WTO Dispute Settlement Mechanism(3)/刘成伟(38)
And in this respect, we think the three points below made by the Compliance Panel in the Australia-Salmon (DS18)（21.5）merits attention for an appropriate understanding of “the measures taken to comply”:
Firstly, “we note that an Article 21.5 panel cannot leave it to the full discretion of the implementing Member to decide whether or not a measure is one ‘taken to comply’. If one were to allow that, an implementing Member could simply avoid any scrutiny of certain measures by a compliance panel, even where such measures would be so clearly connected to the panel and Appellate Body reports concerned, both in time and in respect of the subject-matter, that any impartial observer would consider them to be measures ‘taken to comply’.”4
Secondly, “[t]he question of whether a measure is one in the direction of WTO conformity or, on the contrary, maintains the original violation or aggravates it, can, in our view, not determine whether a measure is one ‘taken to comply’. If this were so, one would be faced with an absurd situation: if the implementing Member introduces a ‘better’ measure -- in the direction of WTO conformity -- it would be subject to an expedited Article 21.5 procedure; if it introduces a ‘worse’ measure -- maintaining or aggravating the violation -- it would have a right to a completely new WTO procedure. Our interpretation of ‘measures taken to comply’ is further supported by the practical difficulty of making a distinction between ‘better’ and ‘worse’ measures.”5
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