Principles of international law in the WTO dispute settlement body

International and Comparative Law Quarterly

Volumn 50, Issue 2, 2001, Pages 248-298

  Cameron, James ^a   Gray, Kevin R ^b  

^a YALE UNIVERSITY   (United States)

^b UK Department of the Environment   (United Kingdom)

Author keywords

[No Author keywords available]

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EID: 84923992825     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1093/iclq/50.2.248     Document Type: Article

References (240)

1. Agreement Establishing the World Trade Organisation in Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations (1994) 33 I.L.M. 1125.
2. Annex 2 to the WTO Agreement (1994) 33 I.L.M. 1226 (hereinafter DSU).
3. I.L.M.
4. E.U. Petersmann The GATT/WTO Dispute Settlement System (Kluwer Law International, London: 1997) at 64.
5. J. H. Jackson, The World Trading System (MIT Press: Boston, 1989) at 85.
6. See also R. E. Hudec, Enforcing International Trade Law: The Evolution of the Modern GATT Legal System (Salem, N.H.: Butterworths, 1993)
7. D. P. Steger and S. M. Hainsworth, “New Directions in International Trade Law: WTO Dispute Settlement”, J. Cameron and K. Campbell, Dispute Settlement in the WTO (Cameron May: London, 1998).
8. G. D. Aldonas, “The World Trade Organization: Revolution in International Trade Dispute Settlements” (1995) 3 Dispute Resolution Journal 73 at 79.
9. DSU, Article 3:7.
10. A. Chua, “The Precedential Effect of WTO Panel and Appellate Body Reports”, (1998) 11 L.J.I.L. 45 at 46.
11. P. Nichols, “GATT Doctrine” (1996), 2 Virginia J. of Int. Law, 379 at 380.
12. DSU, Article 12.
13. DSU, Article 20.
14. DSU, Article 17:5. The Law of the Sea tribunal also appears to deal with disputes expeditiously. The decision ordering the release of an oil tanker that was bunkering (refuelling) a fishing vessel within the EEZ of Guinea, took less than three weeks from the application for relief. (MV “Saiga” Cases-Saint Vincent and the Grenadines v. Guinea, (1998).)
15. DSU Article 21.4.
16. Overview of the State-of-Play of WTO Disputes, (22 June 2000) (http://www.wto.org/english/tratop e/dispu e/stplay e.doc).
17. From 1991–1994, there were 36 complaints filed with 12 leading to Panel reports of which only four were adopted. In the 1980s, 115 complaints were filed with 47 of them producing Panel reports. In the 1970s, only 32 complaints were filed with 16 resulting in the circulation of a Panel report. (See Hudec, Overview of the State-of-Play of WTO Disputes
18. Steger and Hainsworth, Overview of the State-of-Play of WTO Disputes at 4.)
19. (1965) 575 U.N.T.S. 160).
20. Aldonas, U.N.T.S. at 73.
21. DSU, Article 3.2.
22. P. Kuijper, “The New WTO Dispute Settlement System-The Impact on the European Community” (1996) 29 (6) Journal of World Trade 49 at 51.
23. Petersmann, Journal of World Trade at 17.
24. (1969), 8 I.L.M. 679 (hereinafter VCLT).
25. GATT 1947 Panels seldom referred to the VCLT although it was recognised in US Restrictions on Imports of Tuna, 33 I.L.M. 839.
26. This could be attributable to the fact that the GATT 1947 was not a treaty among nations but an agreement that countries acceded to by means of the Protocol of Provisional Application, 30 Oct. 1947, 61 Stat. A2051, 55 U.N.T.S. 308.
27. (See Nichols, U.N.T.S. at 390.)
28. Nichols, U.N.T.S. at 422.
29. This interpretative requirement extends beyond GATT 1994 and includes other agreements such as TRIPS (India-Patent Protection for Pharmaceutical and Agricultural Chemical Products WT/DS50/AB/R, Dec. 1997) (hereinafter referred to as TRIPs) and the Agreement on Textiles and Clothing (“ United States-Restrictions on Imports of Cotton and Man-Made Fibre Underwear (Adopted on 25 Feb. 1997, WT/DS24.R) (hereinafter referred to as Underwear).
30. European Community Customs Classification of Certain Computer Equipment (hereinafter LAN Computers). WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R, para. 84. For an opposite view, see D. Palmeter and P. C. Mavroidis, “The WTO Legal System: Sources of Law” (1998) 92 AJ.I.L. 398, who argue that all the subparagraphs of Article 38(1) of the Statute of the International Court of Justice are potential sources of law applicable to a WTO dispute.
31. In EEC-Regulation on Imports of Parts and Components (1990) 2 W.T.M. 3, Article XX(d) of the GATT 1947 was interpreted in accordance with Article 31 of the VCLT.
