[ 劉成偉 ]——(2003-7-7) / 已閱75057次
We do not wish to imply that we consider consultations unimportant. Quite the contrary, consultations are a critical and integral part of the DSU. But, we have no mandate to investigate the adequacy of the consultation process that took place between the parties and we decline to do so in the present case.”
On the other hand, the Appellate Body in Mexico-HFCS（DS132）（21.5）rules that, “as a general matter, consultations are a prerequisite to panel proceedings. However, this general proposition is subject to certain limitations.” The Appellate Body Report reads there:5
“Article 4 of the DSU sets forth a number of other provisions with respect to consultations. We recall that, in our Report in Brazil - Aircraft, we observed that:
Articles 4 and 6 of the DSU, as well as paragraphs 1 to 4 of Article 4 of the SCM Agreement, set forth a process by which a complaining party must request consultations, and consultations must be held, before a matter may be referred to the DSB for the establishment of a panel.
The general process that we described in that case also applies in disputes brought under other covered agreements. Thus, as a general matter, consultations are a prerequisite to panel proceedings. However, this general proposition is subject to certain limitations. For example, Article 4.3 of the DSU provides:
If a request for consultations is made pursuant to a covered agreement, the Member to which the request is made shall, unless otherwise mutually agreed, reply to the request within 10 days after the date of its receipt and shall enter into consultations in good faith within a period of no more than 30 days after the date of receipt of the request, with a view to reaching a mutually satisfactory solution. If the Member does not respond within 10 days after the date of receipt of the request, or does not enter into consultations within a period of no more than 30 days, or a period otherwise mutually agreed, after the date of receipt of the request, then the Member that requested the holding of consultations may proceed directly to request the establishment of a panel.
Article 4.3 of the DSU relates the responding party's conduct towards consultations to the complaining party's right to request the establishment of a panel. When the responding party does not respond to a request for consultations, or declines to enter into consultations, the complaining party may dispense with consultations and proceed to request the establishment of a panel. In such a case, the responding party, by its own conduct, relinquishes the potential benefits that could be derived from those consultations.
We also note that Article 4.7 of the DSU provides:
If the consultations fail to settle a dispute within 60 days after the date of receipt of the request for consultations, the complaining party may request the establishment of a panel. The complaining party may request a panel during the 60-day period if the consulting parties jointly consider that consultations have failed to settle the dispute.
Article 4.7 also relates the conduct of the responding party concerning consultations to the complaining party's right to request the establishment of a panel. This provision states that the responding party may agree with the complaining party to forgo the potential benefits that continued pursuit of consultations might bring. Thus, Article 4.7 contemplates that a panel may be validly established notwithstanding the shortened period for consultations, as long as the parties agree. Article 4.7 does not, however, specify any particular form that the agreement between the parties must take. ”
To sum up, as to be discussed in more detail in next section, “the lack of prior consultations is not a defect that, by its very nature, deprives a panel of its authority to deal with and dispose of a matter”.6 However, according to Art. 1.2 of the DSU, this general proposition cannot deny the application of special or additional rules and procedures as are identified in Appendix 2 to the DSU. For example, the Appellate Body rules in Brazil-Airport（DS46）that, “Articles 4 and 6 of the DSU, as well as paragraphs 1 to 4 of Article 4 of the SCM Agreement, set forth a process by which a complaining party must request consultations, and consultations must be held, before a matter may be referred to the DSB for the establishment of a panel”.7
In short, given that Art. 6.1 of the DSU essentially requires the DSB to establish a panel automatically upon request of a party, a panel cannot rely upon the DSB to ascertain that requisite consultations have been held and to establish a panel only in those cases, unless otherwise spelled out expressly in the covered agreements, e.g. Art. 4 of the SCM Agreement.
【NOTE】
1. See, WT/DS22/R/287.
2. See, WT/DS75/R, WT/DS84/R/10.23.
3. See, WT/DS132/AB/RW/54.
4. See, WT/DS75/R; WT/DS84/R/10.19.
5. See, WT/DS132/AB/RW/57-61.
6. See, WT/DS132/AB/RW/64.
7. See, WT/DS46/AB/R/131.
Section Two
Establishment of Panels: Art. 6.2
I Introduction
There has often been divergence in many particular cases as to the sufficient specificity of the request for the establishment of a panel. As is the issue what we will get down to next, and in this respect what bears the most significance is the text of Art. 6.2 of the DSU, which reads as:
“The request for the establishment of a panel shall be made in writing. It shall indicate whether consultations were held, identify the specific measures at issue and provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly. In case the applicant requests the establishment of a panel with other than standard terms of reference, the written request shall include the proposed text of special terms of reference.”
As noted in Chapter I, the quasi-automatic adoption of dispute settlement reports is a new crucial feature of the WTO dispute settlement mechanism. In practice, there is few, if no, occasions denying the establishment of a panel, because according to Art. 6.1 of the DSU, “[i]f the complaining party so requests, a panel shall be established”; and it’s hardly the case that “the DSB decides by consensus not to establish a panel”.
