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REPERTORY OF APPELLATE BODY REPORTS

Judicial Economy


ON THIS PAGE:

> US — Wool Shirts and Blouses, p. 18, DSR 1997:I, p. 323 at 339
> US — Wool Shirts and Blouses, p. 19, DSR 1997:I, p. 323 at 340
> US — Wool Shirts and Blouses, p. 19, DSR 1997:I, p. 323 at 339–340
> EC — Hormones, para. 250
> India — Patents (US), para. 87
> Australia — Salmon, para. 223
> Japan — Agricultural Products II, para. 111
> US — Lead and Bismuth II, para. 71
> Canada — Autos, paras. 112–114
> Canada — Autos, paras. 116–117
> US — Wheat Gluten, para. 183
> US — Lamb, para. 194
> Mexico — Corn Syrup (Article 21.5 — US), para. 36
> Canada — Wheat Exports and Grain Imports, paras. 133–134
> US — Upland Cotton, para. 717
> US — Upland Cotton, para. 718
> US — Upland Cotton, para. 731
> US — Upland Cotton, para. 732
> US — Gambling, paras. 342–344
> EC — Export Subsidies on Sugar, para. 331
> EC — Export Subsidies on Sugar, para. 335
> US — Zeroing (EC), para. 250
> Brazil — Retreaded Tyres, para. 257
> EC — Fasteners (China), para. 511
> US — Tuna II (Mexico), para. 405
> Canada — Renewable Energy / Canada — Feed-in Tariff Program, para. 5.7
> Canada — Renewable Energy / Canada — Feed-in Tariff Program, paras. 5.87, 5.92–5.93
> Canada — Renewable Energy / Canada — Feed-in Tariff Program, para. 5.94
> Canada — Renewable Energy / Canada — Feed-in Tariff Program, paras. 5.95, 5.97
> Canada — Renewable Energy / Canada — Feed-in Tariff Program, paras. 5.99–5.100
> Canada — Renewable Energy / Canada — Feed-in Tariff Program, paras. 5.101, 5.103
> Canada — Renewable Energy / Canada — Feed-in Tariff Program, para. 5.104
> Canada — Renewable Energy / Canada — Feed-in Tariff Program, paras. 5.136–5.138

J.1.1 US — Wool Shirts and Blouses, p. 18, DSR 1997:I, p. 323 at 339     back to top
(WT/DS33/AB/R, WT/DS33/AB/R/Corr.1)

Nothing in [Article 11 of the DSU] or in previous GATT practice requires a panel to examine all legal claims made by the complaining party. Previous GATT 1947 and WTO panels have frequently addressed only those issues that such panels considered necessary for the resolution of the matter between the parties, and have declined to decide other issues. Thus, if a panel found that a measure was inconsistent with a particular provision of the GATT 1947, it generally did not go on to examine whether the measure was also inconsistent with other GATT provisions that a complaining party may have argued were violated. In recent WTO practice, panels likewise have refrained from examining each and every claim made by the complaining party and have made findings only on those claims that such panels concluded were necessary to resolve the particular matter.
 

J.1.2 US — Wool Shirts and Blouses, p. 19, DSR 1997:I, p. 323 at 340     back to top
(WT/DS33/AB/R, WT/DS33/AB/R/Corr.1)

… Given the explicit aim of dispute settlement that permeates the DSU, we do not consider that Article 3.2 of the DSU is meant to encourage either panels or the Appellate Body to “make law” by clarifying existing provisions of the WTO Agreement outside the context of resolving a particular dispute. A panel need only address those claims which must be addressed in order to resolve the matter in issue in the dispute.
 

J.1.3 US — Wool Shirts and Blouses, p. 19, DSR 1997:I, p. 323 at 339–340     back to top
(WT/DS33/AB/R, WT/DS33/AB/R/Corr.1)

Although a few GATT 1947 and WTO panels did make broader rulings, by considering and deciding issues that were not absolutely necessary to dispose of the particular dispute, there is nothing anywhere in the DSU that requires panels to do so.
 

