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Japan
ATC safeguard measures (ATC 6), TMB discussion,
phase-out programme (ATC 3.2(b)) ATC 28
Enabling Clause notifications
GSP schemes GATT 31
special treatment of least-developed country Members
GATT 40
Japan — Agricultural
Products II (AB), WT/DS76/AB/R, DSR 1999:I
burden of proof
panel’s right to seek information and advice (DSU
13/SPS 11.2), relevance DSU 421, 1000
prima facie case, need for SPS
158
scientific evidence, sufficiency (SPS 2.2) SPS 17
harmonization of SPS measures (SPS 3), measures
which result in a higher level of protection (SPS 3.3), rational
relationship between measure and available information as SPS
72
information or technical advice, panel’s right to
seek (DSU 13/SPS 11.2)
burden of proof and DSU
421, 1000
limitations on panel’s role SPS
24, 196
panel’s rights, right to assess facts SPS 24
interpretation of covered agreements, ordinary
meaning, “sufficient” SPS 9
judicial economy, “positive solution to dispute”
requirement (DSU 3.7) and DSU 1039
publication of measures such as laws, decrees or
ordinances (transparency of SPS Regulations (Annex B) (para. 1, footnote
5)) SPS 176, 225
legal instruments as “measure” DSU 173
relationships within and between agreements
SPS 2.2/SPS 3.3, 5.1 and 5.7 SPS
10
SPS 2.2/SPS 5.1 and 5.2 SPS 31,
DSU 1039
request for establishment of panel, requirements
(DSU 6.2), identification of specific measures at issue, legal instrument
as measure DSU 173
risk assessment, need for (SPS 5.1–5.3 and Annex
A, para. 4)
elements/three-pronged test (Annex A, para. 4) SPS 103 n. 120
“scientific justification” (SPS 3.3) and SPS
72
scientific evidence, need for sufficient (SPS 2.2)
burden of proof SPS 17
patent insufficiency SPS 11
provisional adoption of measures in case of
insufficiency of scientific evidence (SPS 5.7)
obligation to seek to obtain additional information
for more objective assessment of risk SPS 166
“provisional” SPS 163
as qualified exemption SPS
162
requirements, cumulative nature SPS
163
review within “a reasonable period of time” SPS
167
rational or objective relationship between SPS
measure and scientific evidence, need for SPS 13
ad hoc determination SPS 14
“sufficiency”, as relational concept SPS
9–11
“sufficient” SPS 9–11
context (SPS 3.3, 5.1 and 5.7) SPS
10
SPS Agreement
burden of proof
measures “not more trade restrictive than required
to achieve their appropriate level of … protection” (SPS 5.6) SPS
158
scientific evidence, sufficiency (SPS 2.2) SPS
17
SPS measures, appropriate level of protection (SPS
5.5–5.6)
measures “not more trade restrictive than required
to achieve their appropriate level of … protection” (SPS 5.6)
burden of proof SPS 158
cumulative nature of obligations SPS
148
requirements (SPS 5.6, footnote 3) SPS
148
standard/powers of review (panel) (DSU 11), “objective
assessment of the facts”, evidence, alleged disregard or distortion by
panel, egregious error, need for DSU 353
transparency of SPS regulations (SPS 7 and Annex B),
publication of measures such as laws, decrees or ordinances which are
generally applicable (para. 1, footnote 5) SPS 225
Japan — Agricultural
Products II (Panel), WT/DS76/R, DSR 1999:I
expert review groups, rules and procedures (DSU,
Appendix 4)
appointment procedures SPS
193
methods for obtaining advice SPS
194
publication of measures such as laws, decrees or
ordinances (transparency of SPS Regulations (Annex B) (para. 1, footnote
5)), failure to publish as breach of SPS 5.7 obligations SPS
176
relationships within and between agreements
SPS 2/SPS 5 SPS 161
SPS 2.2/SPS 5.6 SPS 161
SPS 2.2/SPS 5.7 SPS 35–6
risk assessment, need for (SPS 5.1–5.3 and Annex
A, para. 4), competence (panel) SPS 23
scientific evidence, need for sufficient (SPS 2.2),
provisional adoption of measures in case of insufficiency of scientific
evidence (SPS 5.7) SPS 35–6
SPS Agreement, burden of proof, scientific evidence,
sufficiency (SPS 2.2) SPS 17
SPS measures, appropriate level of protection (SPS
5.5–5.6)
measures “not more trade restrictive than required
to achieve their appropriate level of … protection” (SPS 5.6)
alternative measure “significantly less
restrictive to trade” SPS 154
“appropriate level”, determination
Member’s right SPS 150
sufficient scientific evidence (SPS 2.2) and SPS
160–1
SPS 2.2 and SPS 160–1
standard/powers of review (panel) (DSU 11), risk
