|
ON THIS PAGE:
> US — Gasoline, p. 22, DSR 1996:I, p. 3 at 20
> US — Shrimp, para. 119
> US — FSC, para. 89 and footnote 99
> Canada — Autos, para. 151
> US — Steel Safeguards, footnote 494 to para. 481
> Canada — Wheat Exports and Grain Imports, para. 109
> Canada — Wheat Exports and Grain Imports, para. 122
> Canada — Wheat Exports and Grain Imports, paras. 126-129
> US — Upland Cotton, paras. 431-433
> US — Upland Cotton, para. 628
> US — Gambling, para. 292
> US — Zeroing (EC) (Article 21.5
— EC), paras. 277-279
|
O.2.1 US — Gasoline, p. 22, DSR 1996:I, p. 3 at 20
back to top
(WT/DS2/AB/R)
… In order that the justifying protection of Article XX may be
extended to it, the measure at issue must not only come under one or
another of the particular exceptions — paragraphs (a) to (j) — listed under Article XX; it must also satisfy the requirements imposed
by the opening clauses of Article XX. The analysis is, in other words,
two-tiered: first, provisional justification by reason of
characterization of the measure under XX(g); second, further appraisal
of the same measure under the introductory clauses of Article XX.
O.2.2 US — Shrimp,
para. 119 back to top
(WT/DS58/AB/R)
The sequence of steps indicated above in the analysis of a claim of
justification under Article XX reflects, not inadvertence or random
choice, but rather the fundamental structure and logic of Article XX.
The Panel appears to suggest, albeit indirectly, that following the
indicated sequence of steps, or the inverse thereof, does not make any
difference. To the Panel, reversing the sequence set out in United
States — Gasoline “seems equally appropriate”. We do not
agree.
O.2.3 US — FSC, para. 89 and footnote 99 back to top
(WT/DS108/AB/R)
We start with the United States’ argument that the Panel erred by
failing to begin its examination of the European Communities’ claim
under Article 3.1(a) of the SCM Agreement with footnote 59 of
that Agreement. Instead, the Panel began its examination with the
general definition of a “subsidy” that is set forth in Article 1.1
of the SCM Agreement. This definition applies throughout the SCM
Agreement, to all the different types of “subsidy” covered by
that Agreement. In our view, it was not a legal error for the Panel to
begin its examination of whether the FSC measure involves export subsidies
by examining the general definition of a “subsidy” that
is applicable to export subsidies in Article 3.1(a). In any
event, whether the examination begins with the general definition of a
“subsidy” in Article 1.1 or with footnote 59, we believe that the
outcome of the European Communities’ claim under Article 3.1(a) would
be the same. The appropriate meaning of both provisions can be
established and can be given effect, irrespective of whether the
examination of the claim of the European Communities under Article
3.1(a) begins with Article 1.1 or with footnote 59.99
O.2.4 Canada — Autos,
para. 151 back to top
(WT/DS139/AB/R, WT/DS142/AB/R)
In United States — Import Prohibition of Certain Shrimp and
Shrimp Products, we said, in the context of Article XX of the GATT
1994, that a panel may not ignore the “fundamental structure and logic”
of a provision in deciding the proper sequence of steps in its analysis,
save at the peril of reaching flawed results. Similarly, here, the
fundamental structure and logic of Article I:1, in relation to the rest
of the GATS, require that determination of whether a measure is, in
fact, covered by the GATS must be made before the consistency of
that measure with any substantive obligation of the GATS can be
assessed.
O.2.5 US — Steel Safeguards, footnote 494 to
para. 481 back to top
(WT/DS248/AB/R, WT/DS249/AB/R, WT/DS251/AB/R, WT/DS252/AB/R,
WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R, WT/DS259/AB/R)
In paragraph 10.278 of the Panel Reports, the Panel stated that it
“assumed for the purposes of its consideration of the issue of
causation”, that the relevant domestic producers had been correctly
defined and that serious injury or threat thereof existed. We note that
the Panel found no “increased imports” for five product categories
— CCFRS, hot-rolled bar, stainless steel rod, tin mill, and stainless
steel wire. However, the Panel must also have assumed, tacitly, that,
for the purposes of its causation analysis, imports had increased for
those five products. We do not see anything improper per se in
panels making such assumptions, especially when doing so enables panels
to make findings they otherwise would not have made, thereby
facilitating appellate review. We are mindful that the volume and
complexity of this case may have prompted the Panel to exercise judicial
economy on several issues and to rely on the corresponding
inter-dependent assumptions. We note, however, that the cumulation of
several inter-related assumptions could have affected our ability to
complete the Panel’s legal analysis had we pursued a ruling on
causation.