Furthermore, such a requirement is not consistent with the aim of the WTO dispute settlement system. …
 

J.1.4 EC — Hormones, para. 250     back to top
(WT/DS26/AB/R, WT/DS48/AB/R)

We agree with the Panel’s application of the notion of judicial economy. We have affirmed the Panel’s conclusion that the EC measures are inconsistent with Article 5.1 in view of the failure of the European Communities to provide a risk assessment that reasonably supports such measures. Under the circumstances, the necessity or propriety of proceeding to determine whether Article 2.2 of the SPS Agreement has also been violated is not at all clear to us. …
 

J.1.5 India — Patents (US), para. 87     back to top
(WT/DS50/AB/R)

… a panel has the discretion to determine the claims it must address in order to resolve the dispute between the parties — provided that those claims are within that panel’s terms of reference. …
 

J.1.6 Australia — Salmon, para. 223     back to top
(WT/DS18/AB/R)

The principle of judicial economy has to be applied keeping in mind the aim of the dispute settlement system. This aim is to resolve the matter at issue and “to secure a positive solution to a dispute”. To provide only a partial resolution of the matter at issue would be false judicial economy. A panel has to address those claims on which a finding is necessary in order to enable the DSB to make sufficiently precise recommendations and rulings so as to allow for prompt compliance by a Member with those recommendations and rulings “in order to ensure effective resolution of disputes to the benefit of all Members”.
 

J.1.7 Japan — Agricultural Products II, para. 111     back to top
(WT/DS76/AB/R)

… By not making a finding under Article 5.1 with regard to the varietal testing requirement as it applies to apricots, pears, plums and quince, the Panel improperly applied the principle of judicial economy. We believe that a finding under Article 5.1 with respect to apricots, pears, plums and quince is necessary “in order to ensure effective resolution” of the dispute.
 

J.1.8 US — Lead and Bismuth II, para. 71     back to top
(WT/DS138/AB/R)

The United States seems to consider that our Report in United States — Shirts and Blouses sets forth a general principle that panels may not address any issues that need not be addressed in order to resolve the dispute between the parties. We do not agree with this characterization of our findings. In that appeal, India had argued that it was entitled to a finding by the Panel on each of the legal claims that it had made. We, however, found that the principle of judicial economy allows a panel to decline to rule on certain claims.
 

J.1.9 Canada — Autos, paras. 112–114     back to top
(WT/DS139/AB/R, WT/DS142/AB/R)

In assessing this allegation of legal error made by the European Communities, we refer to the obligations of panels set out in very general terms in Article 11 of the DSU. …
 

The standard terms of reference of a panel, set out in Article 7.1 of the DSU, speak in very similar terms. A panel should make “such findings as will assist the DSB” in making recommendations or rulings. Under Article 7.2 of the DSU, a panel “shall address the relevant provisions in any covered agreement or agreements cited by the parties to the dispute”.
 

In discharging its functions under Articles 7 and 11 of the DSU, a panel is not, however, required to examine all legal claims made before it. A panel may exercise judicial economy. …
 

J.1.10 Canada — Autos, paras. 116–117     back to top
(WT/DS139/AB/R, WT/DS142/AB/R)

In our view, it was not necessary for the Panel to make a determination on the European Communities’ alternative claim relating to the CVA requirements under Article 3.1(a) of the SCM Agreement in order “to secure a positive solution” to this dispute. The Panel had already found that the CVA requirements violated both Article III:4 of the GATT 1994 and Article XVII of the GATS. Having made these findings, the Panel, in our view, exercising the discretion implicit in the principle of judicial economy, could properly decide not to examine the alternative claim of the European Communities that the CVA requirements are inconsistent with Article 3.1(a) of the SCM Agreement.
 

We are bound to add that, for purposes of transparency and fairness to the parties, a panel should, however, in all cases, address expressly those claims which it declines to examine and rule upon for reasons of judicial economy. Silence does not suffice for these purposes.
 

