最美铁路人WTO Dispute Settlement Mechanism(4)
WTO Dispute Settlement Mechanism(4)
Chapter IVFunction of Panels: Art. 11 of the DSUOUTLINEI IntroductionII Application of Art. 11 as a General Standard of ReviewIII Review in “neither de novo nor total defence”IV Allegation against Panels’ Standard of ReviewV Exerci of Judicial EconomyI IntroductionThe function of panels is expressly defined
in Art. 11 of the DSU, which reads as follows:“The function of panels is to assist the DSB in discharging
its responsibilities under this Understanding and the covered agreements. Accordingly, a panel should make an objective asssment of the matter before it, including an objective asssment of the facts of the ca and the applicability of and conformity with the relevant covered agreements, and make such other findings as will assist the DSB in making the remendations or in giving the rulings provided for in the covered agreements. Panels should consult regularly with the parties to the dispute and give them adequate opportunity to develop a mutually satisfactory solution.”This provision suggests that the
function of panels is to make an objective asssment such as to assist the DSB in making the remendations or
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灰太郎in giving the rulings provided for in the covered agreements. However, how do panels fulfill their functions as provided in Art. 11 of the DSU? It is the issue that we will touch on in this chapter. In this chapter, the author explores on the standard of review issue under the WTO, i.e. “an objective asssment”; as well as on the exercid judicial economy principle developed in panel’s review.With regard to the standard of review issue, the GATT/WTO dispute ttlement procedures have increasingly confronted questions concerning the degree to which an international body, under the GATT/WTO, should “cond guess” a decision of a national government agency concerning economic regulations that are allegedly inconsistent with an international rule. It ems clear that the international agreement doesn’t permit a national government’s determination always to prevail, otherwi the international rules could be easily evaded or rendered ineffective. But should the international body approach the issues involved without any deference to the national
写给15岁的自己government? It has been argued in the GATT/WTO proceedings that panels should respect national government determinations, up to some point. That “point” is the crucial issue that has sometimes been labelled the “standard of review”.1Of cour, this issue is not unique to the GATT/WTO. Naturally, the standard-of-review issue is one that many legal systems face. “The standard-of-review question is faced at least implicitly whenever sovereign members of a treaty yield interpretive and dis
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过去将来完成时pute ttlement powers to international panels and tribunals. Moreover, as national economies bee increasingly interdependent, and as the need for international cooperation a
nd coordination accordingly bees greater, the standard-of-review question will bee increasingly important.” 2 And “it can be en that the standard-of-review question is a recurring and delicate one, and one that to some extent goes to the core of an international procedure that must (in a rule-bad system) asss a national government’s actions against treaty or other international nor ms”. 3 However, for the immediate purpo, we want to focus below on the more particular
question of the proper standard of review for a WTO panel when it undertakes to examine a national government’s actions or rulings that engage the question of consistency with the various WTO agreements and are subject to the DSU procedures.II Application of Art. 11 as a General Standard of ReviewUnder the WTO jurisprudence, it’s demonstrated that Art. 11 of the DSU has been applied as a general standard of review. Art. 11 suggests that the function of panels is to make “an objective asssment” so as to assist the DSB in making the remendations or in giving the rulings provided for in the covered agreements. For exle, in US-Shirts and Blous (DS33), the Panel rules tha t, “although the DSU does not contain any specific reference to standards of review, we consider that Article 11 of the DSU which describes the parameters of the function of panels, is relevant here”. 4A
nd the application of Art. 11 as a general standard of review under the DSU is analyzed systematically in EC-Hormones (DS26/DS48) where the Appellate Body rules that: 5“The first point that must be made in this connection, is that the SPS Agreement itlf is silent on the matter of an appropriate standard
of review for panels deciding upon SPS measures of a Member. Nor are there provisions in the DSU or any of the covered agreements (other than the Anti-Dumping Agreement) prescribing a particular standard of review. Only Article 17.6(i) of the Anti-Dumping Agreement has language on the standard of review to be employed by panels engaged in
溧水无想山the ‘asssment of the facts of the matter’. We find no indication in the SPS Agreement of an intent on the part
of the Members to adopt or incorporate into that Agreement the standard t out in Article 17.6(i) of the Anti-Dumping Agreement. Textually, Article 17.6(i) is specific to the Anti-Dumping Agreement.[…]We do not mean, however, to suggest that there is at prent no standard
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of the facts in proceedings under the SPS Agreement or under other covered agreements. In our view, Article 11
of the DSU bears directly on this matter and, in effect, articulates with great succinctness but with sufficient clarity the appropriate standard of review for panels in respect of both the ascertainment of facts and the legal characterization of such facts under the relevant
