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> SCM Agreement
> SPS Agreement
> TBT Agreement. See also
Principles and Concepts of General Public International Law, No retroactive application of treaties (P.3.4)
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T.5.1 SCM Agreement back to top
T.5.1.1 Brazil — Desiccated Coconut, p. 15, DSR 1997:I, p. 167 at
179-180
(WT/DS22/AB/R)
Article 28 [of the Vienna Convention on the Law of Treaties]
states the general principle that a treaty shall not be applied
retroactively “unless a different intention appears from the treaty or
is otherwise established”. Absent a contrary intention, a treaty cannot
apply to acts or facts which took place, or situations which ceased to
exist, before the date of its entry into force. Article 32.3 of the SCM
Agreement is an express statement of intention which we will now
examine.
T.5.1.2 Brazil — Desiccated Coconut, pp. 18-19, DSR 1997:I, p.
167 at 182-183
(WT/DS22/AB/R)
The Appellate Body sees Article 32.3 of the SCM Agreement as a
clear statement that for countervailing duty investigations or reviews,
the dividing line between the application of the GATT 1947 system of
agreements and the WTO Agreement is to be determined by the date on
which the application was made for the countervailing duty investigation
or review. Article 32.3 has limited application only in specific
circumstances where a countervailing duty proceeding, either an
investigation or a review, was underway at the time of entry into force of
the WTO Agreement. This does not mean that the WTO Agreement does
not apply as of 1 January 1995 to all other acts, facts and situations
which come within the provisions of the SCM Agreement and Article
VI of the GATT 1994. However, the Uruguay Round negotiators expressed an
explicit intention to draw the line of application of the new WTO
Agreement to countervailing duty investigations and reviews at a
different point in time from that for other general measures.…
T.5.2 SPS Agreement back to top
T.5.2.1 EC — Hormones, para. 128
(WT/DS22/AB/R, WT/DS48/AB/R)
…We agree with the Panel that the SPS Agreement would apply to
situations or measures that did not cease to exist, such as the 1981 and
1988 Directives, unless the SPS Agreement reveals a contrary
intention. We also agree with the Panel that the SPS Agreement does
not reveal such an intention. The SPS Agreement does not contain
any provision limiting the temporal application of the SPS Agreement,
or of any provision thereof, to SPS measures adopted after 1 January 1995.…
T.5.3 TBT Agreement. See also Principles and Concepts of
General Public International Law, No retroactive application of treaties (P.3.4)
back to top
T.5.3.1 EC — Sardines, para. 200
(WT/DS231/AB/R)
We recall that Article 28 of the Vienna Convention on the Law of
Treaties (the “Vienna Convention”) provides that treaties
generally do not apply retroactively.…
… As we have said in previous disputes, the interpretation principle
codified in Article 28 is relevant to the interpretation of the covered
agreements.
T.5.3.2 EC — Sardines, para. 205
(WT/DS231/AB/R)
…We fail to see how the terms “where technical regulations are
required”, “exist”, “imminent”, “use”, and “as a basis for”
give any indication that Article 2.4 applies only to the two stages of preparation
and adoption of technical regulations. To the contrary, as the
Panel noted, the use of the present tense suggests a continuing obligation
for existing measures, and not one limited to regulations prepared and
adopted after the TBT Agreement entered into force.…
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