A

AB procedures (DSU 17.9 and ABWP)

additional procedures (ABWP 16(1)): see special or additional procedures (AB) (ABWP 16(1))
adoption, AB authority DSU 885
appellant’s submission (ABWP 21)

grounds for allegation of specific errors (ABWP 21:2) DSU 1432–3
materials attached to as integral part DSU 1431

appointment of members (DSU 17.2) DSU 837

table of appointments as at 30 September 2011 DSU 838

collegiality (ABWP 4) (AB communication of 7 February 1996) DSU 1369
competence: see standard/powers of review (AB) (issues of law and legal interpretations) (DSU 17.6)
compliance obligation DSU 1365–6
composition of delegation: see composition of delegation
divisions (ABWP 6) DSU 1371
documents (ABWP 18), failure to file by deadline (ABWP 18(1)) DSU 1397–402
due process and DSU 1366
establishment (DSU 17.1) DSU 836
failure to appear (AB 29) DSU 1467
multiple appeals (ABWP 23): see multiple appeals (notice of other appeal (ABWP 23)); multiple appeals (special procedure for consolidation (ABWP 16(1)))
notice of appeal: see notice of appeal, requirements (ABWP 20(2)(d))
oral hearings (ABWP 27)

see also public observation of oral hearing/ “passive participation” (ABWP 27(3))
AB authority to organize and conduct DSU 1449
consultation on date DSU 1454
multiple sessions/hearings DSU 1455–6

replacement of member (ABWP 13)

in case of death DSU 1373
Presiding Member DSU 1374
for serious personal reasons (ABWP 12) DSU 1375–6
special procedure (ABWP 16(1)) DSU 1385

reports

see also legal status of adopted AB reports (DSU 17.14), precedent

as clarification of parties’ arguments GATT 239 n. 347

time taken from date of circulation to date of adoption (table) DSU 904

Rules of Conduct, incorporation into ABWP

see also Rules of Conduct (RoC)

separate opinions (DSU 17.11) DSU 889

submission, correction of clerical error (ABWP 18(5)) DSU 1403–7

amendment (2005) DSU 1403–4

requests for DSU 1405–7

term of office (Chair) (ABWP 5(2)) DSU 1370

text (ABWP) DSU 1364 (Section XXXII)

time taken to complete proceedings (DSU 17.5) (table) DSU 840

timetable (ABWP 26)

modification in exceptional circumstances (ABWP 16(2)) DSU 1386–92

modification of date of oral hearing (ABWP 16(2)) DSU 1393–6

transition (ABWP 15) DSU 1377–8

transmittal of records (ABWP 25)

inclusion of correspondence not in the record of the panel proceedings DSU 1446

request to delay DSU 1445

withdrawal of appeal (ABWP 30): see withdrawal of appeal (ABWP 30)

abuse of rights/abus de droit, pacta sunt servanda/performance in good faith (VCLT 26) and TRIPS 77, DSU 1501

accelerated/expedited procedures

AB procedures in prohibited subsidies cases (ABWP 31) DSU 1475

consultations (SCM 4.1–4), statement of evidence (SCM 4.2) and SCM 188–90, 192–4, 197

access to dispute settlement process, limitation to WTO Members, 17.516: see also amicus curiae briefs

accession protocols

see also transitional safeguard measures (SG) (China) (Accession Protocol 16)

as balance of rights and obligations WTO 253

“date of agreement” (GATT II:6(a)) and GATT 157

General Exceptions (GATT XX) and GATT 951–5

inclusion of commitments on

determination of dumping (NMEs) GATT 458–9, AD 166, 715

restrictions on trading rights (GATT XI:1) GATT 619

as integral part of WTO Agreement (WTO II:2) WTO 253

jurisprudence relating to AD 1012

as “legal instruments” (GATT 1994 1(b)) GATT 3, 6

special exchange arrangements (GATT XV:6) and GATT 706

accession (WTO XII)

see also original membership (WTO XI:1)

accessions at 30 September 2011 WTO 239, Table XX C

adopted decisions (Ministerial Conference/General Council acting for) (WTO XII:2) WTO 62, 248–9

compliance with, burden of proof SG 314

least developed countries: see also under least-developed countries (LDCs), accession to membership

observer status WTO 250

Plurilateral Trade Agreements (WTO XII:3) WTO 255–8

procedures (WTO XII:2)