O.2.6 Canada — Wheat Exports and Grain Imports,
para. 109
(WT/DS276/AB/R)
back to top
Thus, in each case it is the nature of the relationship between two
provisions that will determine whether there exists a mandatory sequence
of analysis which, if not followed, would amount to an error of law. In
some cases, this relationship is such that a failure to structure the
analysis in the proper logical sequence will have repercussions for the
substance of the analysis itself. …
O.2.7 Canada — Wheat Exports and Grain Imports,
para. 122
(WT/DS276/AB/R)
back to top
… the approach taken by the Panel in this case must be distinguished
from the approach taken by the panels in US — Shrimp and Canada
— Autos. Those panels proceeded directly to an analysis under one
provision, without having engaged in any analysis under, or made
any assumptions relating to, a provision setting forth a logically prior
analytical step.
O.2.8 Canada — Wheat Exports and Grain Imports, paras. 126-129
(WT/DS276/AB/R)
back to top
… we wish to express some concern about the manner in which the
Panel conducted its analysis of the consistency of the CWB Export Regime
with Article XVII:1(a) and (b). As a general principle, panels are free
to structure the order of their analysis as they see fit. In so doing,
panels may find it useful to take account of the manner in which a claim
is presented to them by a complaining Member. Furthermore, panels may
choose to use assumptions in order to facilitate resolution of a
particular issue or to enable themselves to make additional and
alternative factual findings and thereby assist in the resolution of a
dispute should it proceed to the appellate level.
At the same time, panels must ensure that they proceed on the basis
of a properly structured analysis to interpret the substantive
provisions at issue. As the Appellate Body found in US — Shrimp and
Canada — Autos, panels that ignore or jump over a prior logical
step of the analysis run the risk of compromising or invalidating later
findings. This risk is compounded in the case of two legally
interrelated provisions, where one of those provisions must, as a matter
of logic and analytical coherence, be analysed before the other, as is
the case with subparagraphs (a) and (b) of Article XVII:1 of the GATT
1994.
Furthermore, an over-reliance on the use of assumptions as an aid to
analysis can detract from the clarity of a panel’s analysis or have
other adverse effects at the appellate stage.…
The intertwining of analysis and assumption may, in some cases,
create a degree of uncertainty as to the precise findings that a panel
did make. This could pose difficulties for parties in deciding whether
and what to appeal. We thus recommend that when using assumptions as a
tool to facilitate analysis — which we recognize can be useful — panels ensure that they are clear and explicit as to exactly what is
assumed and what they have concluded based on these assumptions.
O.2.9 US
— Upland Cotton, paras. 431-433
back to top
(WT/DS267/AB/R)
As noted above, Article 6.3(c) is silent as to the sequence of steps
to be followed in assessing whether the effect of a subsidy is
significant price suppression. We note that Article 6.8 indicates that
the existence of serious prejudice pursuant to Articles 5(c) and 6.3(c)
is to be determined on the basis of information submitted to or obtained
by the panel, including information submitted in accordance with Annex V
of the SCM Agreement. Annex V provides some limited guidance
about the type of information on which a panel might base its assessment
under Article 6.3(c). But we find little other guidance on this issue.
The text of Article 6.3(c) does not, however, preclude the approach
taken by the Panel to examine first whether significant price
suppression exists and then, if it is found to exist, to proceed further
to examine whether the significant price suppression is the effect of
the subsidy. The Panel evidently considered that, in the absence of
significant price suppression, it would not need to proceed to analyse
the effect of the subsidy. We see no legal error in this approach.
One might contend that, having decided to separate its analysis of
significant price suppression from its analysis of the effects of the
challenged subsidies, the Panel’s price suppression analysis should
have addressed prices without reference to the subsidies and their
effects. …
However, the ordinary meaning of the transitive verb “suppress”
implies the existence of a subject (the challenged subsidies) and an
object (in this case, prices in the world market for upland cotton).
