Establishment of Panels: Art. 6.2
刘成伟
【关键词】Section Two
【全文】
IIntroduction
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, “
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, “
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, “…
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 “
