to identify the findings or
the legal interpretations that it considers to be erroneous.” The
European Communities argued that “[a]s a consequence, the European
Communities is unable to prepare its response to the appeal.” The
European Communities asked us to “order the United States, pursuant to
Rule 16(1) of the Working Procedures, immediately to file further and
better particulars to its notice of appeal identifying the precise legal
findings and legal interpretations that it is challenging.”
W.2.7.4.2 US — Countervailing Measures on
Certain EC Products, para. 64
(WT/DS212/AB/R)
In conducting our analysis, we will examine
both the Notice of Appeal and the letter of 13 September 2002
supplementing the Notice of Appeal. Although the Working Procedures
do not expressly provide for the filing of clarifications or further
particulars or supplementary or amended Notices of Appeal, we consider
it appropriate, in the particular circumstances of this case, to examine
both documents with a view to giving “full meaning and effect to the
right of appeal.” We note in particular that the additional document
was filed by the United States in response to our invitation to do so,
based in part on a request for additional particulars filed by the
European Communities. Moreover, the additional document was filed
shortly after the filing of the Notice of Appeal (three days). Finally,
we note that the European Communities referred to both the Notice of
Appeal and the letter of 13 September 2002 in its arguments on this
issue.
W.2.7.5 Article 11 OF THE DSU
— ALLEGATION OF
THE PANEL’S FAILURE TO OBJECTIVELY ASSESS. See also Standard of
Review, Article 11 of the DSU (S.7.2-7)
W.2.7.5.1 US — Countervailing Measures on
Certain EC Products, para. 74
(WT/DS212/AB/R)
… A claim of error by a panel under
Article 11 of the DSU is possible only in the context of an appeal. By
definition, this claim will not be found in requests for
establishment of a panel, and panels therefore will not have referred to
it in panel reports. Accordingly, if appellants intend to argue that
issue on appeal, they must refer to it in Notices of Appeal in a way
that will enable appellees to discern it and know the case they have to
meet.
W.2.7.5.2 Japan — Apples, paras. 126-127
(WT/DS245/AB/R)
By referring to the Panel’s alleged failure
to comply with Article 11 of the DSU only in the context of Article 2.2,
Japan did not enable the United States to “know the case [it had] to
meet” as to the Article 11 claim related to Article 5.1 of the SPS Agreement. The Appellate Body has consistently emphasized that
due process requires that a Notice of Appeal place an appellee on notice
of the issues raised on appeal. It is this concern with due process,
reflected in Rule 20 of the Working Procedures, that underlay the
Appellate Body’s ruling on the sufficiency of the Notice of Appeal in US
— Countervailing Measures on Certain EC Products.
… the Appellate Body determined in US — Countervailing Measures on Certain EC Products
that Article 11 claims are distinct from those raised under substantive
provisions of other covered agreements. It follows from this distinction
that notice of an Article 11 challenge cannot be “assumed” merely
because there is a challenge to a panel’s analysis of a substantive
provision of a WTO agreement. Rather, an Article 11 claim constitutes a
“separate ‘allegation of error”’ that must be included in a
Notice of Appeal. We therefore reject Japan’s assertion that an
Article 11 challenge is only a “legal argument” underlying the
issues raised on appeal.
W.2.7.5.3 US — Corrosion-Resistant Steel
Sunset Review, footnote 60 to para. 71
(WT/DS244/AB/R)
We have already held that a claim, by an
appellant, that a panel erred under Article 11 of the DSU, and a request
for a finding to this effect, must be included in the Notice of Appeal,
and clearly articulated and substantiated in an appellant’s submission
with specific arguments. …
W.2.7.5.4 US — Steel Safeguards, paras. 498-499
(WT/DS248/AB/R, WT/DS249/AB/R, WT/DS251/AB/R,
WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R,
WT/DS259/AB/R)
A challenge under Article 11 of the DSU must
not be vague or ambiguous. On the contrary, such a challenge must be
clearly articulated and substantiated with specific arguments. An
Article 11 claim is not to be made lightly, or merely as a subsidiary
argument or claim in support of a claim of a panel’s failure to
construe or apply correctly a particular provision of a covered
agreement. A claim under Article 11 of the DSU must stand by itself and
be substantiated, as such, and not as subsidiary to another alleged
violation.
The United States’ arguments on Article 11
of the DSU are mentioned only in passing in its appellant’s
submission. Nowhere do we find a clearly articulated claim or specific
arguments that would support such a claim. Moreover, the United States
did not clarify its challenge under Article 11 of the DSU during the
oral hearing. In sum, the United Stated has not substantiated its claim
that the Panel acted inconsistently with Article 11 of the DSU, and this
claim must therefore fail.