J.1.11 US — Wheat Gluten, para. 183     back to top
(WT/DS166/AB/R)

… The Panel found and we have upheld, albeit for different reasons, that the measure is inconsistent with Articles 2.1 and 4.2 of the Agreement on Safeguards. Thus, the Panel found, in effect, that the safeguard measure at issue in this case, like the measure at issue in Argentina — Footwear Safeguard, has no legal basis. The reasons for which the Panel found an inconsistency with Articles 2.1 and 4.2 of the Agreement on Safeguards do not alter that conclusion. The Panel was, therefore, entitled to decline to examine the claim of the European Communities regarding “unforeseen developments”. A finding on that issue would not, in our view, have added anything to the ability of the DSB to make sufficiently precise recommendations and rulings in this dispute. …
 

J.1.12 US — Lamb, para. 194     back to top
(WT/DS177/AB/R, WT/DS178/AB/R)

… Having found that the safeguard measure applied by the United States lacked a legal basis, the Panel was entitled to decline to address further claims that the same measure is inconsistent with other provisions of the Agreement on Safeguards. We also observe that a finding on New Zealand’s claim under Article 5.1 of the Agreement on Safeguards would not have enhanced the ability of the DSB to make sufficiently precise recommendations and rulings in this dispute.
 

J.1.13 Mexico — Corn Syrup (Article 21.5 — US), para. 36     back to top
(WT/DS132/AB/RW)

… We believe that a panel comes under a duty to address issues in at least two instances. First, as a matter of due process, and the proper exercise of the judicial function, panels are required to address issues that are put before them by the parties to a dispute. Second, panels have to address and dispose of certain issues of a fundamental nature, even if the parties to the dispute remain silent on those issues. In this regard, we have previously observed that “[t]he vesting of jurisdiction in a panel is a fundamental prerequisite for lawful panel proceedings”. For this reason, panels cannot simply ignore issues which go to the root of their jurisdiction — that is, to their authority to deal with and dispose of matters. Rather, panels must deal with such issues — if necessary, on their own motion — in order to satisfy themselves that they have authority to proceed.
 

J.1.14 Canada — Wheat Exports and Grain Imports, paras. 133–134     back to top
(WT/DS276/AB/R)

The practice of judicial economy, which was first employed by a number of the GATT panels, allows a panel to refrain from making multiple findings that the same measure is inconsistent with various provisions when a single, or a certain number of findings of inconsistency, would suffice to resolve the dispute. Although the doctrine of judicial economy allows a panel to refrain from addressing claims beyond those necessary to resolve the dispute, it does not compel a panel to exercise such restraint. At the same time, if a panel fails to make findings on claims where such findings are necessary to resolve the dispute, then this would constitute a false exercise of judicial economy and an error of law.
 

In this case, the Panel itself did not claim to be exercising judicial economy when it made an assumption concerning the relationship between subparagraphs (a) and (b) of Article XVII:1. The Panel made no finding of inconsistency with respect to the CWB Export Regime that would have entitled it to exercise judicial economy with respect to other claims. Moreover, neither Canada nor the United States argues that the Panel’s approach is properly classified as an exercise of judicial economy, nor that the concept of judicial economy must be understood otherwise than as set out above. In sum, we see no reason to characterize the Panel’s use of an assumption concerning the relationship between subparagraphs (a) and (b) of Article XVII:1 as an exercise of judicial economy. …
 

J.1.15 US — Upland Cotton, para. 717     back to top
(WT/DS267/AB/R)

We believe the Panel was within its discretion in declining to examine whether scheduled products other than rice and unscheduled products supported by the programs are applied in a manner that “threatens to lead to” circumvention. The Panel had already found that the United States acted inconsistently with Article 10.1 of the Agreement on Agriculture because it applied its export credit guarantee program in a manner that “results in” (actual) circumvention of its export subsidy commitments for these products. We do not see why the Panel had to examine also whether the United States acted inconsistently with the same provision in respect of the same products, but on the basis of there being a threat of circumvention, rather than actual circumvention.
 

