WTO Dispute Settlement Mechanism(3)/刘成伟(40)
In sum, Art. 21.5 proceedings involve, in principle, not the original measure, but rather a new and different measure which was not before the original panel. And the subject-matter of these proceedings is determined by two benchmarks: Art. 21.5 of the DSU and panel’s specific terms of reference set out in the request for establishment of a panel that refers, in turn, to the matter and relevant provisions of the covered agreements referred to the DSB.
III Perspective of Review under Art. 21.5
What discussed above is just one aspect of the mandate of a compliance panel under Art. 21.5 of the DSU. What should panels do in carrying appropriately out the review envisaged under Art. 21.5 of the DSU? In Australia-Salmon (DS18)（21.5）, the Compliance Panel rules, in pertinent part: 7
“We note that Article 21.5 itself refers to two types of disagreements, namely disagreements as to ‘the existence or consistency with a covered agreement of measures taken to comply with [DSB] recommendations and rulings’. Australia's requests for preliminary rulings pertain to the second type of disagreements, those on the ‘consistency with a covered agreement of measures taken to comply with [DSB] recommendations and rulings’.
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