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date: 23 October 2019

(p. xlv) Table of Cases

(p. xlv) Table of Cases

GATT Panel and Working Party Reports

(For full case names see List on pp. xxiv-xxvii)

  • Australia – Ammonium Sulphate (GATT Contracting Parties)46n

  • Belgian Family Allowances (GATT Contracting Parties) 546, 548

  • Border Tax Adjustments (Working Party Report) 212, 230, 526, 547n, 608

  • Canada – Alcohol (Panel Report) 132

  • Canada – Foreign Investment Review Act (FIRA) (Panel Report) 132, 623–4, 625

  • Canada – Herring and Salmon (Panel Report) 132n, 475

  • EC – Citrus Products (Panel Report) 256

  • EEC – Audio Cassettes (Panel Report) 399n

  • EEC – Bananas II (Panel Report) 501

  • EEC – Beef (Panel Report) 548

  • EEC – Oilseeds (Panel Report) 48

  • EEC – Quantitative Restrictions (Panel Report) 132n

  • French Assistance to Exports of Wheat and Wheat Flour (Panel Report) 47n

  • Germany – Imports of Sardines (GATT Contracting Parties) 46n

  • Japan – Agricultural Products (Panel Report) 132n

  • Japanese Measures on Imports of Leather (Panel Report) 132n

  • Spain – Soyabean Oil (Panel Report) 47n

  • Thailand – Cigarettes (Panel Report) 216n, 599, 610, 611–13

  • The US Manufacturing Clause (Panel Report) 35

  • US – Lead and Bismuth Carbon Steel (Panel Report) 399n

  • US – Malt Beverages (Panel Report) 216n

  • US – Section 337 (Panel Report) 143–4, 216n, 611–13

  • US – Soft wood Lumber II (Panel Report) 398, 399n

  • US – Stainless Steel Plate (Panel Report) 399n

  • US – Sugar (Panel Report) 548, 701

WTO Panel and Appellate Body Reports and Other Initiated WTO Disputes

(for full case names see List on pp. xxviii-xliv)

Other Jurisdictions Inter National Courts/arbitral Bodies

Permanent Court of International Justice

  • Case Concerning the Administration of the Prince von Pless (Preliminary Objection), PCIJ Reports (1933) Ser A/B No 52 306n

  • Certain German Interests in Polish Upper Silesia, PCIJ Reports (1926) Ser A No 7 416

  • Mavrommatis Palestine Concessions, PCIJ Reports (1924) Ser A No. 2 305n

  • Question Concerning the Acquisition of Polish Nationality, PCIJ Reports (1923) Ser B No 7 301

International Court of Justice

  • Aegean Sea Continental Shelf Case (Greece v Turkey) (Jurisdiction), ICJ Reports (1978) 3 334

  • Anglo-Iranian Oil Co Case (UK v Iran) (Preliminary Objection), ICJ Reports (1952) 93 306n, 310n

  • Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal), ICJ Reports (1991) 53 301

  • Case Concerning Elettronica Sicula SpA (ELSI) (United States v Italy), ICJ Reports (1989) 15 636

  • Case Concerning Gabcîkovo/Nagymaros Project (Hungary/Slovakia), ICJ Reports (1997) 7 333n

  • Case of Certain Norwegian Loans (France v Norway), ICJ Reports (1957) 9 306n

  • Competence of the General Assembly for the Admission of a State to the United Nations, ICJ Reports (1950) 4 301

  • Corfu Channel Case (Merits), ICJ Reports (1949) 4 307n, 309n

  • (p. li) Fisheries Jurisdiction Case (Spain v Canada) (Jurisdiction), ICJ Reports (1998) 432 307n, 331n

  • Interhandel Case (Switzerland v United States of America) (Preliminary Objections), ICJ Reports (1959) 6 3067n

  • Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (First Phase), ICJ Reports (1950) 65 307n, 309n

  • Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, ICJ Reports (1980) 73 60n, 681n

  • Case Concerning Kasikili/Sedudu Island (Botswana/Namibia), ICJ Reports (1999) 1045 316, 323n, 334

  • LaGrand Case (Germany v United States of America), ICJ Reports (2001) 466 301, 301n, 456–7

  • Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Reports (1971) 16 330–1

  • Legality of the Th reat or Use of Nuclear Weapons, ICJ Reports (1996) 226 301, 532

  • Legality of the Use of Force (Serbia and Montenegro v Spain) (Preliminary Objections), ICJ Reports (2004) 1214 305

  • Maritime Delimitation and Territorial Questions between Qatar and Bahrain, ICJ Reports (1995) 6 292n

  • Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) (Merits), ICJ Reports (1986) 14 323n, 574–5

  • Nottebohm Case (Liechtenstein v Guatemala) (Preliminary Objection), ICJ Reports (1953) 111 300n, 307n