Decision-Making Procedures Under Articles IX and XII of the WTO Agreement, General Council decision (1995) WTO 197, 203

Secretariat Note on (1995) WTO 242, 274

standard of review (DSU 11) SG 313

working parties on accession

completed processes WTO 244–5

continuation of GATT 1947 working parties WTO 243, 245, 247

establishment, terms of reference and customary procedures WTO 66, 241

ongoing processes WTO 246–7

Accountancy Sector, Disciplines on Domestic Regulation (1998)

GATS XVI and XVII obligations and GATS 60–1

transparency (GATS III) and GATS 44

 Accountancy Sector, Guidelines for Mutual Recognition Agreements or Arrangements (GATS VII:4) GATS 65

ACP–EC Partnership Agreement, Doha Declaration on WTO 56, 67

acquiescence: see estoppel

acquis: 1947/WTO continuity, decisions, procedures and customary practices under GATT 1947 (WTO XVI:1)/provisions of legal instruments in force under GATT 1947 (GATT 1994 1(b)) (GATT acquis) see GATT

activity function rules: see MFN treatment (GATT I:1), “advantage”, allocation of tariff quotas

additional procedures: see special or additional procedures (AB) (ABWP 16(1)); special or additional procedures (panel) (DSU 12.1)

ADP Committee: see Anti-Dumping Practices Committee (ADP)

adverse effects (SCM 5)

see also nullification or impairment (DSU 3.8); “serious prejudice” (SCM 6)

countermeasures (SCM 7.9): see countermeasures in case of failure to take measures to remove adverse effects of or withdraw subsidy (SCM 7.9)

existence of “benefit”, need for SCM 263

continuing benefit SCM 256, 257

non-retroactivity (VCLT 28) and SCM 256

grounds for requesting consultations (SCM 7.1) as context SCM 262

injury to the domestic industry (SCM 5(a)) SCM 260

nullification or impairment of benefits (SCM 5(b)) SCM 261

presumption under DSU 3.8 distinguished SCM 261, DSU 95

systematic offset as SCM 264

obligation to remove adverse threats or withdraw subsidy (SCM 7.8) SCM 327–9

adverse effects arising subsequent to original proceedings, applicability to SCM 328, 329

affirmative action requirement SCM 329

special or additional rules and procedures (DSU 1.2 and Appendix 2) and DSU 21

“withdrawal of subsidy without delay” (SCM 4.7) compared SCM 208, 215, 328, 329

passing the benefit through (SCM 1.1(b)) and SCM 258

relevant period SCM 259

as required element for actionable subsidy SCM 255

“serious prejudice” (SCM 5(c)): see “serious prejudice” (SCM 5(c))

“use” of subsidy SCM 262, DSU 95

adverse inferences from party’s refusal to provide information, panel’s right to draw (DSU 13) DSU 558–63

burden of proof and DSU 558–63

sufficiency of burden of proof rules DSU 563

discretionary nature DSU 561–2

obligation to respond promptly to panel’s requests for information and (DSU 13.1), confidential information and DSU 561

adverse inferences from party’s refusal to provide information, panel’s right to draw (SCM Annex V) SCM 676–8

Advisory Centre on WTO Law DSU 1357 n. 2139

affirmative obligations

definition GPA 15

GPA tendering procedures (GPA VII) as GPA 21

Aggregate Measurement of Support (AMS) (AG 1(a)/Annex 3)

“constituent data and methodology” (AG 1(a)(ii)) AG 6–8, 200

beef, absence AG 7

external reference price, relevant period AG 8

“in accordance with” AG 7

“provisions of Annex 3”, priority AG 7, 8

“taking into account” AG 7

“market price support” (Annex 3, para. 8), “eligible” AG 203

“support” (Annex 3, para. 1) AG 9

calculation for purposes of AG 13(b)(ii) AG 144

GATT XVI:1 compared AG 9

total AMS (AG 1(h)), calculation AG 6 n. 9, 20

Agreement on the Application of Sanitary and Phytosanitary Measures: see SPS Agreement; SPS Committee (SPS)

Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994: see Anti-Dumping Agreement (AD)

Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade: see Customs Valuation Agreement

Agreement on Preshipment Inspection: see PSI Agreement

Agreement on Subsidies and Countervailing Measures: see SCM Agreement

Agreement on Trade in Civil Aircraft: see Aircraft Agreement (AIR)

Agreement on Trade-Related Investment Measures (TRIMs): see TRIMs Agreement

agricultural concessions and commitments (AG 3)

see also Schedules of Concessions (GATT II)

domestic support (AG 3), limitation to commitment levels specified in Member’s Schedule (AG 3(2)), “subject to provisions of Art. 6” AG 29

export subsidies, prohibition (AG 3.3)

“budgetary outlay and quantity commitment levels”, obligation to include both types in Schedule AG 33

AG 9.2(b)(iii)/9.2(b)(iv) and AG 109

scheduled and unscheduled products distinguished AG 31

applicability of AG 9.1 to both AG 31–2

as integral part of GATT 1994 (AG 3.1) AG 26

Schedules of Commitments and AG 3, interrelationship AG 27–8

“agricultural products” (AG 2/Annex 1)

applicability AG 21–2

applicability of jurisprudence relating to non-agricultural products AG 24

“commodity” (AG 13(b)(ii)), as context for AG 23

Harmonized System, applicability to Annex 1 AG 25

scheduled and unscheduled products distinguished AG 23

agricultural reform commitments (Uruguay Round), review of implementation (AG 18)

3.171–81: see also notification requirements (AG 18.2)

annual consultations (AG 18.5) AG 179

counter notifications (AG 18.7) AG 181

opportunity to raise matter relevant to implementation commitments (AG 18.6) AG 180

Organization of Work and Working Procedures AG 172, 179, 180, 181

procedure AG 172

agricultural reform process, obligation to continue (AG 20)

Doha Round AG 185–7

Hong Kong Ministerial Conference AG 188–9

launch of new round of negotiations (2000) AG 184

Singapore Ministerial Conference AG 183

Agriculture Agreement (AG)

see also Aggregate Measurement of Support (AMS) (AG 1(a)/Annex 3); agricultural concessions and commitments (AG 3); domestic support commitments (AG 6); due restraint (AG 13) (“peace clause”); export subsidy commitments (AG 9); export subsidy commitments, prevention of circumvention (AG 10); export subsidy, prohibited (SCM, Part II); market access, concessions and commitments (AG 4.1); market access, measures required to be converted into ordinary customs duties (AG 4.2 and footnote 1); NFIDC, implementation (AG 16); notification requirements (AG 18.2); payments on export of agricultural product financed by virtue of governmental action (AG 9.1 (c)); Schedules of Concessions (GATT II); special safeguards (AG 5)

object and purpose (preamble)

AG 9.1(c) and AG 3

developing countries’ needs and conditions (including Mid-Term Review Agreement (AG 6.2)) AG 4, 77

fair and market-oriented agricultural trading system AG 2–5

market access (AG 4) AG 34, 55

on-going reform AG 1–2, 190

relationship with other WTO agreements (AG 21.1)

see also relationships within and between agreements

conflict, priority in case of AG 191

GATT XI (non-tariff measures/QRs) GATT 597, 644

GATT XIII (non-discrimination) GATT 656, 689, AG 1, 190

market access commitments (AG 4.1) and GATT 168–9, AG 1, 36, 190

GATT XVI (subsidies) GATT 715, 717

SCM Agreement

3.192–4, 13.181–7: see also relationships within and between agreements

AG 6.3/SCM 3.1(b) AG 79, 193–4, SCM 186–7

Agriculture Committee (AG 17)

establishment WTO 93

Organization of Work and Working Procedures AG 172, 179, 180, 181

report on

implementation of AG 10.2 AG 118–23

NFIDC (AG 16), 3.118, 3.120: see also NFIDC, implementation (AG 16)

role and activities, review of Uruguay Round implementation activities (AG 18): see agricultural reform commitments (Uruguay Round), review of implementation (AG 18)

