Prompt Settlement of Disputes — Article 3.3 of the DSU

P.4A.1 Canada — Periodicals, pp. 23–24, DSR 1997:I, p. 449 at 469   back to top
(WT/DS31/AB/R)

Canada asserts that the Appellate Body does not have the jurisdiction to examine a claim under Article III:2, second sentence, as no party has appealed the findings of the Panel on this provision. In the United States’ view, the procedure suggested by Canada is not consistent with the fundamental goals stated in Article 3.3 of the DSU, according to which the prompt settlement of disputes is essential to the effective functioning of the WTO and the maintenance of a proper balance of rights and obligations of Members. …
 

We believe the Appellate Body can, and should, complete the analysis of Article III:2 of the GATT 1994 in this case by examining the measure with reference to its consistency with the second sentence of Article III:2, provided that there is a sufficient basis in the Panel Report to allow us to do so. …
 

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As the legal obligations in the first and second sentences are two closely linked steps in determining the consistency of an internal tax measure with the national treatment obligations of Article III:2, the Appellate Body would be remiss in not completing the analysis of Article III:2. …
 

P.4A.2 EC — Hormones, para. 153   back to top
(WT/DS26/AB/R, WT/DS48/AB/R)

The decision of the Panel to use and provide all information to the parties in both disputes was taken in view of its previous decision to hold a joint meeting with the experts.…We can see a relation between timetable harmonization within the meaning of Article 9.3 of the DSU and economy of effort. In disputes where the evaluation of scientific data and opinions plays a significant role, the panel that is established later can benefit from the information gathered in the context of the proceedings of the panel established earlier. 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. Article 3.3 of the DSU recognizes the importance of avoiding unnecessary delays in the dispute settlement process and states that the prompt settlement of a dispute is essential to the effective functioning of the WTO. In this particular case, the Panel tried to avoid unnecessary delays, making an effort to comply with the letter and spirit of Article 9.3 of the DSU. Indeed, … despite the fact that the Canadian proceeding was initiated several months later than that of the United States, the Panel managed to finish both Panel Reports at the same time.
 

P.4A.3 EC — Asbestos, para. 78   back to top
(WT/DS135/AB/R)

… In previous appeals, we have, on occasion, completed the legal analysis with a view to facilitating the prompt settlement of the dispute, pursuant to Article 3.3 of the DSU. However, we have insisted that we can do so only if the factual findings of the panel and the undisputed facts in the panel record provide us with a sufficient basis for our own analysis. If that has not been the case, we have not completed the analysis.
 

P.4A.4 US — Hot-Rolled Steel, para. 235   back to top
(WT/DS184/AB/R)

Having reversed the Panel’s finding on Japan’s claim, we must now consider whether it is appropriate for us to complete the analysis and facilitate the prompt settlement of the dispute, under Article 3.3 of the DSU, by examining Japan’s claim ourselves. In previous Reports, we have emphasized that, after reversing a finding of the panel, we can complete the analysis only if the factual findings of the Panel, or the undisputed facts in the Panel Record, provide us with a sufficient basis to do so.
 

P.4A.5 US — Shrimp (Article 21.5 — Malaysia), para. 97   back to top
(WT/DS58/AB/RW)

… it must … be kept in mind that Article 17.14 of the DSU provides not only that Reports of the Appellate Body “shall be” adopted by the DSB, by consensus, but also that such Reports “shall be … unconditionally accepted by the parties to the dispute. …” Thus, Appellate Body Reports that are adopted by the DSB are, as Article 17.14 provides, “… unconditionally accepted by the parties to the dispute”, and, therefore, must be treated by the parties to a particular dispute as a final resolution to that dispute. In this regard, we recall, too, that Article 3.3 of the DSU states that the “prompt settlement” of disputes “is essential to the effective functioning of the WTO”.
 

P.4A.6 Mexico — Corn Syrup (Article 21.5 — US), para. 79   back to top
(WT/DS132/AB/RW)

… we note that the original panel report, regarding the initial measure …, has been adopted and that these Article 21.5 proceedings concern a subsequent measure … . We also note that Mexico did not appeal the original panel’s report, and that Articles 3.2 and 3.3 of the DSU reflect the importance to the multilateral trading system of security, predictability and the prompt settlement of disputes. We see no basis for us to examine the original panel’s treatment of the alleged restraint agreement.
 