  • Nuclear Tests Case (Australia v France), ICJ Reports (1974) 253 305

  • Case Concerning Oil Platforms (Islamic Republic of Iran v United States of America) (Merits), ICJ Reports (2003) 161 310, 333

  • Reparations for Injuries Suffered in the Service of the United Nations, ICJ Reports (1949) 174 59n, 60n, 335n, 681n

  • Request for the Interpretation of the Judgment of November 20th, 1950, in the Asylum Case (Colombia/Peru), ICJ Reports (1950) 395 300–1

  • Case Concerning Right of Passage over Indian Territory (Portugal v India) (Preliminary Objections), ICJ Reports (1957) 125 331n

  • United States Diplomatic and Consular Staff in Tehran (United States of America v Iran), ICJ Reports (1980) 3 441

  • Case Concerning the Territorial Dispute (Libyan Arab Jamahiriya/Chad), ICJ Reports (1994) 6 292n, 301

International Labour Organization Administrative Tribunal

  • Judgment No 2186, 94th Session (3 Feb 2003) 119n

  • Judgment No 2226, 95th Session (16 July 2003) 120n

  • Judgment No 2254, 95th Session (16 July 2003) 120n

  • Judgment No 2531, 101st Session (12 July 2006) 119n

  • Judgment No 2637, 103rd Session (11 July 2007) 119n

  • Judgment No 2638, 103rd Session (11 July 2007) 119n

  • Judgment No 2639, 103rd Session (11 July 2007) 119n

(p. lii) International Centre for Settlement of Investment Disputes

  • ADF v US, ICSID Award ARB(AF)/00/1 631n, 635

  • Azinian et al v Mexico, ICSID Award ARB(AF)/97/2 637

  • Feldman v Mexico, ICSID Award ARB(AF)/99/1 631n, 634, 637

  • Generation Ukraine & Link Trading v Moldavia, ICSID Award ARB(AF)/00/9 639n

  • Loewen Group v US, ICSID Award ARB(AF)/98/3 631n, 636, 638

  • Mondev v US, ICSID Award ARB(AF)/99/2 635

  • Parkerings AS v Lithuania, ICSID Award ARB(AF)/05/8 631n

  • Tecmed v Mexico, ICSID Award ARB(AF)/00/2 635n

  • Waste Management v Mexico, ICSID Arbitral Award on Jurisdiction ARB(AF)/98/2 639n

UN Commission on International Trade Law

  • GAMI Investments Inc v Mexico, UNCITRAL Final Award (15 Nov 2004) 631n, 635

  • International Th underbird Gaming Corp v Mexico, UNCITRAL Award (26 Jan 2006) 639n

  • Methanex Corp v US, UNCITRAL Final Award (7 Aug 2005) 631n, 639n

  • Myers (SD Myers Inc v Canada), UNCITRAL Partial Award (13 Nov 2000) 631n, 634

  • Pope & Talbot Inc v Canada, UNCITRAL Award on the Merits of Phase 2 (10 April 2001) 631n, 634

  • UPS v Canada, UNCITRAL Award (24 May 2007) 631n, 634

Other

  • Alabama Case (United States v Great Britain), Ad Hoc Tribunal, 1 Moore Int Arb 653 (1872) 307n

  • Arbitration Regarding the Iron Rhine (‘Ijzeren Rijn’) Railway (Belgium v Netherlands), Arbitral Award (24 May 2005) 334n

  • Case Concerning the Auditing of Account between the Kingdom of the Netherlands and the French Republic pursuant to the Additional Protocol of 25 September 1991 to the Convention of 3 December 1976 on the Protection of the Rhine against Pollution by Chlorides, Arbitral Award (12 March 2004) 335n

  • Marks & Umann v Iran, Iran-US Claims Tribunal Case No 458, 8 IRAN-US CTR 290 3067n

  • Nagel v Czech Republic, Stockholm Chamber of Commerce Case 49/2002 639n

Regional Courts: Americas

Inter-American Court of Human Rights

  • Trillium Case (Claude Reyes et al v Chile), Case 12 108, Report No 60/03, Inter-Am C H R, OEA/Ser L/V/II 118 Doc 70 rev 2 at 222 (2003) 681–2

MERCOSUR

  • Omission of the Argentine State to adopt suitable measures to prevent and/or eliminate the impediments to free circulation stemming from the blocking of the access roads to international bridges Gral San Martín and Gral Artigas in Argentine territory (Uruguay/Argentina), Ad Hoc Tribunal (6 September 2006) 586n

(p. liii) NAFTA

  • Cross-Border Trucking Services (Mexico v US), Case No USA-MEX-98–2008–01 631n, 634

