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ARB.3.1 General back to top
ARB.3.1.1 Australia — Salmon, para. 30
Taken together, these provisions clearly define the rights and obligations of the Member concerned with respect to the implementation of the recommendations and rulings of the DSB. In the absence of a mutually agreed solution, the first objective is usually the immediate withdrawal of the measure judged to be inconsistent with any of the covered agreements. Only if it is impracticable to do so, is the Member concerned entitled to a reasonable period of time for implementation. …
ARB.3.1.2 Argentina — Hides and Leather, para. 40
… Implementation, in essence, consists of bringing the measure held to be inconsistent with the obligations of the WTO Member concerned under particular provisions of a particular covered agreement, into conformity with those same provisions. Article 3.7 of the DSU stresses that “the first objective of the dispute settlement mechanism is usually to secure withdrawal of the WTO-inconsistent measure” (emphasis added). The DSU goes on to state that compensation may be resorted to only if “the immediate withdrawal of the measure is impracticable and then only as “a temporary measure pending the withdrawal of the WTO-inconsistent measure” (emphasis added). Suspension of concessions or other obligations under the covered agreements is explicitly designated as a “last resort” mode of compliance “subject to authorization by the DSB”, but it too remains a “temporary” remedy allowed under Article 22.8 of the DSU only until the non-conforming measure is “removed” or a “mutually satisfactory solution” is achieved. Moreover, and at any rate, Article 22.1 of the DSU cautions that neither compensation nor suspension of concessions or other obligations is to be “preferred to full implementation of a recommendation to bring a measure into conformity with the covered agreements”. …
ARB.3.1.3 US — Offset Act (Byrd Amendment), para. 50
Thus, in my view, the United States may choose either to withdraw or modify the CDSOA so as to bring it into conformity with its obligations under the covered agreements. I therefore do not see any basis for the claim of the Complaining Parties that deliberations as to different, WTO-consistent methods for distributing collected anti-dumping or countervailing duties should not be considered as part of the implementation process.
ARB.3.1.4 US — Offset Act (Byrd Amendment), para. 53
With respect to the proposal by the United States Executive branch to the United States Congress, I do not believe that it would be appropriate for an arbitrator acting under Article 21.3(c) to attach any particular weight to any individual proposal. As I and other arbitrators have said, it is not for the arbitrator acting under Article 21.3(c) to impose any particular means for implementing the recommendations and rulings of the DSB. The means of implementation is left to the discretion of the implementing Member, which is bound to implement the recommendations and rulings of the DSB within “the shortest period possible within the legal system of the Member”. Thus, my task is not to look at how implementation will be carried out, but to determine when it is to be done. For this reason, individual proposals under consideration by the implementing Member cannot be determinative in my inquiry.
ARB.3.1.5 Japan — DRAMS (Korea), paras. 37–38
… I recall that a Member whose measure has been found to be inconsistent with the covered agreements may generally choose between two courses of action: withdrawal of the measure; or modification of the measure by remedial action. While withdrawal may be the preferred option to secure “prompt compliance”, a Member may, where withdrawal is deemed impracticable, choose to modify the measure, provided that this is done in the shortest time possible, and that such modification is permissible under the DSB’s recommendations and rulings.
The Appellate Body has said, in US — Oil Country Tubular Goods Sunset Reviews (Article 21.5 — Argentina), that a Member’s right to implement extends to conducting a re-determination relating to the initial period of investigation, and that this right does not exclude having recourse to new facts. However, as Japan accepted at the oral hearing, any investigation should not amount to a de novo review by the JIA; and any new evidence must be confined to the period examined in the original countervailing duty investigation. Within these parameters, Japan may choose to modify its determination based on the facts on record. It may also seek to gather additional facts relating to the initial investigation period to the extent, and only to the extent, that this is necessary to, and capable of, bringing the inconsistent elements of its original determination into compliance.
ARB.3.1.6 Colombia — Ports of Entry, para. 77
… I observe that Article 3.7 of the DSU provides that “the first objective of the dispute settlement mechanism is usually to secure withdrawal” of the WTO-inconsistent measures. Hence, I agree with Panama that withdrawal of the inconsistent measures is the “preferred” means of implementation and certainly falls within the range of permissible actions. However, I do not exclude that Colombia could bring itself into conformity with the recommendations and rulings of the DSB by modifying both the indicative prices mechanism and the ports of entry measure in a manner that rectifies the particular WTO-inconsistencies identified by the Panel. In my view, modification of both the indicative prices mechanism and the ports of entry measure is within the “range of permissible actions” available for Colombia to implement the recommendations and rulings of the DSB in this dispute. …
ARB.3.1.7 US — COOL, para. 77
… In my view, withdrawal, in the sense of repealing, is not the only way to comply with the DSB’s recommendations and rulings. I note that the arbitrator in Colombia — Ports of Entry observed that “withdrawal of the inconsistent measures is the ‘preferred’ means of implementation”, but that “modification [of the inconsistent measure] is within the ‘range of permissible actions’ available” to the implementing Member. I agree that a Member whose measure has been found to be inconsistent with the covered agreements may generally choose either to repeal or modify the inconsistent measure. Therefore, I consider that the reasonable period of time that I have to determine in this arbitration should allow the United States to comply with the DSB’s recommendations and rulings either by modifying the COOL measure, or by repealing it with regard to muscle cuts of beef and pork.
ARB.3.1.8 China — GOES, para. 3.15
… even assuming that withdrawal were possible under China’s existing legal system, it does not follow that the reasonable period of time for implementation must be based on that method of implementation, as opposed to modification of the measure through remedial action. I therefore disagree with the United States to the extent that it suggests that the absence of a legal basis to modify a measure means, without more, that the reasonable period of time for implementation must necessarily be based on the time required to revoke, or repeal, the relevant measure.
ARB.3.2 Panel recommendations back to top
ARB.3.2.1 US — Offset Act (Byrd Amendment), para. 52
With respect to the suggestion of the Panel that the United States repeal the CDSOA, I note, first, that the Panel, in making its suggestion, also recognized that “there could potentially be a number of ways in which the United States could bring the CDSOA into conformity”. Moreover, although the suggestion by the Panel, as part of a panel report adopted by the DSB, could serve as a useful contribution to the decisionmaking process in the implementing Member, I do not believe that the existence of such a suggestion ultimately affects the well-established principle that “choosing the means of implementation is, and should be, the prerogative of the implementing Member”.
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