P.4A.7 US — Offset Act (Byrd Amendment), para. 311   back to top
(WT/DS217/AB/R, WT/DS234/AB/R)

… The overall object and purpose of the DSU is expressed in Article 3.3 of that Agreement which provides, relevantly, that the “prompt settlement” of disputes is “essential to the effective functioning of the WTO”. If the right to a separate panel report under Article 9.2 were “unqualified”, this would mean that a panel would have the obligation to submit a separate panel report, pursuant to the request of a party to the dispute, at any time during the panel proceedings. Moreover, a request for such a report could be made for whatever reason — or indeed, without any reason — even on the day that immediately precedes the day the panel report is due to be circulated to WTO Members at large. Such an interpretation would clearly undermine the overall object and purpose of the DSU to ensure the “prompt settlement” of disputes.
 

P.4A.8 EC — Bed Linen (Article 21.5 — India), para. 98   back to top
(WT/DS141/AB/RW)

… Article 3.3 provides that the prompt settlement of disputes is “essential to the effective functioning of the WTO”. Article 21.5 advances the purpose of achieving a prompt settlement of disputes by providing an expeditious procedure to establish whether a Member has fully complied with the recommendations and rulings of the DSB. For that purpose, an Article 21.5 panel is to complete its work within 90 days, whereas a panel in an original dispute is to complete its work within 9 months of its establishment, or within 6 months of its composition. It would be incompatible with the function and purpose of the WTO dispute settlement system if a claim could be reasserted in Article 21.5 proceedings after the original panel or the Appellate Body has made a finding that the challenged aspect of the original measure is not inconsistent with WTO obligations, and that report has been adopted by the DSB. At some point, disputes must be viewed as definitely settled by the WTO dispute settlement system.
 

P.4A.9 US — Softwood Lumber IV, para. 113   back to top
(WT/DS257/AB/R)

In order to determine the WTO-consistency of USDOC’s benefit determination, we would have to complete the legal analysis. Thus, as a preliminary step, we must consider whether it is possible for us to do so in order to facilitate the prompt settlement of the dispute, in accordance with Article 3.3 of the DSU, by examining Canada’s claim ourselves. The Appellate Body has stated in previous cases that it is possible and appropriate to complete the legal analysis provided there are sufficient findings of fact by the Panel or undisputed facts in the Panel record to enable it to do so.
 

P.4A.10 US — Upland Cotton, para. 264   back to top
(WT/DS267/AB/R)

We find contextual support for this interpretation in Article 3.3 of the DSU, which underscores the importance of the “prompt settlement” of certain situations that, in the absence of settlement, could undermine the effective functioning of the WTO and the maintenance of a proper balance between the rights and obligations of Members. We note, first, that Article 3.3 focuses not upon “existing” measures, or measures that are “currently in force” but, rather, upon “measures taken” by a Member, which includes measures taken in the past. We also observe that Article 3.3 envisages that disputes arise when a Member “considers” that benefits accruing to it are being impaired by measures taken by another Member. By using the word “considers”, Article 3.3 focuses on the perception or understanding of an aggrieved Member. This does not exclude the possibility that a Member requesting consultations may have reason to believe that a measure is still impairing benefits even though its legislative basis has expired.
 

P.4A.11 US — Gambling, para. 121   back to top
(WT/DS285/AB/R, WT/DS285/AB/R/Corr.1)

The DSU provides for the “prompt settlement” of situations where Members consider that their benefits under the covered agreements “are being impaired by measures taken by another Member”. Two elements of this reference to “measures” that may be the subject of dispute settlement are relevant. First, as the Appellate Body has stated, a “nexus” must exist between the responding Member and the “measure”, such that the “measure” — whether an act or omission — must be “attributable” to that Member. Secondly, the “measure” must be the source of the alleged impairment, which is in turn the effect resulting from the existence or operation of the “measure”.
 