32. See also J. Klabbers, “Jurisprudence in International Trade Law; Article XX of GATT” (1992) 26 J.W.T. 63 at 86.
33. There are a few examples where GATT 1947 Panels have used the principles stated in the VCLT to interpret the GATT 1947 without any explicit reference to the VCLT. See United States-Restrictions on Imports of Sugar, (1989) 36 Supp. BISD 331 for the application of the “ordinary meaning” principle mirrored in Article 31(1).
34. Some of the principles expressed in the VCLT, such as looking at the “plain meaning” and “contextual understanding” of the GATT 1947 were applied. European Economic Community-Restrictions on Imports of Dessert Apples-Complaint by Chile, 36 Supp. BISD 93, (hereinafter referred to as Dessert Apples)
35. Canada-Measures Affecting Exports of Unprocessed Herring and Salmon (1988) 35 Supp. BISD 98 (hereinafter referred to as Herring). The Panel in Japan-Taxes, ruled that Article 3(2) only codified existing GATT Panel practice, despite jurisprudence indicating a great deal of variance in the approaches to interpreting GATT 1947, Section D, p.10.
36. Nichols, Canada-Measures Affecting Exports of Unprocessed Herring and Salmon at 430. Referring to the travaux preparatoires was problematic because most of the parties did not participate in the original drafting of the GATT 1947.
37. See Petersmann, Canada-Measures Affecting Exports of Unprocessed Herring and Salmon at 112–113.
38. Japan-Taxes at Section D, p.10.
39. This was a reaffirmation of what was stated in United States-Standards For Reformulated and Conventional Gasoline (1996) WT/DS2/AB/R (hereinafter Reformulated Gasoline.)
40. Japan-Taxes, United States-Standards For Reformulated and Conventional Gasoline at p.10.
41. For further discussion, see Nichols, United States-Standards For Reformulated and Conventional Gasoline at 429.
42. Circumstances of conclusion can include, in the context of interpreting tariff schedules, classifications by the parties. See LAN Computers, Section V, para. 92.
43. See also European Communities-Measures Affecting The Importation of Certain Poultry Products, WT/DS69/AB/R, 13 July 1998, Section IV, para. 83 (hereinafter referred to as Poultry).
44. Article 32 states the secondary sources of treaty interpretation are to be referred to only for confirming the treaty's meaning after applying Article 31 or determining the meaning when, after applying Article 31, the interpretation leaves the treaty's meaning ambiguous or obscure or leads to a result which is manifestly absurd or unreasonable. Adherence to this rule has been seen in Japan-Taxes, Section D, p.10
45. LAN Computers, Section V, para. 86, and previous GATT Panels under GATT 1947
46. (Tuna II GATT Dispute Settlement Panel, (DS 29/R, 3 Sept. 1994)
47. (hereinafter Tuna-Dolphin II), United States- Restriction On Imports of Tuna, (1991) 30 I.L.M. 1594 (herinafter Tuna-Dolphin 1).
48. Canada-Certain Measures Concerning Periodicals (WT/DS31/AB/R) (hereinafter referred to as Canadian Periodicals). The Appellate Body did not refer to discussions held during the Uruguay Round but to the Reports of the Committees and Principal Sub-Committees of the Interim Commission for the International Trade Organization in 1947. ICITO I/8, Geneva, September 1948.
49. United States-Import Prohibition of Certain Shrimp and Shrimp Products (1998). WT/DS58/AB/R, Section VI, A., para. 115 (hereinafter referred to as Shrimp-Turtle).
50. (1966) Yearbook of the International Law Commission, Vol. II, p.219, as referred to by the Appellate Body in Japan-Taxes.
51. Japanese Agricultural Products case, (1988) 27 I.L.M. 1539.
52. Section V, C (i), para. 5.17. This was confirmed by the Appellate Body in other disputes: Japan-Alcoholic Beverages, p.12
53. Canada: Measures Affecting the Importation of Milk and the Exportation of Dairy Products, WT/DS103/AB/R, WT/DS113/AB/R, adopted 27 Oct. 1999, para. 133
54. Footwear, at para. 88.
55. European Communities-Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/AB/R (hereinafter Bananas).
56. Footwear, at para. 81.
57. The Appellate Body in Korea-Definitive Safeguard Measure on Imports of Certain Dairy Products, WT/DS98/AB/R, 14 Dec. 1999 at Section IV, para. 81, (hereinafter referred to as Korea-Milk) referred to a general duty in international law, as evidenced by I.C.J. jurisprudence, to interpret a treaty as a whole.
58. Guatemala-Anti Dumping Investigation Regarding Portland Cement from Mexico (WT/DS60/AB/R)
59. Section IV, para. 68, (hereinafter Guatemala Anti-Dumping).
60. Guatemala Anti-Dumping. A difference was found by the Appellate Body in Brazil-Export Financing Programme for Aircraft, adopted 20 Aug. 1999, WT/DS46/AB/R, para. 132 (hereinafter Brazil-Aircraft) with respect to the provisions governing the implementation of the recommendations and rulings of the DSB in a dispute pursuant to Article 4 of the SCM Agreement.
