The Legal System of the WTO
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Transcript of The Legal System of the WTO
The Legal System of the
WTO
The Legal System of the
WTO
主讲人:宋俊荣E-mail : [email protected]
主讲人:宋俊荣E-mail : [email protected]
国际法商系
The Legal System of the WTO
Chapter 2 Procedural rules of the WTO
§2.1 Decision-making Mechanism
3/4 majority3/4 majority
The decision to waive an obligation of a member
consensus; consensus; 3/4 majority;3/4 majority;2/3majority2/3majority
Amendments of WTO agreements
The decision to adopt an interpretation
Principle: Consensus is always preferred. In case consensus could not be reached, the matter at issue shall be decided by voting (one member, one vote).
3/4 majority
reverse reverse consensusconsensus Dispute settlement
§2.2 Trade Policy Review Mechanism
ObjecitveObjecitve
SubjectSubjectmattermatter
All aspects of trade policy in all the WTO Members
The The authorityauthority
TPRB
To facilitate the smooth functioning of the multilateral trading system by enhancing the transparency of Members’ trade policies.
§2.2 Trade Policy Review Mechanism
China Hong Kong; China; Korea;Singapore;
Switzerland; Mexico; Australia; Malaysia; Thailand; Norway; Indonesia; Brazil;
Turkey; South Africa; Israel; India;
United Arab Emirates
U.S.EC
JapanCanada
Every 2
years
Every 4
years
Every 6
years
Review cycles :
U.S.EC
JapanCanada
all the other WTO members
U.S.EC
JapanCanada
§2.2 Trade Policy Review Mechanism
Collection of informationA policy
statement by the Member
under review A report
prepared by economists
in the Secretariat (not legally binding)
Visit to the capital
Final preparation of documents
Review meeting organized and conducted
Publication of documents
§2.3 The Dispute Settlement Mechanism
LegalLegalbasisbasis
DSU; provisions on dispute settlement in other WTO agreements.
CoverageCoverageAll disputes arising under the WTO agreements.
§2.3 The Dispute Settlement Mechanism
AuthorityAuthority
Dispute Settlement Body (DSB)-to establish panels-to adopt the reports of panels or AB-to monitor the implementation and recommendation of the panel and AB-to authorize suspension of concessions or other appropriate obligation of the member nationsPanel/AB: to help the DSB make rulings or recommendations
Four Four stagesstages
consultation → panel → appellate review→ enforcement
§2.3 The Dispute Settlement Mechanism
Aimed to preserve the rights and obligations of Members and to clarify the existing provisions.
1
The results cannot add to or diminish the rights and obligations provided in the WTO agreements.
2
Mutually agreed solution which is consistent with the WTO agreements is preferred.
3
Withdrawal of the measures inconsistent with the WTO agreements is preferred. Retaliatory action is the last resort.
4
The General Principles:
§2.3 The Dispute Settlement Mechanism
Rule-based 1
Automaticity: through reverse consensus2
Compulsory jurisdiction on WTO members: through automatic establishment of panels
3
Quickness: through strict deadlines4
Legal quality: guaranteed by the AB5
The improvements :
6 Enforcement: through cross-retaliation6
§2.3 The Dispute Settlement Mechanism
Timetable
60 days Consultations, mediation, etc
45 days Panel set up and panelists appointed
6 months Final panel report to parties
3 weeks Final panel report to WTO members
60 days DSB adopts report (if no appeal)
Total= 1 year (without appeal)
60-90 days Appeals report
30 days DSB adopts appeals report
Total= 1 y 3 m (with appeal)
15 months Implementation
30 days Retaliation (in case of non-implementation)
§2.3 The Dispute Settlement Mechanism
Necessary stage
A diplomatic measure aimed to reach amicable solution.
Time limit: 60 days after the request.
