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> Appendix 1: Agreements Covered by the DSU
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> Working Procedures for Appellate Review
> Working Procedures for Article 22.6 Arbitrations
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> Other Issues in WTO Dispute Proceedings
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VI. Article 6     back to top

A. Text of Article 6

Article 6: Establishment of Panels

1.     If the complaining party so requests, a panel shall be established at the latest at the DSB meeting following that at which the request first appears as an item on the DSB’s agenda, unless at that meeting the DSB decides by consensus not to establish a panel.(5)

(footnote origina) 5 If the complaining party so requests, a meeting of the DSB shall be convened for this purpose within 15 days of the request, provided that at least 10 days’ advance notice of the meeting is given.

2.     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.

B. Interpretation and Application of Article 6

1. General

(a) Multiple panels involving the same parties and same claims

154.     In Australia — Automotive Leather I, pursuant to a request made by the United States, a panel was established on 22 January 1998(193) and 22 June 1998(194) regarding the same matter. In the latter request for the establishment of a panel, the United States asked that its earlier request be withdrawn. At the DSB meeting held on 22 June 1998, the United States representative said that it had terminated the panel that had been established on 22 January 1998. Australia argued that the United States did not have the right to have a second panel established at the DSB meeting on 22 June 1998 and the DSB did not have the right under the DSU to establish such a panel against the wishes of Australia. Australia argued that the Panel was not properly established, and that therefore the Panel should terminate its work immediately. The Panel examined Australia’s arguments and stated:

“The establishment of a panel is the task of the DSB. It is by no means clear that, once the DSB has established a panel, as it did in this case at its meeting of 22 June 1998, the panel so established has the authority to rule on the propriety of its own establishment. Nothing in our terms of reference expressly authorizes us to consider whether the DSB acted correctly in establishing this Panel.

…

In our view, Australia is asking this Panel to read into the DSU an implicit prohibition on multiple panels between the same parties regarding the same matter that does not exist in the text of the DSU. Australia’s arguments in support of its position arise out of policy considerations and address the object and purpose of the DSU. In light of the fundamental importance in the WTO dispute settlement system of the right to have a panel established to examine a matter, in the absence of a consensus not to do so, we do not consider it appropriate in this dispute to read such an implicit prohibition into the DSU. This is particularly true given that the policy concerns expressed by Australia are purely theoretical and do not arise in this case. Specifically, this is not a case where a complainant is actively pursuing two proceedings with respect to the same matter — the United States has made it very clear that it is not pursuing the first dispute. To the contrary, the United States has sought to terminate the first dispute, and it is Australia which has sought to prevent that result. Nor is this a case where a complainant has sought a second panel before a first panel has completed its work with respect to the same matter because it was dissatisfied with developments in the first panel. Although the first panel in this case was established, it was never composed and thus never began its work.

For the foregoing reasons, we deny Australia’s request to terminate this Panel, and will continue our work in accordance with our terms of reference.”(195)

2. Article 6.2

(a) General

(i) Task of panels to examine requests for establishment

155.     In EC — Bananas III, the Appellate Body “recognize[d] that 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”.(196) Thus, the Appellate Body concluded 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…”.(197)

(ii) Request must be sufficiently precise

156.     In EC — Bananas III, the Appellate Body held that there were two reasons why a panel request must be “sufficiently precise”:

“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.”(198)

157.     In US — Carbon Steel, the Appellate Body reiterated that the underlying requirements of Article 6.2 are first, to define the scope of a dispute, and second, to “serve the due process objective of notifying the parties and third parties of the nature of a complainant’s case”.(199)

“As we have said previously, compliance with the requirements of Article 6.2 must be demonstrated on the face of the request for the establishment of a panel. Defects in the request for the establishment of a panel cannot be ‘cured’ in the subsequent submissions of the parties during the panel proceedings.(200) Nevertheless, in considering the sufficiency of a panel request, submissions and statements made during the course of the panel proceedings, in particular the first written submission of the complaining party, may be consulted in order to confirm the meaning of the words used in the panel request and as part of the assessment of whether the ability of the respondent to defend itself was prejudiced.(201) Moreover, compliance with the requirements of Article 6.2 must be determined on the merits of each case, having considered the panel request as a whole, and in the light of attendant circumstances.(202)”(203)

(b) Right to bring claims

(i) Legal interest

158.     In EC — Bananas III, the European Communities argued that a complaining party must normally have a legal right or interest in the claim it is pursuing. The Appellate Body stated that no provision of the DSU contains any such explicit requirement. The Appellate Body also held that “a Member has broad discretion in deciding whether to bring a case against another Member under the DSU”. While the Appellate Body stressed that Members are “self-regulating” in their decisions whether to bring a case, it also added that “[t]he United States is a producer of bananas, and a potential export interest by the United States cannot be excluded. The internal market of the United States for bananas could be affected by the European Communities banana regime, in particular, by the effects of that regime on world supplies and world prices of bananas”:

“We agree with the Panel that ‘neither Article 3.3 nor 3.7 of the DSU nor any other provision of the DSU contain any explicit requirement that a Member must have a “legal interest” as a prerequisite for requesting a panel’. We do not accept that the need for a ‘legal interest’ is implied in the DSU or in any other provision of the WTO Agreement. It is true that under Article 4.11 of the DSU, a Member wishing to join in multiple consultations must have ‘a substantial trade interest’, and that under Article 10.2 of the DSU, a third party must have ‘a substantial interest’ in the matter before a panel. But neither of these provisions in the DSU, nor anything else in the WTO Agreement, provides a basis for asserting that parties to the dispute have to meet any similar standard. Yet, we do not believe that this is dispositive of whether, in this case, the United States has ‘standing’ to bring claims under the GATT 1994.”(204)

159.     The Appellate Body went on to state:

“[W]e believe that a Member has broad discretion in deciding whether to bring a case against another Member under the DSU. The language of Article XXIII:1 of the GATT 1994 and of Article 3.7 of the DSU suggests, furthermore, that a Member is expected to be largely self-regulating in deciding whether any such action would be ‘fruitful’.

We are satisfied that the United States was justified in bringing its claims under the GATT 1994 in this case. The United States is a producer of bananas, and a potential export interest by the United States cannot be excluded. The internal market of the United States for bananas could be affected by the EC banana regime, in particular, by the effects of that regime on world supplies and world prices of bananas. We also agree with the Panel’s statement that:

‘… with the increased interdependence of the global economy, … Members have a greater stake in enforcing WTO rules than in the past since any deviation from the negotiated balance of rights and obligations is more likely than ever to affect them, directly or indirectly.’

We note, too, that there is no challenge here to the standing of the United States under the GATS, and that the claims under the GATS and the GATT 1994 relating to the EC import licensing regime are inextricably interwoven in this case.

Taken together, these reasons are sufficient justification for the United States to have brought its claims against the EC banana import regime under the GATT 1994. This does not mean, though, that one or more of the factors we have noted in this case would necessarily be dispositive in another case. We therefore uphold the Panel’s conclusion that the United States had standing to bring claims under the GATT 1994.”(205)

160.     In Korea — Dairy, the Panel considered Korea’s argument that there is a requirement for an economic interest to bring a matter to the Panel and that the European Communities had failed to meet that requirement:

“In EC — Bananas, the Appellate Body stated that the need for a ‘legal interest’ could not be implied in the DSU or in any other provisions of the WTO Agreement and that Members were expected to be largely self-regulating in deciding whether any DSU procedure would be ‘fruitful’. We cannot read in the DSU any requirement for an ‘economic interest’. We also note the provisions of Article 3.8 of the DSU, pursuant to which nullification and impairment is presumed once violation is established.”(206)

(ii) Right to bring claims under Article 17.4 of the Anti-Dumping Agreement

161.     See the excerpts from the reports of the panels and Appellate Body referenced in Section XVII.B.5 of the Chapter on the Anti-Dumping Agreement.

3. Basic requirements under Article 6.2

(a) General

162.     In Korea — Dairy, the Appellate Body analysed the requirements imposed by Article 6.2:

“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. In its fourth requirement, Article 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’.”(207)

163.     In US — Carbon Steel, the Appellate Body summarized its previous jurisprudence on the requirements of Article 6.2. The Appellate Body noted the importance of the two distinct requirements, namely, identification of the specific measures at issue, and the provision of a brief summary of the claims. Referring to Guatemala — Cement I, it concluded that both requirements “together, they comprise the ‘matter referred to the DSB’, which forms the basis for a panel’s terms of reference under Article 7.1 of the DSU”:

“There are, therefore, two distinct requirements, namely identification of the specific measures at issue, and the provision of a brief summary of the legal basis of the complaint (or the claims). Together, they comprise the ‘matter referred to the DSB’, which forms the basis for a panel’s terms of reference under Article 7.1 of the DSU.(208)

The requirements of precision in the request for the establishment of a panel flow from the two essential purposes of the terms of reference. First, the terms of reference define the scope of the dispute. Secondly, the terms of reference, and the request for the establishment of a panel on which they are based, serve the due process objective of notifying the parties and third parties of the nature of a complainant’s case.(209) When faced with an issue relating to the scope of its terms of reference, a panel must scrutinize carefully the request for establishment of a panel ‘to ensure its compliance with both the letter and the spirit of Article 6.2 of the DSU.’(210)

As we have said previously, compliance with the requirements of Article 6.2 must be demonstrated on the face of the request for the establishment of a panel. Defects in the request for the establishment of a panel cannot be ‘cured’ in the subsequent submissions of the parties during the panel proceedings.(211) Nevertheless, in considering the sufficiency of a panel request, submissions and statements made during the course of the panel proceedings, in particular the first written submission of the complaining party, may be consulted in order to confirm the meaning of the words used in the panel request and as part of the assessment of whether the ability of the respondent to defend itself was prejudiced.(212) Moreover, compliance with the requirements of Article 6.2 must be determined on the merits of each case, having considered the panel request as a whole, and in the light of attendant circumstances.(213)”(214)

164.     As regards the requirement that the request be sufficiently precise, see paragraphs 156–157 above.

(b) “indicate whether consultations were held” and “matter referred to the DSB”

165.     In Brazil — Desiccated Coconut, the Panel examined the request of the Philippines to make a finding that Brazil’s refusal to hold consultations was inconsistent with Articles 4.1, 4.2 and 4.3 of the DSU. The Panel recalled that Article 6.2 of the DSU requires that a request for the establishment of a panel “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”. The Panel stated:

“The Philippines’ request for establishment of a panel clearly fulfils the first requirement of Article 6.2, by indicating the Philippines’ view that consultations were not held because Brazil refused to consult….However, there is nothing in the request for establishment of a panel that would lead to the conclusion that the requested panel would be asked to make any finding regarding Brazil’s failure to consult….We therefore conclude that the Philippines’ claim regarding Brazil’s failure to consult is not within our terms of reference.”(215)

166.     In Brazil — Aircraft, the Panel considered that a preliminary objection could properly be sustained if a party established that the required consultations had not been held with respect to a dispute:

“A party is not entitled to request establishment of a panel unless consultations have been held. Specifically, Article 4.7 of the DSU provides that a complaining party may request establishment of a panel only if ‘consultations fail to settle a dispute’. Similarly, Article 4.4 of the SCM Agreement allows a ‘matter’ to be referred to the DSB for establishment of a panel only if consultations have failed to lead to a mutually agreed solution. Given that Article 6.1 of the DSU and Article 4.4 of the SCM Agreement essentially require 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.(216) Accordingly, we consider that a panel may consider whether consultations have been held with respect to a ‘dispute’, and that a preliminary objection may properly be sustained if a party can establish that the required consultations had not been held with respect to a dispute. We do not believe, however, that either Article 4.7 of the DSU or Article 4.4 of the SCM Agreement requires a precise identity between the matter with respect to which consultations were held and that with respect to which establishment of a panel was requested.”(217)

167.     Regarding the term “matter referred to the DSB”, see Section VII.B.2(a) below

(c) “identify the specific measures at issue”

(i) “specific measures at issue”

168.     In US — Corrosion-Resistant Steel Sunset Review, the Appellate Body referred to Article 3.3 of the DSU when defining what type of measures can be the subject of dispute settlement proceedings. The Appellate Body emphasized the nexus existing between the “measure” and a “Member” taking such measure:

“Article 3.3 of the DSU refers to ‘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’. (emphasis added) This phrase identifies the relevant nexus, for purposes of dispute settlement proceedings, between the ‘measure’ and a ‘Member’.”(218)

General

169.     In US — Corrosion-Resistant Steel Sunset Review, the Appellate Body further clarified that “In principle, any act or omission attributable to a WTO Member can be a measure of that Member for purposes of dispute settlement proceedings.”(219)

170.     The Appellate Body on US — Corrosion-Resistant Steel Sunset Review also indicated that those “acts or omissions that are so attributable are, in the usual case, the acts or omissions of the organs of the state, including those of the executive branch”.(220),(221)

Challenging legislation allegedly taken by a customs union

171.     The Panel on Turkey — Textiles considered, inter alia, whether measures involving quantitative restrictions on imports from India should be properly regarded as measures imposed by Turkey or rather as measures taken collectively by the customs union between the European Communities and Turkey. In its analysis, the Panel made the following statement:

“We also note that the measures are applied by Turkey and that they are mandatory, i.e. they leave no discretion to Turkish authorities but to enforce the measure. It is customary practice of GATT/WTO dispute settlement procedures to address applied measures. In addition, previous adopted GATT panels have always considered that mandatory legislation of a Member, even if not yet in force or not applied,(222) can be challenged by another WTO Member.”(223)

172.     In US — Export Restraints, Canada had argued that each of the elements that it cited in its request for establishment of a panel (a US Statute, a Statement of Administrative Action, a Preamble, and a US practice) individually constituted a measure that was susceptible to dispute settlement, and that, “taken together” as well, they constituted a measure.(224) The Panel enunciated the independent operational status test:

“In considering whether any or all of the measures individually can give rise to a violation of WTO obligations, the central question that must be answered is whether each measure operates in some concrete way in its own right. By this we mean that each measure would have to constitute an instrument with a functional life of its own, i. e., that it would have to do something concrete, independently of any other instruments, for it to be able to give rise independently to a violation of WTO obligations. To determine whether each measure is operational on its own, we consider the status of each under US law.”(225)

(ii) Legal instruments as measures

173.     In Japan — Agricultural Products II, the Appellate Body interpreted the term “measure” as within the meaning of Annex B of the SPS Agreement. According to its terms, Annex B applies to all “measures” and lists “laws, decrees and ordinances” as three examples of such measures. The Appellate Body held that this term also included “other instruments which are applicable generally and are similar in character to the instruments explicitly referred to”. In the case before it, the Appellate Body found that the Japanese “varietal testing requirement” was a “measure” within the meaning of Annex B of the SPS Agreement. See Chapter on SPS Agreement, paragraph 176.