61. Japan-Taxes, Sections G, H(1).
62. Japan-Taxes, at Section H(2)(c).
63. The Permanent Court of Justice identified the principle as meaning that “if the wording of a treaty provision is not clear, in choosing between several admissible interpretations, the one which involves the minimum of obligations for the parties should be adopted”. See Frontier between Turkey and Iraq (1925), Series B, No. 12, at 25.
64. This rule is analogous to the margin of appreciation doctrine applied by the European Court of Human Rights that defers to the government's position in certain situations. See T. A. O'Donnell, “The Margin of Appreciation Doctrine: Standards in the Jurisprudence of the European Court of Human Rights” (1982) 4 Hum. Rts. Q 474.
65. See also McRae Hum. Rts. at 10.
66. EC Measures Concerning Meat and Meat Products (Hormones) WT/DS26/AB/R, WT/DS48/AB/) hereinafter referred to as Beef Hormones).
67. The Appellate Body referred to excerpts from R. Jennings and A. Watts (eds.), Oppenheim's International Law, 9th ed., Vol. I (Longman, 1992), p.1278
68. also to I.CJ. case law including the Nuclear Tests Case (Australia v. France, (1974), I.C.J. Rep., 267
69. Access of Polish War Vessels to the Port of Danzig (1931) PCIJ Rep., Series A/B, No. 43, 142 (Perm. Ct. of International Justice)
70. USA-France Air Transport Services Arbitration (1963), 38 I.L.R. 243 (Arbitral Trib.), as well as writers in international law). In the GATT 1947 body of jurisprudence, judgments by the I.CJ. received only nominal adoption into the GATT regime, simply referred to in the footnotes of decisions as opposed to being directly applied in the body of a ruling.
71. L. Brown (ed.), The New Shorter Oxford English Dictionary on Historical Principles (Clarendon Press), Vol. I.
72. Beef Hormones, at Section X A, para. 165.
73. Brazil-Measures Affecting Desiccated Coconut (1997), WT/DS22/R, Section VI,A, 1 (b) (ii). The Appellate Body (WT/DS22/AB/R, AB-19967–4, Section E 3) (hereinafter referred to as Brazil-Coconut, upheld this part of the ruling.)
74. This was in contradiction to an earlier GATT Panel ruling in United States- Countervailing Duties on Fresh, Chilled and Frozen Pork from Canada (adopted 11 July 1991), BISD 38S/30, where the Panel indicated, in passing, that the SCM Code represented subsequent practice under Article VI of GATT 1947.
75. A. Chua argues that DSB decisions would be more unlikely to constitute subsequent practice since Panel reports are now automatically adopted rather than through a unanimous consensus. United States- Countervailing Duties on Fresh, Chilled and Frozen Pork from Canada at 59.
76. See United States- Countervailing Duties on Fresh, Chilled and Frozen Pork from Canada.
77. Petersmann, United States- Countervailing Duties on Fresh, Chilled and Frozen Pork from Canada at 95.
78. Germany v. Council (Re Banana Regime) (Case 280/93), [1998] E.C.R. 1019
79. O'Dwyer & Others v. E.C. Council, [1995] 11 E.C.R. 2071.
80. In August Topfer & Co. GmbH v. Council (Case T-115/94), [1997] 1 C.M.L.R. 733, the European Court of Justice held that the principle of legitimate expectations was the corollary of the principle of good faith in public international law.
81. J. Steiner & L. Woods, Textbook on EC Law, (London: Blackstone Press Ltd; 1998) at 105.
82. The Case of the SS Lotus, Judgment No. 9, (P.C.I.J.), Ser. A. No. 10 (1927).
83. The Lotus case has been questioned by scholars, mainly because of the court's approach to jurisdiction over the high seas, Brownlie at 305. See also Fitzmaurice (1957) 92 Hague Recuieil II at 56
84. E. Lauterpacht (1970), International Law: Collected Papers. The Court ruled that the Turkish authorities had wide discretion to extend its criminal law jurisdiction beyond its territory partly due to the absence of rules prohibiting this. Article 11(1) of the High Seas Convention and Article 97(1) of UNCLOS have explicitly overturned this finding, allowing only the flag State to exercise penal or disciplinary proceedings over collisions on the high seas.
85. T. Cottier and K. N. Schefer, “Non-Violation Complaints in WTO/GATT Dispute Settlement: Past, Present and Future” 143 in Petersmann, International Law: Collected Papers at 166.
86. Underwear Panel at Section VII B para. 7.20. See also the Superfund case, (Panel Report on United States-Taxes on Petroleum and Certain Imported Substances, adopted on 17 June 1987, BISD 34S/136), where it was noted that such rules and disciplines “are not only to protect current trade but also to create the predictability needed to plan future trade.” The TRIPs Panel adopted the similar view taken in the Underwear and the Superfund cases, where the importance of protecting the expectations of the contracting parties as to the competitive relationship between their products and those of other contracting parties was recognised.
