WTO Dispute Settlement Mechanism(3)

WTO Dispute Settlement Mechanism(3)

Chapter ⅢInitiation of Panel ProceduresOUTLINESection One Role of Consultations: Art. 4I The Importance of ConsultationsII Issues Concerning the “adequacy” of ConsultationsSection Two Establishment of Panels: Art. 6.2I IntroductionII Indication of Consultations ProcessIII Identification of “the specific measures at issue”IV Provision of “a brief summary of the legal basis of the complaint”V Concluding RemarksSection Three Terms of Reference of Panels: Art. 7I IntroductionII Effect of Consultations on Terms of Reference of PanelsIII The “matter referred to the DSB”Section Four The Mandate of Compliance Panels: Art. 21.5I IntroductionII Clarification of “measures taken to comply”III Perspective of Review under Art.21.5IV Examination of the New Measure in Its Totality and in Its ApplicationSection Five Third Party Rights : Art. 10I IntroductionII Generic Third Party Rights: Interpretation of Art. 10.3III Extended Third Party Rights: Exercise of Panels’ DiscretionIV Summary and ConclusionsSection OneRole of Consultations: Art. 4The procedures for consultations under the WTO, significantly different from the procedures for good offices, conciliation or mediation as prescribed in Art. 5 of the DSU which remains voluntary options if the parties to the dispute so agree, remains a mandatory first step in the dispute settlement process as embodied with text of Art. 4 of the DSU. However, as to be shown below, there is something to be clarified so as to understand appropriately the role of consultations under the WTO dispute settlement mechanism.I The Importance of ConsultationsThe practice of GATT contracting parties in regularly holding consultations is testimony to the important role of consultations in dispute settlement. Art. 4.1 of the DSU recognizes this practice and further provides that: “Members affirm their resolve to strengthen and improve the effectiveness of the consultation procedures employed by Members.” A number of reports made by panels or by the Appellate Body under the WTO have recognized the value of consultations within the dispute settlement process.As noted by a panel, Members’ duty to consult concerns a matter with utmost seriousness: “Compliance with the fundamental obligation of WTO Members to enter into consultations where a request is made under the DSU is vital to the operation of the dispute settlement system. Article 4.2 of the DSU provides that ‘[e]ach Member undertakes to accord sympathetic consideration to and afford adequate opportunity for consultation regarding any representations made by another Member concerning measures affecting the operation of any covered agreement taken within the territory of the former’. Moreover, pursuant to Article 4.6 of the DSU, consultations are ‘without prejudice to the rights of any Member in an

y further proceedings’. In our view, these provisions make clear that Members' duty to consult is absolute, and is not susceptible to the prior imposition of any terms and conditions by a Member.” 1Another panel addresses the essence of consultations, and they rule there that: “Indeed, in our view, the very essence of consultations is to enable the parties gather correct and relevant information, for purposes of assisting them in arriving at a mutually agreed solution, or failing which, to assist them in presenting accurate information to the panel.”2The Appellate Body confirms panels’ rulings in this respect. For example, the Appellate Body stresses those benefits afforded by consultations to the dispute settlement system in Mexico-HFCS（DS132）（21.5）as: “[…] Through consultations, parties exchange information, assess the strengths and weaknesses of their respective cases, narrow the scope of the differences between them and, in many cases, reach a mutually agreed solution in accordance with the explicit preference expressed in Article 3.7 of the DSU. Moreover, even where no such agreed solution is reached, consultations provide the parties an opportunity to define and delimit the scope of the dispute between them. Clearly, consultations afford many benefits to complaining and responding parties, as well as to third parties and to the dispute settlement system as a whole.”3II Issues Concerning the “adequacy” of ConsultationsAs noted above, the procedures for consultations remain a mandatory first step in the dispute settlement process under the WTO. However, does it mean that there is a requirement for the adequacy of consultations before initiating a panel proceeding? With regard to this issue, on the one hand, the Panel on Alcoholic Beverages (DS75/DS84) finds that, “the WTO jurisprudence so far has not recognized any concept of ‘adequacy’ of consultations”, the Panel Report reads in pertinent part:4“In our view, the WTO jurisprudence so far has not recognized any concept of ‘adequacy’ of consultations. The only requirement under the DSU is that consultations were in fact held, or were at least requested, and that a period of sixty days has elapsed from the time consultations were requested to the time a request for a panel was made. What takes place in those consultations is not the concern of a panel. The point was put clearly by the Panel in Bananas III, where it was stated: ‘Consultations are […] a matter reserved for the parties. The DSB is not involved; no panel is involved; and the consultations are held in the absence of the Secretariat. While a mutually agreed solution is to be preferred, in some cases it is not possible for parties to agree upon one. In those cases, it is our view that the function of a panel is only to ascertain that the consultations, if required, were in fact held. […]’ We do not wish to imply that we consider consultations unimportant. Quite the contrary, consultations are a crit