174.     In US — Corrosion-Resistant Steel Sunset Review, the Appellate Body clarified in a footnote that the scope of “laws, regulations and administrative procedures” cannot be determined by reference to how they are labelled in the Member’s domestic law:

“We observe that the scope of each element in the phrase “laws, regulations and administrative procedures” must be determined for purposes of WTO law and not simply by reference to the label given to various instruments under the domestic law of each WTO Member. This determination must be based on the content and substance of the instrument, and not merely on its form or nomenclature. Otherwise, the obligations set forth in Article 18.4 [of the Anti-Dumping Agreement] would vary from Member to Member depending on each Member’s domestic law and practice.”(226)

General

175.     In US — Oil Country Tubular Goods Sunset Reviews, the Appellate Body warned about the seriousness of “as such” challenges and urged complainants to “be especially diligent in setting out ‘as such’ claims in their panel requests as clearly as possible”:

“In our view, ‘as such’ challenges against a Member’s measures in WTO dispute settlement proceedings are serious challenges. By definition, an ‘as such’ claim challenges laws, regulations, or other instruments of a Member that have general and prospective application, asserting that a Member’s conduct — not only in a particular instance that has occurred, but in future situations as well — will necessarily be inconsistent with that Member’s WTO obligations. In essence, complaining parties bringing ‘as such’ challenges seek to prevent Members ex ante from engaging in certain conduct. The implications of such challenges are obviously more far-reaching than ‘as applied’ claims.

We also expect that measures subject to ‘as such’ challenges would normally have undergone, under municipal law, thorough scrutiny through various deliberative processes to ensure consistency with the Member’s international obligations, including those found in the covered agreements, and that the enactment of such a measure would implicitly reflect the conclusion of that Member that the measure is not inconsistent with those obligations. The presumption that WTO Members act in good faith in the implementation of their WTO commitments is particularly apt in the context of measures challenged ‘as such’. We would therefore urge complaining parties to be especially diligent in setting out ‘as such’ claims in their panel requests as clearly as possible. In particular, we would expect that ‘as such’ claims state unambiguously the specific measures of municipal law challenged by the complaining party and the legal basis for the allegation that those measures are not consistent with particular provisions of the covered agreements. Through such straightforward presentations of ‘as such’ claims, panel requests should leave respondent parties in little doubt that, notwithstanding their own considered views on the WTO-consistency of their measures, another Member intends to challenge those measures, as such, in WTO dispute settlement proceedings.”(227)

Distinction to be drawn between laws “as such” and the specific application of laws when assessing measures

176.     The Appellate Body observed in US — 1916 Act the existence of a long line of GATT cases that “firmly established” the principle that complaining parties were permitted to challenge measures “as such”: and noted how, since the entry into force of the WTO, numerous panels had dealt with claims “as such”:

“Prior to the entry into force of the WTO Agreement, it was firmly established that Article XXIII:1(a) of the GATT 1947 allowed a Contracting Party to challenge legislation as such, independently from the application of that legislation in specific instances. While the text of Article XXIII does not expressly address the matter, panels consistently considered that, under Article XXIII, they had the jurisdiction to deal with claims against legislation as such.(228) In examining such claims, panels developed the concept that mandatory and discretionary legislation should be distinguished from each other, reasoning that only legislation that mandates a violation of GATT obligations can be found as such to be inconsistent with those obligations. We consider the application of this distinction to the present cases in section IV(B) below.

Thus, that a Contracting Party could challenge legislation as such before a panel was well-settled under the GATT 1947. We consider that the case law articulating and applying this practice forms part of the GATT acquis which, under Article XVI:1 of the WTO Agreement, provides guidance to the WTO and, therefore, to panels and the Appellate Body. Furthermore, in Article 3.1 of the DSU, Members affirm ‘their adherence to the principles for the management of disputes heretofore applied under Articles XXII and XXIII of GATT 1947’. We note that, since the entry into force of the WTO Agreement, a number of panels have dealt with dispute settlement claims brought against a Member on the basis of its legislation as such, independently from the application of that legislation in specific instances.(229)”(230)

177.     The Appellate Body on US — Carbon Steel indicated Members may challenge the consistency with the covered agreements of another Member’s laws, as such, as distinguished from any specific application of those laws:

“We note, first, that, in dispute settlement proceedings, Members may challenge the consistency with the covered agreements of another Member’s laws, as such, as distinguished from any specific application of those laws…

Thus, a responding Member’s law will be treated as WTO-consistent until proven otherwise. The party asserting that another party’s municipal law, as such, is inconsistent with relevant treaty obligations bears the burden of introducing evidence as to the scope and meaning of such law to substantiate that assertion.(231) Such evidence will typically be produced in the form of the text of the relevant legislation or legal instruments, which may be supported, as appropriate, by evidence of the consistent application of such laws, the pronouncements of domestic courts on the meaning of such laws, the opinions of legal experts and the writings of recognized scholars. The nature and extent of the evidence required to satisfy the burden of proof will vary from case to case.”(232)

178.     In US — Corrosion-Resistant Steel Sunset Review, the Appellate Body explained how the analysis should be done when a measure is challenged “as such”:

“When a measure is challenged ‘as such’, the starting point for an analysis must be the measure on its face. If the meaning and content of the measure are clear on its face, then the consistency of the measure as such can be assessed on that basis alone. If, however, the meaning or content of the measure is not evident on its face, further examination is required.”(233)

Instruments with normative value

179.     In US — Corrosion-Resistant Steel Sunset Review, the Appellate Body considered that instruments containing rules or norms could constitute a “measure”, irrespective of how or whether those rules or norms are applied in a particular instance:

“[I]n GATT and WTO dispute settlement practice, panels have frequently examined measures consisting not only of particular acts applied only to a specific situation, but also of acts setting forth rules or norms that are intended to have general and prospective application.(234) In other words, instruments of a Member containing rules or norms could constitute a “measure”, irrespective of how or whether those rules or norms are applied in a particular instance. This is so because the disciplines of the GATT and the WTO, as well as the dispute settlement system, are intended to protect not only existing trade but also the security and predictability needed to conduct future trade. This objective would be frustrated if instruments setting out rules or norms inconsistent with a Member’s obligations could not be brought before a panel once they have been adopted and irrespective of any particular instance of application of such rules or norms.(235) It would also lead to a multiplicity of litigation if instruments embodying rules or norms could not be challenged as such, but only in the instances of their application. Thus, allowing claims against measures, as such, serves the purpose of preventing future disputes by allowing the root of WTO-inconsistent behaviour to be eliminated.”(236)

180.     In US — Corrosion-Resistant Steel Sunset Review, the Appellate Body stressed the importance of an examination of the normative nature of the legal instrument at issue, the Sunset Bulletin Policy, when determining whether it is a measure subject to dispute settlement. The Appellate Body in this case did not apply the mandatory/discretionary rule (see paragraphs 190–193 below):

“The Panel adopted a similar narrow approach in finding that the Sunset Policy Bulletin is not an ‘administrative procedure’ within the meaning of Article 18.4 of the Anti-Dumping Agreement. Having adopted the view that an administrative procedure is ‘a pre-established rule for the conduct of an anti-dumping investigation’,(237) the Panel assumed that a ‘rule’ means a ‘mandatory rule’ and used its previous finding that the Sunset Policy Bulletin is not a mandatory legal instrument to come to the conclusion that it therefore cannot be an administrative procedure. Again, the Panel did not consider the normative nature of the provisions of the Sunset Policy Bulletin, nor compare the type of norms that USDOC is required to publish in formal regulations with the type of norms it may set out in policy statements.(238) These inquiries would have assisted the Panel in determining whether the Sunset Policy Bulletin is, in fact, an ‘administrative procedure’ within the meaning of Article 18.4 of the Anti-Dumping Agreement.”(239)

181.     In US — Oil Country Tubular Goods Sunset Reviews, another anti-dumping case dealing with the United States Sunset Policy Bulletin (see US — Corrosion Resistant Steel Sunset Review, paragraphs 174 and 178–180 above), the Appellate Body stressed that whether an instrument has legal value under domestic law is immaterial when establishing whether it can be a measure subject to dispute settlement. The Appellate Body, referring to its findings in US — Corrosion Resistant Steel Sunset Review, explained that what matters is that the instrument has normative value, meaning: providing administrative guidance, creating expectations among the public and among private actors, and intended to have general and prospective application:

“We note the argument of the United States that the SPB is not a legal instrument under United States law. This argument, however, is not relevant to the question before us. The issue is not whether the SPB is a legal instrument within the domestic legal system of the United States, but rather, whether the SPB is a measure that may be challenged within the WTO system. The United States has explained that, within the domestic legal system of the United States, the SPB does not bind the USDOC and that the USDOC ‘is entirely free to depart from [the] SPB at any time’.(240) However, it is not for us to opine on matters of United States domestic law. Our mandate is confined to clarifying the provisions of the WTO Agreement and to determining whether the challenged measures are consistent with those provisions. As noted by the United States, in US — Corrosion-Resistant Steel Sunset Review, the Appellate Body indicated that ‘acts setting forth rules or norms that are intended to have general and prospective application’ are measures subject to WTO dispute settlement.(241) We disagree with the United States’ application of these criteria to the SPB. In our view, the SPB has normative value, as it provides administrative guidance and creates expectations among the public and among private actors.(242) It is intended to have general application, as it is to apply to all the sunset reviews conducted in the United States. It is also intended to have prospective application, as it is intended to apply to sunset reviews taking place after its issuance. Thus, we confirm — once again — that the SPB, as such, is subject to WTO dispute settlement.”(243)

Discretionary versus mandatory legislation rule

Reference to previous GATT practice

182.     In US — 1916 Act (EC), the United States argued, inter alia, that, according to established GATT practice, the measure at issue, the so-called 1916 Act, could not be challenged “as such”, i.e. independently of its application in a specific case, because it was “discretionary legislation”. Specifically, the United States argued that the 1916 Act was non-mandatory because “(i) with respect to both civil and criminal proceedings, United States’ courts had in the past interpreted and/or could in the future interpret the 1916 Act in a manner consistent with the WTO obligations of the United States and (ii) the United States Department of Justice had discretion whether to initiate criminal proceedings under the 1916 Act”.(244) The Appellate Body recalled GATT practice in respect of this subject-matter:

“Prior to the entry into force of the WTO Agreement, it was firmly established that Article XXIII:1(a) of the GATT 1947 allowed a Contracting Party to challenge legislation as such, independently from the application of that legislation in specific instances. While the text of Article XXIII does not expressly address the matter, panels consistently considered that, under Article XXIII, they had the jurisdiction to deal with claims against legislation as such.(245) In examining such claims, panels developed the concept that mandatory and discretionary legislation should be distinguished from each other, reasoning that only legislation that mandates a violation of GATT obligations can be found as such to be inconsistent with those obligations.

Thus, that a Contracting Party could challenge legislation as such before a panel was well-settled under the GATT 1947. We consider that the case law articulating and applying this practice forms part of the GATT acquis which, under Article XVI:1 of the WTO Agreement, provides guidance to the WTO and, therefore, to panels and the Appellate Body. Furthermore, in Article 3.1 of the DSU, Members affirm ‘their adherence to the principles for the management of disputes heretofore applied under Articles XXII and XXIII of GATT 1947’. We note that, since the entry into force of the WTO Agreement, a number of panels have dealt with dispute settlement claims brought against a Member on the basis of its legislation as such, independently from the application of that legislation in specific instances.(246)”(247)

Relevant type of discretion for distinguishing between discretionary and mandatory legislation

183.     Referring to the GATT Panel Report on US — Tobacco, the Appellate Body in US — 1916 Act emphasized that the type of discretion relevant for the distinction between discretionary and mandatory legislation was discretion vested with the executive branch. Also, the Appellate Body agreed with the Panel on US — 1916 Act in rejecting the argument that the United States Department of Justice enjoyed discretion within the meaning of established GATT practice:

“The practice of GATT panels was summed up in United States — Tobacco(248) as follows:

‘… panels had consistently ruled that legislation which mandated action inconsistent with the General Agreement could be challenged as such, whereas legislation which merely gave the discretion to the executive authority of a contracting party to act inconsistently with the General Agreement could not be challenged as such; only the actual application of such legislation inconsistent with the General Agreement could be subject to challenge.’(249) (emphasis added)

Thus, the relevant discretion, for purposes of distinguishing between mandatory and discretionary legislation, is a discretion vested in the executive branch of government.

The 1916 Act provides for two types of actions to be brought in a United States federal court: a civil action initiated by private parties, and a criminal action initiated by the United States Department of Justice. Turning first to the civil action, we note that there is no relevant discretion accorded to the executive branch of the United States’ government with respect to such action. These civil actions are brought by private parties. A judge faced with such proceedings must simply apply the 1916 Act. In consequence, so far as the civil actions that may be brought under the 1916 Act are concerned, the 1916 Act is clearly mandatory legislation as that term has been understood for purposes of the distinction between mandatory and discretionary legislation.

The Panel, however, examined that part of the 1916 Act that provides for criminal prosecutions, and found that the discretion enjoyed by the United States Department of Justice to initiate or not to initiate criminal proceedings does not mean that the 1916 Act is a discretionary law. In light of the case law developing and applying the distinction between mandatory and discretionary legislation, (250) we believe that the discretion enjoyed by the United States Department of Justice is not discretion of such a nature or of such breadth as to transform the 1916 Act into discretionary legislation, as this term has been understood for purposes of distinguishing between mandatory and discretionary legislation. We, therefore, agree with the Panel’s finding on this point.”(251)

Assessment of whether or not legislation “mandates” action

184.     In US — DRAMS, Korea challenged certain certification requirements under the United States’ antidumping law. The provision challenged by Korea required exporters to certify, upon removal of antidumping duties, that they agreed to the reinstatement of the anti-dumping duties on the products of their company if, after revocation of the original anti-dumping duties, the United States’ authorities found dumping. The Panel rejected the Korean arguments, noting that the certification requirement was not a mandatory requirement for revocation under United States’ anti-dumping law in general. The Panel held that other provisions of United States anti-dumping law and regulations of the United States authorities made revocation of an anti-dumping order possible contingent upon a different set of requirements, not including the certification requirement:

“We note section 751(b) of the 1930 Tariff Act (as amended) and section 353.25(d) of the DOC’s regulations, whereby an anti-dumping order may be revoked on the basis of ‘changed circumstances’. We note that neither of these provisions imposes a certification requirement. In other words, an anti-dumping order may be revoked under these provisions absent fulfilment of the section 353.25(a)(2)(iii) certification requirement. We also note that Korea has not challenged the consistency of these provisions with the WTO Agreement. Thus, because of the existence of legislative avenues for Article 11.2-type reviews that do not impose a certification requirement, and which have not been found inconsistent with the WTO Agreement, we are precluded from finding that the section 353.25(a)(2)(iii) certification requirement in and of itself amounts to a mandatory requirement inconsistent with Article 11.2 of the AD Agreement.”(252)

185.     In Canada — Aircraft, Brazil argued that a programme of the so-called Export Development Corporation (EDC) mandated the grant of subsidies and challenged the programme as such, rather than merely specific applications of this programme. However, the Panel noted that Brazil had conceded that the EDC programme had been interpreted as requiring the programme to give Canadian exporters an edge” and rejected Brazil’s claim:

“[W]e find nothing in Brazil’s various submissions in support of this argument. The only factual evidence proffered by Brazil in support of its argument is the quote from EDC’s mandate that EDC was established ‘for the purposes of supporting and developing, directly or indirectly, Canada’s export trade and Canadian capacity to engage in that trade and to respond to international business opportunities.’ This statement by itself clearly cannot be viewed as a requirement to provide prohibited export subsidies. Nor has Brazil demonstrated otherwise that such support and development necessarily involves subsidization. Although such support and development might conceivably take the form of subsidization, there is nothing to suggest that this will necessarily be the case. In our view, a mandate to support and develop Canada’s export trade does not amount to a mandate to grant subsidies, since such support and development could be provided in a broad variety of ways.

