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D.2.1 Due process in the application of trade measures back to top
D.2.1.1 US — Shrimp,
para. 182
(WT/DS58/AB/R)
… Inasmuch as there are due process
requirements generally for measures that are otherwise imposed in
compliance with WTO obligations, it is only reasonable that rigorous
compliance with the fundamental requirements of due process should
be required in the application and administration of a measure which
purports to be an exception to the treaty obligations of the Member
imposing the measure and which effectively results in a suspension pro hac vice of the treaty rights of other Members.
D.2.2 Due process in WTO dispute settlement proceedings.
See also Request for the Establishment of a Panel (R.2);
Rules of Conduct (R.6); Seek Information and Technical Advice
(S.4);
Terms of Reference of Panels (T.6); Working Procedures for Appellate
Review (W.2) back to top
D.2.2.1 Brazil — Desiccated Coconut, p. 22, DSR 1997:I, p. 167
at 186
(WT/DS22/AB/R)
A panel’s terms of reference are important
for two reasons. First, terms of reference fulfil an important due
process objective — they give the parties and third parties
sufficient information concerning the claims at issue in the dispute
in order to allow them an opportunity to respond to the complainant’s
case. Second, they establish the jurisdiction of the panel by
defining the precise claims at issue in the dispute.
D.2.2.2 EC — Hormones, footnote 138 to para. 152
(WT/DS26/AB/R,
WT/DS48/AB/R)
… the DSU, and in particular its Appendix
3, leave panels a margin of discretion to deal, always in accordance
with due process, with specific situations that may arise in a
particular case and that are not explicitly regulated. Within this
context, an appellant requesting the Appellate Body to reverse a
panel’s ruling on matters of procedure must demonstrate the
prejudice generated by such legal ruling.
D.2.2.3 EC — Hormones, para. 154
(WT/DS26/AB/R,
WT/DS48/AB/R)
… Although Article 12.1 and Appendix 3 of
the DSU do not specifically require the Panel to grant [the
opportunity to participate in the second substantial meeting of the
proceedings initiated by Canada] to the United States, we believe
that this decision falls within the sound discretion and authority
of the Panel, particularly if the Panel considers it necessary for
ensuring to all parties due process of law. …
D.2.2.4 India — Patents (US), para. 94
(WT/DS50/AB/R)
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. Facts must be
disclosed freely. This must be so in consultations as well as in the
more formal setting of panel proceedings. In fact, the demands of
due process that are implicit in the DSU make this especially
necessary during consultations. …
D.2.2.5 India — Patents (US), para. 95
(WT/DS50/AB/R)
It is worth noting that, with respect to
fact-finding, the dictates of due process could better be served if
panels had standard working procedures that provided for appropriate
factual discovery at an early stage in panel proceedings.
D.2.2.6 Argentina — Textiles and Apparel, footnote 68 to para.
79
(WT/DS56/AB/R,
WT/DS56/AB/R/Corr.1)
As we have observed in two previous Appellate
Body Reports, we believe that detailed, standard working procedures
for panels would help to ensure due process and fairness in panel
proceedings. See European Communities — Regime for the
Importation, Sale and Distribution of Bananas, adopted 25 September
1997, WT/DS27/AB/R, para. 144; India — Patent Protection for
Pharmaceutical and Agricultural Chemical Products, adopted 16
January 1998, WT/DS50/AB/R, para. 95.
D.2.2.7 EC — Computer Equipment, para. 70
(WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R)
… 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.
D.2.2.8 US — FSC, para. 166
(WT/DS108/AB/R)
… 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.
D.2.2.9 Australia — Salmon, para. 272
(WT/DS18/AB/R)
… We note that Article 12.2 of the DSU
provides that “[p]anel procedures should provide sufficient
flexibility so as to ensure high-quality panel reports, while not
unduly delaying the panel process.” However, a panel must also
be careful to observe due process, which entails providing the
parties adequate opportunity to respond to the evidence submitted.
