WTO Dispute Settlement Mechanism(7)/刘成伟(16)
(c)Recent WTO panel reports confirm, too, that legislation as such, independently from its application in a specific case, can be inconsistent with WTO rules.”
Clearly, it is established that legislation as such, independently from its application in a specific case, can be inconsistent with WTO rules and therefore can be brought before the DSB. However, what role panels may play when called upon to resolve settlement concerning legislation as such?
As noted above, panels may have jurisdiction as to domestic law once brought before them appropriately. In practice, panels often have to address domestic laws, In respect of the examination of domestic or municipal law by WTO panels, in some circumstances, it is clear that an examination of the relevant aspects of municipal law is essential to determining whether Members to a dispute have complied with their obligations under the covered agreements.
However, as stressed in the DSB practice, panels’ mandate is to examine municipal law solely for the purpose of determining whether Members meet their WTO obligations. In doing so, panels do not interpret municipal law “as such”, the way they would, say, interpret provisions of the covered agreements. Panels are, instead, called upon by the DSB to the meaning of domestic law as factual elements and to check whether these factual elements constitute conduct by the Members contrary to their WTO obligations. The rules on burden of proof for the establishment of 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 necessarily 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
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