The Legal System of the WTO 主讲人：宋俊荣 E-mail ： [email protected] 主讲人：宋俊荣 E-mail ： [email protected] 国际法商系

The Legal System of the

WTO

The Legal System of the

WTO

主讲人：宋俊荣E-mail ： [email protected]

主讲人：宋俊荣E-mail ： [email protected]

国际法商系

The Legal System of the WTO

Chapter 2 Procedural rules of the WTO

§2.1 Decision-making Mechanism

3/4 majority3/4 majority

The decision to waive an obligation of a member

consensus; consensus; 3/4 majority;3/4 majority;2/3majority2/3majority

Amendments of WTO agreements

The decision to adopt an interpretation

Principle: Consensus is always preferred. In case consensus could not be reached, the matter at issue shall be decided by voting (one member, one vote).

3/4 majority

reverse reverse consensusconsensus Dispute settlement

§2.2 Trade Policy Review Mechanism

ObjecitveObjecitve

SubjectSubjectmattermatter

All aspects of trade policy in all the WTO Members

The The authorityauthority

TPRB

To facilitate the smooth functioning of the multilateral trading system by enhancing the transparency of Members’ trade policies.


China Hong Kong; China; Korea;Singapore;

Switzerland; Mexico; Australia; Malaysia; Thailand; Norway; Indonesia; Brazil;

Turkey; South Africa; Israel; India;

United Arab Emirates

U.S.EC

JapanCanada

Every 2

years

Every 4

years

Every 6

years

Review cycles :

U.S.EC

JapanCanada

all the other WTO members

U.S.EC

JapanCanada


Collection of informationA policy

statement by the Member

under review A report

prepared by economists

in the Secretariat (not legally binding)

Visit to the capital

Final preparation of documents

Review meeting organized and conducted

Publication of documents

§2.3 The Dispute Settlement Mechanism

LegalLegalbasisbasis

DSU; provisions on dispute settlement in other WTO agreements.

CoverageCoverageAll disputes arising under the WTO agreements.


AuthorityAuthority

Dispute Settlement Body (DSB)-to establish panels-to adopt the reports of panels or AB-to monitor the implementation and recommendation of the panel and AB-to authorize suspension of concessions or other appropriate obligation of the member nationsPanel/AB: to help the DSB make rulings or recommendations

Four Four stagesstages

consultation → panel → appellate review→ enforcement


Aimed to preserve the rights and obligations of Members and to clarify the existing provisions.

1

The results cannot add to or diminish the rights and obligations provided in the WTO agreements.

2

Mutually agreed solution which is consistent with the WTO agreements is preferred.

3

Withdrawal of the measures inconsistent with the WTO agreements is preferred. Retaliatory action is the last resort.

4

The General Principles:


Rule-based 1

Automaticity: through reverse consensus2

Compulsory jurisdiction on WTO members: through automatic establishment of panels

3

Quickness: through strict deadlines4

Legal quality: guaranteed by the AB5

The improvements :

6 Enforcement: through cross-retaliation6


Timetable

60 days Consultations, mediation, etc

45 days Panel set up and panelists appointed

6 months Final panel report to parties

3 weeks Final panel report to WTO members

60 days DSB adopts report (if no appeal)

Total= 1 year (without appeal)

60-90 days Appeals report

30 days DSB adopts appeals report

Total= 1 y 3 m (with appeal)

15 months Implementation

30 days Retaliation (in case of non-implementation)


Necessary stage

A diplomatic measure aimed to reach amicable solution.

Time limit: 60 days after the request.

The first stage: Consultation


The second stage: Panel process

A. Establishment of a panel

Condition: consultations fail within 60-day time frame.Condition: consultations fail within 60-day time frame.

a

The selection of 3 panelists:(i) suggestion from the Secretariat (ii) parties nominate the panelists (never happened, because they never agree with each other)(iii) DG nominates the panelists ( it’s always the case)

The selection of 3 panelists:(i) suggestion from the Secretariat (ii) parties nominate the panelists (never happened, because they never agree with each other)(iii) DG nominates the panelists ( it’s always the case)

b




3 categories of panelists: government officials; former secretariat officials; trade academics or lawyers.

3 categories of panelists: government officials; former secretariat officials; trade academics or lawyers.

c

Qualification of panelists: no nationals of parties or third parties, absent agreement of the parties; one panelist coming from a developing country (if requested) in a case involving a developing country.