  • Soft wood Lumber Products from Canada, Cases Nos USA-CDA-2002–1904–02/03/07 263, 331n

  • US Safeguard Action Taken on Broomcorn Brooms from Mexico, Case No USA-97–2008–01 262–3

Regional Courts: Europe

Court of First Instance

  • Beamglow v EP, Council and Commission, Case T-383/00 [2005] ECR II-5459 455n

  • Cartondruck v Commission and Council, Case T-320/00 [2005] ECR II-27 455n

  • Chiquita and others v Commission, Case T-19/01 [2005] ECR II-315 455n

  • FIAMM v Council and Commission, Case T-69/00 [2005] ECR II-5393 455n

  • Giorgio Fedon & Figli v Council and Commission, Case T-135/00 [2005] ECR II-29 455n

  • Groupe Fremaux v Council and Commission, Case T-301/00 [2005] ECR II-25 455n

  • Laboratoire du Bain v Council and Commission, Case T-151/00 [2005] ECR II-23 455n

European Court of Justice

  • Bidar, Case 209/03 [2005] ECR I-2199 451

  • Commission v Denmark, Case 302/86 [1988] ECR 4607 143n

  • Commission v France, Case C-265/95 [1997] ECR I-6959 586

  • Commission v Germany, Case C-61/94 [1996] ECR I(8–9)-3989 331n

  • Hermès International v FHT Marketing Choice, Case C-53/96 [1998] ECR I-3603 331n

  • Maizena v Council, Case 139/79 [1980] ECR 3393 94n

  • Roquette Frères v Council, Case 138/79 [1980] ECR 3333 94n

  • Schmidberger, Case C-112/00 [2003] ECR I-5659 586

  • Wood Pulp Case (Ahlstrom et al v EC Commission), Joined Cases 89, 104, 114, 116, 117, 125–129/84 [1988] ECR 5193 653

European Commission

  • Franco-Japanese Ball Bearing Case, OJ [1974] L343/19 664

  • General Electric/Honeywell, OJ [2004] L 48/01 653, 654

European Court of Human Rights

  • Case of Al-Adsani v United Kingdom, 21 Nov 2001, ECHR (2001) XI 335n

  • Golder Case, 21 Feb 1975, ECHR (1975) Ser A No 18 335n

  • Case of Loizidou v Turkey (Preliminary Objections), ECHR (1995) Ser A No 310 335n (p. lv)

Notes:

(1) Arts 5.1–5.3 DSU. See, eg, Award of the Arbitrator, Banana Tariff Arbitration; Decision by the Arbitrators, Banana Tariff Arbitration II.

(1) WJ Davey, ‘The WTO Dispute Settlement System: The First Decade’ 2005 Journal of International Economic Law 8(1) 17.

(1) The same holds for technical regulations under the TBT Agreement. The Panel in EC-Sardines stated that ‘it is up to WTO Members to decide which policy objectives they wish to pursue and the levels at which they wish to pursue them’. Panel Report, EC-Sardines, at para 7.120.

(2) Art 1.1 DSU. A court or tribunal has jurisdiction ‘whenever it has been regularly seised and whenever it has not been shown, on some other ground, that it lacks jurisdiction or that the claim is inadmissible’. ICJ, Nottebohm Case (Liechtenstein v Guatemala) (Preliminary Objection), 18 November 1953, ICJ Reports (1953) 111, at 122. The competence of a court or tribunal is broader and ‘includes both jurisdiction and the element of the propriety of the Court's exercising its jurisdiction in the circumstances of the concrete case’. S Rosenne, The Law and Practice of the International Court 1920–1996, Vol I, 3rd edn (The Hague: Martinus Nijhoff, 1997), at 536.

(4) Appellate Body Report, EC-Hormones, at para 115 (emphasis added). The Appellate Body has also said that standard of review ‘goes to the very core of the integrity of the WTO dispute settlement process itself’. Appellate Body Report, EC-Poultry, at para 133.

(4) Article XI also prohibits restrictions on exportation. However, this section will only focus on import restrictions.

(6) See Panel Report, India-Quantitative Restrictions, at para 5.128, where the Panel found that the import licensing system maintained by India, being a discretionary import licensing system because licences were not granted in all cases but rather on unspecified ‘merits’, operated as a restriction on imports within the meaning of Article XI.1.

(7) See also C-D Ehlermann and N Lockhart, ‘Standard of Review in WTO Law’ 2004 Journal of International Economic Law 7(3) 491, at 495; Oesch, above fn 2, at 9.

(8) The fact that the very first decision rendered by the WTO Appellate Body was in favour of two developing countries (Venezuela and Brazil) that had challenged a US measure made it difficult to allege otherwise. Appellate Body Report, US – Gasoline.

