|
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
VConcluding 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.
]”
【注释】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.
18. See, WT/DS122/AB/R/95.
19. See, WT/DS122/AB/R/88.
20. See, WT/DS98/AB/R/127.
21. See, WT/DS122/AB/R/97.
22. See, WT/DS122/R/7.13-7.14.
|
