Adjudicating compliance in the WTO: A review of DSU article 21.5

Journal of International Economic Law

Volumn 5, Issue 2, 2002, Pages 331-352

  Kearns, Jason E ^a   Charnovitz, Steve ^a  

^a WILMER CUTLER PICKERING HALE AND DORR LLP   (United States)

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[No Author keywords available]

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EID: 0036332278     PISSN: 13693034     EISSN: None     Source Type: Journal    
DOI: 10.1093/jiel/5.2.331     Document Type: Review

References (92)

1. Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), Article 19.1.
2. DSU Article 21.5. The DSU's term 'panel' is employed here to describe the initial Article 6 panel in contrast to the follow-up Article 21.5 compliance panel.
3. See Understanding on Notification, Consultation, Dispute Settlement and Surveillance of 28 November 1979 (BISD 26S/210), para. 22 ('The Contracting Parties shall keep under surveillance any matter on which they have made recommendations or given rulings. If the Contracting Parties' recommendations are not implemented within a reasonable period of time, the contracting party bringing the case may ask the Contracting Parties to make suitable efforts with a view to finding an appropriate solution.').
4. See, e.g., Panel Report on Follow-up on the Panel Report on 'European Economic Community - Payments and Subsidies Paid to Processors and Producers of Oilseeds and Related Animal-Feed Proteins', BISD 39S/91 (not adopted); see also Panel Report on Uruguayan Recourse to Article XXIII, adopted 3 March 1965, BISD 13S/35, 45. In one dispute, the complaining party was not a party to the original dispute but argued that the defendant 'failed to bring into conformity' a measure which an earlier panel had previously found to be inconsistent with the GATT. The complaining party requested an 'expedited proceeding' to address these measures before addressing other measures in dispute. See Panel Report on Canada - Import, Distribution and Sale of Certain Alcoholic Drinks by Provincial Marketing Agencies, adopted 18 February 1992, BISD 39S/27, paras 3.1-3.4.
5. See, e.g., Panel Report on Follow-up on the Panel Report on 'European Economic Community - Payments and Subsidies Paid to Processors and Producers of Oilseeds and Related Animal-Feed Proteins', BISD 39S/91 (not adopted); see also Panel Report on Uruguayan Recourse to Article XXIII, adopted 3 March 1965, BISD 13S/35, 45. In one dispute, the complaining party was not a party to the original dispute but argued that the defendant 'failed to bring into conformity' a measure which an earlier panel had previously found to be inconsistent with the GATT. The complaining party requested an 'expedited proceeding' to address these measures before addressing other measures in dispute. See Panel Report on Canada - Import, Distribution and Sale of Certain Alcoholic Drinks by Provincial Marketing Agencies, adopted 18 February 1992, BISD 39S/27, paras 3.1-3.4.
6. See, e.g., Panel Report on Follow-up on the Panel Report on 'European Economic Community - Payments and Subsidies Paid to Processors and Producers of Oilseeds and Related Animal-Feed Proteins', BISD 39S/91 (not adopted); see also Panel Report on Uruguayan Recourse to Article XXIII, adopted 3 March 1965, BISD 13S/35, 45. In one dispute, the complaining party was not a party to the original dispute but argued that the defendant 'failed to bring into conformity' a measure which an earlier panel had previously found to be inconsistent with the GATT. The complaining party requested an 'expedited proceeding' to address these measures before addressing other measures in dispute. See Panel Report on Canada - Import, Distribution and Sale of Certain Alcoholic Drinks by Provincial Marketing Agencies, adopted 18 February 1992, BISD 39S/27, paras 3.1-3.4.
7. Until recently, the WTO website did not separately profile the Article 21.5 reports. The remodeled website will make it easier for practitioners and scholars to undertake studies of the new jurisprudence under DSU Article 21.3 (reasonable period of time), Article 21.5, and Article 22.6 (amount of retaliation) decisions.