We consider that Brazil effectively concedes that the EDC mandate does not require the grant of export subsidies when it states that the EDC mandate has been interpreted to require the EDC to fund projects that give ‘Canadian exporters an edge when they bid on overseas projects.’ For Brazil, this ‘edge’ necessarily refers to subsidization. Even if the grant of an ‘edge’ did imply the grant of subsidies, and even if in practice the EDC programme were applied so as to grant subsidies, this would not mean that, in law, the EDC mandate requires the grant of subsidies. Rather, in such circumstances the grant of subsidies would be the result of the exercise of the administering authority’s discretion in interpreting its mandate. We again recall that the panel in US — Tobacco recollected ‘that panels had consistently ruled that legislation which mandated action inconsistent with the General Agreement could be challenged as such, whereas legislation which merely gave the discretion to the executive authority … to act inconsistently with the General Agreement could not be challenged as such…’”(253)

Should the mandatory or discretionary question be determined before a substantive finding?

186.     In US — Export Restraints, the question arose whether the Panel should first determine whether the measure at issue was mandatory or discretionary, and make a substantive finding only if it found the measure to be mandatory. The Panel declined to consider the mandatory/discretionary distinction as a threshold question. In the Panel’s view, identifying and addressing the relevant WTO obligations first would facilitate its assessment of the manner in which the legislation at issue addressed those obligations, and whether any violation arose therefrom. In its analysis the Panel referred to the test developed by the GATT Panel on US — Tobacco:

“We are not aware of any GATT/WTO precedent that would require a panel to consider whether legislation is mandatory or discretionary before examining the substance of the provisions at issue. To the contrary, we note that a number of panels, in disputes concerning the consistency of legislation, have not considered the mandatory/discretionary question in the abstract and as a necessarily threshold issue. Rather, the panels in those cases first resolved any controversy as to the requirements of the GATT/WTO obligations at issue, and only then considered in light of those findings whether the defending party had demonstrated adequately that it had sufficient discretion to conform with those rules. That is, the mandatory/discretionary distinction was applied in a given substantive context.(254)

We consider such an approach to be appropriate in this case. In particular, identifying and addressing the relevant WTO obligations first will facilitate our assessment of the manner in which the legislation addresses those obligations, and whether any violation is involved. That is, it is after we have considered both the substance of the claims in respect of WTO provisions and the relevant provisions of the legislation at issue that we will be in the best position to determine whether the legislation requires a treatment of export restraints that violates those provisions.

Finally, we note that, whether or not a panel sees the mandatory/ discretionary question as a necessarily threshold issue or, as suggested by Canada, as an issue that may arise as part of a panel’s examination of the legal claims, it remains true — at least under the classical test which we shall be employing — that legislation as such cannot be found to be inconsistent with a Member’s WTO obligations unless it is mandatory in nature. Thus, in any event, the order in which the two issues — the question of the type of legislation and the substance of the case — are addressed would not alter any eventual finding of consistency or lack thereof.”(255)

187.     In US — Section 129(c)(1) URAA, the Panel did not follow the approach of the Panel on US — Export Restraints(256) and preferred to analyse first whether the United States’ legislation at issue was mandatory, before analysing whether the behaviour mandated would be inconsistent with the relevant WTO provisions.(257)

The relevance of the distinction between mandatory and discretionary legislation in the context of an affirmative defence

188.     In Brazil — Aircraft (Article 21.5 — Canada II), the Panel was confronted with the preliminary issue of whether the distinction between mandatory and discretionary legislation was applicable in the context of an affirmative defence. In this particular case, the question presented was whether Brazil was required to apply the financing programme in question, PROEX III, which conferred benefits to buyers of Brazilian regional aircraft, in a manner that gave rise to a prohibited export subsidy.(258) Brazil presented an affirmative defence. The Panel actually considered that the distinction between mandatory and discretionary legislation was applicable in this context, even though, in this instance, the Panel was not faced with the issue of conformity with a WTO obligation, but rather of conformity with the conditions attached to a WTO exception. In its view, this fact alone did not render the GATT/WTO distinction between mandatory and discretionary legislation inapplicable or inappropriate. The Panel recalled:

“The rationale underpinning the traditional GATT/WTO distinction between mandatory and discretionary legislation is that, when the executive branch of a Member is not required to act inconsistently with requirements of WTO law, it should be entitled to a presumption of good faith compliance with those requirements. We consider that that rationale is no less valid in the context of WTO exceptions than it is in the context of WTO obligations. Indeed, were we to take the opposite view, we would, in effect, create a situation where Members would be entitled to a presumption of good faith compliance with their WTO obligations, but not with the conditions attached to WTO exceptions. Such a situation would, in our view, be unwarranted and contrary to logic.

(…) the Member invoking an exception as an affirmative defence has the burden of establishing it. In our view, the allocation of the burden of proof is a procedural issue(259) which is distinct from the substantive standard to be applied in assessing the conformity of legislation with a particular provision of the WTO Agreement. Simply put, the allocation of the burden of proof determines who must show something. On the other hand, the GATT/WTO distinction between mandatory and discretionary legislation determines what somebody must show. We believe the standard to be applied in judging the conformity of a piece of legislation with WTO requirements should be the same irrespective of who has the burden of adducing argument and evidence sufficient to establish a prima facie case of conformity.”(260)

Rejection of the mandatory versus discretionary distinction

189.     The Panel on US — Section 301 Trade Act did not accept the distinction between discretionary and mandatory legislation in the context of a claim made pursuant to Article 23 of the DSU. In this case, the United States was defending the measure at issue with reference to the traditional doctrine that only mandatory laws can violate GATT law “as such”. In contrast, the European Communities argued that certain discretionary legislation could also violate GATT law “as such”. The Panel did not accept the United States’ argument:

“[W]e believe that resolving the dispute as to which type of legislation, in abstract, is capable of violating WTO obligations is not germane to the resolution of the type of claims before us. In our view the appropriate method in cases such as this is to examine with care the nature of the WTO obligation at issue and to evaluate the Measure in question in the light of such examination. The question is then whether, on the correct interpretation of the specific WTO obligation at issue, only mandatory or also discretionary national laws are prohibited. We do not accept the legal logic that there has to be one fast and hard rule covering all domestic legislation. After all, is it so implausible that the framers of the WTO Agreement, in their wisdom, would have crafted some obligations which would render illegal even discretionary legislation and crafted other obligations prohibiting only mandatory legislation?(261) Whether or not Section 304 violates Article 23 depends, thus, first and foremost on the precise obligations contained in Article 23.

We can express this view in a different way:

(a)     Even if we were to operate on the legal assumption that, as argued by the US, only legislation mandating a WTO inconsistency or precluding WTO consistency, can violate WTO provisions; and

(b)     confirm our earlier factual finding in paragraph 7.31(c) that the USTR enjoys full discretion to decide on the content of the determination,

we would still disagree with the US that the combination of (a) and (b) necessarily renders Section 304 compatible with Article 23, since Article 23 may prohibit legislation with certain discretionary elements and therefore the very fact of having in the legislation such discretion could, in effect, preclude WTO consistency. In other words, rejecting, as we have, the presumption implicit in the US argument that no WTO provision ever prohibits discretionary legislation does not imply a reversal of the classical test in the pre-existing jurisprudence that only legislation mandating a WTO inconsistency or precluding WTO consistency, could, as such, violate WTO provisions.(262) Indeed that is the very test we shall apply in our analysis. It simply does not follow from this test, as sometimes has been argued, that legislation with discretion could never violate the WTO. If, for example, it is found that the specific obligations in Article 23 prohibit a certain type of legislative discretion, the existence of such discretion in the statutory language of Section 304 would presumptively preclude WTO consistency.”(263)

190.     In US — 1916 Act the Appellate Body, further to referring to GATT practice (see paragraphs 182–183 above), declined to answer the question of whether the mandatory/discretionary distinction continued to be relevant under WTO law:

“We note that answering the question of the continuing relevance of the distinction between mandatory and discretionary legislation for claims brought under the Anti-Dumping Agreement would have no impact upon the outcome of these appeals, because the 1916 Act is clearly not discretionary legislation, as that term has been understood for purposes of distinguishing between mandatory and discretionary legislation. Therefore, we do not find it necessary to consider, in these cases, whether Article 18.4, or any other provision of the Anti-Dumping Agreement, has supplanted or modified the distinction between mandatory and discretionary legislation.(264) For the same reasons, the Panel did not, in the Japan Panel Report, need to opine on this issue.(265)”(266)

191.     The Appellate Body on US — Countervailing Measures on Certain EC Products, when examining the question whether Section 1677(5)(F) was inconsistent per se with the WTO obligations of the United States because it mandated a particular WTO-inconsistent method of determining the existence of a “benefit”, clarified in a footnote that: “We are not, by implication, precluding the possibility that a Member could violate its WTO obligations by enacting legislation granting discretion to its authorities to act in violation of its WTO obligation. We make no finding in this respect.”(267)

192.     In US — Corrosion-Resistant Steel Sunset Review, the Appellate Body, in the context of an anti-dumping dispute, for the first time, did not follow the traditional mandatory v. discretionary rule and found that it saw no reason for concluding that, in principle, non-mandatory measures cannot be challenged “as such”. In this case, the measure at issue was the United States Sunset Policy Bulletin which the Panel had found not to be challengeable as such because it was not mandatory for the competent authorities. The Appellate Body obviously disagreed:

“We also believe that the provisions of Article 18.4 of the Anti-Dumping Agreement are relevant to the question of the type of measures that may, as such, be submitted to dispute settlement under that Agreement. Article 18.4 contains an explicit obligation for Members to ‘take all necessary steps, of a general or particular character’ to ensure that their ‘laws, regulations and administrative procedures’ are in conformity with the obligations set forth in the Anti-Dumping Agreement. Taken as a whole, the phrase ‘laws, regulations and administrative procedures’ seems to us to encompass the entire body of generally applicable rules, norms and standards adopted by Members in connection with the conduct of anti-dumping proceedings.(268) If some of these types of measure could not, as such, be subject to dispute settlement under the Anti-Dumping Agreement, it would frustrate the obligation of ‘conformity’ set forth in Article 18.4.

This analysis leads us to conclude that there is no basis, either in the practice of the GATT and the WTO generally or in the provisions of the Anti-Dumping Agreement, for finding that only certain types of measure can, as such, be challenged in dispute settlement proceedings under the Anti-Dumping Agreement. Hence we see no reason for concluding that, in principle, non-mandatory measures cannot be challenged ‘as such’. To the extent that the Panel’s findings in paragraphs 7.145, 7.195, and 7.246 of the Panel Report suggest otherwise, we consider them to be in error.

We observe, too, that allowing measures to be the subject of dispute settlement proceedings, whether or not they are of a mandatory character, is consistent with the comprehensive nature of the right of Members to resort to dispute settlement to ‘preserve [their] rights and obligations … under the covered agreements, and to clarify the existing provisions of those agreements’.(269) As long as a Member respects the principles set forth in Articles 3.7 and 3.10 of the DSU, namely, to exercise their ‘judgement as to whether action under these procedures would be fruitful’ and to engage in dispute settlement in good faith, then that Member is entitled to request a panel to examine measures that the Member considers nullify or impair its benefits. We do not think that panels are obliged, as a preliminary jurisdictional matter, to examine whether the challenged measure is mandatory. This issue is relevant, if at all, only as part of the panel’s assessment of whether the measure is, as such, inconsistent with particular obligations. It is to this issue that we now turn.”(270)

193.     In US — Corrosion-Resistant Steel Sunset Review, the Appellate Body, referring to its previous report in US — 1916 Act where it did follow the mandatory/ discretionary rule, indicated that it had yet to pronounce itself generally upon the continuing relevance of such a distinction and warned against its “mechanistic application”:

“We explained in US — 1916 Act that this analytical tool existed prior to the establishment of the WTO, and that a number of GATT panels had used it as a technique for evaluating claims brought against legislation as such.(271) As the Panel seemed to acknowledge,(272) we have not, as yet, been required to pronounce generally upon the continuing relevance or significance of the mandatory/discretionary distinction.(273) Nor do we consider that this appeal calls for us to undertake a comprehensive examination of this distinction. We do, nevertheless, wish to observe that, as with any such analytical tool, the import of the ‘mandatory/discretionary distinction’ may vary from case to case. For this reason, we also wish to caution against the application of this distinction in a mechanistic fashion.”(274)

194.     The Appellate Body on EC — Computer Equipment opined that not only measures of general application, but also the application of tariffs by customs authorities were “measures” within the meaning of Article 6.2. The Appellate Body agreed that the request for establishment of the Panel did identify the measures properly:

“We consider that ‘measures’ within the meaning of Article 6.2 of the DSU are not only measures of general application, i.e., normative rules, but also can be the application of tariffs by customs authorities. Since the request for the establishment of a panel explicitly refers to the application of tariffs on LAN equipment and PCs with multimedia capability by customs authorities in the European Communities, we agree with the Panel that the measures in dispute were properly identified in accordance with the requirements of Article 6.2 of the DSU.”(275)

195.     As regards the scope of a “measure” under the Anti-Dumping Agreement, see paragraph 1 and Section XVII.B.5(i) of the Chapter on the Anti-Dumping Agreement.

