WTO Dispute Settlement Mechanism(7)

facts also apply in this respect. There may be various differences between domestic law and the covered agreements, e.g., some terms such as “determination” used both in domestic law and in WTO provisions, do not nec

essarily have the same meaning. It follows that in making factual findings concerning the meaning of domestic law panels are not bound to accept the interpretation presented by parties to a particular dispute. That said, any Member can reasonably expect that considerable deference be given to its views on the meaning of its own law. 5
“While it is clear from the terms of Article 3.2 of the DSU that it falls within the competence of the Panel to ‘clarify the existing provisions of [the covered agreements] in accordance with customary rules of interpretation of public international law’, the DSU does not expressly provide how panels should address domestic legislation. Article 11 of the DSU only specifies that panels ‘should make […] an objective assessment of the facts of the case’. However, both Article 3.2 of the DSU and the practice of the Appellate Body make it clear that we have, whenever appropriate, to develop our approach on the basis of that of international courts in similar circumstances. We will consequently take into consideration the practice of international tribunals in this respect.” 6
Furthermore, the understanding of a law the WTO-compatibility of which has to be assessed begins with an analysis of the terms of that law. However, panels have never considered that they should limit themselves to an analysis of the text of municipal law in isolation from its interpretation by domestic courts or other authorities, even if they were to find that text to be clear on its face. Panels think if they were to do so, they might develop an understanding of that law different from the way it is actually understood and applied by the domestic authorities. This would be contrary to panels’ obligation to make an objective assessment of the facts of the case, pursuant to Article 11 of the DSU. Therefore, panels rule that they must look at all the aspects of the domestic legislation that are relevant for their understanding of the disputed municipal law. However, looking at all the relevant aspects of the domestic law of a Member may raise some methodological difficulties, such as how much deference must be paid to that Member's characterization of its legislation. In that context, panels think they will determine first how to deal with that aspect of the examination of a domestic law and how they should consider the case-law related to it, where courts are, inter alia, responsible for interpreting the law. 7
Thus, as ruled in US-1916 Act (DS136/DS162), “[panels’] understanding of the term ‘examination’ as used by the Appellate Body is that panels need not accept at face value the characterisation that the respondent attaches to its law. A panel may analyse the operation of the domestic legislation and determine whether the description of the functioning of the law, as made by the respondent, is consistent with the legal structure of that Member. This way, it will be able to determine whether or not the law as applied is in conformity

with the obligations of the Member concerned under the WTO Agreement.”8
To sum up, legislation as such, independently from its application in specific cases, may breach GATT/WTO obligations. Panels u

《WTO Dispute Settlement Mechanism(7)(第7页)》