W.2.7.5.5 Canada
— Wheat Exports and Grain
Imports, paras. 176-177
(WT/DS276/AB/R)
We agree with Canada that [the United States’
claim that the Panel did not examine the measure in its entirety] of
error fits more properly under Article 11 of the DSU [than under Article XVII:1 of the GATT 1994]. The Appellate Body has stated previously that
the measure at issue (and the claims made by the complaining Member)
make up the “matter referred to the DSB” for the purpose of
Article 7 of the DSU. In this sense, the United States’ argument that
the Panel did not examine the measure in its entirety relates to the
Panel’s examination of the “matter”. Article 11 of the DSU sets
out the duties of a panel, including that it “should make an objective
assessment of the matter before it”. (emphasis added)
Therefore, as we see it, the United States’ allegation that the Panel
did not examine the measure in its entirety amounts to an allegation
that the Panel did not “make an objective assessment of the matter”
under Article 11 of the DSU.
Although an appellant is free to determine how
to characterize its claims on appeal, at the same time due process
requires that the legal basis of a claim be sufficiently clear to allow
an appellee to respond effectively. This is especially the case when the
claim is an allegation that the panel did not make an objective
assessment of the matter as required by Article 11 of the DSU because,
by definition, such a claim will not be found in the request for the
establishment of the panel and, therefore, the panel will not have
referred to it in the panel report.
W.2.7.5.6 US — Upland Cotton, para. 398
(WT/DS267/AB/R)
In its opening statement delivered at the oral
hearing, the United States confirmed that it has not made an Article 11
claim in this appeal. Rather, the United States claims that the Panel
erred in its interpretation of Article 6.3(c) of the SCM Agreement and
in applying this interpretation to the facts in this dispute. The United
States also requests us not to dismiss certain of its arguments as
requested by Brazil. Under these circumstances, there is no need for us
to rule that the United States makes no Article 11 claim. We also
refrain from ruling on whether the Panel complied with Article 11 of the
DSU. Moreover, we decline to dismiss the United States’ arguments that
Brazil lists in Annex A to its appellee’s submission on the basis that
an Article 11 claim was not properly set out by the United States.
W.2.7A Rule 22 — Appellee’s submission
back to top
W.2.7A.1 Canada — Wheat Exports and Grain
Imports, paras. 162-163 and footnote 190
(WT/DS276/AB/R)
Canada states that it would welcome “guidance”
from the Appellate Body as to whether a conditional request to complete
the analysis of a particular issue should be raised in an appellee’s
submission filed pursuant to Rule 22 of the Working Procedures,
or in another appellant’s submission filed pursuant to Rule 23. …
As we have not reversed the Panel’s
interpretation of subparagraph (b) of Article XVII:1, the condition on
which Canada’s request to complete the analysis is made has not been
satisfied. … In the circumstances of this appeal, it is neither
necessary nor appropriate for us to provide “guidance” on the issue
of how conditional requests to complete the analysis are properly
brought before the Appellate Body.190
W.2.8 Rule 23 — Multiple appeals — (cross
appeal). See also Working Procedures for Appellate Review, Rule
20 — Notice of appeal (W.2.7); Working Procedures for Appellate Review,
Rule 22 — Appellee’s submission (W.2.7A)
back to top
W.2.8.1 US — Gasoline, p. 12, DSR 1996:I,
p. 3 at 11
(WT/DS2/AB/R)
… to deal with those two issues [i.e. the
clean air issue and the application of the TBT Agreement], under
the circumstances of this appeal, would have required the Appellate Body
casually to disregard its own Working Procedures and to do so in
the absence of a compelling reason grounded on, for instance,
fundamental fairness or force majeure. Venezuela and Brazil could
have appealed the Panel’s finding and non-finding on the two matters
by taking advantage of Rules 23(1) or 23(4) of the Working Procedures
and thereby placing the Appellate Body in a position to dispose of those
issues directly in one and the same appellate proceeding.
… the route they chose for addressing the
two issues in question is not contemplated by the Working Procedures,
and therefore, these issues are not properly the subject of this appeal.