(iii) General practice as a measure

196.     In US — Export Restraints, Canada claimed that the United States “practice” of treating export restraints as meeting the “financial contribution” requirement of Article 1.1(a)(1)(iv) of the SCM Agreement was a measure and could be challenged as such. Canada defined the United States’ “practice” as “an institutional commitment to follow declared interpretations or methodologies that is reflected in cumulative determinations” and claimed that this “practice” has an “operational existence in and of itself”.(276) The Panel considered whether the alleged United States practice required the United States’ authorities to treat export restraints in a certain way and therefore had “independent operational status”. The Panel, which concluded that there was no measure in the form of a United States practice, indicated:

“[W]hile Canada may be right that under US law, ‘practice must normally be followed, and those affected by US [CVD] law … therefore have reason to expect that it will be’,(277) past practice can be departed from as long as a reasoned explanation, which prevents such practice from achieving independent operational status in the sense of doing something or requiring some particular action [is given]. The argument that expectations are created on the part of foreign governments, exporters, consumers, and petitioners as a result of any particular practice that the DOC ‘normally’ follows would not be sufficient to accord such a practice an independent operational existence. Nor do we see how the DOC’s references in its determinations to its practice gives ‘legal effect to that “practice” as determinative of the interpretations and methodologies it applies’.(278) US ‘practice’ therefore does not appear to have independent operational status such that it could independently give rise to a WTO violation as alleged by Canada.”(279)

197.     In US — Steel Plate, the United States, in reference to the Panel Report on US — Export Restraints (see paragraph 196 above), argued that the United States’ “practice” (in this case its practice as regards total facts available)(280) could not be the subject of a claim because it did not have “independent operational status” and therefore it was not a “measure”.(281) India, on the contrary, claimed that a “practice” becomes a “measure” through repeated similar responses to the same situation.(282) The Panel concluded:

“That a particular response to a particular set of circumstances has been repeated, and may be predicted to be repeated in the future, does not, in our view transform it into a measure. Such a conclusion would leave the question of what is a measure vague and subject to dispute itself, which we consider an unacceptable outcome. Moreover, we do not consider that merely by repetition, a Member becomes obligated to follow its past practice… (283)

[T]he challenged practice in this case is, in our view, no different from that considered in the US — Export Restraints case. It can be departed from so long as a reasoned explanation is given. It therefore lacks independent operational status, as it cannot require USDOC to do something, or refrain from doing something.”(284)

(iv) Private action as a “measure”

198.     The Panel on Japan — Film characterized the problem of classifying private action as a governmental “measure” in the following terms:

“As the WTO Agreement is an international agreement, in respect of which only national governments and separate customs territories are directly subject to obligations, it follows by implication that the term measure in Article XXIII:1(b) and Article 26.1 of the DSU, as elsewhere in the WTO Agreement, refers only to policies or actions of governments, not those of private parties. But while this ‘truth’ may not be open to question, there have been a number of trade disputes in relation to which panels have been faced with making sometimes difficult judgments as to the extent to which what appear on their face to be private actions may nonetheless be attributable to a government because of some governmental connection to or endorsement of those actions.”(285)

199.     Within the context referred to in paragraph 198 above, the Panel on Japan — Film had to determine whether so-called “administrative guidance” in Japan amounted to a governmental “measure”. The Panel began by considering the ordinary meaning of the term “measure”:

“The ordinary meaning of measure as it is used in Article XXIII:1(b) certainly encompasses a law or regulation enacted by a government. But in our view, it is broader than that and includes other governmental actions short of legally enforceable enactments.(286) At the same time, it is also true that not every utterance by a government official or study prepared by a non-governmental body at the request of the government or with some degree of government support can be viewed as a measure of a Member government.

In Japan, it is accepted that the government sometimes acts through what is referred to as administrative guidance. In such a case, the company receiving guidance from the Government of Japan may not be legally bound to act in accordance with it, but compliance may be expected in light of the power of the government and a system of government incentives and disincentives arising from the wide array of government activities and involvement in the Japanese economy. As noted by the parties, administrative guidance in Japan takes various forms. Japan, for example, refers to what it calls ‘regulatory administrative guidance’, which it concedes effectively substitutes for formal government action.(287) It also refers to promotional administrative guidance, where companies are urged to do things that are in their interest to do in any event. In Japan’s view, this sort of guidance should not be assimilated to a measure in the sense of Article XXIII:1(b). For our purposes, these categories inform, but do not determine the issue before us. Thus, it is not useful for us to try to place specific instances of administrative guidance into one general category or another. It will be necessary for us, as it has been for GATT panels in the past, to examine each alleged ‘measure’ to see whether it has the particular attributes required of a measure for Article XXIII:1(b) purposes.”(288)

200.     The Panel on Japan — Film subsequently reviewed GATT practice with respect to this subject-matter and defined “sufficient government involvement” as the decisive criterion for whether a private action may be deemed to be a governmental “measure”:

“[P]ast GATT cases demonstrate that the fact that an action is taken by private parties does not rule out the possibility that it may be deemed to be governmental if there is sufficient government involvement with it. It is difficult to establish bright-line rules in this regard, however. Thus, that possibility will need to be examined on a case-by-case basis.”(289)

201.     In Canada — Autos, the Panel examined the GATT-consistency of commitments undertaken by Canadian motor vehicle manufacturers in their letters addressed to the Canadian Government to increase Canadian value added in the production of motor vehicles. Referring to the GATT Panel Reports on Canada — FIRA and EEC — Parts and Components,(290) the Panel analysed whether the action of private parties is subject to Article III:4 as follows:

“It is evident from the reasoning of the Panel Reports in Canada — FIRA and in EEC — Parts and Components that these Reports do not attempt to state general criteria for determining whether a commitment by a private party to a particular course of action constitutes a ‘requirement’ for purposes of Article III:4. While these cases are instructive in that they confirm that both legally enforceable undertakings and undertakings accepted by a firm to obtain an advantage granted by a government can constitute ‘requirements’ within the meaning of Article III:4, we do not believe that they provide support for the proposition that either legal enforceability or the existence of a link between a private action and an advantage conferred by a government is a necessary condition in order for an action by a private party to constitute a ‘requirement.’ To qualify a private action as a ‘requirement’ within the meaning of Article III:4 means that in relation to that action a Member is bound by an international obligation, namely to provide no less favourable treatment to imported products than to domestic products.

A determination of whether private action amounts to a ‘requirement’ under Article III:4 must therefore necessarily rest on a finding that there is a nexus between that action and the action of a government such that the government must be held responsible for that action. We do not believe that such a nexus can exist only if a government makes undertakings of private parties legally enforceable, as in the situation considered by the Panel on Canada — FIRA, or if a government conditions the grant of an advantage on undertakings made by private parties, as in the situation considered by the Panel on EEC — Parts and Components. We note in this respect that the word ‘requirement’ has been defined to mean ‘1. The action of requiring something; a request. 2. A thing required or needed, a want, a need. Also the action or an instance of needing or wanting something. 3. Something called for or demanded; a condition which must be complied with.’ The word ‘requirements’ in its ordinary meaning and in light of its context in Article III:4 clearly implies government action involving a demand, request or the imposition of a condition but in our view this term does not carry a particular connotation with respect to the legal form in which such government action is taken. In this respect, we consider that, in applying the concept of ‘requirements’ in Article III:4 to situations involving actions by private parties, it is necessary to take into account that there is a broad variety of forms of government action that can be effective in influencing the conduct of private parties.”(291)

202.     In Argentina — Hides and Leather, the European Communities claimed that an Argentine resolution, which authorized the presence of representatives of the Argentine domestic leather tanning industry during customs clearance of exports of hides and leather, operated as a de facto export restriction in violation of Article XI:1 of GATT 1994. The European Communities admitted that the Argentine measure did not expressly limit exports; however, the European Communities claimed that the presence of the industry associations during the export clearance process allowed access to exporters’ confidential business information, which was subsequently used — by virtue of the existence of a tanners’ cartel in the Argentine market — to exercise pressure on hides and leather producers not to export their products. The Panel ultimately rejected the European Communities’ arguments on the basis of a lack of evidence:

“We agree with the view expressed by the panel in Japan — Film. However, we do not think that it follows either from that panel’s statement or from the text or context of Article XI:1 that Members are under an obligation to exclude any possibility that governmental measures may enable private parties, directly or indirectly, to restrict trade, where those measures themselves are not trade-restrictive.(292)

…

The European Communities acknowledges that the representatives of the tanning industry do not have the de jure ability to halt bovine hide exports. However, according to the European Communities, having such representatives present during the export clearance process in itself restricts exports in the context of the facts of the case. The European Communities has advanced several reasons why this might be so. The European Communities refers to the GATT dispute of Japan — Semiconductors for the proposition that there can be export restrictions without overt actions by the government to physically stop exports. According to the European Communities, in that case it was sufficient for the government to set up a system where peer pressure was used to discourage exports….

…

[I]t is possible that a government could implement a measure which operated to restrict exports because of its interaction with a private cartel. Other points would need to be argued and proved (such as whether there was or needed to be knowledge of the cartel practices on the part of the government) or, to put it as mentioned above, it would need to be established that the actions are properly attributed to the Argentinean government under the rules of state responsibility.”(293)

(v) Standard for sufficient “identification”

203.     In EC — Bananas III, the “basic EC regulation at issue” was identified in the request for establishment of the Panel. 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 Panel found that for purposes of Article 6.2 this reference was sufficient to cover all European Communities legislation dealing with the importation, sale and distribution of bananas because the measures that the complainants were contesting were “adequately identified”, even though they were not explicitly listed.(294) The Appellate Body agreed that the panel request “contains sufficient identification of the measures at issue to fulfil the requirements of Article 6.2”.(295)

204.     In Japan — Film, Japan requested the Panel to exclude eight measures from consideration because they were not set forth in either the request for consultations or the request for the establishment of a panel. Although the measures in question had not been “explicitly described” in the panel request, the Panel considered those measures to be within its terms of reference because they were “implementing measures” based on a basic framework law, specifically identified in the Panel request, which specified the form and circumscribed the possible content and scope of such implementing measures. The Panel established a “clear relationship” standard:

“The question thus becomes whether the ordinary meaning of the terms of Article 6.2, i.e., that ‘the specific measures at issue’ be identified in the panel request, can be met if a ‘measure’ is not explicitly described in the request. 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 interrelated: 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’.”(296)

205.     The Panel on Argentina — Footwear (EC) found that “it is the identification of [the] measures (rather than merely the numbers of the resolutions and the places of their promulgation in the Official Journal) which is primarily relevant for the purposes of Article 6.2 of the DSU”:

“[W]e consider that the EC’s request primarily and unambiguously identifies the provisional and definitive measures (rather than only the cited resolutions and promulgations as such). In our view, it is the identification of these measures (rather than merely the numbers of the resolutions and the places of their promulgation in the Official Journal) which is primarily relevant for purposes of Article 6.2 of the DSU. Therefore, we consider that it is the provisional and definitive measures in their substance rather than the legal acts in their original or modified legal forms that are most relevant for our terms of reference. In our view, this is consistent with the Appellate Body’s findings in the Guatemala — Cement case.”(297)

206.     The Panel on US — Carbon Steel noted the above findings of the Panel on Japan — Film and indicated that the expedited review procedure concerned was not a “measure” that was “subsidiary” or “closely related” to “any of the measures specifically identified”:

“The United States explains that, upon automatic initiation by the DOC of a sunset review within five years of the date of publication of a CVD order, a review can follow one of three basic paths: (i) revocation of the order; (ii) an expedited sunset review; and (iii) a full sunset review. We do not consider that the European Communities’ general discussion of the automatic initiation of sunset reviews by the DOC is sufficient to put the United States — as well as other Members — on notice that the expedited review procedure was also under challenge. We note that the European Communities’ request refers to ‘certain aspects of the sunset review procedure which led to [the DOC decision not to revoke the CVDs on carbon steel]’. The challenge is thus apparently to those aspects of the sunset review procedure that have some relevance to the carbon steel case, which is not true of the expedited review procedure, because the carbon steel case involved a full, not expedited, review. We do not consider the expedited review procedure to be ‘a “measure” that is subsidiary, or so closely related to’ any of the measures 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’. We, therefore, find that the expedited review procedure is not sufficiently related to a measure or measures that are specifically identified in the request for establishment as to properly bring it within our terms of reference.(298)”(299)

207.     As regards the identification of anti-dumping measures, see paragraphs 1 and XVII.B.5(i) of the Chapter on the Anti-Dumping Agreement.

208.     The Appellate Body on EC — Computer Equipment considered whether the measures in dispute and the products affected by such measures were identified with sufficient specificity by the United States in its request for the establishment of a panel. The United States’ request for the establishment of panel referred to “all types of LAN equipment” and “PCs with multimedia capability”. The Appellate Body considered whether these terms sufficiently defined the products at issue:

“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.

LAN equipment and PCs with multimedia capacity are both generic terms. Whether these terms are sufficiently precise to ‘identify the specific measure at issue’ under Article 6.2 of the DSU depends, in our view, upon whether they satisfy the purposes of the requirements of that provision.

…

The European Communities argues that the lack of precision of the term, LAN equipment, resulted in a violation of its right to due process which is implicit in the DSU. We note, however, that the European Communities does not contest that the term, LAN equipment, is a commercial term which is readily understandable in the trade. The disagreement between the European Communities and the United States concerns its exact definition and its precise product coverage. We also note that the term, LAN equipment, was used in the consultations between the European Communities and the United States prior to the submission of the request for the establishment of a panel and, in particular, in an ‘Information Fiche’ provided by the European Communities to the United States during informal consultations in Geneva in March 1997. We do not see how the alleged lack of precision of the terms, LAN equipment and PCs with multimedia capability, in the request for the establishment of a panel affected the rights of defence of the European Communities in the course of the panel proceedings. As the ability of the European Communities to defend itself was not prejudiced by a lack of knowing the measures at issue, we do not believe that the fundamental rule of due process was violated by the Panel.”(300),(301)

209.     In Korea — Alcoholic Beverages, Korea requested the Panel to issue a preliminary ruling with respect to the specificity of the panel requests of the complainants, in this case, the European Communities and the United States. Korea considered that the phrases used by the European Communities (“certain alcoholic beverages falling within HS heading 2208”) and the United States (“other distilled spirits such as whisky, brandy, vodka, gin and ad-mixtures”) were not specific enough to satisfy Article 6.2. Korea sought this preliminary ruling in order to limit the products at issue in the dispute. The Panel disagreed with Korea:

“The question of whether a panel request satisfies the requirements of Article 6.2 is to be determined on a case by case basis with due regard to the wording of Article 6.2 …, the question is whether Korea is put on sufficient notice as to the parameters of the case it is defending …

…

Korea argues that each imported product must be specifically identified in order to be within the scope of the panel proceeding. The complainants argue that the appropriate imported product is all distilled beverages. They claim, in fact, that for purposes of Article III, there is only one category in issue. They claim to have identified specific examples of such distilled alcoholic beverages for purposes of illustration, not as limits to the category.