The first stage: Consultation
§2.3 The Dispute Settlement Mechanism
The second stage: Panel process
A. Establishment of a panel
Condition: consultations fail within 60-day time frame.Condition: consultations fail within 60-day time frame.
a
The selection of 3 panelists:(i) suggestion from the Secretariat (ii) parties nominate the panelists (never happened, because they never agree with each other)(iii) DG nominates the panelists ( it’s always the case)
The selection of 3 panelists:(i) suggestion from the Secretariat (ii) parties nominate the panelists (never happened, because they never agree with each other)(iii) DG nominates the panelists ( it’s always the case)
b
§2.3 The Dispute Settlement Mechanism
The second stage: Panel process
A. Establishment of a panel
3 categories of panelists: government officials; former secretariat officials; trade academics or lawyers.
3 categories of panelists: government officials; former secretariat officials; trade academics or lawyers.
c
Qualification of panelists: no nationals of parties or third parties, absent agreement of the parties; one panelist coming from a developing country (if requested) in a case involving a developing country.
Qualification of panelists: no nationals of parties or third parties, absent agreement of the parties; one panelist coming from a developing country (if requested) in a case involving a developing country.
d
§2.3 The Dispute Settlement Mechanism
The second stage: Panel process
A. Establishment of a panel
Rules of conduct: to be independent and impartial, avoiding direct or indirect conflicts of interest and respecting the confidentiality of proceedings.
Rules of conduct: to be independent and impartial, avoiding direct or indirect conflicts of interest and respecting the confidentiality of proceedings.
e
§2.3 The Dispute Settlement Mechanism
The second stage: Panel process
B. Who appears before panels?
Complainants & respondentsComplainants & respondentsa
-Does a complainant need to demonstrate legal interest as a pre-requisite to submit a particular dispute?
-The composition of delegations participating in WTO dispute settlement proceedings.
§2.3 The Dispute Settlement Mechanism
The second stage: Panel process
B. Who appears before panels?
Third partiesThird partiesb
-Legal basis: Art.10 of DSU
-timing of the request to participate as third party
-rights
§2.3 The Dispute Settlement Mechanism
The second stage: Panel process
B. Who appears before panels?
Amicus curiaeAmicus curiaec
The statement of AB in U.S.—Shrimp (WT/DS58) :
The panel was not prohibited from examining amicus
curiae(法庭之友 ) briefs.
§2.3 The Dispute Settlement Mechanism
The second stage: Panel process
C. The task of panels
Terms of reference: defined by the request for establishment of a panel.Terms of reference: defined by the request for establishment of a panel.
a
DSU Art.7.1:“To examine, in the light of the relevant provisions in (name
of the covered agreement (s) cited by the parties to the dispute), the matter referred to the DSB by (name of party) in document ... and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in that/those agreement (s).”
§2.3 The Dispute Settlement Mechanism
The second stage: Panel process
C. The task of panels
Terms of reference: defined by the request for establishment of a panel.Terms of reference: defined by the request for establishment of a panel.
a
The roles of the panel request: -To define the terms of reference of the panel. The panel is not
entitled to cite other provisions or agreements not cited by the complaining party in the panel request.
-To inform the responding party and third parties its claim so that they have chances to respond to the case.
The requirement for drafting the panel request: -The complaining party must include all the relevant provisions in
the panel request since it could not add new claims afterwards. (due process)
§2.3 The Dispute Settlement Mechanism
The second stage: Panel process
C. The task of panels
Objective assessment of the matter before itObjective assessment of the matter before it
The facts of the case.
The applicability of and conformity with the relevant WTO agreements.
The deliberate disregard of, refusal to consider, wilful distortion or misrepresentation of the evidence put before a panel is not allowed.
b
§2.3 The Dispute Settlement Mechanism
The second stage: Panel process
D. Sources restraining a panel’s jurisdiction
(a) A panel’s authority lapses
(b) Parallelism of the subject matter
(c) Res Judicata (一事不再理)
The parties could not bring a suit again on an event
which was the subject of a previous legal cause of action
that has already been finally decided between them.
