[ 劉成偉 ]——(2003-7-7) / 已閱26574次
Specifically, as to definition of the duties of panels in reviewing the investigations and determinations carried out by competent authorities, the Appellate Body in US-Combed Cotton Yarn (DS192) summarizes that, “[o]ur Reports in these disputes [Argentina-Footwear; US-Lamb Meat; US-Wheat Gluten] under the Agreement on Safeguards spell out key elements of a panel's standard of review under Article 11 of the DSU in assessing whether the competent authorities complied with their obligations in making their determinations. This standard may be summarized as follows: panels must examine whether the competent authority has evaluated all relevant factors; they must assess whether the competent authority has examined all the pertinent facts and assessed whether an adequate explanation has been provided as to how those facts support the determination; and they must also consider whether the competent authority's explanation addresses fully the nature and complexities of the data and responds to other plausible interpretations of the data. However, panels must not conduct a de novo review of the evidence nor substitute their judgement for that of the competent authority.” 19 “Nevertheless, the above principles concerning the standard of review under Article 11 of the DSU with respect to the Agreement on Safeguards apply equally, in our view, to a panel's review of a Member's determination under Article 6 of the ATC”. 12
And the author thinks it appropriate, with special cautiousness and specific examination to the factual or legal issues in particular cases, to extend the above principles to panels’ review under other covered agreements (other than the Anti-dumping Agreement).
In sum, panels should be cautious about the “activist” postures in the GATT/WTO context. Many panels have in the past refused to undertake de novo review, wisely, since under current practice and systems, they are in any case poorly suited to engage in such a review.
After all, the international system and its dispute settlement procedures, in stark contrast to most national systems, depends heavily on voluntary compliance among participating members. Inappropriate panel “activism” could well alienate members, thus threatening the stability of the GATT/WTO dispute settlement procedure itself. Moreover, panels are well advised to be aware also of the potential shortcomings of the international procedures, shortcomings that sometimes relate to a shortage of resources, especially (but not only) resources for fact finding, as well to the problems of the need for a very broad multilateral consensus. Furthermore, panels should also recognize that national governments often have legitimate reasons for decisions they take. And more generally, panels should keep in mind that a broad-based, multilateral international institution must contend with a wide variety of legal, political, and cultural values, which counsel in favor of caution toward interpreting treaty obligations that may be appropriate to one society but not to other participants.13
However, panels must understand the central role of GATT/WTO adjudicatory system plays in enhancing the implementation, effectiveness, and credibility of the elaborate sets of rules for which the WTO has been created. Successful cooperation among national authorities to a large extent rests with the institutions given the responsibility to help carry out the WTO dispute settlement procedures. Thus, when a particular national authority’s activity or decision would undermine the effectiveness of WTO rules, or would establish a practice that could trigger damaging activities by other member countries, panels will undoubtedly show less deference. 14
To sum up, with this articulation of the standard of review based on Art. 11 of the DSU, a de novo review would be inappropriate. However, to adopt a policy of total deference to the findings of the national authorities could not ensure an “objective assessment” as foreseen by Art. 11 of the DSU. The applicable standard is neither de novo review as such, nor “total deference”, but rather the “objective assessment”. However, when may a panel be regarded as having failed to discharge its duty under Art. 11 of the DSU to make an objective assessment? As is what to be discussed in more detail below.