W.2.9 Rule 24 — Third participants. See
also Third Party Rights (T.8); Working Procedures for Appellate
Review, Rule 26 — Working schedule (W.2.10); Working Procedures for
Appellate Review, Rule 27 — Oral hearing (W.2.11)
back to top
W.2.9.1 Argentina — Footwear (EC), para. 7
(WT/DS121/AB/R)
On 19 October 1999, the Appellate Body
received a letter from the Government of Paraguay indicating its
interest “in attending” the oral hearing in this appeal. On 25
October 1999, the Appellate Body received a second letter from Paraguay
clarifying that it was not requesting an opportunity to “make oral
arguments or presentations at the oral hearing” as set forth in Rule
27.3 of the Working Procedures. Rather, Paraguay maintained that,
as a third party which had notified its interest to the Dispute
Settlement Body under Article 10.2 of the DSU, it had the right to “participate
passively” in the oral hearing before the Appellate Body in the
present dispute. No participant or third participant objected to the
participation of Paraguay on a “passive” basis. On 26 October 1999,
the Members of the Division hearing this appeal informed Paraguay, the
participants and third participants that, having regard to the
provisions of Articles 10.2 and 17.4 of the DSU as well as the
provisions of Rules 24 and 27 of the Working Procedures, Paraguay
would be allowed to attend the oral hearing as a “passive observer”.
W.2.9.2 EC — Asbestos, para. 7
(WT/DS135/AB/R)
On 21 November 2000, the Appellate Body
received a letter from Zimbabwe indicating its interest in attending the
oral hearing in this appeal. Zimbabwe participated in the proceedings
before the Panel as a third party which had notified its interest to the
DSB under Article 10.2 of the DSU, but it did not file a third
participant’s submission in the appeal. No participant or third
participant objected to Zimbabwe’s request. On 15 December 2000, the
Members of the Division hearing this appeal informed Zimbabwe, the
participants and third participants, that Zimbabwe would be allowed to
attend the oral hearing as a passive observer.
W.2.9.3 US — Lamb, paras. 8-9
(WT/DS177/AB/R, WT/DS178/AB/R)
On 26 February 2001, the Appellate Body
received letters from Canada and Japan indicating that they would not be
filing written submissions in this appeal. Canada stated that it “reserve[d]
the right to intervene, as appropriate, during the oral hearing” and
Japan indicated that it wished “to reserve its right to present its
views at the oral hearing.” On 6 March 2001, the Appellate Body
Secretariat replied to Canada and Japan that the Division hearing this
appeal wished to have clarification as to whether Canada and Japan
wanted to attend the oral hearing simply as “passive observers” or
to participate actively in the oral hearing. By their letters dated 9
March 2001, Canada stated that it wished to attend the oral hearing as a
“passive observer”, while Japan stated that it “would like to hear
the arguments made by the parties to the dispute, and to intervene when
necessary and [when] given an opportunity to do so by the Appellate
Body.”
On 9 March 2001, the Appellate Body
Secretariat informed the participants and third participants that the
Division hearing this appeal was “inclined to allow Canada and Japan
to attend the oral hearing as passive observers, if none of the
participants or third participants object.” No such objection was
received. On 14 March 2001, the Division hearing this appeal informed
Canada, Japan, the participants and the European Communities, that
Canada and Japan would be allowed to attend the oral hearing as passive
observers, that is, to hear the oral statements and responses to
questioning by Australia, the European Communities, New Zealand and the
United States.
W.2.9.4 US — Shrimp (Article 21.5
—
Malaysia),
footnote 16 to para. 10
(WT/DS58/AB/RW)
Pursuant to Rule 24 of the Working
Procedures, Ecuador, a third party in the proceedings before the
Panel, did not file a third participant’s submission, but requested
permission to attend the oral hearing as a “passive observer”. After
consulting the participants and third participants, the Division hearing
this appeal granted Ecuador permission to attend the oral hearing in
this capacity.
W.2.9.5 India — Autos, paras. 12-13
(WT/DS146/AB/R, WT/DS175/AB/R)
On 25 February 2002, the Appellate Body
received a letter from Japan indicating that Japan would not be filing a
written submission in this appeal, but that Japan wished to attend the
oral hearing. By letter dated 27 February 2002, the Appellate Body
Secretariat informed Japan, the participants and the third participant
that the Division hearing this appeal was “inclined to allow Japan to
attend the oral hearing as a passive observer, if none of the
participants or third participants object.” On 1 March 2002 and 4
March 2002, respectively, the Appellate Body received written responses
from the European Communities and the United States.
Taking account of the views expressed by the
European Communities and the United States, the Division on 5 March 2002
informed Japan, the participants, and the third participant, that
although Japan had not filed a written submission as a third
participant, Japan would be allowed to attend the oral hearing as a
passive observer, that is, to attend the oral hearing and hear the oral
statements and responses to questioning by the participants and the
third participant in this appeal.
