WTO Dispute Settlement Mechanism(3)/刘成伟(32)
[…] We do not believe, however, that either Article 4.7 of the DSU or Article 4.4 of the SCM Agreement requires a precise identity between the matter with respect to which consultations were held and that with respect to which establishment of a panel was requested.”
This ruling is confirmed by the Appellate Body: “We do not believe, however, that Articles 4 and 6 of the DSU, or paragraphs 1 to 4 of Article 4 of the SCM Agreement, require a precise and exact identity between the specific measures that were the subject of consultations and the specific measures identified in the request for the establishment of a panel.” 4
In short, panel’s terms of reference are determined, not with reference to the request for consultations, or the content of the consultations, but only with reference to the request for the establishment of a panel.
III The “matter referred to the DSB”
As noted above, panel’s terms of reference are firstly the standard terms of reference provided for in Art. 7.1 of the DSU. Under those terms of reference, panels are required to examine the “matter referred to the DSB” by the complaint in its request for establishment. However, Art. 7 of the DSU itself does not shed any further light on the meaning of the term “matter”.
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