rules of procedure (1996) WTO 94, AG 170

terms of reference AG 169

reports AG 171

Air Transport Services (GATS Annex), review (Annex para. 5) GATS 238–9

Aircraft Agreement (AIR)

acceptance and entry into force (AIR 9.1) WTO 258, 269, AIR 32–4

acceptances as at 30 September 2011 AIR 6, 32–3

alignment with WTO institutional and dispute procedures, ongoing efforts AIR 3, 5

amendments (AIR 9.5) WTO 219, 222, VAL 35–6

Protocol Amending (1986) AIR 35

Protocol Amending (2001) AIR 16–18, 36

authentic texts (Spanish) AIR 37

DSU applicability AIR 3, 30–1

covered agreement status and AIR 31

plurilateral agreement status and AIR 31

end-use systems (AIR 2.2) AIR 12

entry into force (1980)/annexation to WTO Agreement (AIR Preamble) AIR 3

Protocol amending (1988) AIR 4

negotiations to broaden and improve scope (AIR 8.3) AIR 26–7

Trade in Civil Aircraft Sub-Committee and AIR 29

product coverage/definitions (AIR 1)

notifications of domestic operating entities and domestic definitions AIR 8–9

updating AIR 9

product coverage/definitions (AIR 1), Annex AIR 13–19

adoption as consolidated Annex (1983) AIR 14

Aircraft Ground Maintenance Simulators Decision (2001) AIR 18

Harmonized System, alignment with AIR 2, 15–16, 19

procedures for modification and rectification (1982) AIR 13

reservations (AIR 9.2.1) WTO 301

SCM and AIR 22–4

signatories as at 30 September 2011 WTO 269, AIR 6

technical barriers to trade (AIR 3), Air Committee discussion of AIR 20

Aircraft Committee

annual reports (WTO IV.8) WTO 160, AIR 25

observer status AIR 34

role and activities AIR 1–2, 4

Technical Sub-Committee, establishment and terms of reference AIR 28

Trade in Civil Aircraft Sub-Committee AIR 29

ALOPs (SPS 5.4–5.6 and Annex A(5))

consistency in application (SPS 5.5)

arbitrary or unjustifiable inconsistencies, exclusion: see arbitrary or unjustifiable distinctions resulting in discrimination or disguised restriction on international trade (SPS 5.5)

comparability of in different situations SPS 224–5

comparable situations SPS 226–9

cumulative nature of obligations SPS 63–4, 212–14

discrimination or disguised restriction of trade resulting from inconsistency SPS 50, 212–14

elements required for SPS 211

Guidelines to Further the Practical Implementation of Article 5.5 (2000) SPS 244–8

“implementation measure” for purposes of SPS 5.5 SPS 215–16

legal obligation, whether SPS 218

recommendations of relevant international organizations and SPS 87

“specific” SPS 220–3

SPS 2.2 and SPS 51, 282–4

measures “not more trade restrictive than required to achieve their appropriate level of … protection” (SPS 5.6)

alternative measure “significantly less restrictive to trade” SPS 275–7

compliance with Member’s ALOP SPS 273–4

experts’ role SPS 261

“is reasonably available” SPS 263

sufficient scientific evidence (SPS 2.2) and SPS 282–4

“taking into account technical and economic feasibility” SPS 264

“appropriate level”, determination

“acceptable level of risk” test (SPS 5.1/Annex A(4)) and SPS 266, 279, 530, 532–3

Member’s explicit statement, right of Panel/AB to challenge SPS 271

Member’s obligation to determine [in accordance with SPS obligations] SPS 207–8, 210, 220, 270–2, 285