P.4A.12 Mexico — Taxes on Soft Drinks, paras. 52–53   back to top
(WT/DS308/AB/R)

… We … note in this regard that Article 3.3 of the DSU provides that the “prompt settlement of situations in which a Member considers that any benefits accruing to it directly or indirectly under the covered agreements are being impaired by measures taken by another Member is essential to the effective functioning of the WTO”. The fact that a Member may initiate a WTO dispute whenever it considers that “any benefits accruing to [that Member] are being impaired by measures taken by another Member” implies that that Member is entitled to a ruling by a WTO panel.
 

A decision by a panel to decline to exercise validly established jurisdiction would seem to “diminish” the right of a complaining Member to “seek the redress of a violation of obligations” within the meaning of Article 23 of the DSU, and to bring a dispute pursuant to Article 3.3 of the DSU. …
 

P.4A.13 Chile — Price Band System (Article 21.5 — Argentina), paras. 233, 236   back to top
(WT/DS207/AB/RW)

Chile also claims that the Panel acted inconsistently with Article 11 of the DSU in refusing to re-assess certain aspects of the original price band system that, according to Chile, both the original panel and the Appellate Body misunderstood, and in relying on this “factual error” in its analysis of the measure at issue. …
 

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… in Mexico — Corn Syrup (Article 21.5 — US), the Appellate Body declined to “revisit the original panel report” because that report had “been adopted and … these Article 21.5 proceedings concern a subsequent measure”. In this regard, the Appellate Body referred to Articles 3.2 and 3.3 of the DSU and the importance of security, predictability, and the prompt settlement of disputes. Moreover, we are mindful that adopted panel and Appellate Body reports must be accepted by the parties to a dispute. These same considerations must also be taken into account in this appeal, and they confirm our view that the Panel did not, in this case, fail to comply with its duties under Article 11 of the DSU in declining to correct the alleged misunderstanding concerning the original price band system.
 

P.4A.14 US — Stainless Steel (Mexico), para. 161   back to top
(WT/DS344/AB/R)

… The creation of the Appellate Body by WTO Members to review legal interpretations developed by panels shows that Members recognized the importance of consistency and stability in the interpretation of their rights and obligations under the covered agreements. This is essential to promote “security and predictability” in the dispute settlement system, and to ensure the “prompt settlement” of disputes. The Panel’s failure to follow previously adopted Appellate Body reports addressing the same issues undermines the development of a coherent and predictable body of jurisprudence clarifying Members’ rights and obligations under the covered agreements as contemplated under the DSU. …
 

P.4A.15 US — Upland Cotton (Article 21.5 — Brazil), para. 246   back to top
(WT/DS267/AB/RW)

The approach advocated by the United States would not only compromise the effectiveness of the provisions on actionable subsidies in the SCM Agreement, it is also difficult to reconcile with the objectives of the DSU. … Requiring a WTO Member to initiate new proceedings to challenge the same type of recurrent subsidies that were found to result in adverse effects, simply because the subsidies were provided subsequent to the original proceedings, does not promote “prompt settlement” nor “prompt compliance”. … Even if the claim is allowed to proceed in an Article 21.5 proceeding, the complaining Member would still have to establish the existence of adverse effects that allegedly result from the subsidies at issue.
 

P.4A.16 US — Continued Suspension / Canada — Continued Suspension, para. 344   back to top
(WT/DS320/AB/R, WT/DS321/AB/R)

… underlying this dispute concerning the continued suspension of concessions lies a disagreement over the consistency with the covered agreements of Directive 2003/74/EC, a measure taken by the European Communities to comply with the DSB’s recommendations and rulings in EC — Hormones. The individuals who served in the panel in EC — Hormones were familiar with the background of the dispute and the inconsistencies with the covered agreements they had found with respect to Directive 96/22/EC. Recourse to Article 21.5 panel proceedings would allow these individuals to examine whether the inconsistencies found in EC — Hormones have been rectified by Directive 2003/74/EC. Such proceedings would benefit from their knowledge and expertise gained from serving as panelists in EC — Hormones, and would be adjudicated within a shorter time-frame than regular panel proceedings. Recourse to Article 21.5 proceedings under such circumstances is therefore also consistent with the objective of the dispute settlement system of achieving prompt settlement of disputes.
 

