[ 劉成偉 ]——(2003-7-7) / 已閱75055次
Firstly, “we note that an Article 21.5 panel cannot leave it to the full discretion of the implementing Member to decide whether or not a measure is one ‘taken to comply’. If one were to allow that, an implementing Member could simply avoid any scrutiny of certain measures by a compliance panel, even where such measures would be so clearly connected to the panel and Appellate Body reports concerned, both in time and in respect of the subject-matter, that any impartial observer would consider them to be measures ‘taken to comply’.”4
Secondly, “[t]he question of whether a measure is one in the direction of WTO conformity or, on the contrary, maintains the original violation or aggravates it, can, in our view, not determine whether a measure is one ‘taken to comply’. If this were so, one would be faced with an absurd situation: if the implementing Member introduces a ‘better’ measure -- in the direction of WTO conformity -- it would be subject to an expedited Article 21.5 procedure; if it introduces a ‘worse’ measure -- maintaining or aggravating the violation -- it would have a right to a completely new WTO procedure. Our interpretation of ‘measures taken to comply’ is further supported by the practical difficulty of making a distinction between ‘better’ and ‘worse’ measures.”5
Thirdly, “[w]e do not consider that measures taken subsequently to the establishment of an Article 21.5 compliance panel should per force be excluded from its mandate. Even before an original panel such measures were found to fall within the panel's mandate because, in that specific case, the new measures did not alter the substance - only the legal form -- of the original measure that was explicitly mentioned in the request. In compliance panels we are of the view that there may be different and, arguably, even more compelling reasons to examine measures introduced during the proceedings. As noted earlier, compliance is often an ongoing or continuous process and once it has been identified as such in the panel request, as it was in this case, any ‘measures taken to comply’ can be presumed to fall within the panel's mandate, unless a genuine lack of notice can be pointed to. Especially under the first leg of Article 21.5 when it comes to disagreements on the existence of measures taken to comply, one can hardly expect that all such measures - when there is no clarity on their very existence - be explicitly mentioned up-front in the panel request.”6
In sum, Art. 21.5 proceedings involve, in principle, not the original measure, but rather a new and different measure which was not before the original panel. And the subject-matter of these proceedings is determined by two benchmarks: Art. 21.5 of the DSU and panel’s specific terms of reference set out in the request for establishment of a panel that refers, in turn, to the matter and relevant provisions of the covered agreements referred to the DSB.
III Perspective of Review under Art. 21.5
What discussed above is just one aspect of the mandate of a compliance panel under Art. 21.5 of the DSU. What should panels do in carrying appropriately out the review envisaged under Art. 21.5 of the DSU? In Australia-Salmon (DS18)（21.5）, the Compliance Panel rules, in pertinent part: 7
“We note that Article 21.5 itself refers to two types of disagreements, namely disagreements as to ‘the existence or consistency with a covered agreement of measures taken to comply with [DSB] recommendations and rulings’. Australia's requests for preliminary rulings pertain to the second type of disagreements, those on the ‘consistency with a covered agreement of measures taken to comply with [DSB] recommendations and rulings’.
The reference to ‘disagreement as to the […] consistency with a covered agreement’ of certain measures, implies that an Article 21.5 compliance panel can potentially examine the consistency of a measure taken to comply with a DSB recommendation or ruling in the light of any provision of any of the covered agreements. Article 21.5 is not limited to consistency of certain measures with the DSB recommendations and rulings adopted as a result of the original dispute; nor to consistency with those covered agreements or specific provisions thereof that fell within the mandate of the original panel; nor to consistency with specific WTO provisions under which the original panel found violations. If the intention behind this provision of the DSU had been to limit the mandate of Article 21.5 compliance panels in any of these ways, the text would have specified such limitation. The text, however, refers generally to ‘consistency with a covered agreement’. The rationale behind this is obvious: a complainant, after having prevailed in an original dispute, should not have to go through the entire DSU process once again if an implementing Member in seeking to comply with DSB recommendations under a covered agreement is breaching, inadvertently or not, its obligations under other provisions of covered agreements. In such instances an expedited procedure should be available. This procedure is provided for in Article 21.5. It is in line with the fundamental requirement of ‘prompt compliance’ with DSB recommendations and rulings expressed in both Article 3.3 and Article 21.1 of the DSU.
