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> EC — Bananas III, paras. 143–144
> EC — Hormones, para. 148
> EC — Hormones, Footnote 138 to para. 152
> India — Patents (US), para. 92
> India — Patents (US), para. 95
> Argentina — Textiles and Apparel, para. 79 and Footnote 68
> US — FSC (Article 21.5 — EC), para. 240
> US — FSC (Article 21.5 — EC), para. 247
> Thailand — Cigarettes (Philippines), para. 148
> Thailand — Cigarettes (Philippines), para. 149
> Thailand — Cigarettes (Philippines), para. 155
> EC — Fasteners (China), para. 574
W.3.1 EC — Bananas III, paras. 143–144 back to top
… Article 6.2 of the DSU requires that the claims, but not the arguments, must all be specified sufficiently in the request for the establishment of a panel in order to allow the defending party and any third parties to know the legal basis of the complaint. If a claim is not specified in the request for the establishment of a panel, then a faulty request cannot be subsequently “cured” by a complaining party’s argumentation in its first written submission to the Panel or in any other submission or statement made later in the Panel proceeding.
We note, in passing, that this kind of issue could be decided early in Panel proceedings, without causing prejudice or unfairness to any party or third party, if panels had detailed, standard working procedures that allowed, inter alia, for preliminary rulings.
W.3.2 EC — Hormones, para. 148 back to top
… The rules and procedures set forth in Appendix 4 of the DSU apply in situations in which expert review groups have been established. However, this is not the situation in this particular case. Consequently, once the panel has decided to request the opinion of individual scientific experts, there is no legal obstacle to the panel drawing up, in consultation with the parties to the dispute, ad hoc rules for those particular proceedings.
W.3.3 EC — Hormones, Footnote 138 to para. 152 back to top
… the DSU, and in particular its Appendix 3, leave panels a margin of discretion to deal, always in accordance with due process, with specific situations that may arise in a particular case and that are not explicitly regulated. Within this context, an appellant requesting the Appellate Body to reverse a panel’s ruling on matters of procedure must demonstrate the prejudice generated by such legal ruling.
W.3.4 India — Patents (US), para. 92 back to top
… Although panels enjoy some discretion in establishing their own working procedures, this discretion does not extend to modifying the substantive provisions of the DSU. To be sure, Article 12.1 of the DSU says: “Panels shall follow the Working Procedures in Appendix 3 unless the panel decides otherwise after consulting the parties to the dispute”. Yet that is all that it says. Nothing in the DSU gives a panel the authority either to disregard or to modify other explicit provisions of the DSU. The jurisdiction of a panel is established by that panel’s terms of reference, which are governed by Article 7 of the DSU. A panel may consider only those claims that it has the authority to consider under its terms of reference. …
W.3.5 India — Patents (US), para. 95 back to top
It is worth noting that, with respect to fact-finding, the dictates of due process could better be served if panels had standard working procedures that provided for appropriate factual discovery at an early stage in panel proceedings.
W.3.6 Argentina — Textiles and Apparel, para. 79 and Footnote 68 back to top
Article 11 of the DSU does not establish time limits for the submission of evidence to a panel. Article 12.1 of the DSU directs a panel to follow the Working Procedures set out in Appendix 3 of the DSU, but at the same time authorizes a panel to do otherwise after consulting the parties to the dispute. The Working Procedures in Appendix 3 also do not establish precise deadlines for the presentation of evidence by a party to the dispute.68 It is true that the Working Procedures “do not prohibit” submission of additional evidence after the first substantive meeting of a panel with the parties. It is also true, however, that the Working Procedures in Appendix 3 do contemplate two distinguishable stages in a proceeding before a panel. …
W.3.7 US — FSC (Article 21.5 — EC), para. 240 back to top
… We observe, first, that the DSU and, in particular, paragraphs 5, 6 and 7 of Appendix 3 to the DSU, “contemplate two distinguishable stages in a proceeding before a panel”. The “first stage” comprises the first written submissions by the parties and the first meeting of the panel, while the “second stage” consists of the second written submissions — or “rebuttal” submissions — and the second meeting with the Panel. However, no provision of the DSU explicitly requires panels to hold two meetings with the parties, or to oblige the parties to submit two written submissions.