W.2.9.6 Chile — Price Band System, para. 6
(WT/DS207/AB/R)
On 19 July 2002, the Appellate Body received
communications from Japan and Nicaragua stating that they wished to
attend the oral hearing in this appeal, although neither wished to file
a written submission in accordance with Rule 24 of the Working
Procedures. On 22 July 2002, the Appellate Body notified the
participants and third participants that it was inclined to allow Japan
and Nicaragua to attend the oral hearing as passive observers, if none
of the participants or other third participants objected. No participant
or third participant objected to Japan and Nicaragua attending
the oral hearing. However, the European Communities considered that
Japan and Nicaragua should be allowed to attend the oral hearing as
third participants and not as passive observers. On 30 July 2002, the
participants and third participants were informed that Japan and
Nicaragua would be allowed to attend the oral hearing as passive
observers.
W.2.9.7 EC — Sardines, para. 18
(WT/DS231/AB/R)
On 23 July 2002, we received a letter from
Colombia indicating that, although it would not file a third participant’s
submission, it had an interest in attending the oral hearing in this
appeal. Colombia had participated in the proceedings before the Panel as
a third party which had notified its interest to the DSB under Article 10.2 of the DSU. By letter of 7 August 2002, we informed the
participants and third participants that we were inclined to allow
Colombia to attend the oral hearing as a passive observer, and to notify
us if they had any objection. The European Communities had no objection
to Colombia attending the oral hearing as a third participant, but did
object to Colombia attending as a passive observer. Ecuador had no
objection to Colombia attending the hearing, but found there was no
legal basis to apply a passive observer status and deny them the right
to attend as a third participant. On 9 August 2002, we informed the
participants and third participants that Colombia would be permitted to
attend the oral hearing as a passive observer.
W.2.9.8 EC — Tariff Preferences, para. 7
(WT/DS246/AB/R)
… on 2 February 2004, Brazil notified its
intention to make a statement at the oral hearing as a third
participant, and Mauritius notified its intention to appear at the oral
hearing as a third participant. Finally, on 2 February 2004, El
Salvador, Guatemala, Honduras, and Nicaragua jointly notified their
intention to make a statement at the oral hearing as third participants.
On 4 February 2004, Cuba notified its intention to appear at the oral
hearing as a third participant. By letter dated 16 February 2004,
Pakistan submitted a request to make a statement at the oral hearing. No
participant objected to Pakistan’s request, which was authorized by
the Division hearing the appeal on 18 February 2004.
W.2.10 Rule 26 — Working schedule
back to top
W.2.10.1 EXTENSION OF DEADLINE FOR SUBMISSIONS
OF PARTICIPANTS OR THIRD PARTICIPANTS
W.2.10.1.1 EC — Bananas III, para. 3
(WT/DS27/AB/R)
… In accordance with Rule 16(2) of the Working
Procedures, and at the request of the Complaining Parties, the
Appellate Body granted a two-day extension for the filing of appellees’
and third participants’ submissions. …
W.2.10.1.2 Guatemala
— Cement I, para. 4
(WT/DS60/AB/R)
… On 14 August 1998, Guatemala filed an
appellant’s submission drafted in Spanish. On 31 August 1998, Mexico
filed an appellee’s submission also drafted in Spanish. In order to
ensure that the third participant would have time to prepare its
submission after receiving an English version of the appellant’s
submission, the Appellate Body granted the United States additional time
to file its third participant’s submission. The United States filed
that submission on 14 September 1998. By our ruling of 31 August 1998,
we declined Mexico’s request that its appellee’s submission be
withheld from Guatemala and the United States until the end of the
time-period allowed to the United States to file its third participant’s
submission. …
W.2.10.1.3 EC — Bed Linen, footnote 12 to
para. 6
(WT/DS141/AB/R)
Following a joint request by the European
Communities and India, the Division hearing the appeal decided on 12
December 2000, pursuant to Rule 16(2) of the Working Procedures
and in the light of the “exceptional circumstances” in this appeal,
to extend the time-period for filing the appellee’s and third
participant’s submissions from 2 January 2001 to 8 January 2001.
W.2.10.1.4 US — Softwood Lumber IV, paras. 6-7 and footnotes 16-17
(WT/DS257/AB/R)
… On 3 October 2003, for scheduling reasons,
the United States withdrew its Notice of Appeal pursuant to Rule 30 of
the Working Procedures, conditional on its right to re-file the
Notice of Appeal at a later date. On 21 October 2003, the United States
re-filed a substantively identical Notice of Appeal pursuant to Rule 20
of the Working Procedures. On that same day, the United States
filed its appellant’s submission in accordance with the Working
Schedule drawn up by the Division for this appeal.