87. A violation of the WTO Agreements can be seen where the attainment of an objective is impeded by the application of a particular measure (GATT 1994, Art. XXIII 1(b)).
88. European Communities-Customs Classification of Certain Computer Equipment, WT/DS62/R, WT/DS67/R, WT/DS68/R, Section VII C, para. 8.23.
89. The Panel referred to the decision in European Economic Community-Payments and Subsidies Paid to Processors and Producers of Oilseeds and Related Animal Feed Proteins, adopted on 25 Jan. 1990, BISD 37S/86, to support this point.
90. The good faith obligation extends to the performance of a treaty that is in force as well as governs negotiations. See VCLT, Article 26.
91. Japan-Taxes, Section E, p.14.
92. The concept of “reasonable expectations” was first introduced in GATT jurisprudence by the Panel in Australian Subsidy on Ammonium Sulphate, GATT, BISD Vol. II, 188 (1952). In the Dessert Apples case, although the GATT Panel ruled out the precedential value of Panel reports, it still held that the legitimate expectations by a party on an adopted Panel report can be taken into account.
93. GATT, BISD Vol. II, 188 (1952).
94. Canada referred to the 1952 International Convention for the High Seas Fisheries of the North Pacific (1952) U.N.T.S. 65, and the 1985 treaty between Canada and the United States concerning Pacific salmon.
95. United Nations Convention of the Law of the Sea, (1982), 21 I.L.M. 1261.
96. Reformulated Gas, Appellate Body, Section III B.
97. J. Cameron & J. Robinson, “The Use of Trade Provisions in International Environmental Agreements and their Compatibility with the GATT, (1991) 2 Y.I.E.L. 3.
98. J. Dunoff, “Institutional Misfits: The GATT, The ICJ & Trade-Environment Disputes” (1993–1994) 15 Michigan Journal of International Law 1043 at 1065.
99. See also Petros C. Mavroidis, “Das GATT als self-contained Regime,” Recht der International Wirtschaft, 1991, 497).
100. D. Brack, “Reconciling the GATT and Multilateral Environmental Agreements with Trade Provisions: The Latest Debate”, (1997) 6:2 Review of European Community and International Environmental Law 112.
101. Thailand-Restrictions on Importation of and Internal Taxes on Cigarettes (BISD 37S/200).
102. In a similar situation, the U.S. was faulted for not doing this in the Shrimp-Turtle dispute (see Thailand-Restrictions on Importation of and Internal Taxes on Cigarettes).
103. DS29/R and (1994) I.L.M. 842.
104. Petersmann, I.L.M. at 127, contends that the Tuna II Panel decision raises two questions. The first one is whether subsequent agreements and subsequent practice, under Article 31, cover agreements and practices, which explicitly refer to GATT/WTO rules. The other question he poses is why the Panel did not apply the general rule of treaty interpretation requiring it to take into account any relevant rules of international law, potentially expressed in multilateral agreements that are applicable in the relations between the parties under Article 31:3 of VCLT.
105. Principle 12 of the Rio Declaration on Environment and Development (1992) 31 I.L.M. 874, specifically refers to GATT 1947, Article XX, therefore supporting the customary international legal principle calling for harmonisation of MEAs with WTO law.
106. “Amicus Brief”, written by J. Cameron and F. Darroch for FIELD on behalf of the World Wildlife Fund for Nature at 2. This requirement was argued to be based on treaty law as well as regional agreements such as the ASEAN Agreement on the Conservation of Nature and Natural Resources, (1985) 15 E.P.L. 64, which contribute to international law providing for the protection of sea turtles.
107. (1982) 31 I.L.M. 822.
108. (1973) 993 U.N.T.S. 243.
109. (1982) 21 I.L.M. 1261.
110. (1983) 19 I.L.M. 15.
111. Shrimp-Turtle, Part VI C 2, para. 171.
112. (1996) Inter-American Convention for the Protection and Conservation of Sea Turtles. Available at http://www.csf.colorado.edu.
113. Shrimp-Turtle Part VI C 2, para. 168.
114. Shrimp-Turtle, Shrimp-Turtle., Section II 2 D 3, para. 72.
115. The Appellate Body referred to UNCLOS, Biodiversity Convention, the Bonn Convention, as well as Agenda 21. Ironically, it was paragraph 2.22(i) of Agenda 21 Report in combination with Principle 12 of the Rio Declaration, (1992) 30 I.L.M. 874, which led the Appellate Body to conclude that unilateral trade measures that address transboundary environmental problems should not be employed.
116. African, Caribbean and Pacific States-European Economic Community (1991) 29 I.L.M. 783.
117. See Principle 15 of the 1992 Rio Declaration on Environment and Development. MEAs that require parties to apply or take account of the precautionary approach or principle include the 1991 Bamako Convention on the Ban of Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa, 30 I.L.M., 1991
118. the 1992 Helsinki Convention on the Protection and Use of Transboundary Watercourses and Lakes (1992), 31 I.L.M. 1312, Article 2(5)(a)
119. the 1992 OSPAR Convention for the Protection of the Marine Environment of the North-East Atlantic, (1993) 32 I.L.M. 1068, Art. 2(2)(a)
120. the 1992 UN Framework Convention on Climate Change (1992), Article 3, and the 2000 Biosafety Protocol.