(8) ICJ, Request for the Interpretation of the Judgment of November 20th, 1950, in the Asylum Case (Colombia/Peru), Judgment, ICJ Reports (1950) 395, at 402.

(9) The term ‘matter’ has been defined as a reference to the case-specific set of facts including the contested national measure and the legal basis of a complaining party's complaint regarding that measure. Appellate Body Report, Guatemala-Cement I, at para 72. Art 11 DSU states explicitly that the objective assessment of the ‘matter’ includes the facts as well as ‘the applicability of and conformity with the relevant covered agreements’.

(10) Some of the problems of WTO decision-making have been explored in the so-called Sutherland Report, which was prepared by a group of leading international trade experts appointed by the WTO DG. Consultative Board, The Future of the WTO: Addressing Institutional Challenges in the New Millennium (Geneva: WTO, 2004), at 61–72.

(11) See Panel Report, EC-Asbestos.

(11) Panel Report, European Communities – Measures affecting the approval and marketing of biotech products, WT/DS291/36, adopted 23 November 2007, paras 7.2509, 2516.

(11) Art VIII:5 WTO Agreement.

(14) Appellate Body Report, Japan – Alcoholic Beverages II, at 109 and 110.

(15) For examples of such judicial review under human rights law and jus ad bellum, see respectively Human Rights Committee, General Comment. No 27: Freedom of movement (Article 12), CCPR/C/21/ Rev.1/Add.9 (2 November 1999); ICJ, Oil Platforms (Islamic Republic of Iran v United States of America), Judgment, 6 November 2003, ICJ Reports (2003) 183, at paras 43, 74, and 76.

(15) See Art 6 DSU.

(16) GATT Panel Report, US – Section 337, at para 5.26; GATT Panel Report, US – Malt Beverages, at para 5.52; GATT Panel Report, Thailand – Cigarettes, at paras 73–75.

(16) Art 7.1 DSU.

(19) G Marceau and JP Trachtman, ‘A Map of the World Trade Organization Law of Domestic Regulation of Goods’ in GA Bermann and PC Mavroidis (eds), Trade and Human Health and Safety (Cambridge: Cambridge University Press, 2006) 9.

(22) Ibid at para 60; see also Panel Report, US-DRAMS, at para 6.53, fn 499. See also chapter 12 of this Handbook.

(22) The Appellate Body has emphasized the importance of ‘bear[ing] in mind that the requirement to submit a statement of available evidence applies in the earliest stages of WTO dispute settlement, and that the requirement is to provide a “statement” of the evidence and not the evidence itself’. Appellate Body Report, US – Upland Cotton, at para 308.

(23) Examples include US – Hot-Rolled Steel and US – Offset Act (Byrd Amendment).

(25) As was the US response in US – Gambling; see DSB, Minutes of Meeting Held on 22 May 2007, WT/DSB/M/232 (25 June 2007), at 9 ff.

(26) Art 17.2 DSU. See also Chapter 12 of this Handbook.

(27) An action may also be brought under Art XXIII GATT 1947 when the attainment of any objective of the agreement is being impeded.

(27) Appellate Body Report, EC – Asbestos, at para 100 (original emphasis), reads as follows: ‘… a Member may draw distinctions between products which have been found to be “like”, without, for this reason alone, according to the group of “like” imported products “less favourable treatment” than that accorded to the group of “like” domestic products’.

(30) M Leighton and E Castaneda, ‘Civil Society Concerns in the Context Of Economic Globalization’ 2002 Transnational Lawyer 15(1) 105.

(31) GATT Panel Report, Uruguayan Recourse to Article XXIII. The prima facie concept was also applied in situations involving quotas or domestic subsidies on products subject to agreed upon tariff limitations (tariffs bound under Article II). See generally Jackson, World Trade and the Law of GATT, above fn 1, at 182.

(31) Appellate Body Report, Mexico-Taxes on Soft Drinks, at para 54.

(31) Ibid at 20–22.

(32) Arts 16.4 and 17.14 DSU.

(32) Appellate Body Report, US – Gambling, at para 292.

(34) Appellate Body Report, US-Gambling, at paras 286–96.

(35) WJ Davey, ‘Has the WTO Dispute Settlement System Exceeded Its Authority?’ 2001 Journal of International Economic Law 4(1) 79, at 96–110.

(35) The Panel in Turkey – Textiles refused to determine the scope of its own jurisdiction and exercised judicial economy, mostly on the ground that the resolution of the dispute did not require a finding on the WTO-compatibility of a customs union – a matter it found more appropriate for the WTO Committee on Regional Trade Agreements to determine. Panel Report, Turkey – Textiles, at paras 9.52–54. This part of the report was not appealed, though others were.