(d) Mutually Agreed Solutions
§2.3 The Dispute Settlement Mechanism
The second stage: Panel process
D. Sources restraining a panel’s jurisdiction
(e) Agreements between parties as to the ambit of their dispute
(f) Estoppel (禁止反言) A person is prohibited from denying or asserting anything to the
contrary of that which has, been established as the truth by his own deed, acts, or representations, either express or implied.
(g) Mandatory versus discretionary legislation
(h) Measures challenged must be in effect when the panel is established
§2.3 The Dispute Settlement Mechanism
Step 1
Step 2
Step 3
Each side presents its case in writing to the panel
First hearing
Step 4
Step 5
Step 6
Step 7
Step 8
Final report & its adoption
(reverse consensus)
Rebuttals/second meeting
Experts
First draft
Interim report
Review
The second stage: Panel process
E. The procedure
§2.3 The Dispute Settlement Mechanism
A. The Appellate Body:
The qualification of AB members: legal experts Usually, a case is heard by a division of 3 AB
members, which are selected by a secret procedure that is based on randomness, unpredictability and the opportunity for all members to serve without regard to national origin.
a permanent body consisting of 7 members, appointed for four-year terms with one reappointment permitted.
The third stage: Appellate Review
§2.3 The Dispute Settlement Mechanism
B. Who appears before the AB?
(a) The parties to a dispute
Appellant v. appellee
Only parties to a dispute , not third parties, may appeal a panel report.
(b) Third parties
(c) Amicus curiae
The third stage: Appellate Review
§2.3 The Dispute Settlement Mechanism
C. Terms of reference:
Only issues of law and legal interpretation in the panel report.
The third stage: Appellate Review
§2.3 The Dispute Settlement Mechanism
D. Power of the AB:
Shortcoming: the AB has no power to remand a case to a panel. The practice: to complete the analysis of particular issues in order to
resolve cases where it has reversed a panel’s findings.
Two conditions: the factual record before the AB is sufficient; there was a logical continuum between the legal provisions invoked.
to reverse, modify or affirm panel decisions.
The third stage: Appellate Review
§2.3 The Dispute Settlement Mechanism
A. Conclusions of the panel/AB report:
The fourth stage: Enforcement
a Rulings: is the measure at issue consistent with WTO rules?
Art.19.1 of DSU: Where a panel or the Appellate Body concludes that a measure is inconsistent with a covered agreement, it shall recommend that the Member concerned bring the measure into conformity with that agreement. In addition to its recommendations, the panel or Appellate Body may suggest ways in which the Member concerned could implement the recommendations.
§2.3 The Dispute Settlement Mechanism
A. Conclusions of the panel/AB report:
The fourth stage: Enforcement
b Recommendations:-Panels must issue recommendations in case an inconsistency has been established;-They are binding on their addressees;-They have an inflexible content: the respondent must bring its measures into conformity with WTO obligations;-They essentially amount to an obligation of result, in the sense that they allow WTO Members to choose the means (specific conduct) to reach the requested result (consistency with the WTO).
§2.3 The Dispute Settlement Mechanism
A. Conclusions of the panel/AB report:
The fourth stage: Enforcement
c -Panels have discretion to issue them, even if they are requested to do so;-They are not binding on their addressees who might choose to ignore them;-Their content is flexible and panels have discretion to shape it;The panel report on EC-Export Subsidies on Sugar is the only case so far where a panel suggested.
§2.3 The Dispute Settlement Mechanism
A. Implementation:
The fourth stage: Enforcement
XII.CONCLUSIONS12.1 In light of our findings in Section XI.A, we conclude that it has not been proved that Resolution (ANA) No. 2235/96 is inconsistent with Argentina's obligations under Article XI:1 of the GATT 1994.12.2 In light of our findings in Section XI.B, we conclude that Resolution (ANA) No. 2235/96 is inconsistent with Argentina's obligations under Article X:3(a) of the GATT 1994.12.3-12.6 omitted12.7 We recommend that the Dispute Settlement Body request Argentina to bring Resolution (ANA) No. 2235/96 as well as General Resolutions (DGI) No. 3431/91 and 3543/92 into conformity with its obligations under the GATT 1994.