121. Part VI, para. 123. The precautionary principle was given greater definition by Judge Laing, of the International Tribunal for the Law of the Sea, in a separate opinion in the Southern Bluefin Tuna (Provisional Measures) Cases (1999) ITLOS 3 & 4.
122. See Principle 16 of the Rio Declaration. See also OECD Council Recommendation C (72) 128, 14 I.L.M. (1975), 236
123. Recommendation on the Implementation of the Polluter-Pays Principle, C(74) 223 (1974), 14 I.L.M. (1975), 234
124. OECD Council Recommendation on the Application of the Polluter-Pays Principle to Accidental Pollution, C.89 (Final) (1989), 28 I.L.M. 1320
125. EC Treaty, Art. 174); OSPAR Convention, Article 2(2)(b). Both the Oil Pollution Preparedness Convention International Convention on Oil Pollution Preparedness, Response and Co-operation (London) 30 Nov. 1990, (1991) 30 I.L.M. 733
126. the Industrial Accidents Convention, preamble (UN/ECE Convention on the Transboundary Effects of Industrial Accidents (1992) 31 I.L.M. 1330, preamble, identify the polluter-pays principle as a general principle of international environmental law.
127. Section VI B para. 85. The Appellate Body also ruled that the Panel did not abuse its discretion by not seeking information or an opinion from the IMF. The relationship with the IMF came up in India-Quantitative Restrictions, para. 149, where the Panel's treatment of information from the IMF, relating to India's balance of payments situation, was challenged. The appellant argued that the Panel failed to assess the views of the IMF independently, thereby delegating their duty to make an objective assessment of the matter. This was dismissed by the Appellate Body since they found the Panel critically assessed those views as well as considered other data and opinions.
128. Dispute settlement was available to Philippines under the SCM Code, pursuant to Articles VI and XXIII of the GATT 1947. Petersmann argues that the Appellate Body, in its reasoning, failed to account for how the legitimate interests of exporting countries, in compliance with Articles I, II and VI of GATT 1994, could be protected during the transitional phase where the SCM Code was not in force. India-Quantitative Restrictions at 93.
129. In Japan-Taxes, para. 6.18, the Panel ruled that since the Panel report in the U.S. Auto Taxes case (United States-Taxes on Automobiles, Report of the Panel, 29 Sept. 1994)
130. (1994) 33 I.L.M. 1397 was not adopted, it did not bind the Panel or create any obligation to lend any weight to the decision. Some have argued that unadopted Panel reports are precedents for GATT Panels
131. (see W. J. Snape III & N. B. Lefkovitz, “Searching for GATT's Environmental Miranda: Are “Process Standards” getting “Due Process?””, (1994) 27 Cornell Int'l L.J. 777), while others have flatly refused such a position.
132. See S. Charnovitz, “Environmental Trade Sanctions and the GATT: An Analysis of the Pelly Amendment on Foreign Environmental Practices”, (1994), 9 Am. U.J. Int'l L. & Policy 751.
133. See also Nichols, Am. U.J. Int'l L. & Policy at 431.
134. See “World Trade Rules and Environmental Policies: Congruence or Conflict?” (1992) 49 Wash & Lee L. Rev. 1227 at 1253.
135. See also Canada-Import Restrictions on Ice Cream and Yogurt, (1985) 36 Supp. BISD 68 at 85, where the Panel held that prior Panel reports can be relevant but are not dispositive.
136. Japan-Taxes at Section E, p.13.
137. E.U. Petersmann “International Trade Law and the GATT/WTO Dispute Settlement System 1948–1996: An Introduction” at 3 in E.U. Petersmann Japan-Taxes.
138. J. Jackson, The World Trading System: Law and Policy of International Economic Relations (2d) (MIT Press, Cambridge: 1997 at 32).
139. It is generally considered that previous decisions by international tribunals lack formal precedential effect. See I. Brownlie, Principles of Public International Law at 21 (5th ed.), (New York: Clarendon Press; 1998).
140. J. Klabbers, Principles of Public International Law, states that Panel reports under the GATT 1947 had no formal precedential value but in practice, they did serve as precedent
141. often being referred to in a number of Panel proceedings and relied on by the Panels themselves, “Jurisprudence in International Trade Law: Article XX of GATT” (1992), 26 Journal of World Trade 63 at 65.
142. (1997), WT/DS33/AB/R hereafter Shirts and Blouses.
143. Japan Taxes, Section E.
144. Desiccated Coconut, Panel report (WT/DS22/R) at Section VI, A, I (b) (iii) para. 258.
145. By contrast, the Appellate Body concurred with the Panel in United States-Malt Beverages, adopted 19 June 1992, BISD 39S/206, that permissible subsidies under Article III:8(b) of the GATT 1994 were limited to payments, which involve the expenditure of revenue by a government.