ical and integral part of the DSU. But, we have no mandate to investigate the adequacy of the consultation process that took place between the parties and we decline to do so in the present case.”On the other hand, the Appellate Body in Mexico-HFCS（DS132）（21.5）rules that, “as a general matter, consultations are a prerequisite to panel proceedings. However, this general proposition is subject to certain limitations.” The Appellate Body Report reads there:5“Article 4 of the DSU sets forth a number of other provisions with respect to consultations. We recall that, in our Report in Brazil - Aircraft, we observed that:Articles 4 and 6 of the DSU, as well as paragraphs 1 to 4 of Article 4 of the SCM Agreement, set forth a process by which a complaining party must request consultations, and consultations must be held, before a matter may be referred to the DSB for the establishment of a panel.The general process that we described in that case also applies in disputes brought under other covered agreements. Thus, as a general matter, consultations are a prerequisite to panel proceedings. However, this general proposition is subject to certain limitations. For example, Article 4.3 of the DSU provides:If a request for consultations is made pursuant to a covered agreement, the Member to which the request is made shall, unless otherwise mutually agreed, reply to the request within 10 days after the date of its receipt and shall enter into consultations in good faith within a period of no more than 30 days after the date of receipt of the request, with a view to reaching a mutually satisfactory solution. If the Member does not respond within 10 days after the date of receipt of the request, or does not enter into consultations within a period of no more than 30 days, or a period otherwise mutually agreed, after the date of receipt of the request, then the Member that requested the holding of consultations may proceed directly to request the establishment of a panel.Article 4.3 of the DSU relates the responding party's conduct towards consultations to the complaining party's right to request the establishment of a panel. When the responding party does not respond to a request for consultations, or declines to enter into consultations, the complaining party may dispense with consultations and proceed to request the establishment of a panel. In such a case, the responding party, by its own conduct, relinquishes the potential benefits that could be derived from those consultations. We also note that Article 4.7 of the DSU provides:If the consultations fail to settle a dispute within 60 days after the date of receipt of the request for consultations, the complaining party may request the establishment of a panel. The complaining party may request a panel during the 60-day period if the consulting parties jointly consider that consultations have failed to settle the dispute. Article 4.7 also relates the conduct of the responding