On that basis, we agree with the Article 21.5 compliance panel in EC - Bananas III (requested by Ecuador) when it stated that ‘there is no suggestion in the text of Article 21.5 that only certain issues of consistency of measures may be considered’ (WT/DS27/RW/ECU, paragraph 6.8).”
In fact, as noted above, Art. 21.5 proceedings involve, in principle, not the original measure, but rather a new and different measure which was not before the original panel. “Accordingly, in carrying out its review under Article 21.5 of the DSU, a panel is not confined to examining the ‘measures taken to comply’ from the perspective of the claims, arguments and factual circumstances that related to the measure that was the subject of the original proceedings. Although these may have some relevance in proceedings under Article 21.5 of the DSU, Article 21.5 proceedings involve, in principle, not the original measure, but rather a new and different measure which was not before the original panel. In addition, the relevant facts bearing upon the ‘measure taken to comply’ may be different from the relevant facts relating to the measure at issue in the original proceedings. It is natural, therefore, that the claims, arguments and factual circumstances which are pertinent to the ‘measure taken to comply’ will not, necessarily, be the same as those which were pertinent in the original dispute. Indeed, the utility of the review envisaged under Article 21.5 of the DSU would be seriously undermined if a panel were restricted to examining the new measure from the perspective of the claims, arguments and factual circumstances that related to the original measure, because an Article 21.5 panel would then be unable to examine fully the ‘consistency with a covered agreement of the measures taken to comply’, as required by Article 21.5 of the DSU.”8
IV Examination of the New Measure in Its Totality and in Its Application
While during the appeal in US-Shrimp (DS58) (21.5), Malaysia argues that the Panel improperly limited its analysis to the recommendations and rulings of the DSB, and thus failed to fulfill its mandate under Art. 21.5 of the DSU because it did not examine the consistency of the United States implementing measure with the relevant provisions of the GATT 1994. Malaysia argues as well that the Art. 21.5 Panel erroneously based its analysis entirely on the Appellate Body’s Report in the original proceedings. The Appellate Body observes that “Malaysia's appeal on this point goes to the heart of what a panel is required to do in proceedings under Article 21.5 of the DSU”,9 and they continue to rule that: 10
“As we ruled in our Report in Canada - Aircraft (21.5), panel proceedings pursuant to Article 21.5 of the DSU involve, in principle, not the original measure, but a new and different measure that was not before the original panel. Therefore, ‘in carrying out its review under Article 21.5 of the DSU, a panel is not confined to examining the 'measures taken to comply' from the perspective of the claims, arguments and factual circumstances that related to the measure that was the subject of the original proceedings’.
When the issue concerns the consistency of a new measure ‘taken to comply’, the task of a panel in a matter referred to it by the DSB for an Article 21.5 proceeding is to consider that new measure in its totality. The fulfilment of this task requires that a panel consider both the measure itself and the measure's application. As the title of Article 21 makes clear, the task of panels under Article 21.5 forms part of the process of the ‘Surveillance of Implementation of the Recommendations and Rulings’ of the DSB. Toward that end, the task of a panel under Article 21.5 is to examine the ‘consistency with a covered agreement of measures taken to comply with the recommendations and rulings’ of the DSB. That task is circumscribed by the specific claims made by the complainant when the matter is referred by the DSB for an Article 21.5 proceeding. It is not part of the task of a panel under Article 21.5 to address a claim that has not been made.