On 23 October 2003, the European Communities,
a third participant in these proceedings, requested the Appellate Body
to modify the Working Schedule.16
On 24 October 2003, the
Appellate Body declined the European Communities’ request, noting that
extending the date for the filing of third participants’ submissions
would significantly reduce the time available for the Division to
consider carefully the arguments raised therein as well as the time
available to the participants to respond to those arguments.17
The
Division also observed that the new Notice of Appeal filed by the United
States on 21 October 2003 was, in all relevant respects, identical to
the one submitted on 2 October 2003, and that the critical time-period
for third participants and appellees to prepare their responses to
arguments raised by appellants and other appellants is the period
between the receipt of the appellant’s or other appellant’s
submissions, which contains the appellants’ arguments, and the due
date for the filing of the third participants’ submissions. The
Division noted that the time-period between the receipt of the appellant’s
submission and the due date for third participants’ submissions in
this case was the same as it would have been, had the Notice of Appeal
of 21 October 2003 been filed 10 days before the date of the appellant’s
submission, as normally occurs.
W.2.10.2 EXTENSION OF DEADLINE FOR CIRCULATION
OF APPELLATE BODY REPORT
W.2.10.2.1 EC — Hormones
(Communication from the Appellate Body — WT/DS26/11, WT/DS48/9)
… I am writing to inform you that the
Appellate Body will not be able to circulate its Report in this appeal
by 23 December 1997, due to the exceptional nature of this case, the
time needed for translation and the intervention of the Christmas
holiday period. As a result, the Appellate Body Report in this appeal
will be circulated to WTO Members by Friday, 16 January 1998.
W.2.10.2.2 US — Lead and Bismuth II,
para. 8
(WT/DS138/AB/R)
On 19 March 2000, Mr. Christopher Beeby, a
Member of the Division hearing this appeal, passed away. … Due to
these same extraordinary circumstances, the participants in this appeal,
the European Communities and the United States, agreed to a two week
extension of the 90-day time limit for the consideration of this appeal,
and thus agreed that this Report should be circulated no later than 10
May 2000.
W.2.10.2.3 EC — Asbestos, para. 8
(WT/DS135/AB/R)
On 20 December 2000, the Appellate Body
informed the DSB that, due to the exceptional workload of the Appellate
Body, and in light of the agreement of the participants, Canada and the
European Communities, the Appellate Body Report in this appeal would be
circulated to WTO Members no later than Monday, 12 March 2001.
W.2.10.2.4 Thailand
— H-Beams, para. 7
(WT/DS122/AB/R)
… On 20 December 2000, the Appellate Body
informed the DSB that, due to the exceptional workload of the Appellate
Body, and in light of the agreement of the participants in this appeal,
the Appellate Body Report in the appeal would be circulated to Members
of the WTO no later than 12 March 2001.
W.2.10.2.5 US — Upland Cotton, para. 8
(WT/DS267/AB/R)
After consultation with the Appellate Body
Secretariat, Brazil and the United States noted, in letters filed on 10
December 2004, that it would not be possible for the Appellate Body to
circulate its Report in this appeal within the 90-day time limit
referred to in Article 17.5 of the DSU. Brazil and the United States
agreed that additional time was needed for several reasons: the issues
arising in this appeal were particularly numerous and complex compared
to prior appeals, which increased the burden on the Appellate Body and
WTO translation services; WTO translation services were unavailable
during the WTO holiday period; and the Appellate Body was likely to be
considering two or three other appeals during the same period. Brazil
and the United States accordingly confirmed that they would deem the
Appellate Body Report in this proceeding, issued no later than 3 March
2005, to be an Appellate Body Report circulated pursuant to Article 17.5
of the DSU.
W.2.11 Rule 27 — Oral hearing. See also
Business Confidential Information (B.4); Confidentiality
(C.6) back to top
W.2.11.1 CHANGE OF DATE
W.2.11.1.1 EC — Bananas III, para. 4
(WT/DS27/AB/R)
On 10 July 1997, pursuant to Rule 16(2) of the
Working Procedures, the Government of Jamaica asked the Appellate
Body to postpone the dates of the oral hearing, set out in the working
schedule for 21 and 22 July 1997, to 4 and 5 August 1997. This request
was not granted as the Appellate Body was not persuaded that there were
exceptional circumstances resulting in manifest unfairness to any
participant or third participant that justified the postponement of the
oral hearing in this appeal.
W.2.11.1.2 US — Shrimp (Article 21.5
—
Malaysia), para. 11
(WT/DS58/AB/RW)
On 13 August 2001, the United States requested
that the Division hearing this appeal change the date of the oral
hearing set out in the working schedule for this appeal. After inviting
the participants to make their views known with respect to this request,
the Division ruled that it would not change the date of the oral
hearing. Accordingly, the oral hearing in the appeal was held on 4
September 2001. …
W.2.11.2 JOINT ORAL HEARING
W.2.11.2.1 US — 1916 Act, para. 8
(WT/DS136/AB/R, WT/DS162/AB/R)
The oral hearing in the two appeals was held
on 19 July 2000. The participants and third participants presented oral
arguments and responded to questions put to them by the Members of the
Division hearing the appeals.
