[ 劉成偉 ]——(2003-7-7) / 已閱70337次
III Identification of “the specific measures at issue”
With regard to the third requirements for requests for establishment of a panel, the question to be discussed below is whether the ordinary meaning of the terms of Art. 6.2 of the DSU, i.e., that “the specific measures at issue” be identified in the panel request, can be met if a “measure” or/and the products affected by such a measure is not explicitly described in the request. In this respect, the Panel Report on Japan-Film (DS44) states that:12
“[…] To fall within the terms of Article 6.2, it seems clear that a ‘measure’ not explicitly described in a panel request must have a clear relationship to a ‘measure’ that is specifically described therein, so that it can be said to be ‘included’ in the specified ‘measure’. In our view, the requirements of Article 6.2 would be met in the case of a ‘measure’ that is subsidiary or so closely related to a ‘measure’ specifically identified, that the responding party can reasonably be found to have received adequate notice of the scope of the claims asserted by the complaining party. The two key elements -- close relationship and notice -- are inter-related: only if a ‘measure’ is subsidiary or closely related to a specifically identified ‘measure’ will notice be adequate. For example, we consider that where a basic framework law dealing with a narrow subject matter that provides for implementing ‘measures’ is specified in a panel request, implementing ‘measures’ might be considered in appropriate circumstances as effectively included in the panel request as well for purposes of Article 6.2. Such circumstances include the case of a basic framework law that specifies the form and circumscribes the possible content and scope of implementing ‘measures’. As explained below, this interpretation of Article 6.2 is consistent with the context and the object and purpose of Article 6.2, as well as past panel practice.
The Bananas III panel found that the object and purpose of Article 6.2's specificity requirement is to ensure clarity of panels' terms of reference, which pursuant to Article 7 of the DSU are typically determined by the panel request, and to inform the respondent and potential third parties of the scope of the complaining party's claims (i.e., the ‘measures’ challenged and the WTO provisions invoked by the complaining party). So long as Article 6.2 is interpreted to require any ‘measure’ challenged to be specified in the panel request or to be subsidiary or closely related to the specified ‘measures’, the object and purpose of Article 6.2 are satisfied.
The proposed interpretation is also consistent with past WTO and GATT panel practice. The Bananas III panel is the only WTO panel to have interpreted the aspect of Article 6.2 at issue in this case, i.e., the definition of the ‘measures’ to be deemed covered by a panel request. In the Bananas III panel request, the ‘basic EC regulation at issue’ had been identified by place and date of publication. In addition, the request referred in general terms to ‘subsequent EC legislation, regulations and administrative measures ... which implement, supplement and amend [the EC banana] regime’. The Bananas III panel found that this reference was sufficient for the specificity requirement of Article 6.2 because the measures that the complainants were contesting were ‘a(chǎn)dequately identified’, even though they were not explicitly listed. The Appellate Body agreed that the panel request ‘contains sufficient identification of the measures at issue to fulfil the requirements of Article 6.2’. In our view, ‘measures’ that are subsidiary or closely related to specified ‘measures’ can be found to be ‘a(chǎn)dequately identified’ as that concept was applied in the Bananas III case.”
To go further, with respect to the identification of the products affected by such measures, the Appellate Body rules in EC-Computer Equipment (DS62/DS67/DS68) that: “We note that Article 6.2 of the DSU does not explicitly require that the products to which the ‘specific measures at issue’ apply be identified. However, with respect to certain WTO obligations, in order to identify ‘the specific measures at issue’, it may also be necessary to identify the products subject to the measures in dispute.” 13
However, as ruled by the Panel in Canada-Civilian Aircraft (DS70), “[w]e do not consider that the mere fact that the scope of a measure is identified in the request for establishment by reference to a broad product or industry grouping necessarily renders that request for establishment inconsistent with Article 6.2 of the DSU”. The Panel bases their finding by stating that:14
“[…] We believe that the Appellate Body was of a similar opinion in LAN Equipment, where it shared the US concern that: ‘if the EC arguments on specificity of product definition are accepted, there will inevitably be long, drawn-out procedural battles at the early stage of the panel process in every proceeding. The parties will contest every product definition, and the defending party in each case will seek to exclude all products that the complaining parties may have identified by grouping, but not spelled out in 'sufficient' detail.’