Member’s prerogative SPS 253, 267–9, 529

as preliminary to/distinction from decision on measure SPS 265, 532–3

burden of proof SPS 259–60

scientific evidence requirement SPS 260

cumulative elements (SPS 5.6 footnote 3) SPS 257–8

legal characterization of measure as matter for panel DSU 767

order of analysis SPS 262

SPS measures, limitation to SPS 256

minimization of negative trade effects obligation (SPS 5.4) and SPS 206–8

amicus curiae briefs

AB and

right to accept (DSU 17.9) DSU 740–2

discretionary nature/case-by-case approach DSU 743

special procedure (ABWP 16(1)) DSU 1382

confidential information obligations (DSU 18.2) DSU 126, 914, 917

due process and DSU 744

notification of intention to participate (DSU 10.2), relevance DSU 474

panel’s authority/discretion to accept or reject DSU 474, 516, 685, 697, 738–44

rejection as error of law DSU 739

private individuals’ right to submit DSU 741–2

prompt and satisfactory settlement of dispute (DSU 3.3) and, prompt and satisfactory settlement (DSU 3.3) DSU 743

special procedures DSU 1382

table of accepted briefs DSU 745

third party rights distinguished DSU 516

anti-dumping action on behalf of a third country (AD 14) AD 849–51

GATT practice GATT 486, AD 851

anti-dumping actions, Members’ reporting obligations (AD 16.4), form and content AD 866–8

Anti-Dumping Agreement (AD)

see also anti-dumping action on behalf of a third country (AD 14); anti-dumping actions, Members’ reporting obligations (AD 16.4), form and content; anti-dumping and countervailing duties (GATT VI) including interrelationship with AD Agreement; anti-dumping duties, imposition and collection (AD 9); confidential information (AD 6.5); conformity of laws, regulations and administrative procedures with AD obligations, obligation to ensure (AD 18.4); consultation and dispute settlement (AD 17); data collection period (AD 2 and AD 3); data collection period (AD 5.8) (determination of negligible import volumes); determination of dumping (AD 2); determination of injury (AD 3); developing countries (AD 15); “domestic industry” (AD 4); due process (anti-dumping measures) (AD 6); “dumping” / “margin of dumping” (AD 2.1); evidence (dumping investigation) (AD 6); investigation of dumping (AD 5)/subsidy (SCM 11); judicial review (AD 13); provisional measures (AD 7); public notice and explanation of determinations (AD 12); public notice of initiation of investigation (AD 12.1); public notice of preliminary or final determination (AD 12.2); retroactivity (provisional measures and anti-dumping duties) (AD 10); sampling (AD 6.10); specific action against dumping (AD 18.1) or subsidy (SCM 32.1) in accordance with GATT VI as interpreted by AD/SCM Agreement; standard/powers of review (panel) (AD 17.6); sunset review (AD 11.3) (including “likelihood” test); transparency (AD 3 and 5)

annual review of implementation and operation of Agreement, guidelines for improvement AD 975–6

applicability (AD 18.3)

pre-/post-WTO reviews AD 966–7

“reviews of existing measures” AD 965

object and purpose, absence of specific provision/preamble AD 1–4

preparatory work (VCLT 32)

AD 1 AD 5

AD 3.4 AD 247, 249

AD 6 AD 623–4

Annex II AD 533

principles (AD 1)

“anti-dumping measure” AD 5

“initiated and conducted in accordance with the provisions of this Agreement” AD 6

developments during period of investigation, relevance AD 7

violation of other AD provisions as evidence of breach of AD 1, 8.6, 8.986: see also relationships within and between agreements

anti-dumping and countervailing duties (GATT VI) including interrelationship with AD Agreement

see also countervailing duties (SCM Part V)

AD 1 as link AD 1002–6

AD 2.1/GATT VI:1(a) and AD 2.2/GATT VI:1(b) distinguished GATT 481

AD 18.1: see specific action against dumping (AD 18.1) or subsidy (SCM 32.1) in accordance with GATT VI as interpreted by AD/SCM Agreement

AD Agreement as context (VCLT 31(2)) AD 1000–2

AD Agreement and GATT 1994 as integral part of WTO Agreement AD 723, 1000–1

anti-dumping measure other than duty, applicability to GATT 447–50

AD 1 and GATT 448

AD 18.1 and, 2.449: see also specific action against dumping (AD 18.1) or subsidy (SCM 32.1) in accordance with GATT VI as interpreted by AD/SCM Agreement