146. Section IV, p.14, See also TRIPs, section IV, para. 74.
147. Shirts and Blouses, Section IV, p.13.
148. Panel Report on United States-Taxes on Petroleum and Certain Imported Substances, adopted on 17 June 1987, BISD 34S/136.
149. Raymond Guillien and Jean Vincent, Dalloz (1981).
150. United States-Restrictions on the Importation of Sugar and Sugar-Containing Products Applied Under the 1955 Waiver and Under the Headnote to the Schedule of Tariff Concessions, (1990), 37 Supp. BISD 228
151. Japan-Trade in Semi-Conductors, (1988), 35 Supp. BISD 116.
152. (1979) 26 Supp. BISD 210. Nichols, Supp. BISD at 413, notes that there is an absence of jurisprudence demonstrating customary practice in non-violation disputes.
153. EC-Hormones para. 104.
154. EC-Hormones. The Appellate Body, in Shirts and Blouses, determined that Article 6 of the ATC was a fundamental part of the rights and obligations of WTO Members and consequently a party claiming a violation of a provision of the WTO Agreement by another member had to assert and prove its claim. India was required to put forward evidence and legal arguments sufficient to demonstrate that the safeguard by U.S. was inconsistent with obligations assumed by the U.S. under Articles 2 and 6 of ATC. The onus then shifted to U.S. to bring forward evidence and disprove the claim.
155. See also LAN Computers, part VI, para. 103.
156. Canada-Administration of the Foreign Investment Review Act, BISD 30S/140 (adopted 7 Feb. 1984). The Panel report in that case represented the first dispute where the burden of proof was allocated to the party claiming the exception. In that case, Canada was required to demonstrate that the purchase undertakings that foreign investors were required to enter into to ensure preferential buying of Canadian products, were necessary to secure compliance with the Foreign Investment Review Act, and therefore in accordance with Article XX(d) of the GATT 1947.
157. Article XI deals with quantitative restrictions. The Panel in Canada-Import Restrictions on Ice Cream and Yogurt, (1989) 36 Supp. BISD 68 at 85, refused to reverse the burden of proof under the requirements of Article XI:2(c)(i) to the claiming State because it would seriously affect the balance of tariff concessions that were negotiated among the contracting parties.
158. Shirts and Blouses, Section IV, p.16.
159. Part IV. Klabbers Shirts and Blouses at 89 notes that although there was a consensus that the burden of proof rests on the party invoking Article XX, it was still unclear in GATT jurisprudence where the onus of proof rests with respect to the various elements of Article XX.
160. Reformulated Gasoline, Section IV, p.21.
161. WT/DS90/AB/R, adopted 22 Sept. 1999, para. 143, (hereinafter India-Quantitative Restrictions).
162. This was found to occur in the Japan-Measures Affecting Agricultural Products (WT/DS76/AB/R), where the Appellate Body overruled the Panel's ruling concerning an issue that was not claimed by the United States. As a result, the claimant did not initially make out a prima facie case (Section VI, A para. 129).
163. United States-Imposition of Anti-dumping Duties on Imports of Fresh and Chilled Atlantic Salmon from Norway, GATT Doc. ADP 87 (adopted 27 April 1994)
164. EC Anti-dumping Duties on Audio Tapes in Cassettes Originating in Japan, (unadopted).
165. Part X, B. para. 170. However, the Appellate Body affirmed that, where a WTO member chooses a measure that is not based on an international standard, there must be evidence of a risk assessment pursuant to Article V:1 of the SPS Agreement. For application of the similar allocation of the burden of proof to subsidies cases under the SCM Agreement, see Brazil-Aircraft, section VI, paras. 139–141.
166. Nichols, Brazil-Aircraft at 403.
167. European Communities-Refunds on Exports of Sugar, (1979), 26 Supp. BISD 290.
168. Canada-Administration of the Foreign Investment Review Act, (1984) 30 Supp. BISD 140.
169. European Economic Community-Payments and Subsidies Paid to Processors and Producers of Oilseeds and Related Animal-Feed Proteins, (1990), 37 Supp. BISD 86.
170. Herring Supp. BISD. One notable exception may be seen in Dessert Apples, at 124, where the Panel construed its terms of reference to instill authority to examine the matter in light of all relevant provisions, including those related to its interpretation and implementation such as the legitimate expectations created by the adoption of the report as well as other GATT 1947 practices, adopted Panel reports and the particular circumstances of the complaint.
171. United States-Denial of Most-Favoured-Nation Treatment as to Non-Rubber Footwear from Brazil, 39 Supp. BISD 128.
172. Tuna-Dolphin I. Section 337 of the Tariff Act of 1930 (1989), 36 Supp. BISD 345.
173. Tuna-Dolphin I, Tuna-Dolphin II, Norway-Procurement of Toll Collection Equipment for the City of Trondheim 40 Supp. BISD 319 (1992).
