[ 刘成伟 ]——(2003-7-7) / 已阅68245次

18. See, WT/DS122/AB/R/95.
19. See, WT/DS122/AB/R/88.
20. See, WT/DS98/AB/R/127.
21. See, WT/DS122/AB/R/97.
22. See, WT/DS122/R/7.13-7.14.




Section Three
Terms of Reference of Panels: Art. 7

I Introduction
Panel's terms of reference are governed by Art. 7 of the DSU which states:

“1. Panels shall have the following terms of reference unless the parties to the dispute agree otherwise within 20 days from the establishment of the panel:
‘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).’
2. Panels shall address the relevant provisions in any covered agreement or agreements cited by the parties to the dispute.
3. In establishing a panel, the DSB may authorize its Chairman to draw up the terms of reference of the panel in consultation with the parties to the dispute, subject to the provisions of paragraph 1. The terms of reference thus drawn up shall be circulated to all Members. If other than standard terms of reference are agreed upon, any Member may raise any point relating thereto in the DSB. ”

The fundamental importance of a panel's terms of reference has been stressed on more than one occasion. For example, the Appellate Body rules in Brazil-Coconut（DS22）that, a panel's terms of reference are important for two reasons: “First, terms of reference fulfil an important due process objective -- they give the parties and third parties sufficient information concerning the claims at issue in the dispute in order to allow them an opportunity to respond to the complainant's case. Second, they establish the jurisdiction of the panel by defining the precise claims at issue in the dispute.” 1
However, with regard to the issue of panel’s terms of reference, what we will firstly get down to is the relationship between the terms of reference and the consultation process.

II Effect of Consultations on Terms of Reference of Panels
Consultations are a crucial and integral part of the DSU and are intended to facilitate a mutually satisfactory settlement of the dispute, consistent with Article 3.7 of the DSU. However, as noted previously, what takes place in those consultations is not the concern of a panel. With regard to the issue discussed here, the Panel in Turkey-Textile and Clothing (DS34) rules that:2
“Firstly, we note that in EC - Bananas III the panel concluded that the private nature of the bilateral consultations means that panels are normally not in a position to evaluate how the consultations process functions, but could only determine whether consultations, if required, did in fact take place. In this case, the parties never consulted, as Turkey declined to do so without the presence of the European Communities.
In Korea - Taxes on Alcoholic Beverages the Panel concluded that: ‘… the WTO jurisprudence so far has not recognized any concept of “adequacy” of consultations. The only requirement under the DSU is that consultations were in fact held, or were at least requested, and that a period of sixty days has elapsed from the time consultations were requested to the time a request for a panel was made. …’
We concur with this statement. We note also that our terms of reference (our mandate) are determined, not with reference to the request for consultations, or the content of the consultations, but only with reference to the request for the establishment of a panel. Consultations are a crucial and integral part of the DSU and are intended to facilitate a mutually satisfactory settlement of the dispute, consistent with Article 3.7 of the DSU. However, the only function we have as a panel in relation to Turkey's procedural concerns is to ascertain whether consultations were properly requested, in terms of the DSU, that the complainant was ready to consult with the defendant and that the 60-day period has elapsed before the establishment of a panel was requested by the complainant. We consider that India complied with these procedural requirements and therefore we find it necessary to reject Turkey's claim.”
Another Panel in Brazil-Aircraft (DS46) follows a similar line:3
“We recall that our terms of reference are based upon Canada's request for establishment of a panel, and not upon Canada's request for consultations. These terms of reference were established by the DSB pursuant to Article 7.1 of the DSU and establish the parameters for our work. Nothing in the text of the DSU or Article 4 of the SCM Agreement provides that the scope of a panel's work is governed by the scope of prior consultations. Nor do we consider that we should seek to somehow imply such a requirement into the WTO Agreement. One purpose of consultations, as set forth in Article 4.3 of the SCM Agreement, is to ‘clarify the facts of the situation’, and it can be expected that information obtained during the course of consultations may enable the complainant to focus the scope of the matter with respect to which it seeks establishment of a panel. Thus, to limit the scope of the panel proceedings to the identical matter with respect to which consultations were held could undermine the effectiveness of the panel process.
[…] We do not believe, however, that either Article 4.7 of the DSU or Article 4.4 of the SCM Agreement requires a precise identity between the matter with respect to which consultations were held and that with respect to which establishment of a panel was requested.”
This ruling is confirmed by the Appellate Body: “We do not believe, however, that Articles 4 and 6 of the DSU, or paragraphs 1 to 4 of Article 4 of the SCM Agreement, require a precise and exact identity between the specific measures that were the subject of consultations and the specific measures identified in the request for the establishment of a panel.” 4
In short, panel’s terms of reference are determined, not with reference to the request for consultations, or the content of the consultations, but only with reference to the request for the establishment of a panel.

III The “matter referred to the DSB”
As noted above, panel’s terms of reference are firstly the standard terms of reference provided for in Art. 7.1 of the DSU. Under those terms of reference, panels are required to examine the “matter referred to the DSB” by the complaint in its request for establishment. However, Art. 7 of the DSU itself does not shed any further light on the meaning of the term “matter”.
Nevertheless, when read together with Art. 6.2 of the DSU, the precise meaning of the term “matter” prescribed in Art. 7 of the DSU becomes clear. Art. 6.2 specifies the requirements for a complaining Member to refer the “matter” to the DSB. In order to seek the establishment of a panel to hear its complaint, a Member must make, in writing, a “request for the establishment of a panel”. In addition to being the document which enables the DSB to establish a panel, the panel request is also usually identified in the panel's terms of reference as the document setting out “the matter referred to the DSB”.
For example, the Appellate Body rules in Brazil-Coconut (DS22) that: “We agree, furthermore, with the conclusions expressed by previous panels under the GATT 1947, as well as under the Tokyo Round SCM Code and the Tokyo Round Anti-dumping Code, that the ‘matter’ referred to a panel for consideration consists of the specific claims stated by the parties to the dispute in the relevant documents specified in the terms of reference. We agree with the approach taken in previous adopted panel reports that a matter, which includes the claims composing that matter, does not fall within a panel's terms of reference unless the claims are identified in the documents referred to or contained in the terms of reference.” 5
More explicitly, as observed by the Panel in India-Automotive Sector (DS146/DS175), “[i]n the context of WTO dispute settlement, the notion of ‘matter’, as referred to in Article 7.1 of the DSU, determines the scope of what is submitted, and what can be ruled upon, by a panel. As confirmed by the Appellate Body in the Guatemala - Cement case, the matter referred to the DSB consists of two elements: the specific measures at issue and the legal basis of the complaint (or the claims). This appears to the Panel to be the most appropriate minimal benchmark by which to assess whether the conditions of res judicata could conceivably be met, if such a notion was of relevance.”.6
To sum up, on the one hand, the “matter referred to the DSB” consists of two elements: the specific measures at issue and the legal basis of the complaint. On the other hand, past practice requires that a claim has to be included in the documents referred to, or contained in, the terms of reference in order to form part of the ‘matter’ referred to a panel for consideration. Thus, a claim must be included in the request for establishment of a panel in order to come within terms of reference of panels.

【NOTE】:
1. See, WT/DS22/AB/R/ VI.
2. See, WT/DS34/R/9.22-9.24.
3. See, WT/DS46/R/7.9-7.10.
4. See, WT/DS46/AB/R/132.
5. Supra. note 1.
6. See, WT/DS146/R; WT/DS175/R/7.65.

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