“may levy” and (GATT VI:2) GATT 460–2, AD 723

GATT practice/preparatory work (VCLT 32) SPS 462

anti-dumping vs countailing duties/exclusion of double remedy (GATT VI:5/SCM 19) GATT 480–1, 481, SCM 466, DSU 1617

calculation of subsidies (GATT VI:3/SCM 19.4) GATT 471

“pass-through” analysis (GATT 6:3/SCM 10 and 32) GATT 472

countervailable subsidy, permissible responses (GATT VI:3/SCM) GATT 469

countervailing duties, compliance with both GATT VI:3 and SCM GATT 451, 468

determination of dumping (AD 2/GATT VI:2)

GATT practice GATT 467

method, right to choose GATT 463

refund of duties or taxes (AD 2.4.2/GATT VI:4) GATT 478–9 GATT practice GATT 479

sale “destined for consumption in exporting country” (AD 2.1/GATT VI:2) GATT 481

determination of dumping (NMEs) (Note 2 Ad Article VI:1) GATT 455–9, AD 155–6, 166–7, 715

dumping, constituent elements/definition (AD 2/GATT VI:1)

consistency of definition throughout AD and GATT GATT 452–3

GATT practice and preparatory work (VCLT 32) GATT 486

“margin of dumping” (GATT VI:2)/ “margins of dumping” (AD 2.1), equivalence GATT 453

material injury to domestic industry or threat of (GATT VI:6(a)) GATT 454, 482–5

GATT practice GATT 485

SCM 16.1 and GATT 483

material injury to industry in third party country (GATT VI:6(b) and (c)) GATT 486–7

AD 14 and GATT 486, AD 849–51

specific reference in legislation, relevance GATT 450

sufficiency of evidence for initiation of investigation (AD 5) and AD 356, 364 n. 489, 424

non-retroactivity of treaties (VCLT 28) and GATT 451

QRs (GATT XI) and GATT 648

separability of AD and GATT VI GATT 493, AD 1000

violation of GATT VI, sufficiency for finding of violation of AD 2.1 and 2.2 GATT 451, 492, AD 161

“zeroing” (AD 9.3/GATT VI:2): see “zeroing” (AD 9.3/GATT VI:2)

anti-dumping duties, duration and review (AD 11)

see also sunset review (AD 11.3)

AD 11.1 as general principle underlying AD 11.2 and 3 AD 735, 740

“injury” (AD 3 footnote 9) AD 747, 751

“likely to lead to continuation or recurrence” (AD 11.2)

“not likely” test AD 739, 748

probability, need for AD 749

sunset review (AD 11.3) and AD 749

“necessary to offset dumping” (AD 11.2) AD 739, 741–6

necessity (AD 11.1) and AD 739, 741

standard of proof AD 745, SCM 494

sunset review (AD 11.3) and AD 742–3

necessity (AD 11.1) AD 735–7

“no-dumping” finding (AD 11.2), timing of revocation of antidumping duty AD 743

review mechanism, AD 11.2 as AD 752

special rules and procedures (DSU 1.2), whether DSU 12

“warranted” (AD 11.2) AD 750–2

anti-dumping duties, imposition and collection (AD 9)

assessment (AD 9.3)

conditions (AD 9.3.2, AD 11.2 and SCM 21.2) AD 676–7, SCM 486–7

de minimis test, AD 5.8 distinguished AD 402, 671–3

finality of duty AD 678

“product as a whole” (AD 2.1) and GATT 120, AD 18–19, 679–85

retrospective assessment (AD 9.3.1) AD 675, 679–80

zeroing and GATT 464–7, AD 680, 686, 686–7

variable duties, possibility of AD 674–5

calculation of “all other” anti-dumping duty rate (AD 9.4)

avoidance of prejudice to non-investigated exporters AD 698–9, 708

comparison of all comparable transactions (AD 2.4), need for AD 700

determination of injury (AD 3), relevance to AD 202

“margins” AD 701–2

margins established under circumstances referred to in AD 6.8,

exclusion AD 701–2, 706–7

consistency with AD 2 8, 711

“established” AD 708

lacuna situation AD 708–10, 711–16

“legislation as such” and AD 877

method, absence of provision AD 701

non-cooperating companies and AD 705

prospective normal value ceiling (AD 9.4(ii)) AD 721–2

single exporter or producer (AD 9.4(i)), sufficiency AD 703

zero/de minimis margins, exclusion AD 791–2

“duties” (AD 9/SCM 19), bonds distinguished AD 656, SCM 459

expedited review (AD 9.5), requirements AD 724

lesser duty, possibility of (AD 9.1) AD 658, 861

“such mandatory duty shall be collected …” (AD 9.2)