party concerning consultations to the complaining party's right to request the establishment of a panel. This provision states that the responding party may agree with the complaining party to forgo the potential benefits that continued pursuit of consultations might bring. Thus, Article 4.7 contemplates that a panel may be validly established notwithstanding the shortened period for consultations, as long as the parties agree. Article 4.7 does not, however, specify any particular form that the agreement between the parties must take. ”To sum up, as to be discussed in more detail in next section, “the lack of prior consultations is not a defect that, by its very nature, deprives a panel of its authority to deal with and dispose of a matter”.6 However, according to Art. 1.2 of the DSU, this general proposition cannot deny the application of special or additional rules and procedures as are identified in Appendix 2 to the DSU. For example, the Appellate Body rules in Brazil-Airport（DS46）that, “Articles 4 and 6 of the DSU, as well as paragraphs 1 to 4 of Article 4 of the SCM Agreement, set forth a process by which a complaining party must request consultations, and consultations must be held, before a matter may be referred to the DSB for the establishment of a panel”.7In short, given that Art. 6.1 of the DSU essentially requires the DSB to establish a panel automatically upon request of a party, a panel cannot rely upon the DSB to ascertain that requisite consultations have been held and to establish a panel only in those cases, unless otherwise spelled out expressly in the covered agreements, e.g. Art. 4 of the SCM Agreement.【NOTE】1. See, WT/DS22/R/287.2. See, WT/DS75/R, WT/DS84/R/10.23.3. See, WT/DS132/AB/RW/54.4. See, WT/DS75/R; WT/DS84/R/10.19.5. See, WT/DS132/AB/RW/57-61.6. See, WT/DS132/AB/RW/64.7. See, WT/DS46/AB/R/131.Section TwoEstablishment of Panels: Art. 6.2I IntroductionThere has often been divergence in many particular cases as to the sufficient specificity of the request for the establishment of a panel. As is the issue what we will get down to next, and in this respect what bears the most significance is the text of Art. 6.2 of the DSU, which reads as:“The request for the establishment of a panel shall be made in writing. It shall indicate whether consultations were held, identify the specific measures at issue and provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly. In case the applicant requests the establishment of a panel with other than standard terms of reference, the written request shall include the proposed text of special terms of reference.”As noted in Chapter I, the quasi-automatic adoption of dispute settlement reports is a new crucial feature of the WTO dispute settlement mechanism. In practice, there is few, if no, occasions denying the establishment of a panel,

because according to Art. 6.1 of the DSU, “[i]f the complaining party so requests, a panel shall be established”; and it’s hardly the case that “the DSB decides by consensus not to establish a panel”. As ruled by the Appellate Body in EC-Bananas (DS27), “a panel request will usually be approved automatically at the DSB meeting following the meeting at which the request first appears on the DSB's agenda”. For this reason, the Appellate Body rules in the same case that, “[a]s a panel request is normally not subjected to detailed scrutiny by the DSB, it is incumbent upon a panel to examine the request for the establishment of the panel very carefully to ensure its compliance with both the letter and the spirit of Article 6.2 of the DSU. It is important that a panel request be sufficiently precise for two reasons: first, it often forms the basis for the terms of reference of the panel pursuant to Article 7 of the DSU; and, second, it informs the defending party and the third parties of the legal basis of the complaint”. 1 Furthermore, as to the importance for the panel request to be sufficiently precise to ensure its compliance with both the letter and the spirit of Article 6.2 of the DSU, the Panel on Turkey-Textile and Clothing (DS34) rules that, “… [i]t is important that a panel request, which defines the terms of reference, meets this criterion so as to inform the defending party and potential third parties both of the measures at issue, including the products they cover, and of the legal basis of the complaint. This is necessary to ensure due process and the ability of the defendant to defend itself”. 2 And “[t]his requirement of due process is fundamental to ensuring a fair and orderly conduct of dispute settlement proceedings”.3Most importantly, as noted by the Appellate Body in EC-Bananas (DS27), “[i]f 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”. 4However, as ruled by the Appellate Body in EC-Bananas (DS27), Art. 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. With this regard, the Appellate Body rules that, “… [i]n our view, there is a significant difference between the claims identified in the request for the establishment of a panel, which establish the panel's terms of reference under Article 7 of the DSU, and the arguments supporting those claims, which are set out and progressively clarified in the first written submissions, the rebuttal submissions and the first and second panel meetings with the parties”.5 And the Panel in Thailand-Iron and H-Beams (DS122) rules further that, “Article 6.2 DSU does not relate directly to the sufficiency of the subsequent written and oral submission