W.2.12 Rule 28 — Written responses back to top
W.2.12.1 US — Gasoline, p. 3, DSR 1996:I,
p. 3 at 4
(WT/DS2/AB/R)
The oral hearing contemplated by Rule 27 of
the Working Procedures was held on 27 and 28 March 1996. At the
hearing, oral arguments were made respectively by the participants and
the third participants. Questions were put to them by the Members of the
Appellate Body hearing the appeal. Most of these questions were answered
orally, and some were responded to in writing with the responses being
furnished both to the Appellate Body and the other participants and
third participants. In addition, the participants and third participants
were invited to provide, and did provide, the Appellate Body and each
other with final written statements of their respective positions. All
the participants and third participants responded positively and
punctually, which was a source of satisfaction for the Appellate Body.
W.2.12.2 Japan — Alcoholic Beverages II,
p. 2, DSR 1996:I, p. 97 at 98
(WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R)
The oral hearing contemplated by Rule 27 of
the Working Procedures was held on 9 September 1996. The
participants presented their arguments and answered questions from the
Division of the Appellate Body hearing the appeal (the “Division”).
The participants answered most of these questions orally at the hearing.
They answered some in writing. The Division gave each participant an
opportunity to respond to the written post-hearing memoranda of the
other participants.
W.2.12.3 US — Underwear, p. 5, DSR 1997:I,
p. 11 at 13-14
(WT/DS24/AB/R)
The oral hearing contemplated by Rule 27 of
the Working Procedures was held on 16 December 1996. At the
hearing, oral arguments were made respectively by the participants and
the third participant. Questions were put to them by the Division. All
of these questions were answered orally. The participants and third
participant did not take advantage of an invitation by the Division to
submit post-hearing memoranda. On 18 December 1996, the United States
submitted a written clarification and amplification of its oral response
to one of the Division’s questions. The next day, Costa Rica responded
in writing to the United States’ clarification.
W.2.12.4 EC — Poultry, para. 6
(WT/DS69/AB/R)
The oral hearing in the appeal was held on 9
June 1998. The participants and third participants presented oral
arguments and responded to questions put to them by the Members of the
Division hearing the appeal. The participants and third participants
also gave oral concluding statements. At the request of the Members of
the Division, the participants and third participants submitted, on 12
June 1998, written post-hearing memoranda on particular issues relating
to the appeal. The participants submitted their respective written
replies to these post-hearing memoranda on 15 June 1998.
W.2.12.5 US — Shrimp, para. 8
(WT/DS58/AB/R)
… At the invitation of the Appellate Body,
the United States, India, Pakistan, Thailand and Malaysia filed
additional submissions on certain issues arising under Article XX(b) and
Article XX(g) of the GATT 1994 on 17 August 1998. The oral hearing in
the appeal was held on 19-20 August 1998. …
W.2.12.6 Canada — Patent Term, para. 8
(WT/DS170/AB/R)
… On 29 June 2000, Canada filed an appellant’s
submission. The United States filed an appellee’s submission on 14
July 2000. On 25 July 2000, at the request of the Appellate Body
Division hearing the appeal, the participants submitted additional
memoranda on certain issues of legal interpretation arising under
Articles 70.1 and 70.2 of the TRIPS Agreement. The
Division afforded each participant an opportunity to respond to the
additional memoranda submitted by the other participant.
W.2.12.7 US — Section 211 Appropriations
Act, para. 13
(WT/DS176/AB/R)
On 2 November 2001, pursuant to Rule 28(1) of
the Working Procedures, the Division hearing the appeal requested
that the participants submit additional written memoranda on the
interpretation by domestic courts of Article 6quinquies of the
Paris Convention (1967), or the interpretation by domestic courts of
legislation incorporating Article 6quinquies. Both participants
filed the additional written memoranda on 6 November 2001, and served
these memoranda on each other. Pursuant to Rule 28(2) of the Working
Procedures, the Division gave the participants an opportunity to
respond to these memoranda at the oral hearing in this appeal.
W.2.12.8 US — FSC (Article 21.5
— EC),
para. 11
(WT/DS108/AB/RW)
At the oral hearing, the Division requested
the United States to reduce to writing, by 28 November 2001, certain of
its responses to questioning. The Division also authorized the European
Communities and the third participants, if they wished, to respond in
writing by 30 November 2001. In response to this request, the United
States filed an additional written memorandum on 28 November 2001. The
European Communities filed a response to this additional written
memorandum on 30 November 2001.