8. Compare DSU Article 12.8 to Article 21.5. Note, however, that no Article 21.5 panel since EC - Bananas (Ecuador) and EC - Bananas (EC) has circulated its report within 90 days of the date the DSB referred the matter to it. The longest it has taken the panel to circulate its report has been approximately eight months which elapsed in United States - FSC and Mexico - HFCS. Nevertheless, the Article 21.5 repons are generally circulated on an expedited basis, compared to original panel reports.
9. Article 21.5 states that disagreements shall be decided through recourse to 'these' dispute settlement procedures. So far, the case law has not clarified exactly which DSU procedures are relevant. For example, in Mexico - HFCS (21.5), the Appellate Body reserved judgment on whether a requirement for prior consultation exists in Article 21.5. WTO Appellate Body Report, Mexico - Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) from the United States - Recourse to Article 21.5 of the DSU by the United States ('Mexico - HFCS (21.5)'), WT/DS132/AB/RW, adopted 21 November 2001, para 65. To our knowledge, no government has yet contended that the allowance of a reasonable period of time under Article 21.3 applies to Article 21.5 proceedings. There would be a colorable argument for that however.
10. In fact, the original complainant is not required to initiate an Article 21.5 proceeding or to wait for a conclusion of an Article 21.5 proceeding before requesting authorization to suspend concessions. This procedural disjunction is known as the DSU Article 21 /Article 22 sequencing problem, and is discussed briefly herein.
11. DSU Article 21.1. In a similar vein, several Article 21.5 panels have noted that Article 21.5 serves to secure the 'prompt settlement' of disputes in accordance with DSU Article 3.3. See, e.g., WTO Panel Report, European Communities - Regime for the Importation, Sale and Distribution of Bananas - Recourse to Article 21.5 by Ecuador (EC - Bananas (21.5) (Ecuador)), WT/DS27/RW/ ECU, adopted 6 May 1999, para 6.9.
12. While the expedited nature of Article 21.5 proceedings is designed to secure prompt compliance, it should be noted that the defendant government could abuse Article 21.5 in order to postpone compliance. Even a feeble attempt at implementation will lead to a compliance panel and appeal, and these proceedings will consume many months.
13. Robert E. Hudec, 'Broadening the Scope of Remedies in WTO Dispute Settlement', in Friedl Weiss: Improving WTO Dispute Settlement Procedures; Issues and Lessons from the Practice of Other International Courts and Tribunals (London: Cameron May 2000), 369, 388 (and fn 34).
14. WTO Panel Report, Brazil - Export Financing Programme for Aircraft - Second Recourse by Canada to Article 21.5 of the DSU (Brazil - Aircraft (2nd) (21.5)), WT/DS46/RW/2, adopted 23 August 2001. We use 2nd rather than II to signify the second in a series of Article 21.5 panels. The designation of II, III in captioning WTO cases has been used to denote a series of original panels (e.g., Bananas).
15. DSU Article 11.
16. William J. Davey, 'The WTO Dispute Settlement System', 3(1) JIEL 15 (2000), at 17 (noting that logically a decision on consistency must be made before a suspension of concessions is authorized).
17. Canada - Measures Affecting the Importation of Milk and the Exportation of Dairy Products Recourse to Article 21.5 of the DSU by New Zealand and the United States (Canada - Milk (21.5)), WT/DS103/AB/RW, WT/DS113/AB/RW, adopted 18 December 2001, paras 102-04, 127.
18. Daniel Pruzin, 'US, Canada, New Zealand Agree on Procedures for Continuing Dairy Panel', BNA Daily Report for Executives, 19 December 2001, at A-5. Canada went along but complained that the new proceeding entailed 'double jeopardy'.
19. For discussion of the managerial model of compliance in international regimes, see Abram Chayes and Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (Cambridge: Harvard University Press 1998).
20. DSB Article 21.6 (stating that the issue of implementation may be raised by any Member).
21. Robin R. Churchill and Geir Ulfstein, 'Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law', 94 AJIL 623 (2000), at 644; Volker Röben, 'Institutional Developments under Modem International Environmental Agreements', 4 Max Planck Yearbook of United Nations Law 363 (2000), at 409, 409-19. An exception exists in the Convention on the Protection of the Marine Environment of the Northeast Atlantic (OSPAR) of 1992 which provides for an arbitral panel to examine compliance. Id. at 435-36.