——Argentina – Measures Affecting The Export of Bovine Hides and The Import of Finished Leather (WT/DS155/R)
§2.3 The Dispute Settlement Mechanism
B. The period of implementation
The fourth stage: Enforcement
a Prompt compliance is preferred.
b Reasonable period of time for implementation (within 15 months) - Proposals of the responding party approved by the DSB - Mutual agreements between the parties - Through arbitration under Art.21.3
§2.3 The Dispute Settlement Mechanism
C. Compliance review (Art.21.5)
The fourth stage: Enforcement
a Subject matter: Disagreement as to the existence or consistency with a covered agreement of measures taken to comply with the recommendations and rulings.
§2.3 The Dispute Settlement Mechanism
C. Compliance review (Art.21.5)
The fourth stage: Enforcement
b The procedure: panel process (within 90 days) → appellate review Request to establish a compliance panel: -citing the recommendations rulings of the DSB in the original dispute as well as any preceding Art.21.5 proceedings, which, according to the complaining party, have not yet been complied with; -identifying the measures already taken by the respondent, as well as any omissions or deficiencies therein, or stating that no such measures have been taken by the respondent; -providing a legal basis for its complaint, by specifying how the measure taken, or not taken, fail to remove the WTO-inconsistencies found in the previous proceedings, or whether they have brought about new WTO-inconsistencies.
§2.3 The Dispute Settlement Mechanism
C. Compliance review (Art.21.5)
The fourth stage: Enforcement
c Time limit: no If the winning party is still unsatisfied with the second implementation measures taken by the losing party, it could launch a second compliance review.
Examples: Brazil- Aircraft (DS46); Canada- Dairy products (DS103); EC-bananas III (DS27)
§2.3 The Dispute Settlement Mechanism
D. Remedies in case of non-implementation (temporary):
The fourth stage: Enforcement
a Compensation
Voluntary, through consultation between the parties. In the forms of tariff concessions, increase of import quota, or
broadened market access, rather than monetary payment. Applied on the basis of MFN. Non-retroactive: aimed to compensate the nullification or
impairment of the interest accrued to the winning party after the expiry of the reasonable period of time for implementation.
§2.3 The Dispute Settlement Mechanism
Article 22.2 of DSU
“ If the Member concerned fails to bring the measure found to be inconsistent with a covered agreement into compliance therewith or otherwise comply with the recommendations and rulings within the reasonable period of time determined pursuant to paragraph 3 of Article 21, such Member shall, if so requested, and no later than the expiry of the reasonable period of time, enter into negotiations with any party having invoked the dispute settlement procedures, with a view to developing mutually acceptable compensation. ‖ If no satisfactory compensation has been agreed within 20 days after the date of expiry of the reasonable period of time, any party having invoked the dispute settlement procedures may request authorization from the DSB to suspend the application to the Member concerned of concessions or other obligations under the covered agreements.”
§2.3 The Dispute Settlement Mechanism
Article 22.6 of DSU
“When the situation described in paragraph 2 occurs, the DSB, upon request, shall grant authorization to suspend concessions or other obligations within 30 days of the expiry of the reasonable period of time unless the DSB decides by consensus to reject the request……”
§2.3 The Dispute Settlement Mechanism
D. Remedies in case of non-implementation (temporary):
The fourth stage: Enforcement
b Retaliation
(i) Prerequisite consultation on compensation fails within 20 days after the date of expiry of the reasonable period.