J.1.16 US — Upland Cotton, para. 718     back to top
(WT/DS267/AB/R)

The Appellate Body has stated that panels may exercise judicial economy and refrain from addressing claims beyond those necessary to resolve the dispute. In this case, the Panel did not expressly state it was exercising judicial economy. We agree with the United States, however, that the Panel’s approach can be properly characterized as an exercise of judicial economy. Moreover, we believe that the Panel was within its discretion in refraining from making additional findings and it was not improper for the Panel to have exercised judicial economy given that its finding of actual circumvention resolved the matter.
 

J.1.17 US — Upland Cotton, para. 731     back to top
(WT/DS267/AB/R)

We need not decide, in this case, whether an export credit guarantee program that meets the standard of item (j) of the Illustrative List of Export Subsidies — because the premiums charged are adequate to cover long-term operating costs and losses — may nevertheless be challenged as a prohibited export subsidy under Article 3.1(a) on the basis that it confers a benefit. This is because, even if we were to assume that such a claim were possible, we would conclude that the Panel was within its discretion in exercising judicial economy in respect of Brazil’s claim.
 

J.1.18 US — Upland Cotton, para. 732     back to top
(WT/DS267/AB/R)

As we explained earlier, panels may refrain from ruling on every claim as long as it does not lead to a “partial resolution of the matter”. The Panel found that the United States’ export credit guarantee programs constitute a prohibited export subsidy under Article 3.1(a) because they do not meet the criteria in item (j) of the Illustrative List of Export Subsidies. This finding, in our view, is sufficient to resolve the matter. Therefore, we are not persuaded that the Panel’s exercise of judicial economy was improper, as Brazil has not demonstrated that it has led to “a partial resolution of the matter”.
 

J.1.19 US — Gambling, paras. 342–344     back to top
(WT/DS285/AB/R, WT/DS285/AB/R/Corr.1)

In deciding to assess whether the measures satisfied the requirements of the chapeau, the Panel explained that, even though such an examination was “not necessary”, it wanted “to assist the parties in resolving the underlying dispute in this case”. Antigua alleges that the Panel acted inconsistently with the Appellate Body’s decision in Korea — Various Measures on Beef in determining whether the Wire Act, the Travel Act, and the IGBA meet the requirements of the chapeau after having found that they were not provisionally justified.
 

… [the statement by the Appellate Body at paragraph 156 of Korea — Various Measures on Beef] does not impose a requirement on panels to stop evaluating a responding party’s defence once they have determined that a challenged measure is not provisionally justified under one of the paragraphs of the general exception provision.
 

Provided that it complies with its duty to assess a matter objectively, a panel enjoys the freedom to decide which legal issues it must address in order to resolve a dispute. Moreover, in some instances, a panel’s decision to continue its legal analysis and to make factual findings beyond those that are strictly necessary to resolve the dispute may assist the Appellate Body should it later be called upon to complete the analysis, as, for example, in this case.
 

J.1.20 EC — Export Subsidies on Sugar, para. 331     back to top
(WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R)

Thus, in addition to ruling on the matter before it, a panel is required [under Article 11 of the DSU] to “make such other findings as will assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements”. Such “other findings” could, for instance, relate to implementation, to the extent that such findings “will assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements”.
 

J.1.21 EC — Export Subsidies on Sugar, para. 335     back to top
(WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R)

In this case, the Panel’s findings under Articles 3 and 8 of the Agreement on Agriculture were not sufficient to “fully resolve” the dispute. This is because, in declining to rule on the Complaining Parties’ claims under Article 3 of the SCM Agreement, the Panel precluded the possibility of a remedy being made available to the Complaining Parties, pursuant to Article 4.7 of the SCM Agreement, in the event of the Panel finding in favour of the Complaining Parties with respect to their claims under Article 3 of the SCM Agreement. Moreover, in declining to rule on the Complaining Parties’ claims under Article 3 of the SCM Agreement, the Panel failed to discharge its obligation under Article 11 of the DSU by failing to make “such other findings as will assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements”, namely, a recommendation or ruling by the DSB pursuant to Article 4.7. This constitutes false judicial economy and legal error.
 