W.3.8 US — FSC (Article 21.5 — EC), para. 247 back to top
… The DSU allows panels the flexibility, in determining their procedures, to request more than one submission in advance of the first meeting, and the DSU also allows for the possibility that panels may, ultimately, hold only one meeting. …
W.3.9 Thailand — Cigarettes (Philippines), para. 148 back to top
Panel working procedures should both embody and reinforce due process. Article 12.1 of the DSU states that panels “shall” follow the working procedures set out in Appendix 3 to the DSU “unless the Panel decides otherwise after consulting the parties to the dispute”. The working procedures adopted by a panel must conform to the DSU. As the Appellate Body has previously observed, the use by panels of detailed, standardized working procedures promotes fairness and the protection of due process. The inclusion by a panel in its working procedures of a rule that is inconsistent with due process would be a clear sign that such panel has failed to ensure the protection of due process. At the same time, even when the working procedures are themselves sound, a panel’s failure to adhere to those procedures may be pertinent to, albeit not necessarily determinative of, the issue of whether such panel has failed to ensure the protection of due process in a given instance.
W.3.10 Thailand — Cigarettes (Philippines), para. 149 back to top
We also recall that panel proceedings consist of two main stages, the first of which involves each party setting out its “case in chief, including a full presentation of the facts on the basis of submission of supporting evidence”, and the second designed to permit the rebuttal by each party of the arguments and evidence submitted by the other parties. Nonetheless, the submission of evidence may not always fall neatly into one or the other of these categories, in particular when panels themselves, in the exercise of their fact finding authority, seek to pursue specific lines of inquiry in their questioning of the parties. In this respect, we wish to reiterate that due process will best be served by working procedures that provide “for appropriate factual discovery at an early stage in panel proceedings”, and that “[d]ue process may be of particular concern in cases where a party raises new facts at a late stage of the Panel proceedings”. Furthermore, when the particular circumstances of specific disputes present situations that are not explicitly regulated by their working procedures, panels, in the exercise of their control over the proceedings, and subject to the constraints of due process and the DSU, enjoy a margin of discretion to deal with such situations.
W.3.11 Thailand — Cigarettes (Philippines), para. 155 back to top
However, the fact that the Panel’s treatment of Exhibit PHL-289 was not inconsistent with paragraph 15 of its Working Procedures is, in our view, not dispositive of whether Thailand’s due process rights were respected and, accordingly, of whether the Panel complied with its duties under Article 11 of the DSU. As set out above, due process generally demands that each party be afforded a meaningful opportunity to comment on evidence adduced by the other party. At the same time, a number of different considerations will need to be factored into a panel’s effort to protect due process in a particular dispute, and these may include the need for a panel, in pursuing prompt resolution of the dispute, to exercise control over the proceedings in order to bring an end to the back and forth exchange of competing evidence by the parties. In the context of this dispute, there are several considerations that are germane to our assessment of Thailand’s claim under Article 11 of the DSU. These include: the conduct of the parties; the legal issue to which the evidence related and the circumstances surrounding the submission of the evidence relating to that issue; and the discretion afforded under the DSU to panels in their handling of the proceedings and appreciation of the evidence.
W.3.12 EC — Fasteners (China), para. 574 back to top
Rule 4 of the Panel’s Working Procedures requires that, “[b]efore the first substantive meeting of the panel with the parties, the parties to the dispute shall transmit to the panel written submissions in which they present the facts of the case and their arguments”. As described above, the Panel record shows that China asserted its claim under Article 6.5 regarding the lack of a “good cause” showing for the confidential treatment of Pooja Forge’s questionnaire response only in response to questions from the Panel, and articulated this claim only after the parties had provided the Panel with written submissions and had attended a substantive meeting. We do not find that assertions made so late in the proceedings, and only in response to questioning by the Panel, can comply with either Rule 4 of the Panel’s Working Procedures, or the requirements of due process of law. …
68. As we have observed in two previous Appellate Body Reports, we believe that detailed, standard working procedures for panels would help to ensure due process and fairness in panel proceedings. See European Communities — Regime for the Importation, Sale and Distribution of Bananas, adopted 25 September 1997, WT/DS27/AB/R, para. 144; India — Patent Protection for Pharmaceutical and Agricultural Chemical Products, adopted 16 January 1998, WT/DS50/AB/R, para. 95. back to text
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