non-implementation within reasonable period of time;
§2.3 The Dispute Settlement Mechanism
(ii) Means:suspension of concessions
in other agreements
in other sector in the same agreement
in the same sector in the same agreement
D. Remedies in case of non-implementation (temporary):
The fourth stage: Enforcement
b Retaliation
§2.3 The Dispute Settlement Mechanism
Article 22.3 of DSU
“In considering what concessions or other obligations to suspend, the complaining party shall apply the following principles and procedures:(a) the general principle is that the complaining party should first seek to suspend concessions or other obligations with respect to the same sector(s) as that in which the panel or Appellate Body has found a violation or other nullification or impairment;(b) if that party considers that it is not practicable or effective to suspend concessions or other obligations with respect to the same sector(s), it may seek to suspend concessions or other obligations in other sectors under the same agreement;(c) if that party considers that it is not practicable or effective to suspend concessions or other obligations with respect to other sectors under the same agreement, and that the circumstances are serious enough, it may seek to suspend concessions or other obligations under another covered agreement;”
§2.3 The Dispute Settlement Mechanism
(iii) The level
D. Remedies in case of non-implementation (temporary):
The fourth stage: Enforcement
c Retaliation
The level of nullification or impairment covers only the time-period after the DSB has granted authorization. (prospective rather than retroactive)
To be “equivalent” to the level of nullification or impairment.
§2.3 The Dispute Settlement Mechanism
(iv) Arbitration under Art.22.6
D. Remedies in case of non-implementation (temporary):
The fourth stage: Enforcement
c Retaliation
The arbitration is final. The parties could not initiate the arbitration again.
Subject matter: the level of suspension proposed; violation of the principles and procedures on suspension of concessions.
Time frame: within 60 days after the date of expiry of the reasonable period of time.
§2.3 The Dispute Settlement Mechanism
1. The conflict between Art. 21.5 and Art. 22.6
Critical issues in the WTO Dispute Settlement:
Procedure under Art. 21.5:Panel procedure shall be completed within 90 days of the expiry of the reasonable period of time for implementation. In addition, it is possible that the party would appeal the panel report.Procedure under Art. 22.6:The DSB shall grant authorization to suspend concessions within 30 days of the expiry of the reasonable period of time for implementation. Even if the losing party objects to the level of suspension and initiates an arbitration, the arbitration shall be completed within 60 days after the date of expiry of the reasonable period of time.
§2.3 The Dispute Settlement Mechanism
1. The conflict between Art. 21.5 and Art. 22.6
Critical issues in the WTO Dispute Settlement:
A. The dilemma: The DSB already granted the winning party authorization to suspend concessions or the arbitration on the level of suspension already concluded while the panel procedure on whether the implementation measures taken by the losing party comply with the DSB recommendations has not been completed. EC-bananas III (WT/DS27) 4 procedures:Ecuador: requesting for a compliance review under Art.21.5E.C.: requesting for a compliance review under Art.21.5U.S.: requesting for retaliation authorization and was allowed by the DSBE.C.: requesting for an arbitration under Art.22.6
§2.3 The Dispute Settlement Mechanism
1. The conflict between Art. 21.5 and Art. 22.6
Critical issues in the WTO Dispute Settlement:
B. The solution: Both the art.21.5 panel procedure and art.22.6 arbitration procedure will be commenced promptly after the end of the expiry of the reasonable period of time, but the art.22.6 arbitration procedure will be suspended until the art.21.5 panel rules (and in some cases until any appeal has been concluded).
§2.3 The Dispute Settlement Mechanism
2. Conflict of norms
Critical issues in the WTO Dispute Settlement:
-The WTO charter prevails over any other WTO
agreements.
-Any other Annex 1A agreements prevail over GATT
1994.
§2.3 The Dispute Settlement Mechanism
3. The effect of previous cases
Critical issues in the WTO Dispute Settlement:
Prior cases do play an important role in dispute settlement.
Both the panel and the Appellate Body frequently support their
decisions by extensive citation and quotation of prior decisions.
§2.3 The Dispute Settlement Mechanism
4. The applicable law:
Critical issues in the WTO Dispute Settlement:
Art.3.2“The dispute settlement system of the WTO is a central element in providing security and predictability to the multilateral trading system. The Members recognize that it serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law. Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements.”