“all sources” AD 667–8

AD 9.2 and SCM 18 distinguished AD 668

“appropriate” amounts AD 663–6

sampling (AD 6.10) and AD 664, 666

mandatory nature AD 660–2

NMEs and AD 660

“shall name” AD 669–70

exception in case of impracticality AD 670

Anti-Dumping Practices Committee (ADP)

annual review of implementation and operation of Anti-Dumping Agreement, guidelines for improvement and AD 975–6

establishment WTO 93

Informal Group on Anti-Circumvention, ADP Committee Decision on (April 1997) AD 1017–18

notification to government (AD 5.5), recommendation on timing AD 387

Periods of Data Collection for Anti-Dumping Investigations, Recommendation Concerning: see data collection period (AD 2 and AD 3), Anti-Dumping Practices Committee, Recommendation (2000)

recommendations, status AD 175

review of AD 15 (developing countries) AD 852, 853

rules of procedure (1996) WTO 94, AD 864–5

“arbitrary or unjustifiable discrimination”

“discrimination” in SPS 5.5 and TRIPs 3 and 4 compared SPS 243

ordinary meaning SPS 231

use in GATT XX, SPS 2.3 and SPS 5.5 compared SPS 232–3, 240–2

arbitrary or unjustifiable discrimination, exclusion (SPS 2.3) SPS 1, 58–64

ALOPs and (SPS 5.4–6) SPS 210

ALOPs (SPS 5.5) and SPS 50, 61–4, 240–2

discrimination between different products SPS 59

elements of violation SPS 58

arbitrary or unjustifiable discrimination, GATT XX measure as (GATT XX chapeau)

ambiguity GATT 862

“between countries where the same conditions prevail” GATT 859–61

between importing and exporting countries GATT 859–61

capricious or unpredictable reasons and GATT 870, 872

cause vs effects test GATT 870

constituent elements GATT 859, 862, 864

discrimination in substantive GATT obligations distinguished GATT 858, 864

“disguised restriction on international trade”

failure to consider costs as GATT 863

interrelationship GATT 874

measures amounting to arbitrary or unjustifiable discrimination as GATT 862–3

significant effect on achievement of objective and GATT 876, 877

failure to consider appropriateness of regulatory programme and GATT 865–7

link with legitimate objective, need for GATT 870, 873

objective criteria, need for GATT 869

arbitrary or unjustifiable distinctions resulting in discrimination or disguised restriction on international trade (SPS 5.5)

arbitrary or unjustifiable distinctions SPS 50, 61–4, 230–4

comparison of ALOPs as basis for panel review SPS 230

disguised restriction on international trade/warning signals SPS 235–9

arbitration (DSU 22.6)

see also suspension of concessions for non-implementation of DSB recommendations and rulings (DSU 22)

burden of proof

SCM 4.11 arbitrations DSU 585–6

SCM 7.10 arbitrations SCM 337

“by the original panel” DSU 1211

due process and DSU 1183, 1210

multiple complainants DSU 1282

scope of review/arbitrators’ mandate/task (DSU 22.7)

ad hoc procedural agreements for implementation of DSB recommendations and rulings DSU 1176

agreement/sector for which authorization is sought (DSU 22.3), limitation to DSU 1186

determination of “appropriateness/appropriate” countermeasure (SCM 4.11) SCM 233, 244–5, DSU 1260, 1283, 1292–3

determination of “appropriateness/appropriate” countermeasure (SCM 7.10) SCM 336

determination of “equivalence” (DSU 22.3)

17.1217, 17.1246–59: see also suspension of concessions for non-implementation of DSB recommendations and rulings (DSU 22), level equivalent to nullification or impairment (DSU 22.4)

methodology paper, request for DSU 1244

“nature of concession”, exclusion (DSU 22.7) DSU 1187, 1247, 1256

WTO-consistency as prior consideration DSU 1253–4

DSU 22.6 and DSU 22.7 compared DSU 1216

rejection of proposed level of suspension and DSU 1257–9

suspension of concessions or “other obligations”, limitations on role DSU 1219–22

scope of review/arbitrators’ mandate/task (SCM 4.11), burden of proof, allocation SCM 248

scope of review/arbitrators’ mandate/task (SCM 7.10), burden of proof, allocation SCM 337