assessment (SPS Agreement), exclusion SPS 23
Japan — Alcoholic
Beverages II (AB), WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, DSR 1996:I
decisions, procedures and customary practices under
GATT 1947 (WTO XVI:1)
panel reports, legal status, as acquis (WTO
Art. XVI:1) WTO 216, GATT
111 n. 190
panel reports (adopted) WTO
159, 216, 222,
GATT 111 n. 190, DSU 73,
80
GATT 1994 constituent elements (GATT 1994 Art. 1), “other decisions of the Contracting Parties to
GATT 1947” (Art. 1(b)(iv)), adopted panel reports, whether GATT
1
General Council (WTO IV:2), functions,
interpretation of WTO Agreement WTO 159
interpretation of covered agreements
applicable law
customary rules of interpretation of public
international law [as codified in the Vienna Convention on the Law of
Treaties (1969)] GATT 222
DSU 3.2 AD 150 n. 193
guidelines
effectiveness principle (ut res magis valeat quam
pereat/effet utile), meaning to be attributed to every word and phrase
WTO
13, GATT 141, DSU 52
flexibility/certainty of the law, balance DSU 19
legitimate expectations, relevance WTO 222
panel reports and GATT
111, DSU 73
narrow/broad interpretation GATT 157,
162
object and purpose GATT 152
security and predictability (DSU 3.2) DSU 19
text/plain language (VCLT 31(2)) DSU 25
means
“any subsequent practice … which establishes the
agreement of the parties regarding its interpretation” (VCLT 31(1)(b)),
panel reports DSU 30
interpretative notes (Ad articles) GATT 151,
190, 215
supplementary means (VCLT 32), as rule of customary
international law DSU 33
responsibility for (WTO IX:2)
General Council (WTO IV:2) WTO 159
Ministerial Conference WTO
159
“like product” (GATT III:2 and III:4)
determination of “likeness”, on case by case
basis GATT 166
directly competitive or substitutable products
distinguished GATT 158, 213
GATT III:4 compared GATT
240
narrow interpretation, need for GATT
157, 162
relevant factors
Border Tax Adjustment, Working Party on GATT
157, 162, 166
consumer preferences GATT
166
cross-price elasticity GATT
194
end-uses GATT 166,
206
nature of product GATT
206
physical properties GATT
166, 206
tariff bindings GATT
170
tariff classifications GATT
147, 169–70,
206, 239
national treatment, general principle (GATT III:1)
applicability to products not subject of tariff
concession under GATT II GATT 120
interpretation of GATT III as a whole and
effectiveness principle GATT
141
GATT III:1 as context GATT
141
interpretation of WTO Agreement as a whole and GATT
300
“so as to afford protection” GATT
116
equality of competitive conditions, protection of
competitive relationship GATT 135
omission from GATT III:2, first sentence, relevance GATT
152
national treatment, tax discrimination (GATT III:2)
customary rules of interpretation of public
international law and GATT 222
determination of violation, requirements
aims and effects test/policy purpose GATT
128,
130–1, 184
“like product” and “in excess of” GATT
152,
175
“not similarly taxed” GATT
191
as separate elements GATT
191
tax on imported product in excess of domestic
product
“in excess of” GATT
152, 175
“not similarly taxed” distinguished GATT
214–16
first and second sentences distinguished GATT
145, 191, 236
general principle (GATT III:1) and GATT
141
Interpretative Note Ad Article III:2, relevance GATT
151, 190, 215
“not similarly taxed”
“so as to afford protection” distinguished GATT
219
threshold/de minimis differential GATT
214–15
“so as to afford protection” GATT
191
design and structure of measure as evidence of
protective application GATT 220
intention, relevance GATT
224
“not similarly taxed” distinguished GATT
219
tariff roles as evidence of GATT
223
tax differentials as evidence of protective
application GATT 221
panel reports, legal status, “other decisions of
the Contracting Parties to GATT 1947” (GATT 1994 Art. 1(b)(iv)), whether
GATT 1
precedent, decisions, procedures and customary
practices under GATT 1947 (WTO XVI:1) GATT
152
relationships within and between agreements
GATT III/WTO Agreement GATT
300
GATT III:1/GATT III as a whole GATT
141
Working Procedures (appellate review (DSU 17.9 and
ABWP)), written responses (ABWP 28) DSU 881
Japan — Alcoholic
Beverages II (Panel), WT/DS8/R, WT/DS10/R, WT/DS11/R, DSR 1996:I
directly competitive or substitutable products (GATT
III:2), as dynamic relationship (including possibility of latent demand) GATT
202
interpretation of covered agreements, means, “any