22. Robin R. Churchill and Geir Ulfstein, 'Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law', 94 AJIL 623 (2000), at 644; Volker Röben, 'Institutional Developments under Modem International Environmental Agreements', 4 Max Planck Yearbook of United Nations Law 363 (2000), at 409, 409-19. An exception exists in the Convention on the Protection of the Marine Environment of the Northeast Atlantic (OSPAR) of 1992 which provides for an arbitral panel to examine compliance. Id. at 435-36.
23. DSU Article 3.2 ('The dispute settlement system of the WTO is a central element in providing security and predictability to the multilateral trading system.'). For a general discussion of the objectives of security and predictability, see Edwini Kessie, 'Enhancing Security and Predictability for Private Business Operators under the Dispute Settlement System of the WTO', 34(6) Journal of World Trade 1 (2000).
24. DSU Article 3.2 ('The dispute settlement system of the WTO is a central element in providing security and predictability to the multilateral trading system.'). For a general discussion of the objectives of security and predictability, see Edwini Kessie, 'Enhancing Security and Predictability for Private Business Operators under the Dispute Settlement System of the WTO', 34(6) Journal of World Trade 1 (2000).
25. Above n 11, at 393-94. Hudec has noted that, in Part IV of the GATT, dealing with trade and development, the Contracting Parties attempted to create a community enforcement system that would take some of the responsibility (and onus) off the shoulders of the victim party. See Article XXXVII:2 of the GATT. Nevertheless, in practice, the Contracting Parties did not achieve this objective.
26. For example, see Hudec, ibid, at 398 (suggesting the possibility of adding an appeal from the decision of the Article 21.5 panel). Recently, the European Communities suggested that anticipated DSU revisions should include a systematic right of appeal against rulings of compliance panels. Contribution of the European Communities and its Member States to the Improvement of the WTO Dispute Settlement Understanding, Communication from the European Communities, TN/DS/W/1 (13 March 2002), at 4. See also Willaim J. Davey, 'The WTO Dispute Settlement System', in Gary P. Sampson and W. Bradnee Chambers (eds), 'Trade, Environment, and the Millennium' (2nd edn, Tokyo: United Nations University Press 2002) 145, 157 (noting that Article 21.5 is not clear whether there is a right to appeal).
27. For example, see Hudec, ibid, at 398 (suggesting the possibility of adding an appeal from the decision of the Article 21.5 panel). Recently, the European Communities suggested that anticipated DSU revisions should include a systematic right of appeal against rulings of compliance panels. Contribution of the European Communities and its Member States to the Improvement of the WTO Dispute Settlement Understanding, Communication from the European Communities, TN/DS/W/1 (13 March 2002), at 4. See also Willaim J. Davey, 'The WTO Dispute Settlement System', in Gary P. Sampson and W. Bradnee Chambers (eds), 'Trade, Environment, and the Millennium' (2nd edn, Tokyo: United Nations University Press 2002) 145, 157 (noting that Article 21.5 is not clear whether there is a right to appeal).
28. For example, see Hudec, ibid, at 398 (suggesting the possibility of adding an appeal from the decision of the Article 21.5 panel). Recently, the European Communities suggested that anticipated DSU revisions should include a systematic right of appeal against rulings of compliance panels. Contribution of the European Communities and its Member States to the Improvement of the WTO Dispute Settlement Understanding, Communication from the European Communities, TN/DS/W/1 (13 March 2002), at 4. See also Willaim J. Davey, 'The WTO Dispute Settlement System', in Gary P. Sampson and W. Bradnee Chambers (eds), 'Trade, Environment, and the Millennium' (2nd edn, Tokyo: United Nations University Press 2002) 145, 157 (noting that Article 21.5 is not clear whether there is a right to appeal).