J.1.22 US — Zeroing (EC), para. 250     back to top
(WT/DS294/AB/R, WT/DS294/AB/R/Corr.1)

We fail to see why additional findings on the European Communities’ claims under Articles 2.4 and 9.3 of the Anti-Dumping Agreement would be necessary to secure a “positive solution” to the dispute or a “satisfactory settlement of the matter”. In our view, the Panel did not commit an error of law in deciding to exercise judicial economy with regard to those claims, as it had already found that zeroing as applied by the United States in the original investigations at issue is inconsistent with Article 2.4.2 of the Anti-Dumping Agreement. Thus, in our view, the Panel had made sufficient findings to resolve the dispute once it had made this finding under Article 2.4.2.
 

J.1.23 Brazil — Retreaded Tyres, para. 257     back to top
(WT/DS332/AB/R)

… [W]e observe that it might have been appropriate for the Panel to address the European Communities’ separate claims that the MERCOSUR exemption was inconsistent with Article I:1 and Article XIII:1. We have previously indicated that the principle of judicial economy “allows a panel to refrain from making multiple findings that the same measure is inconsistent with various provisions when a single, or a certain number of findings of inconsistency, would suffice to resolve the dispute”, and it seems that the Panel assumed this to be the case in the present dispute. However, the Panel found that the MERCOSUR exemption resulted in the Import Ban being applied consistently with the requirements of the chapeau of Article XX. In view of this finding, we must acknowledge that we have difficulty seeing how the Panel could have been justified in not addressing the separate claims of inconsistency under Article I:1 and Article XIII:1 directed at the MERCOSUR exemption. We emphasize that panels must be mindful, when applying the principle of judicial economy, that the aim of the dispute settlement mechanism under Article 3.7 of the DSU is to secure a positive solution to the dispute. Therefore, a panel’s discretion to decline to rule on different claims of inconsistency adduced in relation to the same measure is limited by its duty to make findings that will allow the DSB to make sufficiently precise “recommendations and rulings ‘in order to ensure effective resolution of disputes to the benefit of all Members’”.
 

J.1.24 EC — Fasteners (China), para. 511     back to top
(WT/DS397/AB/R)

… China did not raise a separate claim under the last sentence of Article 2.4, but referred to that sentence in support of its claim that the Commission acted inconsistently with the obligation to conduct a fair comparison under Article 2.4 of the Anti-Dumping Agreement. On appeal, China has also characterized its allegation under the last sentence of Article 2.4 as an “argument put forward by China”. Thus, we disagree with China’s view that the Panel’s failure to address this argument constitutes “a false exercise of judicial economy”, because the issue of judicial economy is only relevant to the manner in which a panel deals with a party’s claims. …
 

J.1.25 US — Tuna II (Mexico), para. 405     back to top
(WT/DS381/AB/R)

To us, it seems that the Panel’s decision to exercise judicial economy rested upon the assumption that the obligations under Article 2.1 of the TBT Agreement and Articles I:1 and III:4 of the GATT 1994 are substantially the same. This assumption is, in our view, incorrect. In fact, as we have found above, the scope and content of these provisions is not the same. Moreover, in our view, the Panel should have made additional findings under the GATT 1994 in the event that the Appellate Body were to disagree with its view that the measure at issue is a “technical regulation” within the meaning of the TBT Agreement. As a result, it would have been necessary for the Panel to address Mexico’s claims under the GATT 1994 given that the Panel found no violation under Article 2.1 of the TBT Agreement. By failing to do so, the Panel engaged, in our view, in an exercise of “false judicial economy” and acted inconsistently with its obligations under Article 11 of the DSU.
 