subsequent practice … which establishes the agreement of the parties
regarding its interpretation” (VCLT 31(1)(b)), panel reports DSU 30
“like product” (GATT III:2 and III:4), GATT
III:4 compared GATT 161
national treatment, general principle (GATT III:1),
applicability to products not subject of tariff concession under GATT II GATT
120
national treatment, tax discrimination (GATT III:2),
determination of violation, requirements, burden of proof GATT
155,
192
Japan — Alcoholic
Beverages II (Article 21.3), WT/DS8/15, WT/DS10/15, WT/DS11/13, DSR 1997:I
arbitration (DSU 22.6), right to participate in DSU 596
implementation of recommendations and rulings of the DSB (DSU 21)
impracticality of immediate compliance/reasonable
period of time (DSU 21.3, chapeau)
“reasonable period”
complexity of implementation process DSU 584
contentiousness, relevance DSU 584
“particular circumstances” DSU 584
Japan — Apples dispute
(WT/DS245)
arbitration (DSU 22.6), timing in relation to
Article 21.5 arbitration (“sequencing”), ad hoc procedural agreements,
agreement not to object to Article 22.6 arbitration DSU 633
expert evidence, Article 21.5 proceedings DSU 639
review of implementation of DSB rulings (DSU 21.5)
ad hoc procedural agreements
appointment of panelist DSU 638
experts DSU 639
Japan — Apples (AB), WT/DS245/AB/R, DSR 2003:IX
information or technical advice, panel’s right to
seek (DSU 13/SPS 11.2)
expert evidence (DSU 13.2)
establishment of prima facie case and SPS
25–6
expert evidence/Member’s scientific evidence,
primacy SPS 26, DSU 348
panel’s rights, to assess facts SPS 24
notice of appeal, requirements (ABWP 20(2)),
notification of allegation of panel’s failure to make objective
assessment (DSU 11) DSU 867
relationships within and between agreements, SPS 5
1/SPS 5 7 SPS 164 risk assessment, need for (SPS 5.1–5.3 and Annex A, para. 4)
ascertainable/theoretical risk distinguished (SPS
5.1), scientific prudence SPS 117
“likelihood”, according to SPS measures which
might be applied SPS 220
methodology, parties’ right to choose SPS 224
specificity of assessment, need for (SPS 5.1 and
5.2) SPS 221, 224
“sufficient scientific evidence” requirement
(SPS 2.2) and, divergence of expert views, relevance SPS 26
scientific evidence, need for sufficient (SPS 2.2)
provisional adoption of measures in case of
insufficiency of scientific evidence (SPS 5.7)
“insufficient” SPS 164–5
scientific uncertainty, relevance SPS 165
standard/powers of review (panel) (DSU 11)
“objective assessment of the facts”, evidence,
alleged disregard or distortion by panel, discretion in assessment of
evidence DSU 348
“objective assessment of matter before it”,
expert evidence, panel’s obligation to make independent assessment SPS
26, DSU 348
Japan — Apples (Panel), WT/DS245/R, DSR 2003:IX
burden of proof
allocation, responding party SPS 19
onus probandi actori incumbit SPS
19, DSU 991
scientific evidence, sufficiency (SPS 2.2) SPS
17–20, DSU 1010
evidence (panel procedures) (DSU 12), time limits
for submission, panel’s right to admit “late” evidence, opportunity
to comment, need for DSU 372
interpretation of covered agreements
guidelines, effectiveness principle (ut res magis
valeat quam pereat/effet utile), meaning to be attributed to every
word and phrase SPS 12
specific terms and phrases, “likelihood” (SPS
Annex A, para. 4) SPS 219bis
proportionality, risk based on scientific evidence
SPS 16
relationships within and between agreements
SPS 2.2/SPS 4 SPS 29
SPS 2.2/SPS 5.4 and 5.6 SPS 34
SPS 2.2/SPS 5.7 SPS 37
request for establishment of panel, requirements
(DSU 6.2), legal basis of claim, arguments distinguished DSU 284
risk assessment, need for (SPS 5.1–5.3 and Annex
A, para. 4)
ascertainable/theoretical risk distinguished (SPS
5.1), scientific prudence SPS 117
“likelihood”
4.219bis
according to SPS measures which might be applied SPS
220
proportionality and SPS 16
scientific evidence available at the time,
limitation to SPS 96
scientific evidence, need for sufficient (SPS 2.2)
burden of proof SPS
17–20
equivalence (SPS 4), relevance SPS 29
proportionality/risk equation SPS 16
provisional adoption of measures in case of
insufficiency of scientific evidence (SPS 5.7) SPS 36
rational or objective relationship between SPS
measure and scientific evidence, need for, ad hoc determination SPS 15
“scientific evidence” SPS 12
SPS Agreement
