WTO Dispute Settlement Mechanism(7)/刘成伟(66)
Most importantly, Art. 17.5(ii) can never be deemed to require that a panel consider those facts exclusively in the format in which they were originally available to the investigating authority. In any event, the statement of Art. 17.5(ii) that the DSB shall establish a panel to examine the matter based upon: “the facts made available in conformity with appropriate domestic procedures to the authorities of the importing Member”, does not mean that a panel is frozen into inactivity. It does not offer any basis for refusing to consider a claim by a party in a dispute settlement merely because the subject matter of the claim were not raised before the investigating authorities under national law. This is to be confirmed by some rulings from the Appellate Body below.
Whatever merits Art. 17.6 of the AD Agreement bears, it offers no clear guidance rather than causing some issues of interpretation. Therefore, the author thinks it much useful and unavoidable to examine how and to what extent the Appellate Body have applied and interpreted this article.
总共71页
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