WTO Dispute Settlement Mechanism(3)/刘成伟(8)
We also note that Article 4.7 of the DSU provides:
If the consultations fail to settle a dispute within 60 days after the date of receipt of the request for consultations, the complaining party may request the establishment of a panel. The complaining party may request a panel during the 60-day period if the consulting parties jointly consider that consultations have failed to settle the dispute.
Article 4.7 also relates the conduct of the responding party concerning consultations to the complaining party's right to request the establishment of a panel. This provision states that the responding party may agree with the complaining party to forgo the potential benefits that continued pursuit of consultations might bring. Thus, Article 4.7 contemplates that a panel may be validly established notwithstanding the shortened period for consultations, as long as the parties agree. Article 4.7 does not, however, specify any particular form that the agreement between the parties must take. ”
To sum up, as to be discussed in more detail in next section, “the lack of prior consultations is not a defect that, by its very nature, deprives a panel of its authority to deal with and dispose of a matter”.6 However, according to Art. 1.2 of the DSU, this general proposition cannot deny the application of special or additional rules and procedures as are identified in Appendix 2 to the DSU. For example, the Appellate Body rules in Brazil-Airport（DS46）that, “Articles 4 and 6 of the DSU, as well as paragraphs 1 to 4 of Article 4 of the SCM Agreement, set forth a process by which a complaining party must request consultations, and consultations must be held, before a matter may be referred to the DSB for the establishment of a panel”.7
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