(35) An instance is the US – Section 110(5) Copyright Act dispute, see B O'Connor and M Djordjevic, ‘Practical Aspects of Monetary Compensation’ 2005 Journal of International Economic Law 8(1) 127.

(35) See, eg, Parkerings AS v Lithuania, ICSID Arbitration Case No. ARB/05/8 (11 September 2007), at paras 378–80, in which the Tribunal read the requirement of ‘like circumstances’ into a provision that did not contain the words, then drew on a NAFTA Chapter 11 decision that incorrectly focused on whether the investors were in like circumstances, rather than whether the treatment was accorded in like circumstances.

(37) Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), at para 36 (referring also to Appellate Body Report, US - 1916 Act, at para 54, footnote 32).

(37) B Hoekman and M Kostecki, The Political Economy of the World Trading System: The WTO and Beyond (Oxford: Oxford University Press, 2001), at 353.

(38) Appellate Body Report, Korea-Various Measures on Beef, at para 162; Appellate Body Report, Dominican Republic-Import and Sale of Cigarettes, at para 70; Appellate Body Report, US-Gambling, at paras 304–11.

(38) The development of the balancing test has a long history, and was significantly developed, inter alia, by the Appellate Body's reports in Korea – Various Measures on Beef and US – Gambling. In Brazil –Retreaded Tyres, the Appellate Body interpreted ‘necessary’ as that which ‘brings about a material contribution to the objective’ when viewed in light of its regulatory context and balanced against the importance of the interests at stake, the trade-restrictiveness of the measure, and possible alternatives. Appellate Body Report, Brazil – Retreaded Tyres, at paras 150–5.

(38) Note 2 to Article 3.3 explains that a scientific justification exists if, on the basis of scientific evidence, the regulating State determines that international standards are insufficient to achieve appropriate level of protection.

(40) Appellate Body Report, US-Cotton Yarn, at para 78. The holding in US-Cotton Yarn was made under the now defunct ATC, which does not include a provision similar to Article 17.5(ii) Anti-Dumping Agreement. The holding was based on the principles underlying the exclusion of de novo review. We will consider this further below.

(41) On the relevance of protectionist intent, see Hudec, above fn 36, at 625–6; D Regan, ‘Regulatory Purpose and “Like Products” in Article III:4 of the GATT’ 2002 Journal of World Trade 36(3) 443, at 443–4.

(41) Ibid. at para 53.

(42) Appellate Body Report, US – Anti-Dumping Measures on Oil Country Tubular Goods, at para 189.

(42) Resolution 1528 of 27 February 2004, at para 6.

(43) Art. 3.2 SPS Agreement.

(43) Not a real separation of powers, as in national constitutional systems, but a type of balance between the institutions and the powers they have been allocated by the constitutive treaty. Already at a very early stage, when the European Parliament did not yet have ‘co-legislative’ powers, the ECJ nevertheless considered this balance between the institutions as important: see ECJ, Case 138/79, Roquette Frères v Council, [1980] ECR 3333; ECJ, Case 139/79, Maizena v Council, [1980] ECR 3393; S Prechal, ‘Institutional Balance: A Fragile Principle with Uncertain Contents’ in T Heukels, N Blokker, and M Brus (eds), The European Union after Amsterdam: A Legal Analysis (The Hague: Kluwer, 1998) 273.

(43) As regards the EU, see P Eeckhout, External Relations of the European Union – Legal and Constitutional Foundations (Oxford: Oxford University Press, 2004) Chapter 9. For a recent discussion of the policy issues involved, see JH Jackson, ‘Direct Effect of Treaties in the U.S. and the EU, the Case of the WTO: Some Perceptions and Proposals’ in A Arnull, P Eeckhout, and T Tridimas (eds), Continuity and Change – Essays in Honour of Sir Francis Jacobs (Oxford: Oxford University Press, 2008) 361.

(45) See, eg, the ongoing China- Intellectual Property Rights dispute.

(45) In EC – Hormones, at para 165, the Appellate Body rejected the Panel's finding that ‘based on’ and ‘conform to’ have the same meaning.

(45) See Arts 2–4 Safeguards Agreement and Arts 11–20 SCM Agreement.

(46) See, eg, G Shaffer, ‘The Challenges of WTO law, Strategies for Developing Country Adaptation’ 2006 World Trade Review 5(2) 177, at 177.

(46) Appellate Body reports in US – Zeroing (Japan), US – Zeroing (EC), and US – Softwood Lumber V (Article 21.5 – Canada).

(47) GATS Council, above fn 45, at para 3.

(47) Panel Report, Dominican Republic-Import and Sale of Cigarettes, at paras 7.282–300, where the Panel concluded that no ‘less favourable treatment’ for imported products was shown because the bond requirement did not create a disincentive against importing cigarettes, and the difference in per-unit costs between domestic and imported cigarettes was so minimal that it did not alter the conditions of competition in the relevant market to the detriment of imported products.