Qualification of panelists: no nationals of parties or third parties, absent agreement of the parties; one panelist coming from a developing country (if requested) in a case involving a developing country.

d




Rules of conduct: to be independent and impartial, avoiding direct or indirect conflicts of interest and respecting the confidentiality of proceedings.

Rules of conduct: to be independent and impartial, avoiding direct or indirect conflicts of interest and respecting the confidentiality of proceedings.

e



B. Who appears before panels?

Complainants & respondentsComplainants & respondentsa

-Does a complainant need to demonstrate legal interest as a pre-requisite to submit a particular dispute?

-The composition of delegations participating in WTO dispute settlement proceedings.




Third partiesThird partiesb

-Legal basis: Art.10 of DSU

-timing of the request to participate as third party

-rights




Amicus curiaeAmicus curiaec

The statement of AB in U.S.—Shrimp (WT/DS58) :

The panel was not prohibited from examining amicus

curiae(法庭之友 ) briefs.



C. The task of panels

Terms of reference: defined by the request for establishment of a panel.Terms of reference: defined by the request for establishment of a panel.

a

DSU Art.7.1:“To examine, in the light of the relevant provisions in (name

of the covered agreement (s) cited by the parties to the dispute), the matter referred to the DSB by (name of party) in document ... and 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).”




Terms of reference: defined by the request for establishment of a panel.Terms of reference: defined by the request for establishment of a panel.

a

The roles of the panel request: -To define the terms of reference of the panel. The panel is not

entitled to cite other provisions or agreements not cited by the complaining party in the panel request.

-To inform the responding party and third parties its claim so that they have chances to respond to the case.

The requirement for drafting the panel request: -The complaining party must include all the relevant provisions in

the panel request since it could not add new claims afterwards. (due process)




Objective assessment of the matter before itObjective assessment of the matter before it

The facts of the case.

The applicability of and conformity with the relevant WTO agreements.

The deliberate disregard of, refusal to consider, wilful distortion or misrepresentation of the evidence put before a panel is not allowed.

b



D. Sources restraining a panel’s jurisdiction

(a) A panel’s authority lapses

(b) Parallelism of the subject matter

(c) Res Judicata （一事不再理）

The parties could not bring a suit again on an event

which was the subject of a previous legal cause of action

that has already been finally decided between them.

(d) Mutually Agreed Solutions



D. Sources restraining a panel’s jurisdiction

(e) Agreements between parties as to the ambit of their dispute

(f) Estoppel （禁止反言） A person is prohibited from denying or asserting anything to the

contrary of that which has, been established as the truth by his own deed, acts, or representations, either express or implied.

(g) Mandatory versus discretionary legislation

(h) Measures challenged must be in effect when the panel is established


Step 1

Step 2

Step 3

Each side presents its case in writing to the panel

First hearing

Step 4

Step 5

Step 6

Step 7

Step 8

Final report & its adoption

(reverse consensus)

Rebuttals/second meeting

Experts

First draft

Interim report

Review


E. The procedure


A. The Appellate Body:

The qualification of AB members: legal experts Usually, a case is heard by a division of 3 AB

members, which are selected by a secret procedure that is based on randomness, unpredictability and the opportunity for all members to serve without regard to national origin.

a permanent body consisting of 7 members, appointed for four-year terms with one reappointment permitted.

The third stage: Appellate Review


B. Who appears before the AB?

(a) The parties to a dispute

Appellant v. appellee

Only parties to a dispute , not third parties, may appeal a panel report.

(b) Third parties

(c) Amicus curiae



C. Terms of reference:

Only issues of law and legal interpretation in the panel report.



D. Power of the AB:

Shortcoming: the AB has no power to remand a case to a panel. The practice: to complete the analysis of particular issues in order to

resolve cases where it has reversed a panel’s findings.

Two conditions: the factual record before the AB is sufficient; there was a logical continuum between the legal provisions invoked.

to reverse, modify or affirm panel decisions.



A. Conclusions of the panel/AB report:

The fourth stage: Enforcement

a Rulings: is the measure at issue consistent with WTO rules?

Art.19.1 of DSU: Where a panel or the Appellate Body concludes that a measure is inconsistent with a covered agreement, it shall recommend that the Member concerned bring the measure into conformity with that agreement. In addition to its recommendations, the panel or Appellate Body may suggest ways in which the Member concerned could implement the recommendations.




b Recommendations:-Panels must issue recommendations in case an inconsistency has been established;-They are binding on their addressees;-They have an inflexible content: the respondent must bring its measures into conformity with WTO obligations;-They essentially amount to an obligation of result, in the sense that they allow WTO Members to choose the means (specific conduct) to reach the requested result (consistency with the WTO).




c -Panels have discretion to issue them, even if they are requested to do so;-They are not binding on their addressees who might choose to ignore them;-Their content is flexible and panels have discretion to shape it;The panel report on EC-Export Subsidies on Sugar is the only case so far where a panel suggested.