Although the Appellate Body's remarks were made in the context of a reference to a broad product grouping in the complaining party's request for establishment, we can see no basis for not adopting a similar approach when the request for establishment refers to a broad industry sector, such as the ‘civil aircraft industry’. If a complaining party believes that a measure affects a broad industry sector, in our view that complaining party should be entitled to challenge that measure insofar as it affects the totality of the industry concerned, without having to spell out the individual components of that industry, and without running afoul of Article 6.2 of the DSU.”
In short, whether the claims are sufficiently precise to “identify the specific measure at issue” under Art. 6.2 of the DSU depends upon whether they satisfy the object and purposes of the requirement of that provision, i.e., whether the respondent and potential third parties are put on sufficient notice as to the parameters of the case it is defending. For this reason, Art. 6.2 should be interpreted to require any “measure” challenged to be specified in the panel request or to be subsidiary or closely related to the specified “measures”. Also, one of the purposes of Art. 6.2 is to ensure clarity of panels' terms of reference. Accordingly, claims based on provisions of GATT or other WTO agreements not mentioned in the panel request should be found to be outside the terms of reference of the panel concerned.”
IV Provision of “a brief summary of the legal basis of the complaint”
In its fourth requirement, Art. 6.2 demands only a summary - and it may be a brief one - of the legal basis of the complaint; but the summary must, in any event, be one that is “sufficient to present the problem clearly”. It is not enough, in other words, that “the legal basis of the complaint” is summarily identified; the identification must “present the problem clearly”.
In EC-Bananas, with respect to whether the panel request provides, as required, a “brief summary of the legal basis of the complaint sufficient to present the problem clearly”, the Appellate Body rules pertinently that, “we agree with the Panel's conclusion that ‘the request is sufficiently specific to comply with the minimum standards established by the terms of Article 6.2 of the DSU’. We accept the Panel's view that it was sufficient for the Complaining Parties to list the provisions of the specific agreements alleged to have been violated without setting out detailed arguments as to which specific aspects of the measures at issue relate to which specific provisions of those agreements.” 15 However, as noted by the Appellate Body, this is not a litmus test for determining the sufficiency of the statement of the legal basis of the complaint. The Appellate Body in Korea-Dairy Products（DS98）rules in pertinent part:16
“As the Panel noted, we said in European Communities - Bananas, that: [we] accept the Panel's view that it was sufficient for the Complaining Parties to list the provisions of the specific agreements alleged to have been violated without setting out detailed arguments as to which specific aspects of the measures at issue relate to which specific provisions of those agreements.
It appears to us that the Panel read this portion of our findings in European Communities - Bananas as establishing a litmus test for determining the sufficiency of the statement of the legal basis of the complaint.
The Panel, however, failed to note that in European Communities - Bananas, we went on to say that:
As a panel request is normally not subjected to detailed scrutiny by the DSB, it is incumbent upon a panel to examine the request for the establishment of the panel very carefully to ensure its compliance with both the letter and the spirit of Article 6.2 of the DSU. It is important that a panel request be sufficiently precise for two reasons: first, it often forms the basis for the terms of reference of the panel pursuant to Article 7 of the DSU; and, second, it informs the defending party and the third parties of the legal basis of the complaint.
Thus, we did not purport in European Communities - Bananas to establish the mere listing of the articles of an agreement alleged to have been breached as a standard of precision, observance of which would always constitute sufficient compliance with the requirements of Article 6.2, in each and every case, without regard to the particular circumstances of such cases. If we were in fact attempting to construct such a rule in that case, there would have been little point to our enjoining panels to examine a request for a panel ‘very carefully to ensure its compliance with both the letter and the spirit of Article 6.2 of the DSU’. Close scrutiny of what we in fact said in European Communities - Bananas shows that we, firstly, restated the reasons why precision is necessary in a request for a panel; secondly, we stressed that claims, not detailed arguments, are what need to be set out with sufficient clarity; and thirdly, we agreed with the conclusion of the panel that, in that case, the listing of the articles of the agreements claimed to have been violated satisfied the minimum requirements of Article 6.2 of the DSU. In view of all the circumstances surrounding that case, we concurred with the panel that the European Communities had not been misled as to what claims were in fact being asserted against it as respondent.
Identification of the treaty provisions claimed to have been violated by the respondent is always necessary both for purposes of defining the terms of reference of a panel and for informing the respondent and the third parties of the claims made by the complainant; such identification is a minimum prerequisite if the legal basis of the complaint is to be presented at all. But it may not always be enough. There may be situations where the simple listing of the articles of the agreement or agreements involved may, in the light of attendant circumstances, suffice to meet the standard of clarity in the statement of the legal basis of the complaint. However, there may also be situations in which the circumstances are such that the mere listing of treaty articles would not satisfy the standard of Article 6.2. This may be the case, for instance, where the articles listed establish not one single, distinct obligation, but rather multiple obligations. In such a situation, the listing of articles of an agreement, in and of itself, may fall short of the standard of Article 6.2.”