(49) See Appellate Body Report, US – Shrimp (Article 21.5 – Malaysia), at para 124 (emphasis added).

(49) G Fitzmaurice, The Law and Procedure of the International Court of Justice, Vol 2 (Cambridge: Grotius Publications, 1986), at 438. Fitzmaurice defined the ‘merits of a dispute’ as consisting of ‘all those propositions of fact and of law which must be established by a party in order to enable it to obtain a judgment in its favour, on the assumption that the tribunal has jurisdiction to entertain these propositions, and that there is no objection to the substantive admissibility of the claim’. Ibid. at 448. This definition was a refinement of the definition offered by Judge Read in ICJ, Anglo-Iranian Oil Co. Case (United Kingdom v Iran) (Preliminary Objection), Dissenting Opinion Judge Read, ICJ Reports (1952) 142, at 148.

(50) Appellate Body Report, US – Wool Shirts and Blouses, at 335 (fns omitted).

(50) See, eg, Appellate Body Report, US – Lamb, at paras 103–06, 162–88; JH Jackson, WJ Davey, and AO Sykes, Legal Problems of International Economic Relations, 4th edition (St. Paul, MN: West Group, 2002), at 289–94, 650–51.

(52) Appellate Body Report, US-Hot-Rolled Steel, at para 55.

(52) Appellate Body Report, US – Shrimp, at para 165; Appellate Body Report, US – Shrimp (Article 21.5– Malaysia), at paras 135–52.

(53) A Bjorklund, ‘Reconciling State Sovereignty and Investor Protection in Denial of Justice Claims’ 2005 Virginia Journal of International Law 45(4) 809; M Kinnear, A Bjorklund, and J Hannaford, Investment Disputes under NAFTA: An Annotated Guide to NAFTA Chapter 11 (Alphen an den Rijn: Kluwer, 2006), at 6–1105.

(54) WTO Secretariat, World Trade Report 2006 (Geneva: WTO, 2006).

(54) This section includes excerpts from G Marceau and JP Trachtman, ‘A Map of the WTO law on domestic regulations’ in F Ortino and E-U Petersmann (eds), The WTO Dispute Settlement 1995–2003 (The Hague: Kluwer, 2004), 275.

(54) Ibid paras 214–15.

(55) There were no conflicting jurisdictions in this dispute: two separate measures were taken by two different WTO Members/NAFTA Contracting Parties in respect of which each State made different claims before different courts or tribunals with different jurisdictions. See Panel Report, Mexico – Taxes on Soft Drinks, at para 7.14.

(56) See also E Ellis (ed), The Principle of Proportionality in the Laws of Europe (Oxford: Oxford University Press, 1999).

(57) GATT Panel Report, US-Softwood Lumber II, at para 335; GATT Panel Report, US-Stainless Steel Plate, at para 284; GATT Panel Report, US-Lead and Bismuth Carbon Steel, at para 369; and GATT Panel Report, EEC-Audio Cassettes, at para 450.

(57) Even multilateral measures may raise questions of fairness, particularly in the context of multilateral trade measures adopted by parties to an MEA against non-Parties.

(59) Panel Report, Mexico – Taxes on Soft Drinks, Annex C-1, Response by Mexico to Questions Posed by the Panel after the First Substantive Meeting (20 December 2004), Question 2, see also Question 35 (‘… what would be the legal basis for this specific jurisdictional powers and for the discretion that Panels may have under those powers to abstain from exercising its jurisdiction’).

(61) E Hernandez Lopez, ‘Recent Trends and Perspectives for Non-State Actor Participation in World Trade Organization Disputes’ 2001 Journal of World Trade 35(3) 469, at 481.

(61) Appellate Body Report, Japan-DRAMS (Korea), at para 132.

(62) See Hughes, above fn 14, at 216–17.

(64) ommunication from the Appellate Body, EC – Asbestos, WT/DS135/9 (8 November 2000).

(67) See also Appellate Body Report, Korea-Various Measures on Beef, at para 166, cited by Appellate Body Report, US-Gambling, at para 305.

(68) False judicial economy is the exercise of judicial economy in defiance of panels' duty, under Article 7.1 DSU, ‘to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in that/those agreement(s)’ or in defiance of certain particular other obligations of panels (such as Article 4.7 SCM Agreement). See, eg, Appellate Body Report, Australia – Salmon, at para 224; Appellate Body Report, EC – Export Subsidies on Sugar, at para 335.

(71) Appellate Body Report, Chile – Price Band System, at para 175.

(72) The Appellate Body Report in US – Wheat Gluten follows a similar reasoning.