…
D.2.2.10 Australia — Salmon, para. 278
(WT/DS18/AB/R)
… A fundamental tenet of due process is
that a party be provided with an opportunity to respond to claims
made against it. In this case, we believe that the Panel did
accord Australia a proper opportunity to respond by allowing
Australia to submit a third written submission. We cannot see how
the Panel failed to accord due process to Australia by granting
the extra time it had requested.
D.2.2.11 US — 1916 Act, para. 150
(WT/DS136/AB/R, WT/DS162/AB/R)
A panel’s decision whether to grant “enhanced”
participatory rights to third parties is thus a matter that falls
within the discretionary authority of that panel. Such
discretionary authority is, of course, not unlimited and is
circumscribed, for example, by the requirements of due process. In
the present cases, however, the European Communities and Japan
have not shown that the Panel exceeded the limits of its
discretionary authority. …
D.2.2.12 Mexico — Corn Syrup (Article 21.5 — US), para. 36
(WT/DS132/AB/RW)
… We believe that a panel comes under a
duty to address issues in at least two instances. First, as a
matter of due process, and the proper exercise of the judicial
function, panels are required to address issues that are put
before them by the parties to a dispute. Second, panels have to
address and dispose of certain issues of a fundamental nature,
even if the parties to the dispute remain silent on those issues.
In this regard, we have previously observed that “[t]he vesting
of jurisdiction in a panel is a fundamental prerequisite for
lawful panel proceedings.” For this reason, panels cannot simply
ignore issues which go to the root of their jurisdiction — that
is, to their authority to deal with and dispose of matters.
Rather, panels must deal with such issues — if necessary, on
their own motion — in order to satisfy themselves that they have
authority to proceed.
D.2.2.13 Mexico — Corn Syrup (Article 21.5 — US), para. 47
(WT/DS132/AB/RW)
… the “observations” raised by
Mexico were not expressed in a fashion that indicated that Mexico
was raising an objection to the authority of the Panel. The
requirements of good faith, due process and orderly procedure
dictate that objections, especially those of such potential
significance, should be explicitly raised. Only in this way will
the panel, the other party to the dispute, and the third parties,
understand that a specific objection has been raised, and have an
adequate opportunity to address and respond to it. …
D.2.2.14 Mexico — Corn Syrup (Article 21.5 — US),
para. 49
(WT/DS132/AB/RW)
… had we been satisfied that Mexico did,
in fact, explicitly raise its objections before the Panel, then
the Panel may well have been required to “address” those
objections, whether by virtue of Articles 7.2 and 12.7 of the DSU,
or the requirements of due process. …
D.2.2.15 Mexico — Corn Syrup (Article 21.5 — US), para. 50
(WT/DS132/AB/RW)
… When a Member wishes to raise an
objection in dispute settlement proceedings, it is always
incumbent on that Member to do so promptly. A Member that fails to
raise its objections in a timely manner, notwithstanding one or
more opportunities to do so, may be deemed to have waived its
right to have a panel consider such objections.
D.2.2.16 US — FSC (Article 21.5 — EC), para. 243
(WT/DS108/AB/RW)
… the rights of third parties in panel
proceedings are limited to the rights granted under Article 10 and
Appendix 3 to the DSU. Beyond those minimum guarantees, panels
enjoy a discretion to grant additional participatory rights to
third parties in particular cases, as long as such “enhanced”
rights are consistent with the provisions of the DSU and the
principles of due process. However, panels have no discretion to
circumscribe the rights guaranteed to third parties by the
provisions of the DSU.