In sum, as discussed in more detail in EC-Bed Linen（DS141）:“…First, the issue is to be resolved on a case-by-case basis. Second, the panel must examine the request for the establishment of the panel very carefully to ensure its compliance with both the letter and the spirit of Article 6.2 of the DSU. Third, the panel should take into account the nature of the particular provision at issue - i.e., where the Articles listed establish not one single, distinct obligation, but rather multiple obligations, the mere listing of treaty Articles may not satisfy the standard of Article 6.2. Fourth, the panel should take into account whether the ability of the respondent to defend itself was prejudiced, given the actual course of the panel proceedings, by the fact that the panel request simply listed the provisions claimed to have been violated. It seems that even if the panel request is insufficient on its face, an allegation that the requirements of Article 6.2 of the DSU are not met will not prevail where no prejudice is established.”17
Importantly, “[t]he fundamental issue in assessing claims of prejudice is whether a defending party was made aware of the claims presented by the complaining party, sufficient to allow it to defend itself”.18 “Article 6.2 of the DSU calls for sufficient clarity with respect to the legal basis of the complaint, that is, with respect to the ‘claims’ that are being asserted by the complaining party. A defending party is entitled to know what case it has to answer, and what violations have been alleged so that it can begin preparing its defence. Likewise, those Members of the WTO who intend to participate as third parties in panel proceedings must be informed of the legal basis of the complaint. This requirement of due process is fundamental to ensuring a fair and orderly conduct of dispute settlement proceedings.”19
On the one hand, to fall within the “minimum standards” established by Art. 6.2 of the DSU, it is sufficient for the complaining parties to list the provisions of the specific agreements alleged to have been violated without setting out detailed arguments as to which specific aspects of the measures at issue relate to which specific provisions of those agreements.
On the other hand, the simple listing of articles of an agreement asserted to have been violated doesn’t meet, always and in every case, the requirements of Art. 6.2 of the DSU. As ruled by the Appellate Body, “we consider that whether the mere listing of the articles claimed to have been violated meets the standard of Article 6.2 must be examined on a case-by-case basis. In resolving that question, we take into account whether the ability of the respondent to defend itself was prejudiced, given the actual course of the panel proceedings, by the fact that the panel request simply listed the provisions claimed to have been violated.”20 “In view of the importance of the request for the establishment of a panel, we encourage complaining parties to be precise in identifying the legal basis of the complaint.”21
V Concluding Remarks
To end up this section, as ruled by the Panel in Thailand-Iron and H-Beams (DS122):22
“We understand that we must examine the request for the establishment of the panel very carefully to ensure its compliance with both the letter and the spirit of Article 6.2 of the DSU. It is important that a panel request be sufficiently precise for two reasons: first, it often forms the basis for the terms of reference of the panel pursuant to Article 7 of the DSU; and, second, it informs the defending party and the third parties of the legal basis of the complaint.
In examining the sufficiency of the panel request under Article 6.2 DSU, we first consider the text of the panel request itself, in light of the nature of the legal provisions in question and any attendant circumstances. Second, we take into account whether the ability of the respondent to defend itself was prejudiced, given the actual course of the panel proceedings, by any alleged lack of specificity in the text of the panel request. […]”
【NOTE】:
1. See, WT/DS27/AB/R/142.
2. See, WT/DS34/R/9.3.
3. See, WT/DS122/AB/R/88.
4. See, WT/DS27/AB/R/143.
5. See, WT/DS27/AB/R/141.
6. See, WT/DS122/R/7.43.
7. See, WT/DS44/R/10.6.
8. See, WT/DS98/AB/R/120.
9. See, WT/DS132/AB/RW/62-63.
10. See, WT/DS132/AB/RW/70.
11. See, WT/DS70/R/9.32.
12. See, WT/DS44/R/10.8-10.10.
13. See, WT/DS62/AB/R; WT/DS67/AB/R; WT/DS68/AB/R/67.
14. See, in detail, WT/DS70/R/9.36-9.37.
15. See, WT/DS27/AB/R/141.
16. See, WT/DS98/AB/R/121-124.
17. See, WT/DS141/R/6.25.
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