(72) HM Haugen, ‘The Nature of Social Human Rights Treaties and Standard-Setting WTO Treaties: Question of Hierarchy?’ 2007 Nordic Journal of International Law 76(4) 435. On the law applicable in WTO proceedings, see chapter 12 of this Handbook.

(74) RL Howse and DH Regan, ‘The Process/Product Distinction – An Illusory Basis for Disciplining “Unilateralism” in Trade Policy’ 2000 European Journal International Law 11(2) 249, at 260.

(74) If the intent were to deem such measures to comply with the GATT 1994, the treaty could have said so, or could have stated that the presumption is irrebuttable. In any event, the plain language of ‘presumption’ will likely be taken to mean nothing more. See Appellate Body Report, EC – Hormones, at para 170 (terming the unqualified presumption in Article 3.2 SPS Agreement ‘rebuttable’). However, see Article 3.8 DSU, clearly stating that the presumption there is rebuttable. On the parallel application of the TBT Agreement and the GATT 1994, see R Howse and E Tuerk, ‘The WTO Impact on Internal Regulations – A Case Study of the Canada – EC Asbestos dispute’ in G de Búrca and J Scott (eds), The EU and the WTO: Legal and Constitutional Aspects (London: Hart Publishing, 2001) 283.

(74) Appellate Body Report, Argentina-Footwear (EC), at para 137. Argentina failed to examine capacity utilisation and productivity (at para 134). In EC-Tube or Pipe Fittings, the Appellate Body held that, in some circumstances, it is permissible to discern from the record of an anti-dumping investigation that a particular factor has been evaluated, even if there is no separate record of that evaluation (at para 161).

(77) Panel Report, India-Quantitative Restrictions, at paras 5.12–13. See also Panel Report, Dominican Republic-Import and Sale of Cigarettes, at paras 7.139–141. Contra Appellate Body Report, Argentina-Textiles and Apparel, at para 84 (dicta).

(77) See Appellate Body Report, EC – Hormones, at paras 114–17.

(80) Appellate Body Report, US-Softwood Lumber VI (Article 21.5-Canada), at para 93, citing Appellate Body Report, US-Lamb, at para 106(original italics, underlining added).

(82) The NAFTA Chapter 20 system is flawed in the sense that panel selection is automatic only if the Parties have designated standing panel rosters, as required by Art 2009(1). Since the NAFTA Parties have never done so, panel section must be made on an ad hoc basis, and either disputing party can prevent the dispute from moving forward simply by refusing to cooperate in appointment of the panel.

(83) One hearing day runs seven to eight hours, excluding the lunch break.

(85) Panel Report, Argentina – Preserved Peaches, at para 7.24, disagreeing with Appellate Body Report, Argentina – Footwear (EC), at para 131.

(87) DSB, Contribution by Chile and the United States, TN/DS/W/74 (15 March 2005), at para 4.

(89) See the case law on the need to maintain parallelism when applying of safeguards in the context of FTAs; for example, Appellate Body Report, US-Steel Safeguards, at paras 433–56.

(93) Ibid at paras 152–55.

(95) See Appellate Body Report, EC-Hormones, at para 115.

(97) Panel Report, EC-Sardines, at para 7.137.

(97) The GC held a special session to discuss the admissibility of amicus curiae briefs in November 2000 after the Appellate Body adopted a procedure to deal with a number of such briefs filed in EC – Asbestos. The GC suggested to the Appellate Body that it exercise extreme caution in this regard. See GC, Minutes of meeting held on 22 November 2000, WT/GC/M/60 (23 January 2001), at 28.

(99) Appellate Body, Working Procedures for Appellate Review, WT/AB/WP/1 (15 February 1996).

(100) Pauwelyn's argument is mostly based on ICJ decisions (for example, Lockerbie) and the prohibition of interpretations contra legem.

(100) The only other example, since the Enabling Clause was enacted in 1971, related to the Request for Consultations by Brazil, European Communities – Measures Affecting Soluble Coffee, WT/DS209/1 (19 October 2000).

(101) Appellate Body Report, Japan – Alcoholic Beverages II, at 11.

(105) Art 27.1 DSU. The Secretariat is also tasked with conducting training courses for WTO Members concerning dispute settlement procedures and practices (Art 27.3 DSU).

(111) Art 18.2 and Appendix 3, para 3 DSU. The DSU permits Members to make their own submissions public. Few Members do so, however.

(117) Appellate Body Report, EC-Asbestos, at para 168.

(119) As of 31 December 2007.

(119) GC, Headquarters Agreement – Decision by the General Council on 31 May 1995, WT/L/69 (1 June 1995).

(120) The principle of jura novit curia was recognized in Appellate Body Report, EC – Tariff Preferences, at para 105.

(120) Panel Report, Canada – Wheat Exports and Grain Imports, at paras 136–37.