P.4A.17 EC — Bananas III (Article 21.5 — Ecuador II) / EC — Bananas III (Article 21.5 — US), para. 211   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)

… The Appellate Body has interpreted [Article 3.7] to indicate that a Member is “expected to be largely self-regulating in deciding whether any such action would be ‘fruitful’”. This is also borne out by Article 3.3, which provides that the prompt settlement of situations in which a Member, in its own judgement, considers that a benefit accruing to it under the covered agreements is being impaired by a measure taken by another Member is essential to the effective functioning of the WTO.
 

P.4A.18 EC — Bananas III (Article 21.5 — Ecuador II) / EC — Bananas III (Article 21.5 — US), para. 268   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)

… The Appellate Body found [in US — Upland Cotton] contextual support for rejecting the notion that an expired measure could not be a measure “at issue” in Article 3.3 of the DSU, which refers to the “prompt settlement” of certain situations that, in the absence of settlement, could undermine the effective functioning of the WTO and the maintenance of a proper balance between the rights and obligations of Members. The Appellate Body observed that Article 3.3 focuses not upon “existing” measures, or measures that are “currently in force”, but, rather, upon “measures taken” by a Member, which includes measures taken in the past.
 

P.4A.19 US — Continued Zeroing, paras. 392, 394   back to top
(WT/DS350/AB/R)

Referring to Articles 3.3 and 3.4 of the DSU, the European Communities argues that absent any “clear suggestion” from the Panel or the Appellate Body as to how the United States could implement the recommendation to bring its measures into conformity with its WTO obligations, the objectives of prompt settlement and achieving a satisfactory settlement of the matter “may simply not be achieved”. The European Communities also emphasizes that “the circumstances of this dispute require clarity” and argues that a suggestion by the Appellate Body under Article 19.1 of the DSU could be “very useful for providing the necessary clarity as to the implications of the reports when adopted”.
 

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… we do not consider it necessary to further consider the European Communities’ request for a suggestion under Article 19.1 of the DSU.
 

P.4A.20 US — Zeroing (Japan) (Article 21.5 — Japan), para. 122   back to top
(WT/DS322/AB/RW)

… A measure that is initiated before there has been recourse to an Article 21.5 panel, and which is completed during those Article 21.5 panel proceedings, may have a bearing on whether there is compliance with the DSB’s recommendations and rulings. … an a priori exclusion of measures completed during Article 21.5 proceedings could frustrate the function of compliance proceedings. It would also be inconsistent with the objectives of the DSU to provide for the “prompt settlement of situations in which a Member considers that any benefits accruing to it directly or indirectly under the covered agreements are being impaired”, as reflected in Article 3.3, and to “secure a positive solution to a dispute”, as contemplated in Article 3.7.
 

P.4A.21 Australia — Apples, para. 359   back to top
(WT/DS367/AB/R)

… we reverse the Panel’s finding … that Australia’s measures at issue regarding fire blight and ALCM are inconsistent with Article 5.6 of the SPS Agreement. Having reversed this finding, we must consider whether, in order to promote the prompt settlement of this dispute, we are able to complete the analysis and rule on New Zealand’s claim under Article 5.6.
 

P.4A.22 Australia — Apples, para. 367   back to top
(WT/DS367/AB/R)

We now turn to the question of whether, using the correct approach to the analysis under Article 5.6, we can complete the analysis of New Zealand’s claim that Australia’s measures concerning the risk of fire blight are inconsistent with Article 5.6. When the factual findings of the panel and the undisputed facts in the panel record provide the Appellate Body with a sufficient basis for its own analysis, the Appellate Body may complete the analysis with a view to facilitating the prompt settlement of the dispute.
 

P.4A.23 US — Anti-Dumping and Countervailing Duties (China), para. 528   back to top
(WT/DS379/AB/R)

Having reversed the Panel’s finding regarding the USDOC’s proxy benchmark under Article 11 of the DSU, we must now consider whether we can complete the legal analysis and rule on China’s claim that such benchmark is inconsistent with Article 14(b) of the SCM Agreement. When the factual findings of the panel and the undisputed facts in the panel record provide the Appellate Body with a sufficient basis for its own analysis, the Appellate Body may complete the analysis with a view to facilitating the prompt settlement of the dispute.
 