J.1.26 Canada — Renewable Energy / Canada — Feed-in Tariff Program, para. 5.7     back to top
(WT/DS412/AB/R, WT/DS426/AB/R)

Japan has emphasized the differences in the remedies foreseen under the SCM Agreement and the remedy foreseen in Article 19 of the DSU. The specific remedy provided under Article 4.7 of the SCM Agreement is an important consideration. In EC — Export Subsidies on Sugar, the remedy provided under Article 4.7 was the reason why the Appellate Body found that the panel had improperly exercised judicial economy when it failed to make findings under the SCM Agreement once it had found a violation of the Agreement on Agriculture. While the difference in remedy would be relevant to a decision as to whether or not there would be a need to address the claims under the SCM Agreement, having made findings under the GATT 1994 and the TRIMs Agreement, we do not see its relevance in this case for the question of which claim to address first. In any event, this was not a case in which the Panel exercised judicial economy; the Panel made findings under Article III:4 of the GATT 1994 and the TRIMs Agreement. It then examined Japan’s claims under the SCM Agreement and found that Japan had failed to establish that the challenged measures confer a benefit within the meaning of Article 1.1(b) of the SCM Agreement. …
 

J.1.27 Canada — Renewable Energy / Canada — Feed-in Tariff Program, paras. 5.87, 5.92–5.93     back to top
(WT/DS412/AB/R, WT/DS426/AB/R)

… before the Panel[,] Japan claimed that the measures at issue are inconsistent with Article III:4 of the GATT 1994 … . This claim was independent from, and additional to, its claim of violation of the TRIMs Agreement, which also included Article III:4. …
 

...
 

On appeal, Japan claims that the Panel improperly exercised judicial economy when it declined to make a finding with respect to Japan’s stand-alone Article III:4 claim. … While the Panel did not state explicitly that it was exercising judicial economy, the explanation offered by the Panel in the interim review suggests that is what the Panel had in mind.
 

The question before us, therefore, is whether the Panel’s exercise of judicial economy in this case was proper. Since panels have a margin of discretion with respect to the exercise of judicial economy, to succeed in its claim on appeal Japan has to demonstrate that the Panel exceeded this discretion. In accordance with Appellate Body jurisprudence, this means that Japan would have to show that the Panel provided only a “partial resolution of the matter at issue”, or that an additional finding with respect to Japan’s stand-alone Article III:4 claim “is necessary in order to enable the DSB to make sufficiently precise recommendations and rulings so as to allow for prompt compliance” by Canada with those recommendations and rulings.
 

J.1.28 Canada — Renewable Energy / Canada — Feed-in Tariff Program, para. 5.94     back to top
(WT/DS412/AB/R, WT/DS426/AB/R)

… we emphasize that this is not a case in which the panel failed to make a finding under a provision alleged by the complainant to have been violated. The Panel in this case has made a finding of violation of Article III:4 of the GATT 1994. It is true that this finding of violation rests on an assessment of the measures at issue under the Illustrative List of TRIMs annexed to the TRIMs Agreement, and in particular on paragraph 1(a). … it is not obvious what a stand-alone finding of violation of Article III:4 of the GATT 1994 would add to a finding of violation of Article III:4 that is consequential to an assessment under the Illustrative List of the TRIMs Agreement.
 

J.1.29 Canada — Renewable Energy / Canada — Feed-in Tariff Program, paras. 5.95, 5.97     back to top
(WT/DS412/AB/R, WT/DS426/AB/R)

Japan argues that a stand-alone finding under Article III:4 would result in broader implementation obligations. …
 

...
 

… Japan’s argument regarding implementation is based on a measure that is different from the measure that was before the Panel. We do not believe that it was necessary or appropriate for the Panel to make an additional finding so as to anticipate that Canada would modify the measures at issue in the manner suggested by Japan.
 

J.1.30 Canada — Renewable Energy / Canada — Feed-in Tariff Program, paras. 5.99–5.100     back to top
(WT/DS412/AB/R, WT/DS426/AB/R)

Japan also relies on the Appellate Body report in US — Tuna II (Mexico) to support its position. In that case, the Appellate Body faulted the panel for failing to make findings on Mexico’s claims under Articles I and III of the GATT 1994 having assessed the measure under Articles 2.1, 2.2, and 2.4 of the Agreement on Technical Barriers to Trade (TBT Agreement). …
 

There is a key difference between the situation in the present case and the situation that was before the Appellate Body in US — Tuna II (Mexico). In this case, the Panel made findings of violation under both Article 2.1 of the TRIMs Agreement and Article III:4 of the GATT 1994, while in US — Tuna II (Mexico), the panel made no findings of violation under Articles I:1 and III:4 of the GATT 1994 or Article 2.1 of the TBT Agreement. Thus, the situation in this case and the situation in US — Tuna II (Mexico) are the diametrical opposite.
 