29. WTO Panel Report, European Communities - Regime for the Importation, Sale and Distribution of Bananas - Recourse to Article 21.5 by the European Communities (EC - Bananas (21.5) (EC)), WT/DS27/RW/EEC (this report was never put on the DSB agenda for adoption), para 3.6 (Statement of India) ('It was true that Article 21.5 was silent on whether there was a possibility of appeal against the panel verdict. It was India's view that there must be a possibility of appeal as well.... If the right to suspend concessions was granted without due process, it would spell the end of the security and predictability of the dispute settlement mechanism and indeed of the multilateral trading system as a whole.').
30. WTO Panel Report, United States - Import Prohibitions of Certain Shrimp and Shrimp Products Recourse to Article 21.5 by Malaysia (US - Shrimp (21.5), WT/DS58/RW, adopted as modified by the Appellate Body 21 November 2001, para 6.1(a). In the Brazil - Aircraft (2nd) (21.5) decision, the panel had noted that Canada would be free to challenge future application of Brazil's new subsidy program. The panel did not clearly say that this could be done in Article 21.5, however. Brazil Aircraft (2nd) (21.5)), above n 12, para 6.3.
31. WTO Panel Report, United States - Import Prohibitions of Certain Shrimp and Shrimp Products Recourse to Article 21.5 by Malaysia (US - Shrimp (21.5), WT/DS58/RW, adopted as modified by the Appellate Body 21 November 2001, para 6.1(a). In the Brazil - Aircraft (2nd) (21.5) decision, the panel had noted that Canada would be free to challenge future application of Brazil's new subsidy program. The panel did not clearly say that this could be done in Article 21.5, however. Brazil Aircraft (2nd) (21.5)), above n 12, para 6.3.
32. WTO Panel Report, United States - Import Prohibitions of Certain Shrimp and Shrimp Products Recourse to Article 21.5 by Malaysia (US - Shrimp (21.5), WT/DS58/RW, adopted as modified by the Appellate Body 21 November 2001, para 6.1(a). In the Brazil - Aircraft (2nd) (21.5) decision, the panel had noted that Canada would be free to challenge future application of Brazil's new subsidy program. The panel did not clearly say that this could be done in Article 21.5, however. Brazil Aircraft (2nd) (21.5)), above n 12, para 6.3.
33. US - Shrimp (21.5) above n 24, para 6.2. The panel did not explain why recourse to Article 21 might be limited to complainants in the original case.
34. Ibid, paras 152, 153(b).
35. Ibid, para 5.88.
36. In the 44 episodes in which an Article 21.5 action could have been invoked, it was invoked in 12 (with Canada - Milk counting as one). Our standard for 'could have been invoked' is a final judgment in favor of the complainant followed by the expiration of the reasonable period of time for implementation. Data based on tabulations by the authors.
37. Article 21.5 only authorizes a panel to determine the 'existence' of measures taken to comply where there is a 'disagreement' as to whether such measures exist. Where the defendant does not contend that it has taken measures to comply, complaining parties have, on occasion, requested authorization to suspend concessions without first initiating an Article 21.5 proceeding. See, e.g., EC - Measures Concerning Meat and Meat Products (Hormones).
38. For a discussion of the conflict between DSU Articles 21.5 and 22, and the resolution of it through procedural agreements, see Sylvia A. Rhodes, 'The Article 21.5/22 Problem: Clarification through Bilateral Agreements?', 3 JIEL 553, 556 (2000); Cherise M. Valles and Brendan McGivern, 'The Right to Retaliate under the WTO Agreement: The "Sequencing Problem" ', 34(2) Journal of World Trade (2000), at 63-84; Carolyn B. Gleason and Pamela D. Walther, 'The WTO Dispute Settlement Implementation Procedures: A System in Need of Reform', 31 Law & Pol'y Int'l Bus 709 (2000), at 721-28; Allan Rosas, 'Implementation and Enforcement of WTO Dispute Settlement Findings: An EU Perspective', 4(1) JIEL 131 (2001), at 141-42. The conflict between the two DSU Articles arises from the seeming 30-day time limit in Article 22.6 for authorizing retaliation.
