WTO Dispute Settlement Mechanism(6)/刘成伟(23)
In addition, the Appellate Body rules that, “[a panel request] often forms the basis for the terms of reference of the panel pursuant to Article 7 of the DSU”26. And the panel request is normally submitted before the first substantive meeting. Subsequently, the defendant party has occasionally contested that panels should reject submissions of new evidence or arguments made after the first substantive meeting. In this respect, the author thinks it necessary to clarify several points as follows:
(a) There is a significant difference between the claims and the arguments supporting those claims.
As ruled by the Appellate Body in EC-Bananas (DS27), Art. 6.2 of the DSU requires that “the claims, but not the arguments”, must all be specified sufficiently in the request for the establishment of a panel. With this regard, the Appellate Body rule that, “… [i]n our view, there is a significant difference between the claims identified in the request for the establishment of a panel, which establish the panel's terms of reference under Article 7 of the DSU, and the arguments supporting those claims, which are set out and progressively clarified in the first written submissions, the rebuttal submissions and the first and second panel meetings with the parties”.27
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