The Mandate of Compliance Panels: Art. 21.5
刘成伟
【关键词】Section Four
【全文】
IIntroduction
In the WTO context, members may initiate a normal panel procedure under Art. 6.2 of the DSU. Furthermore, they may also initiate a compliance panel proceeding under Art. 21.5 of the DSU which reads as:
“Where there is disagreement as to the existence or consistency with a covered agreement of measures taken to comply with the recommendations and rulings such dispute shall be decided through recourse to these dispute settlement procedures, including wherever possible resort to the original panel. The panel shall circulate its report within 90 days after the date of referral of the matter to it. When the panel considers that it cannot provide its report within this time frame, it shall inform the DSB in writing of the reasons for the delay together with an estimate of the period within which it will submit its report.”
In Art. 21.5 panel proceedings, the mandate issue often causes controversy. Against the particular background of Art. 21.5 panel proceedings, “
wo benchmarks apply when defining our
terms of reference. First, Article 21.5 of the DSU pursuant to which this Panel was established. Second, our
specific terms of reference set out in document WT/DS18/15, a document that refers, in turn, to the matter and relevant provisions of the covered agreements referred to by Canada in its request for this Panel (document WT/DS18/14)
.”1
Thus, the mandate of a compliance panel is defined by two benchmarks: Art. 21.5; the specific terms of reference set out in the panel request. With regard to the second benchmark, it has been discussed in detail in previous sections; panel’s terms of reference are normally defined in Art. 7 of the DSU, and “the matter referred to the DSB” for purposes of Art. 7 of the DSU is the “matter” identified in the request for establishment of a panel under Art. 6.2 of the DSU. The “matter referred to the DSB”, therefore, consists of two elements: the specific measures at issue and the legal basis of the complaint (or the claims). Therefore, we will focus in this section on the first benchmark, i.e. Art. 21.5 of the DSU, under which the mandate of a panel is to examine the “existence or consistency with a covered agreement of measures taken to comply with the recommendations and rulings” of the DSB.