This suggests that it would be difficult to make a judgement on
significant price suppression without taking into account the
effect of the subsidies. The Panel’s definition of price suppression,
explained above, reflects this problem; it includes the notion that
prices “do not increase when they otherwise would have” or
“they do actually increase, but the increase is less than it otherwise
would have been”. The word “otherwise” in this context refers
to the hypothetical situation in which the challenged subsidies are
absent. Therefore, the fact that the Panel may have addressed some of
the same or similar factors in its reasoning as to significant price
suppression and its reasoning as to “effects” is not necessarily
wrong.
O.2.10 US
— Upland Cotton,
para. 628 back to top
(WT/DS267/AB/R)
Before proceeding further, we refer to the order followed by the
Panel in its analysis of Brazil’s claims against the United States’
export credit guarantee programmes. We do not find that the Panel’s
order of analysis was wrong or that it constituted legal error. Nor has
the United States made such a claim on appeal. Nevertheless, we are
struck by the fact that the Panel addressed Article 10.2 only at the end
of its analysis, especially given that this provision constituted the
core of the United States’ defence that the disciplines of the Agreement
on Agriculture currently do not apply to export credit guarantees at
all.
O.2.11 US
— Gambling,
para. 292 back to top
(WT/DS285/AB/R, WT/DS285/AB/R/Corr.1)
Article XIV of the GATS, like Article XX of the GATT 1994,
contemplates a “two-tier analysis” of a measure that a Member seeks
to justify under that provision. A panel should first determine whether
the challenged measure falls within the scope of one of the paragraphs
of Article XIV. This requires that the challenged measure address the
particular interest specified in that paragraph and that there be a
sufficient nexus between the measure and the interest protected. The
required nexus — or “degree of connection” — between the measure
and the interest is specified in the language of the paragraphs
themselves, through the use of terms such as “relating to” and “necessary
to”. Where the challenged measure has been found to fall within one of
the paragraphs of Article XIV, a panel should then consider whether that
measure satisfies the requirements of the chapeau of Article XIV.
O.2.12 US
— Zeroing (EC) (Article 21.5 — EC), paras. 277-279
(WT/DS294/AB/RW,
WT/DS294/AB/RW/Corr.1)
back to top
… we consider that, in fulfilling its duties under Article 11 of the
DSU, a panel may depart from the sequential order suggested by the
complaining party, in particular, when this is required by the correct
interpretation or application of the legal provisions at issue.
In the US — Continued Suspension / Canada —
Continued
Suspension disputes, the European Communities similarly argued that
the panel erroneously disregarded the conditional order of its legal
claims when it examined the European Communities’ alternative claim
that the measure at issue was consistent with the Agreement on
the Application of Sanitary and Phytosanitary Measures (the “SPS
Agreement”), having found earlier, in response to one of the
European Communities’ main claims, that the United States and Canada
had acted inconsistently with Articles 23.1 and 23.2(a) of the DSU. The
Appellate Body rejected this argument, and reasoned that the fact that
the European Communities described its claims that the measures at issue
achieved substantive compliance with the relevant provisions of the SPS
Agreement as “alternative claims” did not preclude the panel
from evaluating those claims, because this was required by the correct
interpretation of Article 22.8 of the DSU.
Accordingly, we find that the Panel did not exceed its
mandate, and act inconsistently with Article 11 of the DSU, in
addressing the European Communities’ alternative “close nexus”
claim without first addressing the European Communities’ “omissions”
claim.
99. We note that the relationship between Article 1.1 and footnote 59
of the SCM Agreement is, therefore, different in this way from the
relationship between the chapeau of Article XX of the GATT 1994 and the
particular exceptions listed in sub-paragraphs (a) to (j) of that
Article. In our Report in United States — Import Prohibitions of
Certain Shrimp and Shrimp Products (“United States — Shrimp”),
we observed that the application of the general standards of the chapeau
of Article XX of the GATT 1994 is rendered very difficult, if not
impossible, if the treaty interpreter does not, first, identify and
examine the specific exception at issue (WT/DS58/AB/R, adopted 6
November 1998, para. 120). back to text
|
The texts reproduced here do not have the legal standing of the original
documents which are entrusted and kept at the WTO Secretariat in Geneva.
|