D.2.2.17 Chile — Price Band System, para. 144
(WT/DS207/AB/R)
We emphasize that we do not mean to condone
a practice of amending measures during dispute settlement
proceedings if such changes are made with a view to shielding a
measure from scrutiny by a panel or by us. We do not suggest that
this occurred in this case. However, generally speaking, the
demands of due process are such that a complaining party should
not have to adjust its pleadings throughout dispute settlement
proceedings in order to deal with a disputed measure as a “moving
target”. If the terms of reference in a dispute are broad enough
to include amendments to a measure — as they are in this case — and if it is necessary to consider an amendment in order to
secure a positive solution to the dispute — as it is here — then it is appropriate to consider the measure as amended in
coming to a decision in a dispute.
D.2.2.18 US — Carbon Steel, para. 123
(WT/DS213/AB/R,
WT/DS213/AB/R/Corr.1)
… we have consistently held that, in the
interests of due process, parties should bring alleged procedural
deficiencies to the attention of a panel at the earliest possible
opportunity. In this case, we see no reason to disagree with the
Panel’s view that the United States’ objection was not raised
in a timely manner. At the same time, however, as we have observed
previously, certain issues going to the jurisdiction of a panel
are so fundamental that they may be considered at any stage in a
proceeding. In our view, the Panel was correct, therefore, in
turning to consider its terms of reference and in satisfying
itself as to its jurisdiction with respect to this matter.
D.2.2.19 Canada — Wheat Exports and Grain Imports, para. 177
(WT/DS276/AB/R)
Although an appellant is free to determine
how to characterize its claims on appeal, at the same time due
process requires that the legal basis of a claim be sufficiently
clear to allow an appellee to respond effectively. This is
especially the case when the claim is an allegation that the panel
did not make an objective assessment of the matter as required by
Article 11 of the DSU because, by definition, such a claim will
not be found in the request for the establishment of the panel
and, therefore, the panel will not have referred to it in the
panel report.
D.2.2.20 US — Gambling, para. 269
(WT/DS285/AB/R,
WT/DS285/AB/R/Corr.1)
… This does not mean that a responding
party may put forward its defence whenever and in whatever manner
it chooses. Article 3.10 of the DSU provides that “all Members
will engage in these procedures in good faith in an effort to
resolve the dispute”, which implies the identification by each
party of relevant legal and factual issues at the earliest
opportunity, so as to provide other parties, including third
parties, an opportunity to respond.
D.2.2.21 US — Gambling, para. 270
(WT/DS285/AB/R,
WT/DS285/AB/R/Corr.1)
At the same time, the opportunity afforded
to a Member to respond to claims and defences made against it is
also a “fundamental tenet of due process”. A party must not
merely be given an opportunity to respond, but that opportunity
must be meaningful in terms of that party’s ability to defend
itself adequately. A party that considers it was not afforded such
an opportunity will often raise a due process objection before the
panel. The Appellate Body has recognized in numerous cases that a
Member’s right to raise a claim or objection, as well as a panel’s
exercise of discretion, are circumscribed by the due process
rights of other parties to a dispute. Those due process rights
similarly serve to limit a responding party’s right to set out
its defence at any point during the panel proceedings.
D.2.2.22 US — Gambling, para. 271
(WT/DS285/AB/R,
WT/DS285/AB/R/Corr.1)
Due process may be of particular concern in
cases where a party raises new facts at a late stage of the panel
proceedings. The Appellate Body has observed that, under the
standard working procedures of panels, complaining parties should
put forward their cases — with “a full presentation of the
facts on the basis of submission of supporting evidence” — during the first stage of panel proceedings. We see no reason why
this expectation would not apply equally to responding parties,
which, once they have received the first written submission of a
complaining party, are likely to be aware of the defences they
might invoke and the evidence needed to support them.