39. For a discussion of the conflict between DSU Articles 21.5 and 22, and the resolution of it through procedural agreements, see Sylvia A. Rhodes, 'The Article 21.5/22 Problem: Clarification through Bilateral Agreements?', 3 JIEL 553, 556 (2000); Cherise M. Valles and Brendan McGivern, 'The Right to Retaliate under the WTO Agreement: The "Sequencing Problem" ', 34(2) Journal of World Trade (2000), at 63-84; Carolyn B. Gleason and Pamela D. Walther, 'The WTO Dispute Settlement Implementation Procedures: A System in Need of Reform', 31 Law & Pol'y Int'l Bus 709 (2000), at 721-28; Allan Rosas, 'Implementation and Enforcement of WTO Dispute Settlement Findings: An EU Perspective', 4(1) JIEL 131 (2001), at 141-42. The conflict between the two DSU Articles arises from the seeming 30-day time limit in Article 22.6 for authorizing retaliation.
40. For a discussion of the conflict between DSU Articles 21.5 and 22, and the resolution of it through procedural agreements, see Sylvia A. Rhodes, 'The Article 21.5/22 Problem: Clarification through Bilateral Agreements?', 3 JIEL 553, 556 (2000); Cherise M. Valles and Brendan McGivern, 'The Right to Retaliate under the WTO Agreement: The "Sequencing Problem" ', 34(2) Journal of World Trade (2000), at 63-84; Carolyn B. Gleason and Pamela D. Walther, 'The WTO Dispute Settlement Implementation Procedures: A System in Need of Reform', 31 Law & Pol'y Int'l Bus 709 (2000), at 721-28; Allan Rosas, 'Implementation and Enforcement of WTO Dispute Settlement Findings: An EU Perspective', 4(1) JIEL 131 (2001), at 141-42. The conflict between the two DSU Articles arises from the seeming 30-day time limit in Article 22.6 for authorizing retaliation.
41. For a discussion of the conflict between DSU Articles 21.5 and 22, and the resolution of it through procedural agreements, see Sylvia A. Rhodes, 'The Article 21.5/22 Problem: Clarification through Bilateral Agreements?', 3 JIEL 553, 556 (2000); Cherise M. Valles and Brendan McGivern, 'The Right to Retaliate under the WTO Agreement: The "Sequencing Problem" ', 34(2) Journal of World Trade (2000), at 63-84; Carolyn B. Gleason and Pamela D. Walther, 'The WTO Dispute Settlement Implementation Procedures: A System in Need of Reform', 31 Law & Pol'y Int'l Bus 709 (2000), at 721-28; Allan Rosas, 'Implementation and Enforcement of WTO Dispute Settlement Findings: An EU Perspective', 4(1) JIEL 131 (2001), at 141-42. The conflict between the two DSU Articles arises from the seeming 30-day time limit in Article 22.6 for authorizing retaliation.
42. This use of procedural agreements confirms Robert Ellickson's hypothesis that 'members of a close-knit group develop and maintain norms whose content serves to maximize the aggregate welfare that members obtain in their workaday affairs with one another'. Robert C. Ellickson, Order Without Law (Cambridge: Harvard University Press 1991) 167. In other words, even though WTO Members have not rewritten DSU law to correct the sequencing problem, the Members (who are repeat players in a small community) are applying new procedural norms through bargaining. The norm that adjudication of compliance must precede retaliation against non-compliance maximizes the aggregate welfare of the WTO Members.
43. See EC - Bananas (21.5) (EC), above n 23, para 4.14.
44. Ibid, para 4.18.
45. See Mauricio Salas and John H. Jackson, 'Procedural Overview of the WTO EC - Banana Dispute', 3(1) JIEL 145 (2000), at 156.
46. See WTO Appellate Body Report, EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, adopted 13 February 1998. 'EC Says New Studies Show Hormone Beef Poses Health Risks, Will Keep Ban on US', BNA Daily Report for Executives, 24 April 2002, at A-10.
47. See WTO Appellate Body Report, EC Measures Concerning Meat and Meat Products (Hormones),WT/DS26/AB/R, adopted 13 February 1998. 'EC Says New Studies Show Hormone Beef Poses Health Risks, Will Keep Ban on US', BNA Daily Report for Executives, 24 April 2002, at A-10.