A. Implementation:


XII.CONCLUSIONS12.1 In light of our findings in Section XI.A, we conclude that it has not been proved that Resolution (ANA) No. 2235/96 is inconsistent with Argentina's obligations under Article XI:1 of the GATT 1994.12.2 In light of our findings in Section XI.B, we conclude that Resolution (ANA) No. 2235/96 is inconsistent with Argentina's obligations under Article X:3(a) of the GATT 1994.12.3-12.6 omitted12.7 We recommend that the Dispute Settlement Body request Argentina to bring Resolution (ANA) No. 2235/96 as well as General Resolutions (DGI) No. 3431/91 and 3543/92 into conformity with its obligations under the GATT 1994.

——Argentina – Measures Affecting The Export of Bovine Hides and The Import of Finished Leather (WT/DS155/R)


B. The period of implementation


a Prompt compliance is preferred.

b Reasonable period of time for implementation (within 15 months) - Proposals of the responding party approved by the DSB - Mutual agreements between the parties - Through arbitration under Art.21.3


C. Compliance review (Art.21.5)


a Subject matter: Disagreement as to the existence or consistency with a covered agreement of measures taken to comply with the recommendations and rulings.




b The procedure: panel process (within 90 days) → appellate review Request to establish a compliance panel: -citing the recommendations rulings of the DSB in the original dispute as well as any preceding Art.21.5 proceedings, which, according to the complaining party, have not yet been complied with; -identifying the measures already taken by the respondent, as well as any omissions or deficiencies therein, or stating that no such measures have been taken by the respondent; -providing a legal basis for its complaint, by specifying how the measure taken, or not taken, fail to remove the WTO-inconsistencies found in the previous proceedings, or whether they have brought about new WTO-inconsistencies.




c Time limit: no If the winning party is still unsatisfied with the second implementation measures taken by the losing party, it could launch a second compliance review.

Examples: Brazil- Aircraft (DS46); Canada- Dairy products (DS103); EC-bananas III (DS27)


D. Remedies in case of non-implementation (temporary):


a Compensation

Voluntary, through consultation between the parties. In the forms of tariff concessions, increase of import quota, or

broadened market access, rather than monetary payment. Applied on the basis of MFN. Non-retroactive: aimed to compensate the nullification or

impairment of the interest accrued to the winning party after the expiry of the reasonable period of time for implementation.


Article 22.2 of DSU

“ If the Member concerned fails to bring the measure found to be inconsistent with a covered agreement into compliance therewith or otherwise comply with the recommendations and rulings within the reasonable period of time determined pursuant to paragraph 3 of Article 21, such Member shall, if so requested, and no later than the expiry of the reasonable period of time, enter into negotiations with any party having invoked the dispute settlement procedures, with a view to developing mutually acceptable compensation. ‖ If no satisfactory compensation has been agreed within 20 days after the date of expiry of the reasonable period of time, any party having invoked the dispute settlement procedures may request authorization from the DSB to suspend the application to the Member concerned of concessions or other obligations under the covered agreements.”


Article 22.6 of DSU

“When the situation described in paragraph 2 occurs, the DSB, upon request, shall grant authorization to suspend concessions or other obligations within 30 days of the expiry of the reasonable period of time unless the DSB decides by consensus to reject the request……”




b Retaliation

(i) Prerequisite consultation on compensation fails within 20 days after the date of expiry of the reasonable period.

non-implementation within reasonable period of time;


(ii) Means:suspension of concessions

in other agreements

in other sector in the same agreement

in the same sector in the same agreement



b Retaliation


Article 22.3 of DSU

“In considering what concessions or other obligations to suspend, the complaining party shall apply the following principles and procedures:(a) the general principle is that the complaining party should first seek to suspend concessions or other obligations with respect to the same sector(s) as that in which the panel or Appellate Body has found a violation or other nullification or impairment;(b) if that party considers that it is not practicable or effective to suspend concessions or other obligations with respect to the same sector(s), it may seek to suspend concessions or other obligations in other sectors under the same agreement;(c) if that party considers that it is not practicable or effective to suspend concessions or other obligations with respect to other sectors under the same agreement, and that the circumstances are serious enough, it may seek to suspend concessions or other obligations under another covered agreement;”


(iii) The level



c Retaliation

The level of nullification or impairment covers only the time-period after the DSB has granted authorization. (prospective rather than retroactive)

To be “equivalent” to the level of nullification or impairment.


