Common use of To determine Clause in Contracts

To determine. whether the envisaged rebinding of the EC tariff on bananas would result in at least maintaining total market access for MFN banana suppliers, taking into account [certain] EC commitments. Paragraph 1 of the Doha Waiver provides as follows: Subject to the terms and conditions set out hereunder, Article I, paragraph 1 of the General Agreement shall be waived, until 31 December 2007, to the extent necessary to permit the European Communities to provide preferential tariff treatment for products originating in ACP States as required by Article 36.3, Annex 5 and its Protocols of the ACP-EC Partnership Agreement, without being required to extend the same preferential treatment to like products of any other member. (footnote omitted) It is clear, on a plain reading of the fourth tiret of the Annex to the Doha Waiver, that the Arbitrator's mandate does not explicitly require the Arbitrator to assess whether the European Communities' envisaged rebinding is consistent with the conditions set forth in Paragraph 1 of the Doha Waiver. Honduras, Nicaragua and Panama argue, however, that the Arbitrator may consider substantive claims that the European Communities' envisaged rebinding does not comply with the conditions of the Doha Waiver, and request the Arbitrator to review the consistency of the European Communities' proposed rebinding against the terms of Paragraph 1. The European Communities contests this submission, submitting that the Arbitrator's "terms of reference" (or "jurisdiction") are limited to the terms of the mandate.3 In seeking to show that an examination under Paragraph 1 of the Doha Waiver is within the jurisdiction of the Arbitrator in this proceeding, notwithstanding the lack of any express authority for such jurisdiction within the terms of the Annex to the Doha Waiver, Honduras, Nicaragua and Panama rely, in particular, upon the wording of Paragraph 3bis of the Doha Waiver, which provides that: With respect to bananas, the additional provisions in the Annex shall apply. Honduras, Nicaragua and Panama submit that the use of the term "additional" means that both the general requirements of the Waiver, and the "additional" provisions of the Annex, apply in respect of bananas. Thus, in the submission of Honduras, Nicaragua and Panama, claims under the general provisions of the Waiver may be brought before the Arbitrator. The Arbitrator agrees with Honduras, Nicaragua and Panama that both the "additional" Annex provisions as well as the general provisions of the Doha Waiver apply to bananas. Compliance with the Doha Waiver in respect of bananas does not turn solely upon fulfilment of the standard of "at least maintaining total market access for MFN banana suppliers" reflected in the fourth tiret of the Annex. Instead, it is clear that, in respect of bananas, as well as all other products covered by the Waiver, the European Communities must comply with all of the conditions of the Waiver, including those in Paragraph 1. However, the jurisdiction of the Arbitrator is governed by the terms of the Annex. That mandate is limited, specifically, to determining whether the "envisaged rebinding would result in at least maintaining total market access for MFN banana suppliers". The Arbitrator is not free to expand its mandate. It must find its jurisdiction in the instrument establishing its authority. There is no indication that the Arbitrator may determine other matters, such as the consistency of the European Communities' envisaged rebinding with Paragraph 1 of the Doha Waiver (which, by its nature would also include consideration of the terms of the Cotonou Agreement to determine what is "required" under that Agreement4). The Arbitrator finds, therefore, that this claim by Honduras, Panama and Nicaragua is beyond its jurisdiction. This interpretation does not render the word "additional" in Paragraph 3bis meaningless. Pursuant to the "additional" procedure, the task of the Arbitrator is to review the envisaged rebinding of the EC tariff on bananas against the benchmark laid out in the mandate. This procedure is "additional" in the sense that it provides for a sui generis process, with its own benchmark, that would not otherwise have existed, were it not for the additional procedures of the Annex. Again, it must be emphasized that this does not mean that the general provisions of the Doha Waiver do not apply or do not have legal effect; it means, rather, that the Arbitrator is not authorized or required to determine the issue. The compliance of the European Communities with the conditions of the Doha Waiver may be the subject of review in the context of dispute settlement, a point expressly confirmed by Paragraph 6 of the Waiver, which states that: This Waiver shall not preclude the right of affected members to have recourse to Articles XXII and XXIII of the General Agreement. Such procedures safeguard, within an overall balance of rights and obligations agreed by WTO Members, not only the rights of a complaining Member to bring disputes in respect of matters covered by the Doha Waiver, but also the due process rights of other WTO Members.