The issue of the appropriate categories of products to compare is important to this case. In our view, however, it is one that requires a weighing of evidence. As such it is not an issue appropriate for a preliminary ruling in this case. This is particularly so in light of the Appellate Body’s opinion in Japan — Taxes on Alcoholic Beverages II,(302) that all imported distilled alcoholic beverages were discriminated against. That element of the decision is not controlling on the ultimate resolution of other cases involving other facts; however, it cannot be considered inappropriate for complainants to follow it in framing their request for a panel in a dispute involving distilled alcoholic beverages. While it is possible that in some cases, the complaint could be considered so vague and broad that a respondent would not have adequate notice of the actual nature of the alleged discrimination, it is difficult to argue that such notice was not provided here in light of the identified tariff heading and the Appellate Body decision in the Japan — Taxes on Alcoholic Beverages II. Furthermore, we note that the Appellate Body recently found that a panel request based on a broader grouping of products was sufficiently specific for purposes of Article 6.2.(303) We find therefore, that the complainants’ requests for a panel satisfied the requirements of Article 6.2 of the DSU.”(304)

210.    In US — FSC, the United States argued that the European Communities request for the establishment of a panel failed to identify specific measures at issue because the European Communities did not identify the specific products in question as “the nature of export subsidy obligations imposed by the Agreement on Agriculture differ depending on the products at issue and commitments made by the United States thereunder”.(305) The Panel found that the request for the establishment satisfied the requirements of Article 6.2 of the DSU and stated:

“In its request for establishment of a panel, the European Communities states that in its view the FSC is an export subsidy and that ‘the United States has declared that the [FSC] Scheme is not taken into account for the purpose of compliance with their commitments under the AA ….’ Accordingly, given the inherently all-encompassing nature of this claim, it constitutes a claim that the FSC could give rise to violations of the Agreement on Agriculture with respect to any agricultural product. Consequently, and in the absence of any specification as to the products at issue, this request puts the United States and third parties on notice that the European Communities asserts the existence of violations of the Agreement on Agriculture with respect to all agricultural products.”(306)

211.    In Canada — Aircraft, Canada asserted before the Panel that the term “civil aircraft industry” was too broad for the purposes of Article 6.2 of the DSU because “[i]t includes firms ranging from machine shops and metal treatment facilities to those involved in advanced instrumentation and communications equipment”.(307) The Panel ruled:

“We 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. 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 drawnout procedural battles at the early stage of the panel process 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.’(308)

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.”(309)

(vi) Measures falling within/outside the panel’s terms of reference

212.    As regards the scope of measures from the point of view of the scope of the panel’s terms of reference and, in particular, the issues surrounding terminated, amended or vague measures, see Section VII.B.2(a)(ii) below.

(d) “a brief summary of the legal basis of the complaint … sufficient to present the problem clearly”

(i) Concept of “claim”

213.     In Korea — Dairy, when distinguishing between claims and arguments, the Appellate Body emphasized that “By ‘claim’ we mean a claim that the respondent party has violated, or nullified or impaired the benefits arising from, an identified provision of a particular agreement.”(310)

(ii) Two-stage test

214.     In EC — Bed Linen, the Panel analysed the above conclusions of the Appellate Body in Korea — Dairy (see paragraphs 219–220 below) and considered that they set “a two-stage test to determine the sufficiency of a panel request under Article 6.2 of the DSU: first, examination of the text of the request for establishment itself, in light of the nature of the legal provisions in question; secondly, an assessment of whether the respondent has been prejudiced by the formulation of claims in the request for establishment, given the actual course of the panel proceedings”.(311)

(iii) Identification of the claims

215.     In EC — Bananas III, the Panel indicated that references to a WTO agreement without mentioning any provisions or to unidentified “other” provisions would be insufficient to meet the requirements of Article 6.2:

“The panel request alleges an inconsistency with the requirements of the Agreement on Agriculture, without specifying any provision thereof. It also states that ‘the EC’s measures are inconsistent with the following Agreements and provisions among others’, suggesting that there may be inconsistencies with unspecified agreements and inconsistencies with unspecified provisions of the specified agreements. In these two situations, it is not possible at the panel request stage, even in the broadest generic terms, to describe what legal ‘problem’ is asserted. While a reference to a specific provision of a specific agreement may not be essential if the problem or legal claim is otherwise clearly described, in the absence of some description of the problem, a mere reference to an entire agreement or simply to ‘other’ unspecified agreements or provisions is inadequate under the terms of Article 6.2. Accordingly, we find that references to a WTO agreement without mentioning any provisions or to unidentified ‘other’ provisions are too vague to meet the standards of Article 6.2 of the DSU.”(312)

216.     The Panel on EC — Bananas III also held that “[a] request [for the establishment of a panel] is sufficiently specific to comply with the minimum standards established by the terms of Article 6.2 of the DSU”, if it lists the provisions of the specific agreements which the complaining party alleges to have been violated. The Appellate Body agreed:

“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. In 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.”(313)

217.     In India — Patents (US), India argued that the Panel exceeded its authority under the DSU by ruling on the United States’ subsidiary claim under Article 63 of the TRIPS Agreement after having first accepted the principal claim by the United States of a violation of Article 70.8 of the TRIPS Agreement. The request for the establishment of the panel by the United States reads in pertinent part: “India’s legal regime appears to be inconsistent with the obligations of the TRIPS Agreement, including but not necessarily limited to Articles 27, 65 and 70.” The Appellate Body accepted India’s claim that the phrase “including but not necessarily limited to” could not “identify the specific measures at issue”, as required by Article 6.2 of the DSU:

“[A] claim must be included in the request for establishment of a panel in order to come within a panel’s terms of reference in a given case.

With respect to Article 63, the convenient phrase, ‘including but not necessarily limited to’, is simply not adequate to ‘identify the specific measures at issue and provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly’ as required by Article 6.2 of the DSU. If this phrase incorporates Article 63, what Article of the TRIPS Agreement does it not incorporate? Therefore, this phrase is not sufficient to bring a claim relating to Article 63 within the terms of reference of the Panel.”(314)

218.     In India — Patents (US), the Appellate Body stressed the importance of the parties’ duty to be “fully forthcoming” and to clearly state their claims:

“All parties engaged in dispute settlement under the DSU must be fully forthcoming from the very beginning both as to the claims involved in a dispute and as to the facts relating to those claims. Claims must be stated clearly.”(315)

219.     In Korea — Dairy, Korea argued before the Appellate Body in its appeal that the mere listing of four articles of the Agreement on Safeguards alleged to have been breached does not provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly. The Appellate Body confirmed its finding in EC — Bananas III, but augmented it by establishing the standard of whether “the ability of the respondent to defend itself was prejudiced, given the actual course of the panel proceedings, by the fact that the panel request simply listed the provisions claimed to have been violated”. In its analysis, the Appellate Body identified the necessary requirements for providing a “summary” under Article 6.2:

“Article 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’.”(316)

220.     The Appellate Body on Korea — Dairy confirmed its finding in EC — Bananas III, but cautioned that this finding represented only the minimum requirements under Article 6.2 and that the “mere listing of the articles of an agreement alleged to have been breached” may not necessarily be sufficient for the purposes of Article 6.2. The Appellate Body opined that the latter case may arise “where the articles listed establish not one single, distinct obligation, but rather multiple obligations. In such a situation, the listing of articles of an agreement, in and of itself, may fall short of the standard of Article 6.2.” Ultimately, the Appellate Body set forth the standard of “ability of the respondent to defend itself”:

“[W]e 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 the complainant; such identification is a minimum prerequisite if the legal basis of the complaint is to be presented at all.(317) But it may not always be enough. There may be situations where the simple listing of the articles of the agreement or agreements involved may, in the light of attendant circumstances, suffice to meet the standard of clarity in the statement of the legal basis of the complaint. However, there may also be situations in which the circumstances are such that the mere listing of treaty articles would not satisfy the standard of Article 6.2. This may be the case, for instance, where the articles listed establish not one single, distinct obligation, but rather multiple obligations. In such a situation, the listing of Articles of an agreement, in and of itself, may fall short of the standard of Article 6.2.

…

… we consider that whether the mere listing of the articles claimed to have been violated meets the standard of Article 6.2 must be examined on a case-by-case basis. In resolving that question, we take into account whether the ability of the respondent to defend itself was prejudiced, given the actual course of the panel proceedings, by the fact that the panel request simply listed the provisions claimed to have been violated.”(318)

221.     In EC — Tube or Pipe Fittings, the European Communities requested the Panel to make a preliminary ruling that certain of Brazil’s claims were not within its terms of reference. The Panel noted that among the said claims were several provisions cited by Brazil in its first written submission that were not mentioned in its request for establishment. The Panel, in a finding not reviewed by the Appellate Body, considered that Brazil’s claims under those provisions were not within its terms of reference. The Panel cautioned against the use of the expression “especially, but not exclusively” when identifying the claims in a request for establishment of a panel:

“We note that the Panel request refers generally to the Articles of the Anti-Dumping Agreement in question (i.e. Articles 6, 9 and 12) and contains the phrase ‘especially (but not exclusively)’ when enumerating selective provisions (not including the provisions concerned here) under these Articles. However, we do not view such a general reference as sufficiently clear to identify the specific provisions at issue. This is particularly so in view of the fact that Articles 6, 9 and 12 of the Anti-Dumping Agreement contain multiple and diverse obligations, which relate to different subject-matters than the obligations contained in the specific provisions that are cited in the Panel request.(7) The phrase ‘especially, but not exclusively’ may be convenient, but is inadequate to ‘identify the specific measures at issue and provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly’ as required by Article 6.2 of the DSU. Furthermore, even assuming arguendo that the obligations in these provisions may be ‘inter-linked’ with or ‘dependent’ upon a provision that is identified in the Panel request, we do not consider that this consideration is relevant here. The mere fact that a claim may be legally dependent upon another claim does not mean that it is subsumed within, or encompassed by, that claim. If a claim is not identified in the Panel request, the fact that it may be ‘inter-linked’ with an identified claim is not determinative.”(319)

222.     As regards the other claims, the European Communities had requested the Panel to find that they were not within its terms of reference. The Panel on EC — Tube or Pipe Fittings considered, in a finding not reviewed by the Appellate Body, that the European Communities had failed to demonstrate any prejudice to its interests by the way these “claims” appeared in the Panel request:

“We consider that it is not necessary for us to rule on whether these allegations constitute ‘claims’ or ‘arguments’. If they are arguments, there would be no need for them to be set out in the Panel request. Even assuming that all of the allegations identified above are ‘claims’ in respect of which the text of the Panel request may be somewhat deficient in describing the nature of the complaint, the European Communities has failed in any event to demonstrate to us any prejudice to its interests throughout the course of these Panel proceedings by the way these ‘claims’ appeared in the Panel request…

… it was evident to us from the participation of the European Communities in asserting its views in various phases of these Panel proceedings, including in its first written submission and in the first Panel meeting and in the exchanges between the parties preceding the first Panel meeting on preliminary issues, that the EC’s ability to defend itself had not been prejudiced over the course of these Panel proceedings.”(320)

223.     After agreeing with the Panel that the request for the establishment of the panel contained sufficient identification of the specific measures at issue to fulfil the requirements of Article 6.2 of the DSU, the Appellate Body in EC — Bananas III set out the difference between claims and arguments, and furthermore rejected the notion of “curing” a faulty panel request where claims had not been included in the panel request:

“In 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.

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.”(321)

224.     In EC — Hormones, the European Communities argued on appeal that since the Panel was not entitled to make findings beyond what had been requested by the parties, it had erred by basing the main part of its reasoning on Article 5.5 of the SPS Agreement on a claim that the complainants had not made. The Appellate Body rejected the European Communities’ argument and emphasized the distinction between claims and arguments:

“Considering that in its request for the establishment of a panel in the proceeding initiated by the United States, as well as in the proceeding started by Canada, both complainants have included a claim that the European Communities ban is inconsistent with Article 5 of the SPS Agreement, we believe that the objection of the European Communities overlooks the distinction between legal claims made by the complainant and arguments used by the complainant to sustain its legal claims…. Panels are inhibited from addressing legal claims falling outside their terms of reference. However, nothing in the DSU limits the faculty of a panel freely to use arguments submitted by any of the parties — or to develop its own legal reasoning — to support its own findings and conclusions on the matter under its consideration. A panel might well be unable to carry out an objective assessment of the matter, as mandated by Article 11 of the DSU, if in its reasoning it had to restrict itself solely to arguments presented by the parties to the dispute. Given that in this particular case both complainants claimed that the European Communities measures were inconsistent with Article 5.5 of the SPS Agreement, we conclude that the Panel did not make any legal finding beyond those requested by the parties.”(322)

225.     In India — Patents (US), on the issue of claims and arguments, the Appellate Body stated:

“[T]here 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 as a case proceeds.”(323)

226.     In Korea — Dairy, Korea argued in its appeal that the Panel had erred by failing to consider Korea’s argument that parties to a dispute settlement procedure cannot introduce new claims at, or subsequent to, the rebuttal stage. The Appellate Body emphasized the difference between claims and arguments as follows:

“[W]e agree with Korea that a party to a dispute settlement proceeding may not introduce a new claim during or after the rebuttal stage. Indeed, any claim that is not asserted in the request for the establishment of a panel may not be submitted at any time after submission and acceptance of that request.(324) By ‘claim’ we mean a claim that the respondent party has violated, or nullified or impaired the benefits arising from, an identified provision of a particular agreement. Such a claim of violation must, as we have already noted, be distinguished from the arguments adduced by a complaining party to demonstrate that the responding party’s measure does indeed infringe upon the identified treaty provision.(325) Arguments supporting a claim are set out and progressively clarified in the first written submissions, the rebuttal submissions and the first and second panel meetings with the parties.(326) In European Communities — Hormones, we emphasized the substantial latitude enjoyed by panels in treating the arguments presented by either of the parties and said:

‘… Panels are inhibited from addressing legal claims falling outside their terms of reference. However, nothing in the DSU limits the faculty of a panel freely to use arguments submitted by any of the parties — or to develop its own legal reasoning — to support its own findings and conclusions on the matter under its consideration.’(327)

Both ‘claims’ and ‘arguments’ are distinct from the ‘evidence’ which the complainant or respondent presents to support its assertions of fact and arguments.”(328)

227.     In Canada — Autos, the Panel considered whether Japan’s claim that it could “[reserve] its right to elaborate during the course of the panel deliberations” had prejudiced Canada’s ability to defend itself. The Panel indicated that Canada had suffered no prejudice:

“First, the Panel does not consider that this is a situation where, as argued by Canada, the complaining party is permitted ‘to eke out its claims incrementally during the various stages of the case’. In making this argument, Canada refers to the Appellate Body decision in European Communities — Regime for the Importation, Sale and Distribution of Bananas (EC — Bananas III). However, the situation here is unlike that in EC — Bananas III, where the Appellate Body stated that ‘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’ (WT/ DS27/AB/R, para. 143). In the case before us there is no Article 6.2 issue of specificity of the measures identified in the panel request. Japan in this dispute has not attempted to reserve a right to present a new claim at a later stage of the proceedings; rather, it appears that Japan has simply indicated that it may wish to further elaborate its arguments as to claims already set out in the panel request and in its initial arguments. As such, the Panel does not consider, at this stage, that Canada is likely to be prejudiced in its ability to defend itself in this action.(329)

Second, to the extent any issue of procedural fairness should arise, for example, as to the right of rebuttal by Canada should Japan wait until a later stage of these proceedings to develop its arguments as to its GATT Article III:4 and TRIMS Article 2.1 claims with respect to the “manufacturing requirement” (production-to-sales ratio requirement), the Panel will ensure such procedural fairness by providing Canada with adequate opportunity to respond to any such further elaboration by Japan of its arguments under these claims.