§2.3 The Dispute Settlement Mechanism
A. Covered agreements (DSU Appendix1)
B. Incorporated intl. agreements (Havana Charter; agreements
referred to in TRIPs, SCM agreements)
C. Secondary law
-Amendments & waivers adopted by joint action of WTO Members
-decisions & recommendations by WTO adjudicating bodies
-intl. agreements to which WTO is a party
4. The applicable law:
Critical issues in the WTO Dispute Settlement:
§2.3 The Dispute Settlement Mechanism
D. Interpretative elementsArt. 31, 32, 33 of Vienna Convention on the Law of Treaties(1)Ordinary meaning of its terms(2)Context(3)The object and purpose of the treaty(4)Relevant subsequent practice(5)Subsequent agreements on the same subject matter(6)Any relevant rules of public intl. law applicable in the relations between the parties(7)Supplementary means of interpretation
4. The applicable law:
Critical issues in the WTO Dispute Settlement:
§2.3 The Dispute Settlement Mechanism
Assignment
Please search the following documents and answer the
questions.
1.CHINA – MEASURES AFFECTING IMPORTS OF AUTOMOBILE PARTS
Request for the Establishment of a Panel by the European
Communities
(WT/DS339/8)
(1)What are the specific measures at issue?
(2)Please list the relevant provisions cited by the EC.
(3)Were consultations between the EC and China ever held?
§2.3 The Dispute Settlement Mechanism
Assignment
2. European Communities — Measures Affecting Asbestos
and Products Containing Asbestos
Panel report (WT/DS135/R) & AB report (WT/DS135/AB/R)
(1) What are the claims of Canada? What is the measure at
issue?
(2) What are the panel’s findings regarding the measure at
issue?
(3) In the Appellate Body’s view, is the measure at issue
consistent with the obligations of the European Communities
under the covered agreements?
§2.3 The Dispute Settlement Mechanism
1. (1)What are the specific measures at issue?This request concerns the People's Republic of China's (hereinafter "China")
imposition of measures that adversely affect exports of automobile parts from the European Communities to the Chinese market. Specifically, this request concerns:
–Policy on Development on Automotive Industry (Order No. 8 of the National Development and Reform Commission, 21 May 2004);
–China's Measures for the Administration of Importation of Automotive Parts and Components for Complete Vehicles (Decree No. 125), which entered into force on 1 April 2005;
–China's Rules for Determining Whether Imported Automotive Parts and Components Constitute Complete Vehicles (General Administration of Customs Public Announcement No. 4), which entered into force on 1 April 2005.
For each of the measures referred to above, this request also covers any amendments, replacements, extensions, implementing measures or other related measures.
§2.3 The Dispute Settlement Mechanism
1. (2) Please list the relevant provisions cited by the EC.
Article II:1(a) and (b) of the GATT 1994 ; Article III:2 of the GATT
1994 ; Article III:4 of the GATT 1994 ; Article III:5 of the GATT
1994 ; Article 2.1 and Article 2.2 of the TRIMs ; Article 3 of the
SCM ; the Protocol on the Accession of the People's Republic of
China to the WTO, in particular Part I paragraph 7.3 of the Protocol
of Accession of China, and in paragraph 203 of the Working Party
Report on the Accession of China in conjunction with Part I,
paragraph 1.2 of the Protocol of Accession of China, and paragraph
342 of the Working Party Report on the Accession of China ; Part I
paragraph 7.2 of the Protocol of Accession of China ; Article
XXIII:1(b) GATT 1994.
§2.3 The Dispute Settlement Mechanism
1. (3) Were consultations between the EC and China ever held?
On 30 March 2006, the European Communities requested
consultations with China with a view to reaching a mutually
satisfactory solution of the matter. The request was circulated in
document WT/DS339/1 dated 3 April 2006. The consultations were
held on 11 and 12 May 2006 in Geneva on the above-mentioned
and other measures. They have not led to a satisfactory resolution
of the matter.
§2.3 The Dispute Settlement Mechanism
2.(1) What are the claims of Canada? What is the measure at issue?