As ruled by the Appellate Body in EC-Bananas (DS27), “a panel request will usually be approved automatically at the DSB meeting following the meeting at which the request first appears on the DSB's agenda”. For this reason, the Appellate Body rules in the same case that, “[a]s 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”. 1
Furthermore, as to the importance for the panel request to be sufficiently precise to ensure its compliance with both the letter and the spirit of Article 6.2 of the DSU, the Panel on Turkey-Textile and Clothing (DS34) rules that, “… [i]t is important that a panel request, which defines the terms of reference, meets this criterion so as to inform the defending party and potential third parties both of the measures at issue, including the products they cover, and of the legal basis of the complaint. This is necessary to ensure due process and the ability of the defendant to defend itself”. 2 And “[t]his requirement of due process is fundamental to ensuring a fair and orderly conduct of dispute settlement proceedings”.3
Most importantly, as noted by the Appellate Body in EC-Bananas (DS27), “[i]f a claim is not specified in the request for the establishment of a panel, then a faulty request cannot be subsequently ‘cured’ by a complaining party's argumentation in its first written submission to the panel or in any other submission or statement made later in the panel proceeding”. 4
However, as ruled by the Appellate Body in EC-Bananas (DS27), Art. 6.2 of the DSU requires that “the claims, but not the arguments”, must all be specified sufficiently in the request for the establishment of a panel. With this regard, the Appellate Body rules that, “… [i]n our view, there is a significant difference between the claims identified in the request for the establishment of a panel, which establish the panel's terms of reference under Article 7 of the DSU, and the arguments supporting those claims, which are set out and progressively clarified in the first written submissions, the rebuttal submissions and the first and second panel meetings with the parties”.5 And the Panel in Thailand-Iron and H-Beams (DS122) rules further that, “Article 6.2 DSU does not relate directly to the sufficiency of the subsequent written and oral submissions of the parties in the course of the proceedings, which may develop the arguments in support of the claims set out in the panel request. Nor does it determine whether or not the complaining party will manage to establish a prima facie case of violation of an obligation under a covered agreement in the actual course of the panel proceedings”.6
Now we turn on to the connotation of Art. 6.2. In this connection, the Panel in Japan-Film（DS44）rules that, “we examine, as appropriate, (i) the ordinary meaning of the terms of Article 6.2; (ii) the context and the object and purpose of Article 6.2; and (iii) past practice under Article 6.2 and its predecessor provision”.7 Specifically, as ruled by the Appellate Body in Korea-Dairy Products（DS98）, “[w]hen parsed into its constituent parts, Article 6.2 may be seen to impose the following requirements. The request must: (i) be in writing; (ii) indicate whether consultations were held; (iii) identify the specific measures at issue; and (iv) provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly.”8
And in these four requirements, it is only element (i), that the request “be in writing” has hardly been disagreed; and as to be discussed in more detail below, the other three elements (ii)- (iv) have often been the subjects divergent between participants on many occasions.
II Indication of Consultations Process
In its second element, Art. 6.2 of the DSU requires that the panel request must “indicate whether consultations were held”. In this connection, the Appellate Body rules in Mexico-HFCS（DS132）（21.5）that:9
“[…] The phrase ‘whether consultations were held’ shows that this requirement in Article 6.2 may be satisfied by an express statement that no consultations were held. In other words, Article 6.2 also envisages the possibility that a panel may be validly established without being preceded by consultations.
Thus, the DSU explicitly recognizes circumstances where the absence of consultations would not deprive the panel of its authority to consider the matter referred to it by the DSB. In our view, it follows that where the responding party does not object, explicitly and in a timely manner, to the failure of the complaining party to request or engage in consultations, the responding party may be deemed to have consented to the lack of consultations and, thereby, to have relinquished whatever right to consult it may have had. ”
As found by the Appellate Body, “[i]n assessing the importance of the obligation ‘to indicate whether consultations were held’, we observe that the requirement will be satisfied by the inclusion, in the request for establishment of a panel, of a statement as to whether consultations occurred or not. The purpose of the requirement seems to be primarily informational - to inform the DSB and Members as to whether consultations took place. We also recall that the DSU expressly contemplates that, in certain circumstances, a panel can deal with and dispose of the matter referred to it even if no consultations took place. Similarly, the authority of the panel cannot be invalidated by the absence, in the request for establishment of the panel, of an indication ‘whether consultations were held’. Indeed, it would be curious if the requirement in Article 6.2 to inform the DSB whether consultations were held was accorded more importance in the dispute settlement process than the requirement actually to hold those consultations.”10
As a general rule, “it may be true that a request for establishment will be more specific than a request for consultations. However, we consider that Article 6.2 of the DSU is concerned exclusively with a party's request for establishment. Thus, the consistency of a party's request for establishment with Article 6.2 of the DSU should be judged exclusively in light of the specificity of the request for establishment, and not in light of the specificity of the party's earlier request for consultations”. 11
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