D.2.2.23 US — Gambling, para. 272
(WT/DS285/AB/R,
WT/DS285/AB/R/Corr.1)
It follows that the principles of good faith
and due process oblige a responding party to articulate its
defence promptly and clearly. This will enable the complaining
party to understand that a specific defence has been made, “be
aware of its dimensions, and have an adequate opportunity to
address and respond to it.” …
D.2.2.24 US — Gambling, para. 273
(WT/DS285/AB/R,
WT/DS285/AB/R/Corr.1)
… as part of their duties, under Article
11 of the DSU, … panels must ensure that the due process
rights of parties to a dispute are respected. A panel may act
inconsistently with this duty if it addresses a defence that a
responding party raised at such a late stage of the panel
proceedings that the complaining party had no meaningful
opportunity to respond to it. To this end, panels are endowed with
“sufficient flexibility” in their working procedures, by
virtue of Article 12.2 of the DSU, to regulate panel proceedings
and, in particular, to adjust their timetables to allow for
additional time to respond or for additional submissions where
necessary.
D.2.2.25 US — Gambling, para. 276
(WT/DS285/AB/R,
WT/DS285/AB/R/Corr.1)
… we are of the view that, although the
United States could have raised its defence earlier, the Panel did
not err in deciding to assess whether the United States’
measures are justified under Article XIV. From the outset, Antigua
was apparently aware that the United States might argue that its
measures satisfy the requirements of Article XIV. Antigua admitted
that it raised no objection to the timing of the United States’
defence before the Panel. Antigua also acknowledged that it did
have an opportunity to respond adequately to the United States’
defence, albeit at a late stage of the proceeding. …
D.2.2.26 US — Continued Suspension / Canada —
Continued
Suspension, para. 433
(WT/DS320/AB/R,
WT/DS321/AB/R)
The Appellate Body has previously found that
the obligation to afford due process is “inherent in the WTO
dispute settlement system” and it has described due process
requirements as “fundamental to ensuring a fair and orderly
conduct of dispute settlement proceedings”. In our view, the
protection of due process is an essential feature of a rules-based
system of adjudication, such as that established under the DSU.
Due process protection guarantees that the proceedings are
conducted with fairness and impartiality, and that one party is
not unfairly disadvantaged with respect to other parties in a
dispute.
D.2.2.27 US — Continued Suspension / Canada —
Continued
Suspension, para. 435
(WT/DS320/AB/R,
WT/DS321/AB/R)
These due process considerations are
reflected in the Rules of Conduct. Section II (Governing
Principle) of the Rules of Conduct provides that all covered
persons, such as panellists and experts advising panels:
… shall be independent and impartial, shall avoid direct or indirect
conflicts of interest and shall respect the confidentiality of
proceedings of bodies pursuant to the dispute settlement
mechanism, so that through the observance of such standards of
conduct the integrity and impartiality of that mechanism are
preserved.
D.2.2.28 US — Continued Suspension / Canada —
Continued
Suspension, para. 436
(WT/DS320/AB/R,
WT/DS321/AB/R)
Scientific experts and the manner in which
their opinions are solicited and evaluated can have a significant
bearing on a panel’s consideration of the evidence and its
review of a domestic measure, especially in cases like this one
involving highly complex scientific issues. Fairness and
impartiality in the decision-making process are fundamental
guarantees of due process. Those guarantees would not be respected
where the decision-makers appoint and consult experts who are not
independent or impartial. Such appointments and consultations
compromise a panel’s ability to act as an independent
adjudicator. For these reasons, we agree with the view of the
European Communities that the protection of due process applies to
a panel’s consultations with experts. This due process
protection applies to the process for selecting experts and to the
panel’s consultations with the experts, and continues throughout
the proceedings.