Para.3.1-3.2: Part III.ARGUMENTS OF THE PARTIES; A. claims by the parties
Para.8.3-8.5: Part VIII. Findings; A. summary of the facts at the origin of this dispute and claims by the parties; 2.Main claims by the parties
3.1 In view of the facts and arguments put forward, Canada requests the Panel to find that:
(a) Decree No. 96-1133 of 24 December 1996 banning asbestos is incompatible with the Agreement on Technical Barriers to Trade insofar as it is a technical regulation that:
(i) Creates an unnecessary obstacle to international trade contrary to the provisions of Article 2.2;
(ii) is not based on effective and appropriate international standards – nor is it in compliance with them – contrary to the provisions of Article 2.4;
§2.3 The Dispute Settlement Mechanism
2.(1) What are the claims of Canada? What is the measure at issue?(iii) is not based on orders relating to chrysotile(温石棉) and chrysotile-
containing products with respect to the product performance of chrysotile, contrary to the provisions of Article 2.8; and
(iv) violates the national treatment disciplines and the most-favoured-nation clause of Article 2.1.
(b) In addition, the Decree is incompatible with the GATT 1994 in that it:
(i) Creates a prohibition or a restriction on the import of chrysotile and chrysotile-containing products, contrary to the provisions of Article XI.1; and
(ii) favours the national industry of products like chrysotile fibre and chrysotile-cement products, contrary to the national treatment disciplines of Article III:4.
3.2 In the event that the Panel is unable to find a violation of Article XXIII.1(a) of the GATT 1994, Canada requests that the Panel find a violation of Article XXIII.1(b) of the GATT 1994.
§2.3 The Dispute Settlement Mechanism
Article XXIII.1(b) of the GATT 1994:"1. If any contracting party should consider that any benefit accruing to
it directly or indirectly under this Agreement is being nullified or impaired or that the attainment of any objective of the Agreement is being impeded as the result of […]
(b) the application by another contracting party of any measure, whether or not it conflicts with the provisions of this Agreement,
[…]the contracting party may, with a view to the satisfactory adjustment of the matter, make written representations or proposals to the other contracting party or parties which it considers to be concerned. Any contracting party thus approached shall give sympathetic consideration to the representations or proposals made to it."
§2.3 The Dispute Settlement Mechanism
Non-violation complaint is an exceptional cause of action. The rationale has to do with the explicit acknowledgement that benefits accruing to the various WTO Members can be nullified as a result of either a GATT-inconsistent or GATT-consistent behavior.
①burden of proof:The complaint bears the burden of providing a detailed justification for
its claim in order to establish a presumption that what is claimed is true. It will be for the respondent to rebut any such presumption.
②conditions:Three elements whose existence a complainant must prove in order to
be able legitimately to invoke that provision, namely: (1) the application of a measure by a Member of the WTO;
(2) the existence of a benefit accruing under the applicable agreement; and
-A benefit exists in the legitimate expectation of improved market access opportunities.
(3) the nullification or impairment of a benefit as a result of the application of the measure.
§2.3 The Dispute Settlement Mechanism
2. (2) What are the panel’s findings regarding the measure at issue?Para.9.1:In the light of the above, the Panel concludes as follows: (a) On the basis of its findings in Section VIII.D above, the Panel
concludes that the "prohibition" part of the Decree does not fall within the scope of the TBT Agreement. The part of the Decree relating to "exceptions" does fall within the scope of the TBT Agreement. However, as Canada has not made any claim concerning the compatibility with the TBT Agreement of the part of the Decree relating to exceptions, the Panel refrains from reaching any conclusion with regard to the latter.
(b) On the basis of its findings in Section VIII.E.2 above, the Panel concludes that chrysotile asbestos fibres as such and fibres that can be substituted for them as such are like products within the meaning of Article III:4 of the GATT 1994. Similarly, the Panel concludes that the asbestos-cement products and the fibro-cement products for which sufficient information has been submitted to the Panel are like products within the meaning of Article III:4 of the GATT 1994.