burden of proof
scientific evidence, sufficiency (SPS 2.2) SPS 18
scientific evidence, sufficiency (SPS 5.7) SPS 168
SPS measures, appropriate level of protection (SPS
5.5–5.6), measures “not more trade restrictive than required to
achieve their appropriate level of … protection” (SPS 5.6), SPS 2.2
and SPS 34
transparency of SPS regulations (SPS 7 and Annex B),
notification procedures changes requiring notification SPS 229
Japan — Film (Panel), WT/DS44/R, DSR 1998:IV
burden of proof
national treatment, regulatory discrimination (GATT
III:4) GATT 231
onus probandi actori incumbit GATT 652–4
interpretation of covered agreements
ordinary meaning
“measure” (GATT XXIII:1(b)) DSU 199
“specific measures” (DSU 6.2) DSU 204
“like product” (GATT III:2 and III:4),
competitive relationship, need for, GATT XXIII:1(b) compared GATT
269, 279
national treatment, regulatory discrimination (GATT
III:4)
burden of proof GATT 231
“laws, regulations or requirements”,
“measures” (GATT XXIII:1(b)) distinguished GATT 252
“less favourable treatment”, equality of
competitive conditions as test GATT 266
non-violation claims (GATT XXIII:1(b))
“any measure
government measures, limitation to GATT 657
measure currently in force, limitation to GATT 658
non-binding action GATT 656
“benefit”, legitimate expectation of improved
market access as norm GATT 659–62
“benefit”/legitimate expectation of improved
market access as
arising out of successive rounds of negotiation GATT 659–62
reasonable anticipation and GATT 663–8,
672
burden of proof GATT 652–5, DSU 807
as exceptional remedy GATT 645–6, DSU 807
“measure”
affecting the competitive relationship, GATT III:4 compared
GATT 269
government action, limitation to DSU 198–200
“law, regulations or requirements” (GATT III:4) compared
GATT 252
measure in “conflict” with GATT provisions,
applicability to, concurrent application to measures falling under other
provisions of GATT GATT 648
necessary elements GATT 650–1
nullification or impairment, need for GATT 671–2
causality and GATT 671–2
competitive relationship as key factor GATT 671
object and purpose GATT 647
publication and administration of trade regulations
(GATT X), laws, regulations, judicial decisions and administrative
rulings, of general application (GATT X:1) GATT 367
quantitative restrictions, elimination (GATT XI),
“prohibition or restriction” (GATT XI:1), private action, relevance
GATT 405
relationships within and between agreements, GATT
III:4/GATT XXIII:1(b) GATT 69, 252,
279
request for establishment of panel, requirements
(DSU 6.2)
identification of specific measures at issue
government action,
limitation to DSU 198–200
administrative guidance DSU 199
GATT practice DSU 199
measures implementing measure specifically referred
to, sufficiency DSU 204
terms of reference of panels (DSU 7), terminated
measures DSU 258
JITAP: see
Joint Integrated Technical
Assistance Programme (JITAP), identification of ways of enhancing and
rationalizing (Doha Declaration)
joint
action (GATT XXV), GATT practice GATT 727
joint
action (GATT XXXVIII), GATT practice GATT 751
Joint
Integrated Technical Assistance Programme (JITAP), identification of ways
of enhancing and rationalizing (Doha Declaration) WTO 90
judicial
and administrative assistance, non-applicability of GATS II (MFN)
provisions GATS 1, 20
judicial
economy: see also order of analysis;
relationships within and between
agreements
discretionary nature DSU 1035–6
precise recommendations and rulings by DSB and DSU
1040
explicit reference to, relevance DSU 1037
GATT practice DSU 1030
legal basis (DSU 11) DSU 1030–3
limitation of consideration to claims essential to
resolution of dispute (DSU 3.2) GATT 307,
TRIMs 30, AD 622 n.
796, DSU
23,
260
“positive solution to dispute” requirement (DSU
3.7) and DSU 1031, 1037,
1038–9
prior decision on another point rendering discussion
otiose GATT 550–1, AG 171, 228, 236–7
judicial restraint
GATT 453
July package:
see Doha Round/Work Programme
(Declaration, paras. 17–52), July package (2004)
jurisdiction:
see competence of panels and AB
(DSU 3.2); request for establishment of panel, requirements (DSU
6.2);
standard/powers of review (AB) (issues of law and legal interpretations)
(DSU 17.6); standard/powers of review (panel) (AD
17.6); standard/powers
of review (panel) (DSU 11); terms of reference of panels (DSU 7)
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