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> EC — Hormones, para. 152
> EC — Hormones, para. 153
> EC — Hormones, para. 154
> EC — Bananas III (Article 21.5 — Ecuador II) / EC — Bananas III (Article 21.5 — US), paras. 192–193
M.4.1 EC — Hormones, para. 152 back to top
… We consider [the Panel’s] decision to hold a joint meeting with the scientific experts consistent with the letter and spirit of Article 9.3 of the DSU. Clearly, it would be an uneconomical use of time and resources to force the Panel to hold two successive but separate meetings gathering the same group of experts twice, expressing their views twice regarding the same scientific and technical matters related to the same contested EC measures. We do not believe that the Panel has erred by addressing the EC procedural objections only where the European Communities could make a precise claim of prejudice. It is evident to us that a procedural objection raised by a party to a dispute should be sufficiently specific to enable the panel to address it.
M.4.2 EC — Hormones, para. 153 back to top
… Having access to a common pool of information enables the panel and the parties to save time by avoiding duplication of the compilation and analysis of information already presented in the other proceeding … the Panel tried to avoid unnecessary delays, making an effort to comply with the letter and spirit of Article 9.3 of the DSU. …
M.4.3 EC — Hormones, para. 154 back to top
… Although Article 12.1 and Appendix 3 of the DSU do not specifically require the Panel to grant [the opportunity to participate in the second substantial meeting of the proceedings initiated by Canada] to the United States, we believe that this decision falls within the sound discretion and authority of the Panel, particularly if the Panel considers it necessary for ensuring to all parties due process of law. …
M.4.4 EC — Bananas III (Article 21.5 — Ecuador II) / EC — Bananas III (Article 21.5 — US), paras. 192–193 back to top
(WT/DS27/AB/RW2/ECU, WT/DS27/AB/RW/USA, WT/DS27/AB/RW2/ECU/Corr.1, WT/DS27/AB/RW/USA/Corr.1)
Article 9.3 [of the DSU] may appear to be cast in the way of an obligation, but the word “harmony” is defined as the combination or adaptation of parts, so as to form a “consistent and orderly whole”. Quite distinct from “synchrony”, “harmony” does not require that elements coincide exactly in time. Therefore, we consider that the use of the word “harmonized” rather than “synchronized” in Article 9.3 confers to panels a judgement of degree and practicality. It rests with panels to organize the steps of the proceedings in a way that will ensure that they form a consistent and orderly whole. Whereas the use of the word “shall” ordinarily connotes an obligation, here, while the panel must seek to harmonize, the extent to which that is possible lies within its power. We do not consider that “harmonization” requires adoption of identical timetables in multiple proceedings. As we see it, this provision addresses a practical concern that each timetable must be framed in the light of the other.
The phrase “to the greatest extent possible” in Article 9.3 lends further support to our interpretation. This phrase introduces the main clause of the sentence. The phrase “to the greatest extent possible” qualifies both elements of the main clause — the selection of the same persons as panelists and the harmonization of the panel processes — and thus qualifies what the panel must do to harmonize the timetables. We therefore disagree with the European Communities’ reading that Article 9.3 “does not allow panels any discretion in deciding whether the timetables should be harmonized”.
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