174. United States-Taxes on Automobiles, 33 I.L.M. 1397 (1994)
175. United States-Section 337 of the Tariff Act of 1930, 36 Supp. BISD 345 (1989).
176. Tuna-Dolphin I, European Economic Community-Regulation on Imports of Parts and Components, 37 Supp. BISD 132 (1990).
177. See also European Economic Community-Restrictions on Imports of Apples, Complaint by the United States, (1989) 36 Supp. BISD 135
178. Decision on Improvements to the GATT Dispute Settlement Rules and Procedures of 12 April 1989, 36 Supp. BISD 61 (1989).
179. Poultry, at section VIII, para. 135.
180. Poultry.
181. Poultry. It must be kept in mind that a partial resolution of a dispute, by not responding to all the necessary claims, can create false judicial economy and therefore be in violation of Article 3:7. In Australia-Measures Affecting Importation of Salmon, WT/DS18/AB/R Section IV, E 1, para. 223–224, the Panel's failure to make any determinations on Article 5.5 and 5.6 of the SPS Agreement, potentially resulted in the disability of the DSB to make sufficiently precise recommendations to allow for compliance.
182. Reformulated Gasoline at para II.C.
183. Charnovitz, Reformulated Gasoline at 200.
184. J. P. Gaffney asserts that the judicial activism is engaged by the Appellate Body because of its concern for the integrity of the dispute settlement system. “Due Process in the World Trade Organization: The Need for Procedural Justice in the Dispute Settlement System” 14 (1999) Am. Univ. Int'l L. Rev. 1173 at 1192.
185. Desiccated Coconut, Section VI, p.21. The European Community submitted that a request for an establishment of a Panel is to include: (a) the infringing measure; (b) the obligation under the WTO Agreement which is alleged to be violated
186. (c) a brief explanation of the way in which the measure infringed the legal obligations. The Appellate Body did not specifically address this point but these arguments appear to have been recognised by the Appellate Body in the Korea-Milk, Desiccated Coconut at para. 235.
187. Desiccated Coconut, Section VI, p.21
188. Guatemala-Anti Dumping, section V, paras. 86, 87.
189. Bananas at para. 143, TRIPS at section VIII, para. 91.
190. Bananas, Bananas
191. Korea-Milk, infra n.245 at para. 143.
192. infra at para. 142.
193. Korea-Milk, WT/DS98/AB/R at Section IV, para. 120.
194. Korea-Milk, para. 139. The Appellate Body added that a claim is distinguishable from an argument, which is adduced by a party to demonstrate the infringement. The distinction was applied to uphold the Panel's consideration of a Korean report on the challenged safeguard measure, which was not included in the request for a Panel. Para. 140.
195. Korea-Milk., at para. 128.
196. EC Bananas, section IV (a) 2, para. 142.
197. Korea-Milk, section IV, para. 131.
198. (1997) WT/DS57/AB/R found at http://www.wto.org/wto/dispute/ab3.htm.
199. See, EC Bananas, section IV(a) 4 at 152.
200. Canada-Measures Affecting the Export of Civilian Aircraft WT/DS70/AB/R (hereinafter referred to as Canada-Aircraft, Section VIII, 1(c), para. 202.
201. The general practice referred to was supported by international law jurisprudence such as the Corfu Channel case (1949, I.C.J. 4, at 18)
202. Case Concerning Military and Paramilitary Activities In and Against Nicaragua, 1986 I.C.J. 14, pp.82–86, paras. 152, 154–156
203. Case Concerning the Barcelona Traction, Light and Power Company, Limited, 1970 I.C.J. 3, p.215, para. 97.
204. DSU, Article 10 and Appendix 3. Article 10 affords third parties an opportunity to be heard and make written submissions (Art. 10(2)) and have access to the disputants' submissions (Art. 10(3)). Third parties were permitted to participate in Panel proceedings under GATT Panel practice, including the right to submit written comments to Panels and to make oral arguments. (United States-Customs Users Fees, 35 Supp. BISD 245 (1988)
205. Panel on Japanese Measures on Imports of Leather, 31 Supp. BISD 94 (1984)
206. Japan-Trade in Semi-Conductors, 35 Supp. BISD 116 (1988).
207. Steger and Hainsworth, Supp. BISD at 21, add that at the time of negotiation of the DSU, it was not anticipated that several cases would involve multiple complainants and that the members would use the provisions of Article 10 to participate as third parties.
208. Steger, Supp. BISD at 7 notes that the easier access for third parties to a dispute will create a greater problem for finding Panellists who are acceptable to all of the parties to a dispute.