IV Allegation against Panels’ Standard of Review
In EC-Hormones (DS26/DS48), the European Communities claims that the Panel failed to make an objective assessment of the facts as required by Art. 11 of the DSU, and asks the Appellate Body to reverse the findings so arrived at by the Panel. The Appellate Body finds concerning this appeal that:15
“[…] Clearly, not every error in the appreciation of the evidence (although it may give rise to a question of law) may be characterized as a failure to make an objective assessment of the facts. In the present appeal, the European Communities repeatedly claims that the Panel disregarded or distorted or misrepresented the evidence submitted by the European Communities and even the opinions expressed by the Panel's own expert advisors. The duty to make an objective assessment of the facts is, among other things, an obligation to consider the evidence presented to a panel and to make factual findings on the basis of that evidence. The deliberate disregard of, or refusal to consider, the evidence submitted to a panel is incompatible with a panel's duty to make an objective assessment of the facts. The wilful distortion or misrepresentation of the evidence put before a panel is similarly inconsistent with an objective assessment of the facts. ‘Disregard’ and ‘distortion’ and ‘misrepresentation’ of the evidence, in their ordinary signification in judicial and quasi-judicial processes, imply not simply an error of judgment in the appreciation of evidence but rather an egregious error that calls into question the good faith of a panel. A claim that a panel disregarded or distorted the evidence submitted to it is, in effect, a claim that the panel, to a greater or lesser degree, denied the party submitting the evidence fundamental fairness, or what in many jurisdictions is known as due process of law or natural justice”.
In short, “[a]n allegation that a panel has failed to conduct the ‘objective assessment of the matter before it’ required by Article 11 of the DSU is a very serious allegation. Such an allegation goes to the very core of the integrity of the WTO dispute settlement process itself”. 16 “Only egregious errors constitute a failure to make an objective assessment of the facts as required by Article 11 of the DSU.”17
V Exercise of Judicial Economy
In this regard, what we will next discuss is the issue of whether Art. 11 of the DSU entitles a complaining party to a finding on each of the legal claims it makes to a panel. As is the core of so-called judicial economy principle derived from Art. 11 of the DSU. The principle of judicial economy is not explicitly provided in any articles of the DSU or any other covered agreements under the WTO. However, it is a fundamental principle under the WTO jurisprudence, which is more than one time exercised by panels and then upheld by the Appellate Body during the disputes settlement.
In US-Shirts and Blouses (DS33), the Panel states in paragraph 6.6 of the its Report: “Concerning India's argument that Article 11 of the DSU entitles India to a finding on each of the issues it raised, we disagree and refer to the consistent GATT panel practice of judicial economy. India is entitled to have the dispute over the contested ‘measure’ resolved by the Panel, and if we judge that the specific matter in dispute can be resolved by addressing only some of the arguments raised by the complaining party, we can do so. We, therefore, decide to address only the legal issues we think are needed in order to make such findings as will assist the DSB in making recommendations or in giving rulings in respect of this dispute.”18 As is appealed. And the Appellate Body make an detailed analysis on the principle of judicial economy from the provisions of the DSU as well as practice under the GATT 1947 and the WTO Agreement: 19
As provided in Art. 11 of the DSU, the function of panels is to assist the DSB in discharging its responsibilities under the DSU and the covered agreements. Nothing in this provision or in previous GATT practice requires a panel to examine all legal claims made by the complaining party.
Firstly, previous GATT 1947 and WTO panels have frequently addressed only those issues that such panels considers necessary for the resolution of the matter between the parties, and have declined to decide other issues. Thus, if a panel has found that a measure is inconsistent with a particular provision, it generally does not go on to examine whether the measure is also inconsistent with other provisions that a complaining party may have argued are violated. In recent WTO practice, panels likewise have refrained from examining each and every claim made by the complaining party and have made findings only on those claims that such panels conclude are necessary to resolve the particular matter. Although a few GATT 1947 and WTO panels have made broader rulings, by considering and deciding issues that are not absolutely necessary to dispose of the particular dispute, there is nothing anywhere in the DSU that requires panels to do so.
Secondly, such a requirement for a panel as to address on all claims the complainant made is not consistent with the aim of the WTO dispute settlement system. Art. 3.7 of the DSU explicitly states: “The aim of the dispute settlement mechanism is to secure a positive solution to a dispute. A solution mutually acceptable to the parties to a dispute and consistent with the covered agreements is clearly to be preferred.” Thus, the basic aim of dispute settlement in the WTO is to settle disputes. This basic aim is affirmed elsewhere in the DSU. Art. 3.4, for example, stipulates: “Recommendations or rulings made by the DSB shall be aimed at achieving a satisfactory settlement of the matter in accordance with the rights and obligations under this Understanding and under the covered agreements.”
