WTO Dispute Settlement Mechanism(3)/刘成伟(34)
More explicitly, as observed by the Panel in India-Automotive Sector (DS146/DS175), “[i]n the context of WTO dispute settlement, the notion of ‘matter’, as referred to in Article 7.1 of the DSU, determines the scope of what is submitted, and what can be ruled upon, by a panel. As confirmed by the Appellate Body in the Guatemala - Cement case, the matter referred to the DSB consists of two elements: the specific measures at issue and the legal basis of the complaint (or the claims). This appears to the Panel to be the most appropriate minimal benchmark by which to assess whether the conditions of res judicata could conceivably be met, if such a notion was of relevance.”.6
To sum up, on the one hand, the “matter referred to the DSB” consists of two elements: the specific measures at issue and the legal basis of the complaint. On the other hand, past practice requires that a claim has to be included in the documents referred to, or contained in, the terms of reference in order to form part of the ‘matter’ referred to a panel for consideration. Thus, a claim must be included in the request for establishment of a panel in order to come within terms of reference of panels.
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