48. DSU Article 21.5. The continuing jurisdiction of the DSB (see DSU Article 21.6) could imply that a subsidiary body like the Article 21.5 panel also has continuing jurisdiction.
49. DSU Article 22.8. The following sentence in that Article references DSU Article 21.6.
50. In such a new proceeding, the original complainant would probably raise an affirmative defense that its retaliation had been authorized by the DSB, and that concerns about it should be raised in the DSB and not to a new panel.
51. DSU, Article 6 (Establishment of Panels). Of course, it would be possible to appoint the same individuals who served on the original case to a new original panel.
52. EC - Bananas (21.5) (EC), above n 23, at para 3.12.
53. Ibid, para 4.12.
54. The International Court of Justice recognizes this general principle. See Statute of the International Court of Justice, Article 53: 1. Whenever one of the parties does not appear before the Court, or fails to defend its case, the other party may call upon the Court to decide in favour of its claim. 2. The Court must, before doing so, satisfy itself, not only that it has jurisdiction. . . but also that the claim is well founded in fact and law. See also Shabtai Rosenne, The Law and Practice of the International Court, 1920-1996, Vol. III, (1401-14) (3d edn, Martinus Nijhoff Publishers 1997).
55. The International Court of Justice recognizes this general principle. See Statute of the International Court of Justice, Article 53: 1. Whenever one of the parties does not appear before the Court, or fails to defend its case, the other party may call upon the Court to decide in favour of its claim. 2. The Court must, before doing so, satisfy itself, not only that it has jurisdiction. . . but also that the claim is well founded in fact and law. See also Shabtai Rosenne, The Law and Practice of the International Court, 1920-1996, Vol. III, (1401-14) (3d edn, Martinus Nijhoff Publishers 1997).
56. One GATT case may be instructive. In the Panel Report on Canada - Import, Distribution and Sale of Certain Alcoholic Drinks by Provincial Marketing Agencies, above n 4, the United States, a non-party to the original dispute, claimed that Canada failed to bring into conformity measures that a previous panel had found to be inconsistent with GATT rules.
57. The EC and Mexico became a new third party in Australia - Leather (21.5). Australia became a new third party in Brazil - Aircraft (21.5). Australia, India, and Jamaica became new third parties in US FSC (21.5). Korea became a new third party in Brazil - Aircraft (2nd) (21.5). The EC became a new third party in Mexico - HFCS (21.5). Canada became a new third party in US - Shrimp (21.5). The EC and Mexico became new third parties in Canada -Milk (21.5). The question of whether this practice was consistent with the DSU was apparently not raised in any of these cases.
58. Section B focuses on whether a dispute brought before an Article 21.5 panel would be better addressed by a first instance Article 6 panel. The opposite, however, is also possible: a complaining party might choose to initiate a new proceeding when an Article 21.5 proceeding would be more appropriate. For example, although Article 21.5 provides that the original panel should hear the case, a complaining party, dissatisfied with the original panel's findings, may opt for an entirely new Article 6 panel, effectively engaging in 'forum shopping'. For a discussion of whether challenges to 'measures taken to comply' must be brought under the accelerated procedures of Article 21.5 (including a discussion of the 'forum shopping' issue), see WorldTradeLaw.net Dispute Settlement Commentary for Canada -. Export Credits and Loan Guarantees for Regional Aircraft (available at http:/www.worldtradelaw.net/dsc/dscpage.htm). In that case, Canada argued that some of Brazil's claims related to implementation issues arising from the previous Canada - Aircraft dispute and that such implementation concerns must be addressed in an Article 21.5 proceeding. The panel found, in essence, that Brazil's claims did not relate to implementation. As a result, the panel did not decide whether implementation issues must be addressed in a compliance panel.
59. This reference is based on language in the WTO Panel Report, Australia - Measures Affecting Importation of Salmon - Recourse by Canada to DSU Article 21.5 (Australia - Salmon (21.5)), WT/DS/18/RW, adopted 20 March 2000, para 7.10, §23.
60. WTO Panel Report, Australia - Subsidies Provided to Producers and Exporters of Automotive Leather, WT/DS126/R, adopted 16 June 1999, para 10.1(b).