J.1.31 Canada — Renewable Energy / Canada — Feed-in Tariff Program, paras. 5.101, 5.103     back to top
(WT/DS412/AB/R, WT/DS426/AB/R)

In our view, the circumstances of this case more closely resemble US — Upland Cotton
 

...
 

The circumstances [in US — Upland Cotton] are similar to those surrounding Japan’s claim in the present case. Both cases involve findings of inconsistency that proceeded on the basis of the application of an illustrative list. In the case of item (j) of the Illustrative List of Export Subsides, fulfilment of the elements of that provision results in a finding that there is a prohibited export subsidy under Article 3.1(a) of the SCM Agreement. In the present case, fulfilment of the elements in paragraph 1(a) of the Illustrative List of TRIMs results in a finding of inconsistency with Article III:4 of the GATT 1994. In both cases, the elements that must be demonstrated under the relevant paragraphs of the Illustrative Lists are not necessarily the same as those that must be demonstrated pursuant to the underlying obligation. In addition, in both cases, the underlying obligation captures a broader set of measures than the examples in the Illustrative Lists. Thus, the Panel’s decision to exercise judicial economy in the present case with respect to Japan’s stand-alone Article III:4 claim is consistent with the panel’s approach in US — Upland Cotton, which the Appellate Body found not to have been an improper exercise of judicial economy.
 

J.1.32 Canada — Renewable Energy / Canada — Feed-in Tariff Program, para. 5.104     back to top
(WT/DS412/AB/R, WT/DS426/AB/R)

In sum, we are not persuaded that the Panel’s failure to make a finding on Japan’s stand-alone Article III:4 claim provided only a “partial resolution of the matter at issue” or that an additional finding on Japan’s stand-alone Article III:4 claim “is necessary in order to enable the DSB to make sufficiently precise recommendations and rulings so as to allow for prompt compliance” by Canada with those recommendations and rulings. Therefore, we reject Japan’s claim that the Panel failed to fulfil its obligations under Article 11 of the DSU and exercised false judicial economy by declining to make a finding on Japan’s stand-alone Article III:4 claim.
 

J.1.33 Canada — Renewable Energy / Canada — Feed-in Tariff Program, paras. 5.136–5.138     back to top
(WT/DS412/AB/R, WT/DS426/AB/R)

We observe that … before the Panel …, the thrust of Japan’s claim concerned the existence of prohibited subsidies and the specific remedy associated with such finding, rather than the specific characterization of the challenged measures as financial contribution and/or income or price support.
 

Moreover, although the characterization of a transaction under Article 1.1(a) may have implications for the manner in which the determination of benefit under Article 1.1(b) of the SCM Agreement is conducted, Japan has not elaborated whether and in which way the benefit analysis would have been different, or would have led to a different outcome, if the Panel had characterized the FIT Programme and Contracts as “income or price support” instead of as a “financial contribution”. Rather, as argued by Canada, Japan’s benefit argument before the Panel relied on the same benchmarks in both situations, in particular, the HOEP and the average wholesale rate for electricity in competitive markets outside of Ontario. We note that the Panel rejected these benchmarks for the purposes of determining whether the measures at issue confer a benefit.
 

Thus, given that the basis of Japan’s benefit arguments in both instances was “essentially the same”, and that the Panel rejected Japan’s benefit arguments as they relate to Article 1.1(a)(1), we do not believe that an additional finding by the Panel that the challenged measures constitute “income or price support” within the meaning of Article 1.1(a)(2) was necessary to resolve fully the dispute. Accordingly, we reject Japan’s claim that the Panel failed to fulfil its obligations under Article 11 of the DSU and exercised false judicial economy by declining to make a finding on Japan’s claim that the measures at issue constitute “income or price support” under Article 1.1(a)(2) of the SCM Agreement.
 


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