s of the parties in the course of the proceedings, which may develop the arguments in support of the claims set out in the panel request. Nor does it determine whether or not the complaining party will manage to establish a prima facie case of violation of an obligation under a covered agreement in the actual course of the panel proceedings”.6 Now we turn on to the connotation of Art. 6.2. In this connection, the Panel in Japan-Film（DS44）rules that, “we examine, as appropriate, (i) the ordinary meaning of the terms of Article 6.2; (ii) the context and the object and purpose of Article 6.2; and (iii) past practice under Article 6.2 and its predecessor provision”.7 Specifically, as ruled by the Appellate Body in Korea-Dairy Products（DS98）, “[w]hen parsed into its constituent parts, Article 6.2 may be seen to impose the following requirements. The request must: (i) be in writing; (ii) indicate whether consultations were held; (iii) identify the specific measures at issue; and (iv) provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly.”8And in these four requirements, it is only element (i), that the request “be in writing” has hardly been disagreed; and as to be discussed in more detail below, the other three elements (ii)- (iv) have often been the subjects divergent between participants on many occasions. II Indication of Consultations ProcessIn its second element, Art. 6.2 of the DSU requires that the panel request must “indicate whether consultations were held”. In this connection, the Appellate Body rules in Mexico-HFCS（DS132）（21.5）that:9“[…] The phrase ‘whether consultations were held’ shows that this requirement in Article 6.2 may be satisfied by an express statement that no consultations were held. In other words, Article 6.2 also envisages the possibility that a panel may be validly established without being preceded by consultations. Thus, the DSU explicitly recognizes circumstances where the absence of consultations would not deprive the panel of its authority to consider the matter referred to it by the DSB. In our view, it follows that where the responding party does not object, explicitly and in a timely manner, to the failure of the complaining party to request or engage in consultations, the responding party may be deemed to have consented to the lack of consultations and, thereby, to have relinquished whatever right to consult it may have had. ”As found by the Appellate Body, “[i]n assessing the importance of the obligation ‘to indicate whether consultations were held’, we observe that the requirement will be satisfied by the inclusion, in the request for establishment of a panel, of a statement as to whether consultations occurred or not. The purpose of the requirement seems to be primarily informational - to inform the DSB and Members as to whether consultations took place. We also recall that the DSU expressly contemplates that, in certain circumstance

s, a panel can deal with and dispose of the matter referred to it even if no consultations took place. Similarly, the authority of the panel cannot be invalidated by the absence, in the request for establishment of the panel, of an indication ‘whether consultations were held’. Indeed, it would be curious if the requirement in Article 6.2 to inform the DSB whether consultations were held was accorded more importance in the dispute settlement process than the requirement actually to hold those consultations.”10As a general rule, “it may be true that a request for establishment will be more specific than a request for consultations. However, we consider that Article 6.2 of the DSU is concerned exclusively with a party's request for establishment. Thus, the consistency of a party's request for establishment with Article 6.2 of the DSU should be judged exclusively in light of the specificity of the request for establishment, and not in light of the specificity of the party's earlier request for consultations”. 11III Identification of “the specific measures at issue”With regard to the third requirements for requests for establishment of a panel, the question to be discussed below is whether the ordinary meaning of the terms of Art. 6.2 of the DSU, i.e., that “the specific measures at issue” be identified in the panel request, can be met if a “measure” or/and the products affected by such a measure is not explicitly described in the request. In this respect, the Panel Report on Japan-Film (DS44) states that:12“[…] To fall within the terms of Article 6.2, it seems clear that a ‘measure’ not explicitly described in a panel request must have a clear relationship to a ‘measure’ that is specifically described therein, so that it can be said to be ‘included’ in the specified ‘measure’. In our view, the requirements of Article 6.2 would be met in the case of a ‘measure’ that is subsidiary or so closely related to a ‘measure’ specifically identified, that the responding party can reasonably be found to have received adequate notice of the scope of the claims asserted by the complaining party. The two key elements -- close relationship and notice -- are inter-related: only if a ‘measure’ is subsidiary or closely related to a specifically identified ‘measure’ will notice be adequate. For example, we consider that where a basic framework law dealing with a narrow subject matter that provides for implementing ‘measures’ is specified in a panel request, implementing ‘measures’ might be considered in appropriate circumstances as effectively included in the panel request as well for purposes of Article 6.2. Such circumstances include the case of a basic framework law that specifies the form and circumscribes the possible content and scope of implementing ‘measures’. As explained below, this interpretation of Article 6.2 is consistent with the context and the object and purpose of Article 6.2, as well as past panel practice.The Bananas III panel