61. WTO Panel Report, Australia - Subsidies Provided to Producers and Exporters of Automotive Leather - Recourse to Article 21.5 of the DSU by the United States, WT/DS126/RW (Australia Leather (21.5)), WT/DS126/RW, adopted 11 February 2000, para 1.4.
62. Ibid, para 6.1.
63. Ibid, para 6.7.
64. Ibid, para 6.4.
65. Ibid, para 6.5.
66. WTO Appellate Body Report, Australia - Measures Affecting Importation of Salmon, WT/DS/18/ R, adopted 6 November 1998, para 279(d).
67. Australia - Salmon (21.5), above n 46, paras 4.27, 4.35.
68. Ibid, para 7.10 §22.
69. Australia - Leather (21.5), above n 48, para 6.5.
70. Both the new loan in Australia - Leather (21.5) and the Tasmanian Measure in Australia - Salmon (21.5) would be subject to Article 21.5 review under our proposed standard. In Australia - Leather (21.5), the new loan and the repayment of the subsidies were linked in an official press release; were provided within the same period of time; targeted the same producer(s); were (apparently) provided by the same government entity; and were of the same general nature (cash payments). Likewise, in Australia - Salmon (21.5), the Tasmanian Measure would be subject to Article 21.5 review, although the link between the Tasmanian Measure and other measures Australia claimed it took to comply is less clear. First, the timing of the Tasmanian Measure suggests it was designed to offset the loss of the federal import ban. Secondly, the Tasmanian Measure targeted the exact same product (fresh, chilled and frozen salmon), and not, for example, some larger group of products that happened to include salmon. Finally, the Tasmanian Measure, like the measures purportedly taken to comply, were sanitary measures.
71. EC-Bananas (21.5) (Ecuador), above n 9, para 6.8.
72. Australia - Salmon (21.5), above n 46, para 7.10 §9 (emphasis original).
73. WTO Appellate Body Report, Canada - Measures Affecting the Export of Civilian Aircraft Recourse by Brazil to Article 21.5 of the DSU (Canada - Aircraft (21.5)), WT/DS70/AB/RW, adopted 4 August 2000, para 41. The Appellate Body modified the first level Article 21.5 panel report on this point. Recently, the Appellate Body has repeated this holding. WTO Appellate Body Report, United States - Import Prohibitions of Certain Shrimp and Shrimp Products - Recourse to Article 21.5 by Malaysia (US - Shrimp (21.5)), WT/DS58/RW, adopted 21 November 2001, paras 85-86, 90, 152.
74. WTO Appellate Body Report, Canada - Measures Affecting the Export of Civilian Aircraft Recourse by Brazil to Article 21.5 of the DSU (Canada - Aircraft (21.5)), WT/DS70/AB/RW, adopted 4 August 2000, para 41. The Appellate Body modified the first level Article 21.5 panel report on this point. Recently, the Appellate Body has repeated this holding. WTO Appellate Body Report, United States - Import Prohibitions of Certain Shrimp and Shrimp Products - Recourse to Article 21.5 by Malaysia (US - Shrimp (21.5)), WT/DS58/RW, adopted 21 November 2001, paras 85-86, 90, 152.
75. WTO Panel Report, United States - Tax Treatment for Foreign Sales Corporations - Recourse to Article 21.5 of the DSU by the European Communities (US - FSC), WT/DS108/RW, adopted as modified by the Appellate Body 14 January 2002, para 8.124. WTO Panel Report, United States Tax Treatment for Foreign Sales Corporations, WT/DS108/R, adopted as modified by the Appellate Body 20 March 2000, para 7.107.
76. WTO Panel Report, United States - Tax Treatment for Foreign Sales Corporations - Recourse to Article 21.5 of the DSU by the European Communities (US - FSC), WT/DS108/RW, adopted as modified by the Appellate Body 14 January 2002, para 8.124. WTO Panel Report, United States Tax Treatment for Foreign Sales Corporations, WT/DS108/R, adopted as modified by the Appellate Body 20 March 2000, para 7.107.
