WTO Dispute Settlement Mechanism(7)/刘成伟(18)
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 under the GATT/WTO consistently consider that, under Article XXIII of the GATT, they have the jurisdiction to deal with claims against legislation as such. Such ruling is also confirmed by the WTO practice.
However, panels can never substitute domestic authorities of their role in interpreting national law. Panels have to find their appropriate approaches to domestic law. In this respect, in general, as summarized by the Appellate Body in US-1998 Act (DS176), “the municipal law of WTO Members may serve not only as evidence of facts, but also as evidence of compliance or non-compliance with international obligations. Under the DSU, a panel may examine the municipal law of a WTO Member for the purpose of determining whether that Member has complied with its obligations under the WTO Agreement. Such an assessment is a legal characterization by a panel”. 9
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