found that the object and purpose of Article 6.2's specificity requirement is to ensure clarity of panels' terms of reference, which pursuant to Article 7 of the DSU are typically determined by the panel request, and to inform the respondent and potential third parties of the scope of the complaining party's claims (i.e., the ‘measures’ challenged and the WTO provisions invoked by the complaining party). So long as Article 6.2 is interpreted to require any ‘measure’ challenged to be specified in the panel request or to be subsidiary or closely related to the specified ‘measures’, the object and purpose of Article 6.2 are satisfied.The proposed interpretation is also consistent with past WTO and GATT panel practice. The Bananas III panel is the only WTO panel to have interpreted the aspect of Article 6.2 at issue in this case, i.e., the definition of the ‘measures’ to be deemed covered by a panel request. In the Bananas III panel request, the ‘basic EC regulation at issue’ had been identified by place and date of publication. In addition, the request referred in general terms to ‘subsequent EC legislation, regulations and administrative measures ... which implement, supplement and amend [the EC banana] regime’. The Bananas III panel found that this reference was sufficient for the specificity requirement of Article 6.2 because the measures that the complainants were contesting were ‘adequately identified’, even though they were not explicitly listed. The Appellate Body agreed that the panel request ‘contains sufficient identification of the measures at issue to fulfil the requirements of Article 6.2’. In our view, ‘measures’ that are subsidiary or closely related to specified ‘measures’ can be found to be ‘adequately identified’ as that concept was applied in the Bananas III case.”To go further, with respect to the identification of the products affected by such measures, the Appellate Body rules in EC-Computer Equipment (DS62/DS67/DS68) that: “We note that Article 6.2 of the DSU does not explicitly require that the products to which the ‘specific measures at issue’ apply be identified. However, with respect to certain WTO obligations, in order to identify ‘the specific measures at issue’, it may also be necessary to identify the products subject to the measures in dispute.” 13 However, as ruled by the Panel in Canada-Civilian Aircraft (DS70), “[w]e do not consider that the mere fact that the scope of a measure is identified in the request for establishment by reference to a broad product or industry grouping necessarily renders that request for establishment inconsistent with Article 6.2 of the DSU”. The Panel bases their finding by stating that:14“[…] We believe that the Appellate Body was of a similar opinion in LAN Equipment, where it shared the US concern that: ‘if the EC arguments on specificity of product definition are accepted, there will inevitably be long, drawn-out procedural battles at the early stage of the panel pro