77. WTO Appellate Body Report, Tax Treatment for Foreign Sales Corporations - Recourse to Article 21.5 of the DSU by the European Communities, WT/DS108/RW, adopted 14 January 2002, para 256(e).
78. See Thomas Cottier and Krista N. Schefer, 'Good Faith and the Protection of Legitimate Expectations in the WTO', in Marco Bronckers and Reinhard Quick: New Directions in International Economic Law. Essays in Honour of John H. Jackson (The Hague: Kluwer Law International 2000), 47, 53, 56-57, 63-65. See also the discussion of 'abusive splitting" in WTO Panel Report, India - Measures Affecting the Automotive Sector, WT/DS146/R, WT/DS175/R, adopted 5 April 2002, paras 7.139, 7.140.
79. See Thomas Cottier and Krista N. Schefer, 'Good Faith and the Protection of Legitimate Expectations in the WTO', in Marco Bronckers and Reinhard Quick: New Directions in International Economic Law. Essays in Honour of John H. Jackson (The Hague: Kluwer Law International 2000), 47, 53, 56-57, 63-65. See also the discussion of 'abusive splitting" in WTO Panel Report, India - Measures Affecting the Automotive Sector, WT/DS146/R, WT/DS175/R, adopted 5 April 2002, paras 7.139, 7.140.
80. US - Shrimp (21.5), above n 24, para 5.26.
81. Appellate Body Report, United States - Shrimp (21.5), above n 60, para 108 (quoting Appellate Body Report, Japan - Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:1, 97, at 108).
82. Appellate Body Report, United States - Shrimp (21.5), above n 60, para 108 (quoting Appellate Body Report, Japan - Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:1, 97, at 108).
83. Black's Law Dictionary, 6th ed (1990). The law of the case doctrine is different from, and narrower than, the doctrine of stare decisis. There is reason to doubt that the DSU recognizes the formal doctrine of stare decisis (see, e.g., John H. Jackson, The World Trading System: Law and Policy of International Economic Relations, (2nd edn, Cambridge, MA: The MIT Press 2000) 126, even if panel and Appellate Body repons create 'legitimate expectations'.
84. Black's Law Dictionary, 6th ed (1990). The law of the case doctrine is different from, and narrower than, the doctrine of stare decisis. There is reason to doubt that the DSU recognizes the formal doctrine of stare decisis (see, e.g., John H. Jackson, The World Trading System: Law and Policy of International Economic Relations, (2nd edn, Cambridge, MA: The MIT Press 2000) 126, even if panel and Appellate Body repons create 'legitimate expectations'.
85. See DSU Articles 3.3, 21.1.
86. US - Shrimp (21.5), above n 24, paras 1.1-1.4.
87. One would expect this issue to arise in Article 21.5 proceedings involving the Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, the SCM Agreement, or the Agreement on Safeguards because a Member's redetermination in these investigations is typically based on the same set of facts.
88. Mexico -HFCS (21.5), above n 7, para 15.
89. I b i d.
90. Ibid, para 79.
91. See WTO Panel Report, Canada - Export Credits and Loan Guarantees for Regional Aircraft (Canada - Aircraft II), WT/DS222/R, adopted 19 February 2002, paras 7.92 ('We recall that the panel in Canada - Aircraft rejected Brazil's claim that Canada Account debt financing for the export of Canadian regional aircraft as such constituted an export subsidy[.]') and 7.152 ('[W]e note that the Canada - Aircraft panel found that the Canada Account debt financing at issue in that case was "contingent... upon export performance". For these reasons, we find that support provided under the Canada Account programme ... is "contingent in law... upon export performance"'.). The panel in India - Patent Protection for Pharmaceutical and Agricultural Chemical Products (Complaint by the European Communities), WT/DS79/R, adopted 2 September 1998, para 7.42, also suggested that its findings were based on a previous and similar challenge to India's patent system, brought by the United States (dispute WT/DS50). While it is important to note that the parties to these two disputes were not the same, India was perhaps, to some extent, collaterally estopped from relitigating issues that it had previously lost in its dispute with the United States.
92. John H. Jackson, 'Global Economics and International Economic Law', 1(1) JIEL 1 (1998), at 17.