WTO Dispute Settlement Mechanism(3)/刘成伟(17)
The Bananas III panel found that the object and purpose of Article 6.2's specificity requirement is to ensure clarity of panels' terms of reference, which pursuant to Article 7 of the DSU are typically determined by the panel request, and to inform the respondent and potential third parties of the scope of the complaining party's claims (i.e., the ‘measures’ challenged and the WTO provisions invoked by the complaining party). So long as Article 6.2 is interpreted to require any ‘measure’ challenged to be specified in the panel request or to be subsidiary or closely related to the specified ‘measures’, the object and purpose of Article 6.2 are satisfied.
The proposed interpretation is also consistent with past WTO and GATT panel practice. The Bananas III panel is the only WTO panel to have interpreted the aspect of Article 6.2 at issue in this case, i.e., the definition of the ‘measures’ to be deemed covered by a panel request. In the Bananas III panel request, the ‘basic EC regulation at issue’ had been identified by place and date of publication. In addition, the request referred in general terms to ‘subsequent EC legislation, regulations and administrative measures ... which implement, supplement and amend [the EC banana] regime’. The Bananas III panel found that this reference was sufficient for the specificity requirement of Article 6.2 because the measures that the complainants were contesting were ‘adequately identified’, even though they were not explicitly listed. The Appellate Body agreed that the panel request ‘contains sufficient identification of the measures at issue to fulfil the requirements of Article 6.2’. In our view, ‘measures’ that are subsidiary or closely related to specified ‘measures’ can be found to be ‘adequately identified’ as that concept was applied in the Bananas III case.”
总共72页
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