WTO Dispute Settlement Mechanism(3)
pe of implementing ‘measures’. As explained below, this interpretation of Article 6.2 is consistent with the context and the object and purpose of Article 6.2, as well as past panel practice.
The Bananas III panel
The proposed interpretation is also consistent with past WTO and GATT panel practice. The Bananas III panel is the only WTO panel to have interpreted the aspect of Article 6.2 at issue in this case, i.e., the definition of the ‘measures’ to be deemed covered by a panel request. In the Bananas III panel request, the ‘basic EC regulation at issue’ had been identified by place and date of publication. In addition, the request referred in general terms to ‘subsequent EC legislation, regulations and administrative measures ... which implement, supplement and amend [the EC banana] regime’. The Bananas III panel found that this reference was sufficient for the specificity requirement of Article 6.2 because the measures that the complainants were contesting were ‘adequately identified’, even though they were not explicitly listed. The Appellate Body agreed that the panel request ‘contains sufficient identification of the measures at issue to fulfil the requirements of Article 6.2’. In our view, ‘measures’ that are subsidiary or closely related to specified ‘measures’ can be found to be ‘adequately identified’ as that concept was applied in the Bananas III case.”
To go further, with respect to the identification of the products affected by such measures, the Appellate Body rules in EC-Computer Equipment (DS62/DS67/DS68) that: “We note that Article 6.2 of the DSU does not explicitly require that the products to which the ‘specific measures at issue’ apply be identified. However, with respect to certain WTO obligations, in order to identify ‘the specific measures at issue’, it may also be necessary to identify the products subject to the measures in dispute.” 13
However, as ruled by the Panel in Canada-Civilian Aircraft (DS70), “[w]e do not consider that the mere fact that the scope of a measure is identified in the request for establishment by reference to a broad product or industry grouping necessarily renders that request for establishment inconsistent with Article 6.2 of the DSU”. The Panel bases their finding by stating that:14
“[…] We believe that the Appellate Body was of a similar opinion in LAN Equipment, where it shared the US concern that: ‘if the EC arguments on specificity of product definition are accepted, there will inevitably be long, drawn-out procedural battles at the early stage of the panel pro
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The Bananas III panel
found that the object and purpose of Article 6.2's specificity requirement is to ensure clarity of panels' terms of reference, which pursuant to Article 7 of the DSU are typically determined by the panel request, and to inform the respondent and potential third parties of the scope of the complaining party's claims (i.e., the ‘measures’ challenged and the WTO provisions invoked by the complaining party). So long as Article 6.2 is interpreted to require any ‘measure’ challenged to be specified in the panel request or to be subsidiary or closely related to the specified ‘measures’, the object and purpose of Article 6.2 are satisfied.
The proposed interpretation is also consistent with past WTO and GATT panel practice. The Bananas III panel is the only WTO panel to have interpreted the aspect of Article 6.2 at issue in this case, i.e., the definition of the ‘measures’ to be deemed covered by a panel request. In the Bananas III panel request, the ‘basic EC regulation at issue’ had been identified by place and date of publication. In addition, the request referred in general terms to ‘subsequent EC legislation, regulations and administrative measures ... which implement, supplement and amend [the EC banana] regime’. The Bananas III panel found that this reference was sufficient for the specificity requirement of Article 6.2 because the measures that the complainants were contesting were ‘adequately identified’, even though they were not explicitly listed. The Appellate Body agreed that the panel request ‘contains sufficient identification of the measures at issue to fulfil the requirements of Article 6.2’. In our view, ‘measures’ that are subsidiary or closely related to specified ‘measures’ can be found to be ‘adequately identified’ as that concept was applied in the Bananas III case.”
To go further, with respect to the identification of the products affected by such measures, the Appellate Body rules in EC-Computer Equipment (DS62/DS67/DS68) that: “We note that Article 6.2 of the DSU does not explicitly require that the products to which the ‘specific measures at issue’ apply be identified. However, with respect to certain WTO obligations, in order to identify ‘the specific measures at issue’, it may also be necessary to identify the products subject to the measures in dispute.” 13
However, as ruled by the Panel in Canada-Civilian Aircraft (DS70), “[w]e do not consider that the mere fact that the scope of a measure is identified in the request for establishment by reference to a broad product or industry grouping necessarily renders that request for establishment inconsistent with Article 6.2 of the DSU”. The Panel bases their finding by stating that:14
“[…] We believe that the Appellate Body was of a similar opinion in LAN Equipment, where it shared the US concern that: ‘if the EC arguments on specificity of product definition are accepted, there will inevitably be long, drawn-out procedural battles at the early stage of the panel pro
cess in every proceeding. The parties will contest every product definition, and the defending party in each case will seek to exclude all products that the complaining parties may have identified by gr 《WTO Dispute Settlement Mechanism(3)(第7页)》
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