§2.3 The Dispute Settlement Mechanism
2. (2) What are the panel’s findings regarding the measure at issue?
Para.9.1:
(c) With respect to the products found to be like, the Panel concludes
that the Decree violates Article III:4 of the GATT 1994.
(d) However, on the basis of its findings in Section VIII.E.4 above, the
Panel concludes that the Decree, insofar as it introduces a
treatment of these products that is discriminatory under Article III:4,
is justified as such and in its implementation by the provisions of
paragraph (b) and the introductory clause of Article XX of the
GATT 1994.
(e) Finally, the Panel concludes, on the basis of its findings in Section
VIII.F above, that Canada has not established that it suffered non-
violation nullification or impairment of a benefit within the meaning
of Article XXIII:1(b) of the GATT 1994.
§2.3 The Dispute Settlement Mechanism
2. (3) In the Appellate Body’s view, is the measure at issue consistent with the obligations of the European Communities under the covered agreements?
Para.192-193:192. For the reasons set out in this Report, the Appellate Body:(a) reverses the Panel's finding, in paragraph 8.72(a) of the Panel Report,
that the TBT Agreement "does not apply to the part of the Decree relating to the ban on imports of asbestos and asbestos-containing products because that part does not constitute a 'technical regulation' within the meaning of Annex 1.1 to the TBT Agreement", and finds that the measure, viewed as an integrated whole, does constitute a "technical regulation" under the TBT Agreement;
§2.3 The Dispute Settlement Mechanism
2. (3) In the Appellate Body’s view, is the measure at issue consistent with the obligations of the European Communities under the covered agreements?
Para.192-193: (b) reverses the Panel's findings, in paragraphs 8.132 and 8.149 of the
Panel Report, that "it is not appropriate" to take into consideration the health risks associated with chrysotile asbestos fibres in examining the "likeness", under Article III:4 of the GATT 1994, of those fibres and PCG fibres(温石棉纤维和聚乙烯醇纤维、纤维素、玻璃纤维(后三者统称 PCG纤维) ), and, also, in examining the "likeness", under that provision, of cement-based products containing chrysotile asbestos fibres or PCG fibres;
(c) reverses the Panel's finding, in paragraph 8.144 of the Panel Report, that chrysotile asbestos fibres and PCG fibres are "like products" under Article III:4 of the GATT 1994; and finds that Canada has not satisfied its burden of proving that these fibres are "like products" under that provision;
§2.3 The Dispute Settlement Mechanism
2. (3) In the Appellate Body’s view, is the measure at issue consistent with the obligations of the European Communities under the covered agreements?
Para.192-193:(d) reverses the Panel's finding, in paragraph 8.150 of the Panel Report,
that cement-based products containing chrysotile asbestos fibres and cement-based products containing PCG fibres are "like products" under Article III:4 of the GATT 1994; and finds that Canada has not satisfied its burden of proving that these cement-based products are "like products" under Article III:4 of the GATT 1994;
(e) reverses, in consequence, the Panel's finding, in paragraph 8.158 of the Panel Report, that the measure is inconsistent with Article III:4 of the GATT 1994;
(f) upholds the Panel's finding, in paragraphs 8.194, 8.222 and 8.223 of the Panel Report, that the measure at issue is "necessary to protect human … life or health", within the meaning of Article XX(b) of the GATT 1994; and, finds that the Panel acted consistently with Article 11 of the DSU in reaching this conclusion;
§2.3 The Dispute Settlement Mechanism
2. (3) In the Appellate Body’s view, is the measure at issue consistent with the obligations of the European Communities under the covered agreements?
Para.192-193:(g) upholds the Panel's finding, in paragraphs 8.265 and 8.274 of the
Panel Report, that the measure may give rise to a cause of action under Article XXIII:1(b) of the GATT 1994.
193. It follows from our findings that Canada has not succeeded in establishing that the measure at issue is inconsistent with the obligations of the European Communities under the covered agreements and, accordingly, we do not make any recommendations to the DSB under Article 19.1 of the DSU.
上海政法学院