(iv) Arbitration under Art.22.6



c Retaliation

The arbitration is final. The parties could not initiate the arbitration again.

Subject matter: the level of suspension proposed; violation of the principles and procedures on suspension of concessions.

Time frame: within 60 days after the date of expiry of the reasonable period of time.


1. The conflict between Art. 21.5 and Art. 22.6

Critical issues in the WTO Dispute Settlement:

Procedure under Art. 21.5：Panel procedure shall be completed within 90 days of the expiry of the reasonable period of time for implementation. In addition, it is possible that the party would appeal the panel report.Procedure under Art. 22.6：The DSB shall grant authorization to suspend concessions within 30 days of the expiry of the reasonable period of time for implementation. Even if the losing party objects to the level of suspension and initiates an arbitration, the arbitration shall be completed within 60 days after the date of expiry of the reasonable period of time.




A. The dilemma: The DSB already granted the winning party authorization to suspend concessions or the arbitration on the level of suspension already concluded while the panel procedure on whether the implementation measures taken by the losing party comply with the DSB recommendations has not been completed. EC-bananas III (WT/DS27) 4 procedures:Ecuador: requesting for a compliance review under Art.21.5E.C.: requesting for a compliance review under Art.21.5U.S.: requesting for retaliation authorization and was allowed by the DSBE.C.: requesting for an arbitration under Art.22.6




B. The solution: Both the art.21.5 panel procedure and art.22.6 arbitration procedure will be commenced promptly after the end of the expiry of the reasonable period of time, but the art.22.6 arbitration procedure will be suspended until the art.21.5 panel rules (and in some cases until any appeal has been concluded).


2. Conflict of norms


-The WTO charter prevails over any other WTO

agreements.

-Any other Annex 1A agreements prevail over GATT

1994.


3. The effect of previous cases


Prior cases do play an important role in dispute settlement.

Both the panel and the Appellate Body frequently support their

decisions by extensive citation and quotation of prior decisions.


4. The applicable law:


Art.3.2“The dispute settlement system of the WTO is a central element in providing security and predictability to the multilateral trading system. The Members recognize that it 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. Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements.”


A. Covered agreements (DSU Appendix1)

B. Incorporated intl. agreements (Havana Charter; agreements

referred to in TRIPs, SCM agreements)

C. Secondary law

-Amendments & waivers adopted by joint action of WTO Members

-decisions & recommendations by WTO adjudicating bodies

-intl. agreements to which WTO is a party




D. Interpretative elementsArt. 31, 32, 33 of Vienna Convention on the Law of Treaties(1)Ordinary meaning of its terms(2)Context(3)The object and purpose of the treaty(4)Relevant subsequent practice(5)Subsequent agreements on the same subject matter(6)Any relevant rules of public intl. law applicable in the relations between the parties(7)Supplementary means of interpretation




Assignment

Please search the following documents and answer the

questions.

1.CHINA – MEASURES AFFECTING IMPORTS OF AUTOMOBILE PARTS

Request for the Establishment of a Panel by the European

Communities

(WT/DS339/8)

(1)What are the specific measures at issue?

(2)Please list the relevant provisions cited by the EC.

(3)Were consultations between the EC and China ever held?


Assignment

2. European Communities — Measures Affecting Asbestos

and Products Containing Asbestos

Panel report (WT/DS135/R) & AB report (WT/DS135/AB/R)

(1) What are the claims of Canada? What is the measure at

issue?

(2) What are the panel’s findings regarding the measure at

issue?

(3) In the Appellate Body’s view, is the measure at issue

consistent with the obligations of the European Communities

under the covered agreements?


1. (1)What are the specific measures at issue?This request concerns the People's Republic of China's (hereinafter "China")

imposition of measures that adversely affect exports of automobile parts from the European Communities to the Chinese market. Specifically, this request concerns:

–Policy on Development on Automotive Industry (Order No. 8 of the National Development and Reform Commission, 21 May 2004);

–China's Measures for the Administration of Importation of Automotive Parts and Components for Complete Vehicles (Decree No. 125), which entered into force on 1 April 2005;

–China's Rules for Determining Whether Imported Automotive Parts and Components Constitute Complete Vehicles (General Administration of Customs Public Announcement No. 4), which entered into force on 1 April 2005.