W.2.13 Rule 30 — Withdrawal back to top
W.2.13.1 WITHDRAWAL AND RE-FLING NOTICE OF
APPEAL
W.2.13.1.1 US — FSC, para. 4
(WT/DS108/AB/R)
… For scheduling reasons, and pursuant to an
agreement it had reached with the European Communities, on 2 November
1999 the United States notified the Chairman of the Appellate Body and
the Chairman of the DSB of its decision to withdraw its 28 October 1999
notice of appeal. This withdrawal was made pursuant to Rule 30(1) of the
Working Procedures, and was conditional upon the right of the
United States to file a new notice of appeal pursuant to Rule 20 of the Working
Procedures. …
W.2.13.1.2 US — Line Pipe, para. 13
(WT/DS202/AB/R)
On 6 November 2001, the United States notified
the DSB of its intention to appeal certain issues of law covered in the
Panel Report and certain legal interpretations developed by the Panel,
pursuant to paragraph 4 of Article 16 of the DSU, and filed a notice of
appeal pursuant to Rule 20 of the Working Procedures for Appellate
Review (the “Working Procedures”). For scheduling
reasons, on 13 November 2001, the United States notified the Chairman of
the Appellate Body and the Chairman of the DSB of its decision to
withdraw the notice of appeal filed on 6 November 2001. The withdrawal
was made pursuant to Rule 30(1) of the Working Procedures, and
was conditional on the right to file a new notice of appeal. On 19
November 2001, the United States again notified the DSB of its intention
to appeal certain issues of law covered in the Panel Report and certain
legal interpretations developed by the Panel, pursuant to paragraph 4 of
Article 16 of the DSU, and filed a new notice of appeal pursuant to Rule
20 of the Working Procedures. …
W.2.13.1.3 EC — Sardines, paras. 137-138
(WT/DS231/AB/R)
… Rule 30(1) of the Working Procedures
for Appellate Review (the “Working Procedures”), which
governs the withdrawal of an appeal …
… accords to the appellant a broad right to
withdraw an appeal at any time. This right appears, on its face, to be
unfettered: an appellant is not subject to any deadline by which to
withdraw its appeal; an appellant need not provide any reason for the
withdrawal; and an appellant need not provide any notice thereof to
other participants in an appeal. More significantly for this appeal,
there is nothing in the Rule prohibiting the attachment of conditions to
a withdrawal. …
W.2.13.1.4 EC — Sardines, paras. 140-141
(WT/DS231/AB/R)
This obligation to interpret the Working
Procedures in a way that promotes the effective resolution of
disputes is complemented by the obligation of Members, set out in
Article 3.10 of the DSU, to “engage in [dispute settlement] procedures
in good faith in an effort to resolve the dispute.” Hence, the right
to withdraw an appeal must be exercised subject to these limitations,
which are applicable generally to the dispute settlement process.
… While it is true that nothing in the text
of Rule 30(1) explicitly permits an appellant to exercise its right
subject to conditions, it is also true that nothing in the same text
prohibits an appellant from doing so. As we have just explained, in our
view, the right to withdraw a notice of appeal under Rule 30(1) is
broad, subject only to the limitations we have described. … Rather,
the correct interpretation, in our view, is that Rule 30(1) permits
conditional withdrawals, unless the condition imposed undermines the “fair,
prompt and effective resolution of trade disputes”, or unless the
Member attaching the condition is not “engag[ing] in [dispute
settlement] procedures in good faith in an effort to resolve the
dispute.” Therefore, it is necessary to examine any such conditions
attached to withdrawals on a case-by-case basis to determine whether, in
fact, the particular condition in a particular case in any way obstructs
the dispute settlement process, or in some way diminishes the rights of
the appellee or other participants in the appeal.
W.2.13.1.5 EC — Sardines, paras. 145-147
(WT/DS231/AB/R)
… Thus, for the reasons explained, we find
that the withdrawal of the original Notice on condition of filing a
replacement Notice was appropriate and had the effect of conditionally
withdrawing the original Notice.
… We agree with Peru that there may be
situations where the withdrawal of an appeal on condition of refiling a
new notice, and the filing thereafter of a new notice, could be abusive
and disruptive. However, in such cases, we would have the right to
reject the condition, and also to reject any filing of a new notice of
appeal, on the grounds either that the Member seeking to file such a new
notice would not be engaging in dispute settlement proceedings in good
faith, or that Rule 30(1) of the Working Procedures must not be
used to undermine the fair, prompt, and effective resolution of trade
disputes. …
In addition, we believe there are
circumstances that, although not constituting “abusive practices”,
would be in violation of the DSU, and would, thus, compel us to disallow
the conditional withdrawal of a notice of appeal as well as the filing
of a replacement notice. For example, if the conditional withdrawal or
the filing of a new notice were to take place after the 60-day deadline
in Article 16.4 of the DSU for adoption of panel reports, this would
effectively circumvent the requirement to file appeals within 60 days of
circulation of panel reports. In such circumstances, we would reject the
conditional withdrawal and the new notice of appeal.