Furthermore, Art. 3.2 of the DSU states that the Members of the WTO “recognize” that the dispute settlement system “serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law”. Given the explicit aim of dispute settlement that permeates the DSU, the Appellate Body does not consider that Art. 3.2 of the DSU is meant to encourage either panels or the Appellate Body to “make law” by clarifying existing provisions of the WTO Agreement outside the context of resolving a particular dispute.
In sum, as ruled by the Appellate Body in India - Patent Protection (DS50), “[i]n United States - Shirts and Blouses, we said that ‘[a] panel need only address those claims which must be addressed in order to resolve the matter in issue in the dispute’. This means that a panel has the discretion to determine the claims it must address in order to resolve the dispute between the parties -- provided that those claims are within that panel's terms of reference”.20
However, is there any limits to such a discretion exercised as judicial economy? With regard to this issue, the Appellate Body in Australia-Salmon (DS18) finds that, the principle of judicial economy has to be applied by panels keeping in their mind the aim of the dispute settlement system, i.e, “to secure a positive solution to a dispute” as provided for in Art. 3.7 of the DSU and affirmed in Art. 3.4 of the DSU, which stipulates: “Recommendations or rulings made by the DSB shall be aimed at achieving a satisfactory settlement of the matter in accordance with the rights and obligations under this Understanding and under the covered agreements.” Therefore, to provide only a partial resolution of the matter at issue would be false judicial economy. A panel has to address those claims on which a finding is necessary in order to enable the DSB to make sufficiently precise recommendations and rulings so as to allow for prompt compliance by a Member with those recommendations and rulings “in order to ensure effective resolution of disputes to the benefit of all Members”.21
To sum up, as ruled by the Appellate Body in US-Lamp Meat (DS177/DS178), “on the issue of panels' exercise of judicial economy, we have previously explained that panels ‘need only address those claims which must be addressed in order to resolve the matter in issue in the dispute’. At the same time, the ‘discretion’ a panel enjoys to determine which claims it should address is not without limits, as a panel is obliged ‘to address those claims on which a finding is necessary in order to enable the DSB to make sufficiently precise recommendations and rulings so as to allow for prompt compliance by a Member with those recommendations and rulings’”. 22
【NOTE】:
1. See, Steven P. Croley and John H. Jackson, ‘WTO Dispute Panel Deference to National Government Decisions. The Misplaced Analogy to the U.S. Chevron Standard-Of-Review Doctrine’, International Trade Law and the GATT/WTO Dispute Settlement System (Petersmann Ed.), Kluwer Law International, London, 1997, pp. 187-188.
2. Supra. note 1, p. 208.
3. Supra. note 1, p. 192.
4. See, WT/DS33/R/7.16.
5. See, WT/DS26/AB/R; WT/DS48/AB/R/114;116.
6. See also, WT/DS121/AB/R/118-120.
7. See, WT/DS26/AB/R; WT/DS48/AB/R/111.
8. See, WT/DS26/AB/R; WT/DS48/AB/R/117.
9. See, WT/DS24/R/7.10-7.11.
10. See, WT/DS121/R/8.118-8.121.
11. See, in detail, WT/DS177/AB/R; WT/DS178/AB/R/106-107.
12. See, WT/DS192/AB/R/76.
13. See, Mary E. Footer, ‘Some Aspects of Third Party Intervention in GATT/WTO Dispute Settlement Proceedings’, International Trade Law and the GATT/WTO Dispute Settlement System (Petersmann Ed.), Kluwer Law International, London, 1997, pp. 209-210.
14. Supra. note 13, p. 210.
15. See, WT/DS26/AB/R; WT/DS48/AB/R/133.
16. See, WT/DS69/AB/R/133.
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