209. See Appellate Body, Bananas at paras. 132,133.
210. The I.C.J. established a general rule in international law that a complaining party must have a legal interest in order to bring a case. See South West Africa Cases, (Second Phase), (1966) I.C.J.R. 4
211. Case Concerning the Barcelona Traction, Light and Power Company Limited (Second Phase), (1970) I.C.J.R. 4
212. Mavrommatis Palestine Concessions Case, (1925) Series A, No. 2, 1, S.S. “Wimbledon” (1923) Series A, No. 1, 1 (P.C.I.J.)
213. (Case Concerning the Northern Cameroon (1963), I.C.J.R. 4.
214. For a more detailed discussion of the role of outside counsel in the WTO dispute settlement system, see Marco C.E.J. Bronkers and John H. Jackson, Editorial Comment: Outside Counsel in WTO Dispute Processes, (1999) 2 J. Int'l Econ. L. 155.
215. Indonesia-Certain Measures Affecting the Automobile Industry, WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R, (2 July 1998), para. 14.1.
216. Article 13 empowers a Panel to seek information and technical advice from any individual or body which it deems appropriate. As part of this authority, they can request an advisory report from an expert review group with respect to a factual issue. A similar power was found to exist for the apppellate body in US-Countervailing Duties on Steel Products, Section III, para. 42.
217. Shrimp-Turtle, section III, paras. 88–91. The amicus brief submitted by the Center for Marine Conservation and the Center for International Environmental Law was attached to the U.S. claim, while the WWF brief was not at the Panel stage. However, there is evidence that the WWF brief was read by the Panel since the presentation of the evidence in the Panel report was based on the conservation facts adduced by the WWF experts. The Appellate Body of course determined that it could look at the submissions and the U.S. enabled the two briefs to be presented at that stage.
218. Canada-Aircraft at Section VII, 1, para. 202.
219. This can also compensate for the real possibility that the complaining party is unable to obtain all relevant facts needed to support its case and the defending party is often reluctant to disclose all relevant facts, especially those that may weaken its defence. J. Cameron and S. J. Orava, GATT/WTO Panels Between Recording and Finding Facts: Issues of Due Process, Evidence, Burden of Proof, and Standard of Review in GATT/WTO Dispute Settlement (unpublished paper) (1999) at 9
220. [soon to be published in F. Weiss, Improving WTO Dispute Settlement Procedures, Cameron May 2000.
221. See C. Tiete, “Voluntary Eco-Labeling Programmes and Questions of State Responsibility in the WTO/GATT Legal System” (1995) 29 (5) Journal of World Trade Law 123 at 148.
222. If a government effectively influences and controls private activity, it loses the element of autonomy and is therefore an act of State. See Tietje, Journal of World Trade Law at 151.
223. See also the GATT 1947 Panel report, Japan Trade in Semiconductors, adopted 4 May 1988, 5th Supp., BISD 1986, where the Panel held that third party monitoring under the Agreement Concerning Trade in Semiconductor Products (2 Sept. 1986, 25 I.L.M. 1409), constituted an act of state imposing a quantitative restriction contrary to Article XI:1.
224. The Panel referred to Free Zones of Upper Savoy and the District of Gex, 1932, P.C.I.J., Series A/B, case No. 46, p.167, in n.198.
225. See North Sea Cases, (1969) I.C.J. Rep. 26
226. Temple of Preah Vihear, (1962) I.C.J. Rep. 143
227. Gulf of Maine Case, (1984) 309.
228. (1950) BISD 3S/77-German Import Duties on Starch.
229. See also EEC-Members Import Regimes for Bananas, 1993.
230. Petersmann, EEC-Members Import Regimes for Bananas at 178
231. Certain German Interests in Polish Upper Silesia, (1926) P.C.I.J., Ser A, no. 7, 30.
232. See also A. Kiss, “L'Abus de Droit en Droit International”, (1953) Recueil des Cours.
233. Recueil des Cours.
234. This is a quote from B. Cheng, General Principles of Law as applied by International Courts and Tribunals (Stevens and Sons, Ltd. 1953) referred to in the Shrimp-Turtle Appellate Body report. The doctrine was not applied directly by the Appellate Body but it did underline its premise that a misuse of an exception of Article XX occurs where it is exercised in an arbitrary or unjustifiable manner.
235. The Australian Subsidy on Ammonium Sulphate, 3 April 1950, BISD II/188.
236. Case Concerning Elettronica Sicula S.p.A. (ELSI) I.C.J. Rep. 1989, 15.
237. E.U. Petersmann, The GATT/WTO Dispute Settlement System. International Law, International Organizations and Dispute Settlement (London: Kluwer Law International, 1997) at 242.
238. Kuijper, The GATT/WTO Dispute Settlement System. International Law, International Organizations and Dispute Settlement at 65.
239. The ELSI case, The GATT/WTO Dispute Settlement System. International Law, International Organizations and Dispute Settlement, noted that the exhaustion principle cannot be implicitly dispensed with by States but must be specifically excluded by a treaty, which none of the WTO Agreements appear to do.
240. Both the Beef Hormones, Brazil-Aircraft and Bananas disputes resulted in sanctions imposed against the European Union in light of their failure to comply with their respective decisions.