W.2.13.1.6 EC — Sardines, paras. 149-150
(WT/DS231/AB/R)
… we agree with the European Communities
that the replacement Notice of Appeal contains no additional grounds of
appeal, and that it merely added information to the paragraphs in the
initial Notice that Peru considered deficient.
… We are, however, not creating a new
procedural right; we are only upholding the right to withdraw an appeal.
…
… In the circumstances of this case, we
believe that Peru has been accorded the full measure of its due process
rights, because the withdrawal of the original Notice and the filing of
a replacement Notice were carried out in response to objections raised
by Peru, the replacement Notice was filed in a timely manner and early
in the process, and the replacement Notice contained no new or modified
grounds of appeal. Also, Peru has not demonstrated that it suffered
prejudice as a result. Moreover, Peru was given an adequate opportunity
to address its concerns about the European Communities’ actions during
the course of the appeal.
W.2.13.1.7 US — Softwood Lumber IV,
para. 6
(WT/DS257/AB/R)
On 2 October 2003, the United States notified
the DSB of its intention to appeal certain issues of law covered in the
Panel Report and certain legal interpretations developed by the Panel,
pursuant to paragraph 4 of Article 16 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (the “DSU”),
and filed a Notice of Appeal pursuant to Rule 20 of the Working
Procedures for Appellate Review (the “Working Procedures”).
On 3 October 2003, for scheduling reasons, the United States withdrew
its Notice of Appeal pursuant to Rule 30 of the Working Procedures,
conditional on its right to re-file the Notice of Appeal at a later
date. On 21 October 2003, the United States re-filed a substantively
identical Notice of Appeal pursuant to Rule 20 of the Working
Procedures. On that same day, the United States filed its appellant’s
submission in accordance with the Working Schedule drawn up by
the Division for this appeal.
W.2.13.2 WITHDRAWAL OF APPEAL
W.2.13.2.1 India
— Autos, paras. 15, 17-18
(WT/DS146/AB/R, WT/DS175/AB/R)
On 14 March 2002, the Appellate Body received
a letter from India, in which India stated that:
Pursuant to Rule 30(1) of the Working
Procedures for Appellate Review, this is to inform the Appellate
Body that India is withdrawing the above-mentioned appeal; oral hearing
on this is scheduled for 15 March 2002. Inconvenience caused to the
Appellate Body, Secretariat, the other parties and the third
participants is deeply regretted.
…
Upon receipt of India’s letter of 14 March
2002, the Appellate Body on the same day notified the DSB, pursuant to
Rule 30(1) of the Working Procedures, that India “has notified
the Appellate Body that India is withdrawing its appeal” in this
dispute, and simultaneously informed India, the European Communities,
the United States, Korea and Japan that the oral hearing in this appeal
was cancelled.
In view of India’s withdrawal of the appeal
by its letter of 14 March 2002, the Appellate Body hereby completes its
work in this appeal.
Rules of Conduct
— Annex II. See
Confidentiality (C.6); Working Procedures for Appellate Review, Rule 3
(W.2.2-3); Working Procedures for Appellate Review, Rule 8
(W.2.4);
Working Procedures for Appellate Review, Rule 27 (W.2.11)
952. The relevant findings and conclusions for
purposes of the recommendations and rulings to be adopted by the DSB in
this dispute, pursuant to Article 17.14 of the DSU, are those set out in
paragraph 763(e) and (f) of this Report. back to text
190. We observe, in this respect, that Article 17.9 of the DSU provides for the Appellate Body to consult with the
Director-General of the WTO and the Chair of the DSB in amending its Working
Procedures. In accordance with the DSB Decision of 19 December 2002
(WT/DSB/31), the DSB Chair also consults with WTO Members on amendments
proposed by the Appellate Body. The Appellate Body monitors the
operation of the Working Procedures closely, and recognizes that
a need for revision may arise from time to time. We believe that issues
such as the one referred to by Canada in this appeal could usefully be
addressed in the context of future revision. back to text
16. In a letter from the Permanent Delegation of
the European Commission dated 23 October 2003, the European Communities
argued that the time-period within which it had to file its third
participant’s submission was contrary to Rule 24(1) of the Working
Procedures because it was less than 25 days from the date of the
re-filing of the Notice of Appeal. back to text
17. Letter from the Director of the Appellate
Body Secretariat dated 24 October 2003. back to text
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