P.4A.24 US — Anti-Dumping and Countervailing Duties (China), para. 598   back to top
(WT/DS379/AB/R)

The Appellate Body has stated in previous disputes that, if the factual findings of the panel and the undisputed facts in the panel record provide the Appellate Body with a sufficient basis for its own analysis, the Appellate Body may complete the analysis with a view to facilitating the prompt settlement of the dispute.
 

P.4A.25 EC and certain member States — Large Civil Aircraft, para. 1178   back to top
(WT/DS316/AB/R)

In these circumstances, we consider it possible and appropriate to complete the analysis and examine the claims of displacement on the basis of undisputed evidence. … While we are mindful of the scope of our jurisdiction under Article 17.6 of the DSU, we note that one of the functions of the WTO dispute settlement system is the “prompt settlement of situations in which a Member considers that any benefits accruing to it directly or indirectly under the covered agreements are being impaired by measures taken by another Member”, as reflected in Article 3.3 of the DSU.
 

P.4A.26 Thailand — Cigarettes (Philippines), para. 150   back to top
(WT/DS371/AB/R)

As a general rule, due process requires that each party be afforded a meaningful opportunity to comment on the arguments and evidence adduced by the other party. … At the same time, due process may also require a panel to take appropriate account of the need to safeguard other interests, such as an aggrieved party’s right to have recourse to an adjudicative process in which it can seek redress in a timely manner, and the need for proceedings to be brought to a close. These interests find reflection in the provisions of the DSU, including Article 3.3, which calls for “[t]he prompt settlement” of WTO disputes, as this is “essential to the effective functioning of the WTO and the maintenance of a proper balance between the rights and obligations of Members”. …
 

P.4A.27 Thailand — Cigarettes (Philippines), para. 174   back to top
(WT/DS371/AB/R)

In circumstances where it has reversed panel findings and legal interpretations, the Appellate Body has, within the limits of its jurisdiction, consistently sought to “facilitate the prompt settlement of the dispute” by completing the legal analysis of relevant issues. The same considerations impel us to seek to do the same in this appeal. Accordingly, we consider whether we are able to rule, ourselves, on Thailand’s defence under Article XX(d) of the GATT 1994.
 

P.4A.28 China — Raw Materials, para. 220   back to top
(WT/DS394/AB/R, WT/DS395/AB/R, WT/DS398/AB/R)

… In our view, a defective panel request may impair a panel’s ability to perform its adjudicative function within the strict timeframes contemplated in the DSU and, thus, may have implications for the prompt settlement of a dispute in accordance with Article 3.3 of the DSU. A complaining Member should therefore be particularly vigilant in preparing its panel request, especially when numerous measures are challenged under several different treaty provisions.
 

P.4A.29 US — Large Civil Aircraft (2^nd complaint), para. 741   back to top
(WT/DS353/AB/R)

… Article 3.3 of the DSU provides that one of the purposes of the WTO dispute settlement system is the “prompt settlement of situations in which a Member considers that any benefits accruing to it directly or indirectly under the covered agreements are being impaired by measures taken by another Member”. This purpose is frustrated when, upon completion of the adjudication, a Member’s claim is left unresolved because the Appellate Body was unable to complete the analysis of aspects of the claim with respect to which the panel had adopted an arguendo approach. An arguendo approach may initially appear to be more efficient, but ultimately may result in inefficient outcomes.
 

P.4A.30 US — Large Civil Aircraft (2^nd complaint), para. 1351   back to top
(WT/DS353/AB/R)

We realize that, after more than five years of panel proceedings and eleven months of appellate review, a number of issues remain unresolved in this dispute. Some may consider that this is not an entirely satisfactory outcome. Our mandate under Article 17 of the DSU does not permit us to engage in fact-finding. However, wherever we have found that there are sufficient factual findings by the Panel or undisputed facts to complete the analysis, we have done so with a view to fostering the prompt settlement of this dispute in accordance with Article 3.3 of the DSU.