Third, in addition to ensuring procedural fairness, it is of course necessary to set a cut-off date beyond which no new argumentation as to the claims in issue may be accepted, except upon a showing of good cause. In the instant case, the Panel considers that no new argumentation should be introduced beyond the second panel meeting with the parties, except in response to any questions posed by the Panel or otherwise upon a showing of good cause.”(330)

228.     The Panel on EC — Bed Linen (Article 21.5 — India) noted the distinction drawn by the Appellate Body between claims and arguments and indicated that there existed “no obligation on a party to limit its arguments to only those treaty provisions about which claims have been identified in the request for establishment”.(331)

(iv) Claims falling within/outside the panel’s terms of reference

229.     As regards the inclusion or exclusion of claims in the panel’s terms of reference, see Section VII.B.2(a)(iii) below.

(v) “presenting the problem clearly”

230.     In US — Oil Country Tubular Goods Sunset Review, the Appellate Body, further to referring to its previous reports on Thailand — H-Beams and Korea — Dairy, considered that a request for establishment “must plainly connect the challenged measure(s) with the provision(s) of the covered agreements claimed to have been infringed” in order to present the problem clearly:

“[I]n order for a panel request to ‘present the problem clearly’, it must plainly connect the challenged measure(s) with the provision(s) of the covered agreements claimed to have been infringed, so that the respondent party is aware of the basis for the alleged nullification or impairment of the complaining party’s benefits. Only by such connection between the measure(s) and the relevant provision(s) can a respondent ‘know what case it has to answer, and … begin preparing its defence’.(332)”(333)

231.     In Thailand — H-Beams, the Appellate Body explained the due process objectives behind the requirement for sufficient clarity in a panel request:

“Article 6.2 of the DSU calls for sufficient clarity with respect to the legal basis of the complaint, that is, with respect to the ‘claims’ that are being asserted by the complaining party. A defending party is entitled to know what case it has to answer, and what violations have been alleged so that it can begin preparing its defence. Likewise, those Members of the WTO who intend to participate as third parties in panel proceedings must be informed of the legal basis of the complaint. This requirement of due process is fundamental to ensuring a fair and orderly conduct of dispute settlement proceedings.”(334)

232.     Also, in Thailand — H-Beams, the Appellate Body explained further how claims of prejudice should be assessed (commenting particularly on the timing of challenging the sufficiency of a Panel request):

“Thailand argues that it was prejudiced by the lack of clarity of Poland’s panel request. The fundamental issue in assessing claims of prejudice is whether a defending party was made aware of the claims presented by the complaining party, sufficient to allow it to defend itself. In assessing Thailand’s claims of prejudice, we consider it relevant that, although Thailand asked the Panel for a preliminary ruling on the sufficiency of Poland’s panel request with respect to Articles 5 and 6 of the Anti-Dumping Agreement at the time of filing of its first written submission, it did not do so at that time with respect to Poland’s claims under Articles 2 and 3 of that Agreement. We must, therefore, conclude that Thailand did not feel at that time that it required additional clarity with respect to these claims, particularly as we note that Poland had further clarified its claims in its first written submission. This is a strong indication to us that Thailand did not suffer any prejudice on account of any lack of clarity in the panel request.”(335)

233.     In Chile — Price Band System, the Appellate Body ruled that “[t]he requirements of due process and orderly procedure dictate that claims must be made explicitly in WTO dispute settlement”:

“Argentina appears to suggest that a claim may be made implicitly, and need not be made explicitly. We do not agree. The requirements of due process and orderly procedure dictate that claims must be made explicitly in WTO dispute settlement. Only in this way will the panel, other parties, and third parties understand that a specific claim has been made, be aware of its dimensions, and have an adequate opportunity to address and respond to it. WTO Members must not be left to wonder what specific claims have been made against them in dispute settlement…”(336)

234.     In US — Oil Country Tubular Goods Sunset Reviews, the United States had made a request for a number of preliminary rulings regarding both the clarity of the request for establishment and the scope of the terms of reference of the Panel. The Panel, after declining all preliminary rulings, clarified that it had undertaken a textual analysis of the Panel request and that, therefore, it did not need to enter into the issue of whether the United States had been prejudiced in its right to defend itself due to the alleged inconsistencies in Argentina’s panel request:

“[W]e note that as our analysis with respect to the totality of the United States’ request for preliminary rulings was based on a textual analysis of Argentina’s panel request, we did not need to inquire into the issue of whether the United States had been prejudiced in its right to defend itself in the present proceedings due to the alleged inconsistencies in the panel request. We nevertheless note that the United States has not shown to the Panel that it had been prejudiced in its right to defend itself in these proceedings due to these alleged inconsistencies in Argentina’s panel request. In several instances, the United States argued that it did not know what case it had to answer because of the lack of precision with respect to certain parts of Argentina’s panel request.(337) However, we consider that without supporting arguments, this simple allegation can not be taken to establish prejudice.(338)”(339)

(vi) Clarity of claims in written submissions

235.     In EC — Tube or Pipe Fittings, the European Communities had requested the Panel to refuse to consider certain of Brazil’s claims on the grounds that these claims were defective as they were too vaguely defined in Brazil’s first written submission. In the view of the European Communities, admission of these claims would constitute an infringement of the European Communities’ rights of defence and a departure from the good faith standard in Article 3.10 DSU and from the due process requirement that underlies the DSU. The Panel, in a preliminary ruling, rejected the European Communities’ request on the grounds that the opportunity would still exist for Brazil to provide further supporting evidence and argumentation in its subsequent submissions with a view to clarifying those allegations in the course of the Panel proceedings:

“To the extent the European Communities is arguing that the first submission is determinative for the clarity of the claims for the purpose of the entire proceeding — in the sense that if a claim is not clearly stated there, no further opportunity exists for clarification over any of the remaining portion of the proceedings — we cannot accept this argument. In our view, it is in the nature of the Panel process that the claims made by a party may be progressively clarified and refined throughout the proceeding.(340) This may occur through the submission of supporting evidence and argumentation by the parties, commencing with their first written submission, and followed by a round of rebuttal submissions, supplemented by oral statements and answers to questions. It is, of course, clear that this process of progressive clarification would not allow a party to add additional claims (which were not included in the request for establishment of the Panel) during the course of the proceedings. The fundamental due process rights of the parties are thereby preserved.

In the case before us, we consider that even if we were to agree with the European Communities that, at this stage, some of the allegations it identified in Brazil’s first submission may be vague, the opportunity would still exist for Brazil to provide further supporting evidence and argumentation in its subsequent submissions with a view to clarifying those allegations in the course of the Panel proceedings (recalling, of course, that the working procedures we have adopted for these panel proceedings provide that the parties shall submit all factual evidence to the Panel no later than during the first substantive meeting, except with respect to evidence necessary for purposes of rebuttal submissions or answers to questions). In this regard we note, for example, that Brazil has already submitted, in response to the EC request, clarifications with regard to each of the claims identified by the European Communities as being ‘overly vague’. Through the Panel process, the claims that the European Communities now considers to be vague may therefore become clear at a subsequent stage in these proceedings, including through submissions and through responses by Brazil to questions that the Panel and the European Communities may pose. However, if, subsequently in the course of these proceedings, the European Communities considers that Brazil’s claims remain insufficiently clear or that these claims have finally become clear at such a late stage that the European Communities considers that it has not had an opportunity properly to respond, it may bring this situation to the attention of the Panel. The Panel will then consider the situation, keeping in mind the due process rights of the European Communities.

We find support for our ruling in the statement by the Appellate Body in its report on US — FSC that the ‘procedural rules of WTO dispute settlement are designed to promote, not the development of litigation techniques, but simply the fair, prompt and effective resolution of trade disputes’.(341)”(342)

(e) Demonstration of compliance with Article 6.2 requirements

236.     The Appellate Body stated in US — Carbon Steel that “compliance with the requirements of Article 6.2 must be demonstrated on the face of the request for the establishment of a panel”.(343)

(f) Importance of timing of a specificity objection

237.     In EC — Bananas III, the Appellate Body considered that the panel request specificity issue was a matter which could be dealt with early on in a case:

“[T]his 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.”(344)

(i) Distinction between sufficiency of a panel request and establishing a prima facie case of violation

238.     The Panel on Thailand — H-Beams stressed the importance of this distinction when dealing with Thailand’s arguments concerning the alleged insufficiency of a panel request:

“Thailand argues that ‘a panel may only accept the mere listing of a particular article as sufficient if absolutely no prejudice was possible during the course of the proceedings.’ According to Thailand, ‘this would be the case only where (1) a panel found that the complainant had failed to present a prima facie case and thus the adequacy of the defence was irrelevant or (2) a panel did not reach the claims under the listed articles because it decided the case solely on claims properly described in the request.’(345) We are concerned here that Thailand is blurring the distinction between, on the one hand, the sufficiency of the panel request and, on the other, the issue of whether or not the complaining party establishes a prima facie case of violation of an obligation imposed by the covered agreements. We recall that ‘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.’(346) Article 6.2 DSU does not relate directly to the sufficiency of the subsequent written and oral submissions 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 …”(347)

(g) Relevance of the principle of good faith

239.     As regards the principle of good faith, see paragraphs 43–46 above and 105–107 above.

C. Relationship with other Articles

1. Article 4

240.     With respect to the relationship with Article 4, see paragraph 144 above.

2. Articles 6.2 and 21.5

241.     For the relationship of Article 6.2 with Article 21.5, see paragraph 644 below.

D. Relationship with Other WTO Agreements

1. Relationship with Article 17 of the Anti-Dumping Agreement

(a) The term “matter” under paragraphs 4 and 5 of Article 17

242.     The Appellate Body on Guatemala — Cement I held that “[Article 1.2 of the DSU] states … that … special or additional rules and procedures ‘shall prevail’ over the provisions of the DSU ‘[t]o the extent that there is a difference between’ the two sets of provisions”. As a result, the Appellate Body considered whether there is inconsistency between Article 6.2 of the DSU and Article 17.5 of the Anti-Dumping Agreement. The Appellate Body stated:

“In our view, there is no inconsistency between Article 17.5 of the Anti-Dumping Agreement and the provisions of Article 6.2 of the DSU. On the contrary, they are complementary and should be applied together. A panel request made concerning a dispute brought under the Anti-Dumping Agreement must therefore comply with the relevant dispute settlement provisions of both that Agreement and the DSU. Thus, when a ‘matter’ is referred to the DSB by a complaining party under Article 17.4 of the Anti-Dumping Agreement, the panel request must meet the requirements of Articles 17.4 and 17.5 of the Anti-Dumping Agreement as well as Article 6.2 of the DSU.”(348)

(b) Anti-dumping measures

243.     As regards the concept of anti-dumping measures, see paragraph 1 and XVII.B.5(i) of the Chapter on the Anti-Dumping Agreement.

(c) Legal basis for claims under Article 17

244.     Article 17 of the Anti-Dumping Agreement provides for the dispute settlement procedures for matters under the Anti-Dumping Agreement. With respect to the legal basis for claims under the Anti-Dumping Agreement, see the Chapter on the Anti-Dumping Agreement, XVII.B.1(b).

Footnotes:

193. WT/DS106/2. back to text
194. WT/DS126/2. back to text
195. Panel Report on Australia — Automotive Leather II, paras. 9.12 and 9.14–9.15. back to text
196. (footnote original) DSU, Article 6.1. back to text
197. Appellate Body Report on EC — Bananas III, para. 142. back to text
198. Appellate Body Report on EC — Bananas III, para. 142. back to text
199. Appellate Body Report on US — Carbon Steel, para. 126. back to text
200. (footnote original) Ibid., para. 143. [Appellate Body Report, EC — Bananas III] back to text
201. (footnote original) See, for example, Appellate Body Report, Korea — Dairy, para. 127; Appellate Body Report, Thailand — H-Beams, para. 95. back to text
202. (footnote original) Appellate Body Report, Korea — Dairy, paras. 124–127. back to text
203. Appellate Body Report on US — Carbon Steel, para. 127. back to text
204. Appellate Body Report on EC — Bananas III, para. 132. back to text
205. Appellate Body Report on EC — Bananas III, paras. 135–138. back to text
206. Panel Report on Korea — Dairy, para. 7.13. back to text
207. Appellate Body Report on Korea — Dairy, para. 120. back to text
208. (footnote original) Appellate Body Report, Guatemala — Cement I, paras. 69–76. back to text
209. (footnote original) Appellate Body Report, Brazil — Desiccated Coconut, at 186. See also Appellate Body Report, EC — Bananas III, para. 142. back to text
210. (footnote original) Appellate Body Report, EC — Bananas III, para. 142. back to text
211. (footnote original) Ibid., para. 143. back to text
212. (footnote original) See, for example, Appellate Body Report, Korea — Dairy, para. 127; Appellate Body Report, Thailand — H-Beams, para. 95. back to text
213. (footnote original) Appellate Body Report, Korea — Dairy, paras. 124–127. back to text
214. Appellate Body Report on US — Carbon Steel, paras. 125–127. back to text
215. Panel Report on Brazil — Desiccated Coconut, para. 290. See also Article 22.6 Arbitration Report on EC — Bananas III (Ecuador) (Article 22.6 — EC), para. 28. back to text
216. (footnote original) As stated by the Appellate Body in a somewhat different context in European Communities — Regime for the Importation, Sale and Distribution of Bananas, adopted 25 September 1997, WT/DS27/AB/R, para. 142: 
    “We recognize that 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. 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 carefully to ensure its compliance with both the letter and the spirit of Article 6.2 of the DSU.” back to text
217. Panel Report on Brazil — Aircraft, para. 7.10. back to text
218. Appellate Body Report on US — Corrosion-Resistant Steel Sunset Review, para. 81. back to text
219. Appellate Body Report on US — Corrosion-Resistant Steel Sunset Review, para. 81. back to text
220. (footnote original) Both specific determinations made by a Member’s executive agencies and regulations issued by its executive branch can constitute acts attributable to that Member. See, for example, the Panel Report in US — DRAMS, where the measures referred to the panel included a USDOC determination in an administrative review as well as a regulatory provision issued by USDOC. back to text
221. Appellate Body Report on US — Corrosion-Resistant Steel Sunset Review, para. 81. back to text
222. (footnote original) See for instance the Panel Report on United States — Taxes on Petroleum and Certain Imported Substances, adopted on 17 June 1987, BISD 34S/136 (“US — Superfund”), paras. 5.2.1–5.2.2; Panel Report on EEC — Regulation on Imports of Parts and Components, adopted on 16 May 1990, BISD 37S/132, paras. 5.25–5.26; Panel Report on United States — Measures Affecting Alcoholic and Malt Beverages, adopted 19 June 1992, BISD 39S/206, para. 5.39 back to text
223. Panel Report on Turkey — Textiles, para. 9.37. back to text
224. Panel Report on US — Export Restraints, para. 8.82. back to text
225. Panel Report on US — Export Restraints, para. 8.85. back to text
226. Appellate Body Report on US — Corrosion-Resistant Steel Sunset Review, footnote 87. back to text
227. Appellate Body Report on US — Oil Country Tubular Goods Sunset Reviews, paras. 172–173. back to text
228. (footnote original) See, for example, Panel Report, United States — Taxes on Petroleum and Certain Imported Substances (“United States — Superfund “), adopted 17 June 1987, BISD 34S/136; Panel Report, United States — Section 337 of the Tariff Act of 1930, adopted 7 November 1989, BISD 36S/345; Panel Report, Thailand — Restrictions on Importation of and Internal Taxes on Cigarettes (“Thailand — Cigarettes”), adopted 7 November 1990, BISD 37S/200; Panel Report, United States — Measures Affecting Alcoholic and Malt Beverages (“United States — Malt Beverages”), adopted 19 June 1992, BISD 39S/206; and Panel Report, United States — Tobacco, supra, footnote 16. See also Panel Report, United States — Wine and Grape Products, supra, footnote 18, examining this issue in the context of a claim brought under the Tokyo Round Agreement on Interpretation and Application of Articles VI, XVI and XXIII of the General Agreement on Tariffs and Trade. back to text
229. (footnote original) See, for example, Panel Report, Japan — Taxes on Alcoholic Beverages, WT/DS8/R, WT/DS10/R, WT/DS11/R, adopted 1 November 1996, as modified by the Appellate Body Report, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R; Panel Report, Canada — Certain Measures Concerning Periodicals, WT/DS31/R, adopted 30 July 1997, as modified by the Appellate Body Report, WT/DS31/AB/R; Panel Report, European Communities — Hormones, WT/DS26/R, WT/DS48/R, adopted 13 February 1998, as modified by the Appellate Body Report, supra, footnote 24; Panel Report, Korea — Taxes on Alcoholic Beverages, WT/DS75/R, WT/DS84/R, adopted 17 February 1999, as modified by the Appellate Body Report, WT/DS75/AB/R, WT/DS84/AB/R; Panel Report, Chile — Taxes on Alcoholic Beverages, WT/DS87/R, WT/DS110/R, adopted 12 January 2000, as modified by the Appellate Body Report, WT/DS87/AB/R, WT/DS110/AB/R; Panel Report, United States — FSC, WT/DS108/R, adopted 20 March 2000, as modified by the Appellate Body Report, supra, footnote 22; and Panel Report, United States — Section 110(5) of the US Copyright Act, WT/DS160/R, adopted 27 July 2000. back to text
230. Appellate Body Report on US — 1916 Act, paras. 60–61. back to text
231. (footnote original) See, for example, Appellate Body Report, US — Wool Shirts and Blouses, at 335. back to text
232. Appellate Body Report on US — Carbon Steel, paras. 156–157. back to text
233. Appellate Body Report on US — Corrosion-Resistant Steel Sunset Review, para. 168. back to text
234. (footnote original) See, for example Panel Report, US — Superfund; Panel Report, US — Malt Beverages; Panel Report, EEC — Parts and Components; Panel Report, Thailand — Cigarettes; Panel Report, US — Tobacco; Panel Report, Argentina — Textiles and Apparel; Panel Report, Canada — Aircraft; Panel Report, Turkey — Textiles; Panel Report, US — FSC; Panel Report, US — Section 301 Trade Act; Panel Report, US — 1916 Act (EC); Panel Report, US — 1916 Act (Japan); Panel Report, US — Hot-Rolled Steel; Panel Report, US — Export Restraints; Panel Report, US — FSC (21.5 — EC); and Panel Report, Chile — Price Band System. See also Appellate Body Report, US — Carbon Steel, paras. 156 and 157. See also Appellate Body Report, US — 1916 Act, footnotes 34 and 35 to paras. 60 and 61, respectively. back to text
235. (footnote original) Panel Report, US — Superfund, para. 5.2.2. back to text
236. Appellate Body Report on US — Corrosion-Resistant Steel Sunset Review, para. 82. back to text
237. (footnote original) Ibid., para. 7.134, referring to Panel Report, US — Steel Plate, para. 7.22. back to text
238. (footnote original) This examination would have assisted the Panel because, as we have explained, supra, para. 190, the phrase “laws, regulations and administrative procedures” in Article 18.4 denotes, collectively, the body of generally applicable rules, norms and standards adopted by Members in connection with the conduct of anti-dumping proceedings. back to text
239. Appellate Body Report on US — Corrosion-Resistant Steel Sunset Review, para. 98. back to text
240. (footnote original) United States’ appellant’s submission, para. 13. back to text
241. (footnote original) Appellate Body Report, US — Corrosion Resistant Steel Sunset Review, para. 82 (footnote omitted). back to text
242. (footnote original) We note, in this regard, the introductory statement of the SPB: 
       This policy bulletin proposes guidance regarding the conduct of sunset reviews. As described below, the proposed policies are intended to complement the applicable statutory and regulatory provisions by providing guidance on methodological or analytical issues not explicitly addressed by the statute and regulations.
      (SPB, p. 18871) This statement was also referenced by the Appellate Body in US — Corrosion-Resistant Sunset Review, at paragraph 74. back to text
243. Appellate Body Report on US — Oil Country Tubular Goods Sunset Reviews, para. 187. back to text
244. Panel Report on US — 1916 Act (EC), para. 6.82. See also Panel Report on US — 1916 Act (Japan), para. 6.95. back to text
245. (footnote original) See, for example, Panel Report, United States — Taxes on Petroleum and Certain Imported Substances (“United States — Superfund”), adopted 17 June 1987, BISD 34S/136; Panel Report, United States — Section 337 of the Tariff Act of 1930, adopted 7 November 1989, BISD 36S/345; Panel Report, Thailand — Restrictions on Importation of and Internal Taxes on Cigarettes (“Thailand — Cigarettes”), adopted 7 November 1990, BISD 37S/200; Panel Report, United States — Measures Affecting Alcoholic and Malt Beverages (“United States — Malt Beverages”), adopted 19 June 1992, BISD 39S/206; and Panel Report, United States — Tobacco, supra, footnote 16. See also Panel Report, United States — Wine and Grape Products, supra, footnote 18, examining this issue in the context of a claim brought under the Tokyo Round Agreement on Interpretation and Application of Articles VI, XVI and XXIII of the General Agreement on Tariffs and Trade. back to text
246. (footnote original) See, for example, Panel Report, Japan — Taxes on Alcoholic Beverages, WT/DS8/R, WT/DS10/R, WT/DS11/R, adopted 1 November 1996, as modified by the Appellate Body Report, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R; Panel Report, Canada — Certain Measures Concerning Periodicals,WT/DS31/R, adopted 30 July 1997, as modified by the Appellate Body Report, WT/DS31/AB/R; Panel Report, European Communities — Hormones, WT/DS26/R, WT/DS48/R, adopted 13 February 1998, as modified by the Appellate Body Report, supra, footnote 24; Panel Report, Korea — Taxes on Alcoholic Beverages, WT/DS75/R, WT/DS84/R, adopted 17 February 1999, as modified by the Appellate Body Report, WT/DS75/AB/R, WT/DS84/AB/R; Panel Report, Chile — Taxes on Alcoholic Beverages, WT/DS87/R, WT/DS110/R, adopted 12 January 2000, as modified by the Appellate Body Report, WT/DS87/AB/R, WT/DS110/AB/R; Panel Report, United States — FSC, WT/DS108/R, adopted 20 March 2000, as modified by the Appellate Body Report, supra, footnote 22; and Panel Report, United States — Section 110(5) of the US Copyright Act, WT/DS160/R, adopted 27 July 2000. back to text
247. Appellate Body Report on US — 1916 Act, paras. 60–61. back to text
248. (footnote original) GATT Panel Report on US — Tobacco, fn. 16. back to text
249. (footnote original) [GATT Panel Report on US — Tobacco], para. 118, referring in footnote to: Panel Report, United States — Superfund, supra, footnote 34, p. 160; Panel Report, EEC — Parts and Components, supra, footnote 20, pp. 198–199; Panel Report, Thailand — Cigarettes, supra, footnote 34, pp. 227–228; Panel Report, United States — Malt Beverages, supra, footnote 34, pp. 281–282 and 289–290; Panel Report, United States — Denial of Most-Favoured Nation Treatment as to Non-Rubber Footwear from Brazil, adopted 19 June 1992, BISD 39S/128, p. 152. back to text
250. (footnote original) See, in particular, the reasoning in the Panel Report, United States — Malt Beverages, supra, footnote 34, para. 5.60. back to text
251. Appellate Body Report on US — 1916 Act, paras. 88–91. See also Panel Report on US — Steel Plate, paras. 7.88–7.89 and 8.3. In this case, the Panel concluded that the “practice” of the US authorities concerning the application of “total facts available” (Article 6.8 Anti-Dumping Agreement) is not a measure that can give rise to an independent claim of violation of the Anti-Dumping Agreement. See also Panel Report on US — Section 129(c)(1) URAA, para. 6.22. back to text
252. Panel Report on US — DRAMS, para. 6.53. back to text
253. Panel Report on Canada — Aircraft, paras. 9.127–9.128. See also the Panel in Canada — Aircraft Credits and Guarantee which considered that, to prove that a given programme “as such” provides export subsidies, the complainant must establish, on the basis of the pertinent legal instruments, that the programmes at issue “mandate subsidization, in particular, the conferral of a benefit”. Panel Report on Canada — Aircraft Credits and Guarantees, para. 7.76–7.77. The Panel further clarified that “to satisfy the ‘benefit’ element of Article 1 of the SCM Agreement for the purposes of a challenge to [the programme at issue] as such, [the complainant] would have to show that the program requires conferral of a benefit, not that it could be used to do so, or even that it is used to do so …” Panel Report on Canada — Aircraft Credits and Guarantees, para. 7.107. See also paras. 7.123–7.125 and Panel Report on Brazil — Aircraft (Article 21.5 — Canada II), paras. 5.43 and 5.50. back to text
254. (footnote original) See, e. g., United States — Superfund: The scheme in question involved, inter alia, a discriminatory penalty tax that would be imposed if required information was not submitted by the importer. The Panel first found that such a penalty tax, if imposed, would violate Article III:2, then went on to find that the Superfund Act did not in fact require imposition of the tax, as the law foresaw the possibility for the United States to adopt regulations that would eliminate the need to impose it (United States — Taxes on Petroleum and Certain Imported Substances (“Superfund”), Report of the Panel, adopted 17 June 1987, BISD 34S/136, para. 5.2.9); Thailand — Cigarettes: After finding that the discriminatory tax rates provided for under the law would violate GATT rules, the Panel went on to find that the Thai authorities both had sufficient regulatory discretion to implement the law consistent with the GATT, and had actually exercised that discretion in that way (Thailand — Restrictions on Importation of and Internal Taxes on Cigarettes, Report of the Panel, adopted 7 November 1990, BISD 37S/200, para. 84); United States — Tobacco: The US statute mandated that the US Department of Agriculture assess “comparable” inspection fees for imported and domestic tobacco, and the Panel first considered the meaning of the word “comparable” in light of the relevant GATT requirement that such fees be “commensurate” with the cost of services rendered to imported tobacco. The Panel then concluded that the United States had the discretion to interpret “comparable” as “commensurate” (and in practice had done so), i. e., that the legislation did not require a violation (United States — Measures Affecting the Importation, Internal Sale, and Use of Tobacco, Report of the Panel, adopted 4 October 1994, BISD 41S/131, para. 123). back to text
255. Panel Report on US — Export Restraints, paras. 8.11–8.13. back to text
256. The Panel justified the different approach as follows: “We note that the Panel in United States — Measures Treating Exports Restraints as Subsidies first considered whether certain action was in conformity with WTO requirements and only then addressed whether the measure at issue mandated such action…. In the circumstances of the case at hand, where there is a major factual dispute regarding whether section 129(c)(1) requires and/or precludes certain action, we think that a panel is of most assistance to the DSB if it examines the factual issues first. Moreover, we do not see how addressing first whether certain actions identified by Canada would contravene particular WTO provisions would facilitate our assessment of whether section 129(c)(1) mandates the United States to take certain action or not to take certain action. Finally, we have taken into account the fact that, in the present case, our ultimate conclusions with respect to Canada’s claims would not differ depending on the order of analysis we decided to follow,” Panel Report on US — Section 129(c)(1) URAA, footnote 72. back to text
257. Panel Report on US — Section 129(c)(1) URAA, paras. 6.22–6.25. back to text
258. Panel Report on Brazil — Aircraft (Article 21.5 — Canada II), para. 5.43. back to text
259. (footnote original) We note the Appellate Body’s view that “… the burden of proof is a procedural concept which speaks to the fair and orderly management and disposition of a dispute.” (Original Appellate Body Report on Canada — Aircraft, supra, para. 198.) back to text
260. Panel Report on Brazil — Aircraft (Article 21.5 — Canada II), paras. 5.124–5.125. back to text
