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IIIIdentification 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
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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.
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