(121) See Award of the Arbitrator, EC – Chicken Cuts, at para 4.

(123) There were two rounds of Article 21.5 proceedings in US – FSC, Brazil – Aircraft, and Canada – Dairy. Only in US – FSC was the second Article 21.5 panel report appealed.

(124) See also chapter 8 of this Handbook.

(124) ILO Administrative Tribunal, Judgment No. 2226 (16 July 2003); ILO Administrative Tribunal, Judgment No. 2254, 95th Session (16 July 2003). The first one concerned a director abruptly laterallyremoved by the DG without any serious procedure, who received damages for moral injury. The second one is legally the most interesting one, since it posited the principle that the administration cannot accept, without any serious reflection and further discussion with the person concerned, the latter's waiver of a disciplinary procedure.

(135) Jackson, above fn 112, at 173–77.

(136) See also chapters 13 and 24 of this Handbook.

(142) A similar analysis may apply to the interpretation of context by some panels. See Panel Report, US – Shrimp (Article 21.5 – Malaysia), at para 5.124, fn 240.

(143) Panel Report, EC – Biotech Products, at para 7.92.

(146) Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), at para 106 (consulting The New Shorter Oxford English Dictionary).

(154) The Appellate Body will, however, directly review a WTO Member's measures for their WTO-consistency when it completes the panel's legal analysis. When it does so, the Appellate Body applies the same standard of review as a panel. However, given its jurisdictional limitations, the Appellate Body can only complete the analysis if there are sufficient factual findings by the panel or uncontested facts on the record. See, eg, Appellate Body Report, US-Hot-Rolled Steel, at para 235; Appellate Body Report, Canada-Dairy (Article 21.5-New Zealand and US), at para 98; Appellate Body Report, US-Section 211 Appropriations Act, at para 343.

(161) In this sense, the principle of harmonization resembles the Charming Betsy doctrine in US statutory interpretation. Murray v The Schooner Charming Betsy, 6 US (2 Cranch) 64 (1984) [see for criticism and controversy over the doctrine: United States v Palestine Liberation Organization, 695 F Supp 1456 (SDNY 1988)]. See also treaty-consistent interpretation: ECJ, C-61/94, Commission v. Germany (Failure by a Member State to fulfil its obligations – International Dairy Arrangement), 10 September 1996, [1996] ECR I(8–9)-3989, at para 52; ECJ, Case-53/96, Hermès International (a partnership limited by shares) v FHT Marketing Choice BV, 16 June 1998, [1998] ECR I-3603, at para 32. ANAFTA Chapter 19 Panel has relied on the Charming Betsey doctrine to contend that US statutes should, to the extent possible, be read in a way that avoids violation of the US international legal commitments, in casu its obligations under the WTO covered agreements. As a result, the US was told to comply with the DSB report in US – Softwood Lumber v NAFTA Chapter 19 Panel, In the Matter of Certain Softwood Lumber Products from Canada: Final Affirmative Anti-dumping Determination, 9 June 2005, at 〈http://www.nafta-secalena.org/app/DocRepository/1/Dispute/english/NAFTA_Chapter_19/USA/ua02022e.pdf〉, at 43–44 (last visited 10 March 2008).

(166) In support, Judge Buergenthal wrote in his Separate Opinion in Oil Platforms that the principle of Article 31(3)(c) VCLT ‘is sound and undisputed in principle as far as treaty interpretation is concerned’. ICJ, Case Concerning Oil Platforms (Islamic Republic of Iran v United States of America), Separate Opinion Judge Buergenthal, ICJ Reports (2003) 270, at para 22.

(169) See Appellate Body Report, US – Lamb, at para 106 (original fn).

(170) Compare Appellate Body Report, US – Shrimp, at para 130 with ICJ, Namibia, above fn 160, at 31.

(174) Appellate Body Report, US – Upland Cotton, at paras 449, 450, and 445, citing Appellate Body Report, Australia – Salmon, at para 267.

(177) The Biosafety Protocol is binding on the EC; and signed by Argentina and Canada. The US has not signed the Protocol, and the EC argued that the US had not persistently objected to the Protocol.

(180) See generally Art 12.2 Anti-Dumping Agreement; Art 22.3 SCM Agreement; Art 3.1 Safeguards Agreement.

(187) Appellate Body Report, EC – Asbestos, at para 125 (emphasis added).

(194) Ibid [citing the Panel Report, at para 7.318, quoting Appellate Body Report, EC – Computer Equipment, at para 82].

(198) For instance, in US – Upland Cotton (Article 21.5-Brazil), the US appealed issues such as whether ‘opportunity costs’ are properly included in determining whether there is a gap between producers' revenues and costs or whether variable costs should be used instead of total costs. Ibid at para 419.