For each of the measures referred to above, this request also covers any amendments, replacements, extensions, implementing measures or other related measures.


1. (2) Please list the relevant provisions cited by the EC.

Article II:1(a) and (b) of the GATT 1994 ； Article III:2 of the GATT

1994 ； Article III:4 of the GATT 1994 ； Article III:5 of the GATT

1994 ； Article 2.1 and Article 2.2 of the TRIMs ； Article 3 of the

SCM ； the Protocol on the Accession of the People's Republic of

China to the WTO, in particular Part I paragraph 7.3 of the Protocol

of Accession of China, and in paragraph 203 of the Working Party

Report on the Accession of China in conjunction with Part I,

paragraph 1.2 of the Protocol of Accession of China, and paragraph

342 of the Working Party Report on the Accession of China ； Part I

paragraph 7.2 of the Protocol of Accession of China ； Article

XXIII:1(b) GATT 1994.


1. (3) Were consultations between the EC and China ever held?

On 30 March 2006, the European Communities requested

consultations with China with a view to reaching a mutually

satisfactory solution of the matter. The request was circulated in

document WT/DS339/1 dated 3 April 2006. The consultations were

held on 11 and 12 May 2006 in Geneva on the above-mentioned

and other measures. They have not led to a satisfactory resolution

of the matter.


2.(1) What are the claims of Canada? What is the measure at issue?

Para.3.1-3.2: Part III.ARGUMENTS OF THE PARTIES; A. claims by the parties

Para.8.3-8.5: Part VIII. Findings; A. summary of the facts at the origin of this dispute and claims by the parties; 2.Main claims by the parties

3.1 In view of the facts and arguments put forward, Canada requests the Panel to find that:

(a) Decree No. 96-1133 of 24 December 1996 banning asbestos is incompatible with the Agreement on Technical Barriers to Trade insofar as it is a technical regulation that:

(i) Creates an unnecessary obstacle to international trade contrary to the provisions of Article 2.2;

(ii) is not based on effective and appropriate international standards – nor is it in compliance with them – contrary to the provisions of Article 2.4;


2.(1) What are the claims of Canada? What is the measure at issue?(iii) is not based on orders relating to chrysotile（温石棉） and chrysotile-

containing products with respect to the product performance of chrysotile, contrary to the provisions of Article 2.8; and

(iv) violates the national treatment disciplines and the most-favoured-nation clause of Article 2.1.

(b) In addition, the Decree is incompatible with the GATT 1994 in that it:

(i) Creates a prohibition or a restriction on the import of chrysotile and chrysotile-containing products, contrary to the provisions of Article XI.1; and

(ii) favours the national industry of products like chrysotile fibre and chrysotile-cement products, contrary to the national treatment disciplines of Article III:4.

3.2 In the event that the Panel is unable to find a violation of Article XXIII.1(a) of the GATT 1994, Canada requests that the Panel find a violation of Article XXIII.1(b) of the GATT 1994.


Article XXIII.1(b) of the GATT 1994:"1. If any contracting party should consider that any benefit accruing to

it directly or indirectly under this Agreement is being nullified or impaired or that the attainment of any objective of the Agreement is being impeded as the result of […]

(b) the application by another contracting party of any measure, whether or not it conflicts with the provisions of this Agreement,

[…]the contracting party may, with a view to the satisfactory adjustment of the matter, make written representations or proposals to the other contracting party or parties which it considers to be concerned. Any contracting party thus approached shall give sympathetic consideration to the representations or proposals made to it."


Non-violation complaint is an exceptional cause of action. The rationale has to do with the explicit acknowledgement that benefits accruing to the various WTO Members can be nullified as a result of either a GATT-inconsistent or GATT-consistent behavior.

①burden of proof:The complaint bears the burden of providing a detailed justification for

its claim in order to establish a presumption that what is claimed is true. It will be for the respondent to rebut any such presumption.

②conditions:Three elements whose existence a complainant must prove in order to

be able legitimately to invoke that provision, namely: (1) the application of a measure by a Member of the WTO;

(2) the existence of a benefit accruing under the applicable agreement; and

-A benefit exists in the legitimate expectation of improved market access opportunities.

(3) the nullification or impairment of a benefit as a result of the application of the measure.