D.2.2.29 US — Continued Suspension / Canada —
Continued
Suspension, para. 473
(WT/DS320/AB/R,
WT/DS321/AB/R)
The United States emphasizes the fact that
the Panel consulted with the parties when it adopted the Experts
Working Procedures and in the expert selection process. We agree
with the United States that consultation with the parties in the
adoption of working procedures for selecting the experts and in
the expert selection process is a means for ensuring that the
parties’ due process rights are respected. However, as we
explained earlier, the obligation to afford the protection of due
process to the parties is not circumscribed to the expert
selection stage and does not end with the appointment of the
experts. Due process protection continues to apply throughout the
consultations with the experts. Thus, the fact that the Panel may
have consulted with the parties in this case when preparing the
Experts Working Procedures and in selecting the experts does not
provide a basis for concluding that due process was also respected
in the subsequent stages of the proceedings, including the
consultations with the experts. …
D.2.2.30 US — Continued Suspension / Canada —
Continued
Suspension, para. 481
(WT/DS320/AB/R,
WT/DS321/AB/R)
For these reasons, we consider that there
was an objective basis to conclude that the institutional
affiliation with JECFA of Drs Boisseau and Boobis, and their
participation in JECFA’s evaluations of the six hormones at
issue, was likely to affect or give rise to justifiable doubts as
to their independence or impartiality given that the evaluations
conducted by JECFA lie at the heart of the controversy between the
parties. The appointment and consultations with Drs Boisseau and
Boobis compromised the adjudicative independence and impartiality
of the Panel. Therefore, we find that the Panel infringed the
European Communities’ due process rights as a result of the
Panel having consulted with Drs Boisseau and Boobis as scientific
experts.
D.2.2.31 US — Zeroing (EC) (Article 21.5 — EC), paras. 169,
172
(WT/DS294/AB/RW,
WT/DS294/AB/RW/Corr.1)
On appeal, the European Communities alleges
that the Panel acted inconsistently with the basic requirements of
due process and the full exercise of the judicial function by
failing to address properly its claim that the Panel was composed
in a manner inconsistent with Articles 8.3 and 21.5 of the DSU.
The European Communities submits that, because panels, and
ultimately the Appellate Body, have the authority and the
obligation to rule on the correct interpretation of the DSU,
defects that could arise during panel composition are subject to
judicial review by them. The European Communities requests the
Appellate Body to complete the analysis and to find that the Panel’s
composition in this case was inconsistent with Articles 8.3 and
21.5 of the DSU.
…
On the substance of the European Communities’
appeal, we note that, on 28 November 2007, the Director-General
was requested to determine the composition of the compliance panel
under Article 8.7 of the DSU. In our view, Article 8.7 confers on
the Director-General the discretion to compose panels, which was
properly exercised in this case. We therefore find that the Panel
did not err in refraining, in paragraphs 8.17 and 9.1(a) of the
Panel Report, from making a finding on whether it was improperly
composed. …
D.2.2.32 US — Zeroing (Japan) (Article 21.5 —
Japan), paras.
118-119
(WT/DS322/AB/RW)
As we observed earlier, one of the purposes
of a panel’s terms of reference is to fulfil the due process
objective of notifying respondents and potential third parties of
the nature of the dispute and of the parameters of the case to
which they must begin preparing a response. We see no error in the
Panel having examined whether Japan’s panel request adequately
put the United States “on notice” regarding the case against
it. Nor do we find error in the Panel’s finding that the United
States was reasonably put on notice by Japan’s panel request. …
We consider that the Panel did not err in its analysis of the
matter and in considering the due process objectives as relevant
for purposes of deciding whether Review 9 was within its terms of
reference.
Further, we do not believe that the
inclusion of Review 9 in the Panel’s terms of reference
adversely affected the United States’ due process rights. … In our view,… the United States had ample opportunities,
during the course of the Panel proceedings and prior to the Panel’s
deliberations, to make arguments, answer questions, and respond to
Japan’s submission with respect to Review 9. Potential third
parties were sufficiently put on notice by Japan’s panel request
… The third parties also had opportunity to present arguments
and respond to the claims made by Japan with respect to Review 9.
Based on the above, we agree with the Panel’s conclusion that
“a finding that the phrase ‘subsequent closely connected
measures’ satisfies the terms of Article 6.2 would not violate
any due process objective of the DSU”.
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