OTHER ISSUES2 Clause Samples

OTHER ISSUES2. Judicial economy: While upholding the Panel's exercise of judicial economy in respect of the European Communities' claim under ASCM Art. 3.1(a), the Appellate Body added a cautionary remark that “for purposes of transparency and fairness to the parties, a panel should, however, in all cases, address expressly those claims which it declines to examine and rule upon for reasons of judicial economy”.

OTHER ISSUES2. Special standard of review (ADA Art. 17.6): Having observed that ADA Art. 17.6 distinguishes between a panel's “assessment of the facts” and its “legal interpretation” of the ADA, the Appellate Body noted the following: (i) that the standard of review under ADA Art. 17.6 complements the “objective assessment” requirement in DSU Art.11. (i.e. the panels must make an “objective” assessment of the facts in order to determine whether the domestic authorities properly established the facts and evaluated them in an objective and unbiased manner); and (ii) the same rules of treaty interpretation apply to the ADA as to other covered agreements, but under the ADA, panels must determine whether a measure rests upon a “permissible interpretation” of that Agreement. 1 United States – Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan

OTHER ISSUES2. False judicial economy: The Appellate Body found that the Panel in this case exercised “false judicial economy” by not making findings for all the products at issue, in particular, findings in respect of Arts. 5.5 and 5.6 for other Canadian salmon. The Appellate Body clarified that, in applying the principle of judicial economy, panels must address those claims on which a finding is necessary to secure a positive solution to the dispute. Providing only a partial resolution of the matter at issue would be “false judicial economy”. 1 Australia – Measures Affecting Importation of ▇▇▇▇▇▇

OTHER ISSUES2. Burden of proof (GATT Art. XXIV): The Appellate Body agreed with the Panel that Art. XXIV may be considered as a “defence” or “exception” to a violation. The Panel also held that the burden of proof under Art. XXIV was on the party invoking it. • Information from non-party Member (DSU Art. 13.2): Despite the fact that the European Communities was not a party or a third party to the dispute, the Panel asked the European Communities, pursuant to Art. 13.2, for relevant factual and legal information so as to to have “the fullest possible understanding of this case”. The European Communities provided answers to the Panel's questions. 1 Turkey – Restrictions on Imports of Textile and Clothing Products

OTHER ISSUES2. Standard of review (DSU Art. 11): This was the first panel to refer to Art. 11 as its standard of review in examining a determination reached by a WTO Member under a WTO Agreement. The Panel found that its standard of review in this case was to make an “objective assessment” which entails “an examination of whether the US investigating authority had examined all relevant facts before it, whether adequate explanation had been provided of how the facts as a whole supported the determination made, and consequently, whether the determination made was consistent with the international obligation of the United States”. 1 United States – Restrictions on Imports of Cotton and Man-Made Fibre Underwear

OTHER ISSUES2. Burden of proof: The Appellate Body found that, in the circumstances of this dispute, where the potential for application of Art. II:2 (a) was clear from the face of the challenged measures, the United States was required to present arguments and evidence that the Additional Duty and the Extra-Additional Duty were not justified under Art. II:2(a). The Appellate Body added that India, in asserting that the challenged measures were justified under Art. II:2(a), was required to adduce arguments and evidence in support of its assertion. 1 India – Additional and Extra-Additional Duties on Imports from the United States

OTHER ISSUES2. Claims against measures not yet applied: The Panel in examining the sixth measure reaffirmed that a mandatory measure that has entered into force, but must be applied only at a pre-determined future date (compared to the date of establishment of a panel), may in principle be found to be inconsistent with WTO rules even before it is applied. 1 Russia – Tariff Treatment of Agricultural and Manufacturing Products

OTHER ISSUES2. Terms of reference (DSU Art. 21.5 panels): The Panel refused to grant Australia's request to impose jurisdictional limits on Art. 21.5 compliance panels and stated that there is no suggestion in the text of Art. 21.5 that only certain issues of consistency of measures may be considered, but that a compliance panel can potentially examine the consistency of a measure taken to comply with a DSB recommendation or ruling in light of any provision of any of the covered agreements. 1 Australia – Measures Affecting Importation of Salmon – Recourse to Article 21.5 of the DSU by Canada

OTHER ISSUES2. Chapeau (GATS Art. XIV): This relates to the application of measures and not simply their wording. Hence, a change in the administrative or judicial enforcement of the same measures at issue might be sufficient to comply with the DSB recommendation based on an inconsistency with the chapeau of GATS Art. XIV. • Even if the compliance panel were entitled to re-open a defence ruled upon, the United States presented no evidence in the compliance proceeding regarding the GATS-consistency of the measures at issue that would justify a different finding from that reached in the original proceeding.