2. (2) What are the panel’s findings regarding the measure at issue?Para.9.1:In the light of the above, the Panel concludes as follows: (a) On the basis of its findings in Section VIII.D above, the Panel

concludes that the "prohibition" part of the Decree does not fall within the scope of the TBT Agreement. The part of the Decree relating to "exceptions" does fall within the scope of the TBT Agreement. However, as Canada has not made any claim concerning the compatibility with the TBT Agreement of the part of the Decree relating to exceptions, the Panel refrains from reaching any conclusion with regard to the latter.

(b) On the basis of its findings in Section VIII.E.2 above, the Panel concludes that chrysotile asbestos fibres as such and fibres that can be substituted for them as such are like products within the meaning of Article III:4 of the GATT 1994. Similarly, the Panel concludes that the asbestos-cement products and the fibro-cement products for which sufficient information has been submitted to the Panel are like products within the meaning of Article III:4 of the GATT 1994.


2. (2) What are the panel’s findings regarding the measure at issue?

Para.9.1:

(c) With respect to the products found to be like, the Panel concludes

that the Decree violates Article III:4 of the GATT 1994.

(d) However, on the basis of its findings in Section VIII.E.4 above, the

Panel concludes that the Decree, insofar as it introduces a

treatment of these products that is discriminatory under Article III:4,

is justified as such and in its implementation by the provisions of

paragraph (b) and the introductory clause of Article XX of the

GATT 1994.

(e) Finally, the Panel concludes, on the basis of its findings in Section

VIII.F above, that Canada has not established that it suffered non-

violation nullification or impairment of a benefit within the meaning

of Article XXIII:1(b) of the GATT 1994.


2. (3) In the Appellate Body’s view, is the measure at issue consistent with the obligations of the European Communities under the covered agreements?

Para.192-193:192. For the reasons set out in this Report, the Appellate Body:(a) reverses the Panel's finding, in paragraph 8.72(a) of the Panel Report,

that the TBT Agreement "does not apply to the part of the Decree relating to the ban on imports of asbestos and asbestos-containing products because that part does not constitute a 'technical regulation' within the meaning of Annex 1.1 to the TBT Agreement", and finds that the measure, viewed as an integrated whole, does constitute a "technical regulation" under the TBT Agreement;



Para.192-193: (b) reverses the Panel's findings, in paragraphs 8.132 and 8.149 of the

Panel Report, that "it is not appropriate" to take into consideration the health risks associated with chrysotile asbestos fibres in examining the "likeness", under Article III:4 of the GATT 1994, of those fibres and PCG fibres(温石棉纤维和聚乙烯醇纤维、纤维素、玻璃纤维（后三者统称 PCG纤维） ), and, also, in examining the "likeness", under that provision, of cement-based products containing chrysotile asbestos fibres or PCG fibres;

(c) reverses the Panel's finding, in paragraph 8.144 of the Panel Report, that chrysotile asbestos fibres and PCG fibres are "like products" under Article III:4 of the GATT 1994; and finds that Canada has not satisfied its burden of proving that these fibres are "like products" under that provision;



Para.192-193:(d) reverses the Panel's finding, in paragraph 8.150 of the Panel Report,

that cement-based products containing chrysotile asbestos fibres and cement-based products containing PCG fibres are "like products" under Article III:4 of the GATT 1994; and finds that Canada has not satisfied its burden of proving that these cement-based products are "like products" under Article III:4 of the GATT 1994;

(e) reverses, in consequence, the Panel's finding, in paragraph 8.158 of the Panel Report, that the measure is inconsistent with Article III:4 of the GATT 1994;

(f) upholds the Panel's finding, in paragraphs 8.194, 8.222 and 8.223 of the Panel Report, that the measure at issue is "necessary to protect human … life or health", within the meaning of Article XX(b) of the GATT 1994; and, finds that the Panel acted consistently with Article 11 of the DSU in reaching this conclusion;



Para.192-193:(g) upholds the Panel's finding, in paragraphs 8.265 and 8.274 of the

Panel Report, that the measure may give rise to a cause of action under Article XXIII:1(b) of the GATT 1994.

193. It follows from our findings that Canada has not succeeded in establishing that the measure at issue is inconsistent with the obligations of the European Communities under the covered agreements and, accordingly, we do not make any recommendations to the DSB under Article 19.1 of the DSU.

上海政法学院

Documents

The Legal System of the WTO 主讲人：宋俊荣 E-mail ： [email protected] 主讲人：宋俊荣 E-mail ： [email protected] 国际法商系