cess in every proceeding. The parties will contest every product definition, and the defending party in each case will seek to exclude all products that the complaining parties may have identified by grouping, but not spelled out in 'sufficient' detail.’Although the Appellate Body's remarks were made in the context of a reference to a broad product grouping in the complaining party's request for establishment, we can see no basis for not adopting a similar approach when the request for establishment refers to a broad industry sector, such as the ‘civil aircraft industry’. If a complaining party believes that a measure affects a broad industry sector, in our view that complaining party should be entitled to challenge that measure insofar as it affects the totality of the industry concerned, without having to spell out the individual components of that industry, and without running afoul of Article 6.2 of the DSU.”In short, whether the claims are sufficiently precise to “identify the specific measure at issue” under Art. 6.2 of the DSU depends upon whether they satisfy the object and purposes of the requirement of that provision, i.e., whether the respondent and potential third parties are put on sufficient notice as to the parameters of the case it is defending. For this reason, Art. 6.2 should be interpreted to require any “measure” challenged to be specified in the panel request or to be subsidiary or closely related to the specified “measures”. Also, one of the purposes of Art. 6.2 is to ensure clarity of panels' terms of reference. Accordingly, claims based on provisions of GATT or other WTO agreements not mentioned in the panel request should be found to be outside the terms of reference of the panel concerned.”IV Provision of “a brief summary of the legal basis of the complaint”In its fourth requirement, Art. 6.2 demands only a summary - and it may be a brief one - of the legal basis of the complaint; but the summary must, in any event, be one that is “sufficient to present the problem clearly”. It is not enough, in other words, that “the legal basis of the complaint” is summarily identified; the identification must “present the problem clearly”. In EC-Bananas, with respect to whether the panel request provides, as required, a “brief summary of the legal basis of the complaint sufficient to present the problem clearly”, the Appellate Body rules pertinently that, “we agree with the Panel's conclusion that ‘the request is sufficiently specific to comply with the minimum standards established by the terms of Article 6.2 of the DSU’. We accept the Panel's view that it was sufficient for the Complaining Parties to list the provisions of the specific agreements alleged to have been violated without setting out detailed arguments as to which specific aspects of the measures at issue relate to which specific provisions of those agreements.” 15 However, as noted by the Appellate Body, this is not a litmus test for determining

the sufficiency of the statement of the legal basis of the complaint. The Appellate Body in Korea-Dairy Products（DS98）rules in pertinent part:16“As the Panel noted, we said in European Communities - Bananas, that: [we] accept the Panel's view that it was sufficient for the Complaining Parties to list the provisions of the specific agreements alleged to have been violated without setting out detailed arguments as to which specific aspects of the measures at issue relate to which specific provisions of those agreements.It appears to us that the Panel read this portion of our findings in European Communities - Bananas as establishing a litmus test for determining the sufficiency of the statement of the legal basis of the complaint.The Panel, however, failed to note that in European Communities - Bananas, we went on to say that:As a panel request is normally not subjected to detailed scrutiny by the DSB, it is incumbent upon a panel to examine the request for the establishment of the panel very carefully to ensure its compliance with both the letter and the spirit of Article 6.2 of the DSU. It is important that a panel request be sufficiently precise for two reasons: first, it often forms the basis for the terms of reference of the panel pursuant to Article 7 of the DSU; and, second, it informs the defending party and the third parties of the legal basis of the complaint.Thus, we did not purport in European Communities - Bananas to establish the mere listing of the articles of an agreement alleged to have been breached as a standard of precision, observance of which would always constitute sufficient compliance with the requirements of Article 6.2, in each and every case, without regard to the particular circumstances of such cases. If we were in fact attempting to construct such a rule in that case, there would have been little point to our enjoining panels to examine a request for a panel ‘very carefully to ensure its compliance with both the letter and the spirit of Article 6.2 of the DSU’. Close scrutiny of what we in fact said in European Communities - Bananas shows that we, firstly, restated the reasons why precision is necessary in a request for a panel; secondly, we stressed that claims, not detailed arguments, are what need to be set out with sufficient clarity; and thirdly, we agreed with the conclusion of the panel that, in that case, the listing of the articles of the agreements claimed to have been violated satisfied the minimum requirements of Article 6.2 of the DSU. In view of all the circumstances surrounding that case, we concurred with the panel that the European Communities had not been misled as to what claims were in fact being asserted against it as respondent.Identification of the treaty provisions claimed to have been violated by the respondent is always necessary both for purposes of defining the terms of reference of a panel and for informing the respondent and the third parties of the claims made by