Malaysia relies in this appeal on our ruling in Canada - Aircraft (21.5). We understand Malaysia to argue, based in part on our ruling in Canada - Aircraft (21.5), that the Panel in this case had a duty to review the totality of the United States measure, and to assess it for its consistency with the relevant provisions of the GATT 1994. That is indeed a panel's task under Article 21.5 of the DSU. Yet, as we have said, it is not part of a panel's task to go beyond the particular claims that have been made with respect to the consistency of a new measure with a covered agreement when a matter is referred to it by the DSB for an Article 21.5 proceeding. Thus, it would not have been appropriate in this case for the Panel to address a claim that was not made by Malaysia when requesting that this matter be referred by the DSB for an Article 21.5 proceeding.
With respect to a claim that has been made when a matter is referred by the DSB for an Article 21.5 proceeding, Malaysia seems to suggest as well that a panel must re-examine, for WTO-consistency, even those aspects of a new measure that were part of a previous measure that was the subject of a dispute, and were found by the Appellate Body to be WTO - consistent in that dispute, and that remain unchanged as part of the new measure.
In considering this argument, we examine what the Panel did in this case in fulfilling its task under the DSU. As we have said, the Panel was required to review the new measure in its totality and in its application when examining the matter referred by the DSB for the Article 21.5 proceeding. In this case, the question whether it did or did not fulfil this requirement arises from the treatment by the Panel of a particular part of the new measure that was also part of the original measure in the original proceedings.
We wish to recall that panel proceedings under Article 21.5 of the DSU are, as the title of Article 21 states, part of the process of the ‘Surveillance of Implementation of Recommendations and Rulings’ of the DSB. This includes Appellate Body Reports. To be sure, the right of WTO Members to have recourse to the DSU, including under Article 21.5, must be respected. Even so, it must also be kept in mind that Article 17.14 of the DSU provides not only that Reports of the Appellate Body ‘shall be’ adopted by the DSB, by consensus, but also that such Reports ‘shall be … unconditionally accepted by the parties to the dispute. …’ Thus, Appellate Body Reports that are adopted by the DSB are, as Article 17.14 provides, ‘… unconditionally accepted by the parties to the dispute’, and, therefore, must be treated by the parties to a particular dispute as a final resolution to that dispute. In this regard, we recall, too, that Article 3.3 of the DSU states that the ‘prompt settlement’ of disputes ‘is essential to the effective functioning of the WTO’.
Therefore, so far as the examination of the measure at issue in this appeal is concerned, the task of the Panel … as part of that new measure, was limited to examining its application….”
In sum, as ruled by the Appellate Body in Canada-Aircraft (DS70)（21.5）, “the examination of ‘measures taken to comply’ is based on the relevant facts proved, by the complainant, to the Article 21.5 panel, during the panel proceedings.”11 And the panel is required to review the new measure in its totality and in its application when examining the matter referred by the DSB for the Art. 21.5 proceeding. Even so, it must also be kept in mind that, it is not part of a panel's task to go beyond the particular claims that have been made with respect to the consistency of a new measure with a covered agreement when a matter is referred to it by the DSB for an Art. 21.5 proceeding. Toward that end, the task is circumscribed by the specific claims made by the complainant when the matter is referred by the DSB for an Art. 21.5 proceeding.
【NOTE】:
1. See, WT/DS18/RW/7.10/7.
2. See, WT/DS18/RW/7.10/21.
3. See, WT/DS70/AB/RW/36.
4. See, WT/DS18/RW/7.10/22.
5. See, WT/DS18/RW/7.10/23.
6. See, WT/DS18/RW/7.10/28.
7. See, WT/DS18/RW/7.10/8-10.
8. See, WT/DS70/AB/RW/41.
9. See, WT/DS58/AB/RW/84.
10. See, WT/DS58/AB/RW/86-90; 97-98.
11. See, WT/DS70/AB/RW/38.
Section Five
Third Party Rights : Art. 10
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