261. (footnote original) Imagine, for example, legislation providing that all imports, including those from WTO Members, would be subjected to a customs inspection and that the administration would enjoy the right, at its discretion, to impose on all such goods tariffs in excess of those allowed under the schedule of tariff concessions of the Member concerned. Would the fact that under such legislation the national administration would not be mandated to impose tariffs in excess of the WTO obligation, in and of itself exonerate the legislation in question? Would such a conclusion not depend on a careful examination of the obligations contained in specific WTO provisions, say, Article II of GATT and specific schedule of concessions? back to text
262. (footnote original) See paras. 4.173 V. and 7.51 of this Report. back to text
263. Panel Report on US — Section 301 Trade Act, paras. 7.53–7.54. See also Panel Report on US — Section 129(c)(1) URAA, para. 6.22. back to text
264. (footnote original) We note that in a recent case, a panel found that even discretionary legislation may violate certain WTO obligations. See Panel Report, United States — Section 301, supra, footnote 23, paras. 7.53–7.54. back to text
265. (footnote original) We note that, in the EC Panel Report, the Panel reached the same results as in the Japan Panel Report without making any finding that the notion of mandatory/discretionary legislation “is no longer relevant”. back to text
266. Appellate Body Report on US — 1916 Act, para. 99. back to text
267. Appellate Body Report on US — Countervailing Measures on Certain EC Products, footnote 334. back to text
268. (footnote original) We observe that the scope of each element in the phrase “laws, regulations and administrative procedures” must be determined for purposes of WTO law and not simply by reference to the label given to various instruments under the domestic law of each WTO Member. This determination must be based on the content and substance of the instrument, and not merely on its form or nomenclature. Otherwise, the obligations set forth in Article 18.4 would vary from Member to Member depending on each Member’s domestic law and practice. back to text
269. Article 3.2 of the DSU. back to text
270. Appellate Body Report on US — Corrosion-Resistant Steel Sunset Review, paras. 87–89. back to text
271. (footnote original) Appellate Body Report, US — 1916 Act, paras. 61 and 88. back to text
272. (footnote original) In footnote 95 to para. 7.114, the Panel quoted the following statement from para. 7.88 of the Panel Report in US — Steel Plate: “[t]he Appellate Body has recognized the distinction, but has not specifically ruled that it is determinative in consideration of whether a statute is inconsistent with relevant WTO obligations.” back to text
273. (footnote original) In our Report in US — 1916 Act, we examined the challenged legislation and found that the alleged “discretionary” elements of that legislation were not of a type that, even under the mandatory/discretionary distinction, would have led to the measure being classified as “discretionary” and therefore consistent with the Anti-Dumping Agreement. In other words, we assumed that the distinction could be applied because it did not, in any event, affect the outcome of our analysis. We specifically indicated that it was not necessary, in that appeal, for us to answer “the question of the continuing relevance of the distinction between mandatory and discretionary legislation for claims brought under the Anti-Dumping Agreement”. (Appellate Body Report, US — 1916 Act, para. 99.) We also expressly declined to answer this question in footnote 334 to paragraph 159 of our Report in US — Countervailing Measures on Certain EC Products. Furthermore, the appeal in US — Section 211 Appropriations Act presented a unique set of circumstances. In that case, in defending the measure challenged by the European Communities, the United States unsuccessfully argued that discretionary regulations, issued under a separate law, cured the discriminatory aspects of the measure at issue. back to text
274. Appellate Body Report on US — Corrosion-Resistant Steel Sunset Review, para. 93. back to text
275. Appellate Body Report on EC — Computer Equipment, para. 65. back to text
276. Panel Report on US — Export Restraints, para. 7.120. back to text
277. (footnote original) Response of Canada to question 14 from the Panel following the second meeting. back to text
278. (footnote original) Second Written Submission of Canada, para. 40. back to text
279. Panel Report on US — Export Restraints, para. 8.126. back to text
280. In US — Hot-Rolled Steel, Japan had also challenged the “general” practice of the United States’ investigating authorities regarding total facts available. The Panel did not rule on whether a general practice could be challenged separately from the statutory measure on which it is based because it concluded that Japan’s claim in this regard was outside its terms of reference. Indeed, the Panel found that there was no mention of such a claim in Japan’s request for the establishment of a panel. Panel Report on US — Hot-Rolled Steel, para. 7.22. back to text
281. Panel Report on US — Steel Plate, para. 7.14. back to text
282. Panel Report on US — Steel Plate, para. 7.15. back to text
283. Panel Report on US — Steel Plate, para. 7.22. back to text
284. Panel Report on US — Steel Plate, para. 7.23. back to text
285. Panel Report on Japan — Film, para. 10.52. back to text
286. (footnote original) The two definitions of measure relevant to our consideration in the Concise Oxford Dictionary (Ninth Edition 1995) are “legislative enactment” and “suitable action to achieve some end”. back to text
287. (footnote original) See para. 6.94. [Panel Report on Japan — Film.] back to text
288. Panel Report on Japan — Film, paras. 10.43–10.44. back to text
289. Panel Report on Japan — Film, paras. 10.55–10.56. back to text
290. GATT Panel Reports on Canada — FIRA, para. 5.4 and EEC — Parts and Components, para. 5.21. back to text
291. Panel Report on Canada — Autos, paras. 10.106–10.107. back to text
292. (footnote original) As we understand it, Article XI:1 does not incorporate an obligation to exercise “due diligence” in the introduction and maintenance of governmental measures beyond the need to ensure the conformity with Article XI:1 of those measures taken alone. back to text
293. Panel Report on Argentina — Hides and Leather, paras. 11.17, 11.22 and 11.51. back to text
294. Panel Report on EC — Bananas III, para. 7.27. back to text
295. (footnote original) Appellate Body Report on European Communities — Bananas III, para. 140. back to text
296. Panel Report on Japan — Film, para. 10.8. back to text
297. Panel Report on Argentina — Footwear (EC), para. 8.40. back to text
298. (footnote original) Having concluded that the European Communities has not identified the expedited review procedure as a specific measure at issue in its request for establishment, we need not, and do not, consider whether the European Communities has provided “a brief summary of the legal basis of the complaint sufficient to present the problem clearly” in that request for establishment (paras. 8.5–8.6, supra). back to text
299. Panel Report on US — Carbon Steel, para. 8.11. back to text
300. Appellate Body Report on EC — Computer Equipment, paras. 67–68 and 70. back to text
301. See also Panel Report on Canada — Aircraft Credits and Guarantees, para. 7.40, where the Panel found that the term “export credits” was “readily understandable” in the context of a dispute under Article 3.1(a) of the SCM Agreement. back to text
302. (footnote original) Appellate Body Report on Japan — Taxes on Alcoholic Beverages (Japan — Taxes on Alcoholic Beverages II), adopted on 1 November 1996, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, at pp. 26, 32. back to text
303. (footnote original) Appellate Body Report on European Communities — Customs Classification of Certain Computer Equipment, adopted on 22 June 1998 (WT/DS62/AB/R, WT/DS67/AB/R), at paras. 58–73. back to text
304. Panel Report on Korea — Alcoholic Beverages, paras. 10.14–10.16 back to text
305. Panel Report on US — FSC, para. 7.23. back to text
306. Panel Report on US — FSC, para. 7.29. back to text
307. Panel Report on Canada — Aircraft, para. 9.23. back to text
308. (footnote original) The Panel referred to para. 71. back to text
309. Panel Report on Canada — Aircraft, paras. 9.36–9.37. back to text
310. Appellate Body Report on Korea — Dairy, para. 139. back to text
311. Panel Report on EC — Bed Linen, para. 6.26. See also Panel Report on Egypt — Steel Rebar, para. 7.25. back to text
312. Panel Report on EC — Bananas III (Guatemala and Honduras), para. 7.30. back to text
313. Appellate Body Report on EC — Bananas III, para. 141. back to text
314. Appellate Body Report on India — Patents (US), paras. 89–90. back to text
315. Appellate Body Report on India — Patents (US), para. 94. back to text
316. Appellate Body Report on Korea — Dairy, para. 120. back to text
317. (footnote original) See Appellate Body Reports on Brazil — Desiccated Coconut, p. 22; EC — Bananas III, paras. 145 and 147; and India — Patents, paras. 89, 92 and 93. back to text
318. Appellate Body Report on Korea — Dairy, paras. 123–124 and 127. In Argentina — Ceramic Tiles, Argentina raised as a defence the concept of harmless error and argued that the complainant, the European Communities, had failed to demonstrate that the exporters concerned were prejudiced by the failure to determine an individual dumping margin. Argentina defined the concept of harmless error as “an error that does not cause injury or affect the rights of one of the parties” and contended that this concept has been accepted in WTO law through the Report of the Appellate Body in Korea — Dairy (see para. 98 of this Chapter). The Panel noted “however, that the Appellate Body Report in the Korea — Dairy Safeguards case, to which Argentina refers in support of its argument, dealt with the question of whether the request for establishment met the requirements of Article 6.2 of the DSU. The issue before the Appellate Body was whether Article 6.2 of the DSU was complied with or not. The Appellate Body, in deciding that question, concluded that one element to be considered was whether the defending Member was prejudiced in its ability to defend itself by a lack of clarity or specificity in the request for establishment. The Appellate Body did not address the question whether, once it had been established that a provision of the Agreement is violated, it needs in addition to be demonstrated that this violation had prejudiced the rights of the complaining party. Thus, we do not agree that this Appellate Body decision supports Argentina’s argument that the concept of harmless error has been accepted in WTO law.” Panel Report on Argentina — Ceramic Tiles, paras. 6.102–6.103. back to text
319. Panel Report on EC — Tube or Pipe Fittings, para. 7.14. back to text
320. Panel Report on EC — Tube or Pipe Fittings, paras. 7.22–7.23. See also paras. 7.26–7.27. back to text
321. Appellate Body Report on EC — Bananas III, paras. 141–143. See also Appellate Body Report on US — Lead and Bismuth II, paras. 72 and 73. back to text
322. Appellate Body Report on EC — Hormones, para. 156. In US — Certain EC Products, the Appellate Body ruled that “the Panel was not obliged to limit its legal reasoning in reaching a finding to arguments presented by the [complainant]”. See Appellate Body Report on US — Certain EC Products, para. 123. In Chile — Price Band System, Chile had asked the Appellate Body to reverse the Panel’s finding on the inconsistency of Chile’s price band system with Article II:1(b) second sentence on the ground that Argentina had not actually made a claim under that second sentence. Argentina referred to paragraph 156 of the Appellate Body Report on EC — Hormones in support of its argument that “Even if none of the parties had advanced arguments regarding the second sentence of Article II:1(b) of the GATT 1994, the Panel would have had the right, indeed the duty, to develop its own legal reasoning to support the proper resolution of Argentina’s claim.” The Appellate Body considered that, in this case, the Panel “had neither a ‘right’ nor a ‘duty’ to develop its own legal reasoning to support a claim under the second sentence” and stressed that “the Panel was not entitled to make a claim for Argentina, or to develop its own legal reasoning on a provision that was not at issue”: 
     “In EC — Hormones, and in US — Certain EC Products, we affirmed the capacity of panels to develop their own legal reasoning in a context in which it was clear that the complaining party had made a claim on the matter before the panel. It was also clear, in both those cases, that the complainant had advanced arguments in support of the finding made by the panel — even though the arguments in support of the claim were not the same as the interpretation eventually adopted by the Panel. The situation in this appeal is altogether different. No claim was properly made by Argentina under the second sentence of Article II:1(b). No legal arguments were advanced by Argentina under the second sentence of Article II:1(b). Therefore, those rulings have no relevance to the situation here.
      Contrary to what Argentina argues, given our finding that Argentina has not made a claim under the second sentence of Article II:1(b), the Panel in this case had neither a ‘right’ nor a ‘duty’ to develop its own legal reasoning to support a claim under the second sentence. The Panel was not entitled to make a claim for Argentina, or to develop its own legal reasoning on a provision that was not at issue. “
     Appellate Body Report on Chile — Price Band System, paras. 166–168. See also paras. 286–287 of this Chapter regarding the need for a claim to be specific. back to text
323. Appellate Body Report on India — Patents (US), para. 88. back to text
324. (footnote original) Appellate Body Report on EC — Bananas III, para. 143. back to text
325. (footnote original) See also Appellate Body Report on India — Patents I, para. 88; and EC — Hormones, para. 156. back to text
326. (footnote original) Appellate Body Report on India — Patents I, para. 88. back to text
327. (footnote original) Appellate Body Report on EC — Hormones, para. 156. back to text
328. Appellate Body Report on Korea — Dairy, para. 139. See also Panel Report on Egypt — Steel Rebar, para. 7.58. back to text
329. (footnote original) See the Appellate Body Report on EC — Bananas III, supra note 49, para. 141, where the Appellate Body states that, in its 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”. back to text
330. Panel Report on Canada — Autos, paras. 4.11–4.13. back to text
331. Panel Report on EC — Bed Linen (Article 21.5 — India), para. 6.63. back to text
332. (footnote original) Appellate Body Report, Thailand — H-Beams, para. 88. back to text
333. Appellate Body Report on US — Oil Country Tubular Goods Sunset Review, para. 162. back to text
334. Appellate Body Report on Thailand — H-Beams, para. 88. back to text
335. Appellate Body Report on Thailand — H-Beams, para. 95. See also the Panel Report on Canada — Aircraft Credits and Guarantees, para. 7.43, where the Panel also considered whether a lack of specificity in a panel request had prejudiced the respondent. back to text
336. ppellate Body Report on Chile — Price Band System, para. 164. back to text
337. (footnote original) See, for instance, First Written Submission of the United States, para. 110; Second Oral Submission of the United States, para. 41. back to text
338. (footnote original) We find support for this approach in the Appellate Body decision in Korea — Dairy and the panel decision in HFCS. See Appellate Body Report, Korea — Definitive Safeguard Measure on Imports of Certain Dairy Products (“Korea — Dairy “), WT/DS98/AB/R, adopted 12 January 2000, DSR 2000:I, 3, para. 131; Panel Report, Mexico — Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) from the United States (“Mexico — Corn Syrup “), WT/DS132/R and Corr.1, adopted 24 February 2000, DSR 2000:III, 1345, para. 7.17. back to text
339. Panel Report on US — Oil Country Tubular Goods Sunset Reviews, para. 7.71. back to text
340. (footnote original) We recall the statement by the Appellate Body that “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”. Appellate Body Report, European Communities — Regime for the Importation, Sale and Distribution of Bananas (“EC — Bananas III”), WT/DS27/AB/R, adopted 25 September 1997, DSR 1997:II, 591, para. 141. back to text
341. (footnote original) Appellate Body Report, United States — Tax Treatment of “Foreign Sales Corporations” (“US — FSC”), WT/DS108/AB/R, adopted 20 March 2000, para. 166. back to text
342. Panel Report on EC — Tube or Pipe Fittings, para. 7.10. back to text
343. Appellate Body Report on US — Carbon Steel, para. 127. back to text
344. Appellate Body Report on EC — Bananas III, para. 144. back to text
345. (footnote original) Thailand’s response to Panel Questions 2(a) and 7(a), Annex 2–6. back to text
346. (footnote original) Appellate Body Report, European Communities — Bananas, supra, note 37, para. 141. back to text
347. Panel Report on Thailand — H-Beams, para. 7.43. back to text
348. Appellate Body Report on Guatemala — Cement I, para. 75. See also the discussion on the special and additional rules, paras. 6–8.  back to text