“specific”

agreement and sectors (DSU 22.3) DSU 1184, 1186, 1187, 1198

arbitrators’ margin of discretion DSU 1203

DSU 3 provisions and DSU 1209

DSU 6.2 requirements, applicability DSU 1183, 1210

product list DSU 1187–8

specific level of suspension (DSU 22.4) DSU 1184, 1185, 1187, 1247

tables

ad hoc agreements DSU 1156

decisions DSU 1213

time taken DSU 1214

third party rights DSU 507–10

timing in relation to Article 21.5 arbitrations: see “sequencing” (interrelationship between Article 21.5 and Article 22.6 arbitration, ad hoc procedural agreements)

working procedures

late submission of evidence DSU 729

opportunity to comment, need for DSU 729

new argumentation, cut-off date DSU 730

typical text DSU 1212

arbitration (DSU 25)

advantages DSU 1330

as alternative to panel procedure DSU 1329, 1337, 1338–9, 1340

applicable law

AB practice DSU 1335

burden of proof (DSU 22.6) DSU 1328

DSU 22.6 DSU 1328, 1331

confidentiality of proceedings

see also confidentiality of proceedings (DSU 14/DSU 17.10/DSU 18.2/WP 3)

applicability of AB practice DSU 1335

Decision on improvements to the GATT dispute settlement procedures (1989) and DSU 1341 n. 2128

jurisdiction/arbitrators’ mandate

agreement of parties (DSU 25.1 and 25.2) as basis DSU 1330, 1340

determination of level of nullification or impairment (DSU 22.4) DSU 1327, 1329–30

determination of WTO-consistency of measure DSU 1336

prompt and satisfactory resolution of disputes, Members’ right to (DSU 3) and DSU 1330, 1343

procedural requirements

Article 22.6 proceedings distinguished DSU 1333, 1342

consistency with WTO rules and principles, responsibility for ensuring DSU 1326

notification of arbitration to DSB, limitation to DSU 1326, 1338

arbitration (SCM 8.5) SCM 347

Argentina, ATC safeguard measures (ATC 6), TMB discussion ATC 33, 39, 53, 72, 82

Argentina — Ceramic Tiles (Panel), WT/DS189/R

Anti-Dumping Agreement (AD), preparatory work (VCLT 32), AD 6 AD 623

anti-dumping duties, imposition and collection (AD 9), calculation of “all other” anti-dumping duty rate (AD 9.4), limitation of sample (AD 6.10) and

confidential information (AD 6.5)

non-confidential summaries (AD 6.5.1)

as balance between protection of confidentiality and need to ensure opportunity to defend interests AD 598, 606

purpose AD 511

public notice of determinations (AD 12) and AD 599, 646

right to rely on AD 598–600, 845

unwarranted request for confidentiality, right to disregard information (AD 6.5.2) AD 598 n. 830

determination of dumping (AD 2)

fair comparison of export price and normal value (AD 2.4)

determination of individual margins (AD 6.10) distinguished AD 625 n. 858, 643

“due allowance”, “in each case, on its merits” AD 88

due process (dispute settlement proceedings), prejudice to party, relevance DSU 94

evidence (dumping investigation) (AD 6)

accuracy of information, authorities’ obligation to satisfy themselves (AD 6.6), as responsibility of authorities AD 522

“facts available”, right of resort to (AD 6.8/Annex II)

conditions for (Annex II) AD 544

failure to submit necessary information “in timely fashion” (Annex II para. 3)

and, interpretation in light of AD 6.1.1, 6.8/Annex II para. 1 AD 605

reasons for disregarding information, need for AD 592

specification “in detail” (Annex II para. 1) AD 543

“notice of the information …” (AD 6.1), clear request for information, need for AD 427, 458, 543, 605

notification to all interested parties of essential facts under consideration (AD 6.9), choice of means AD 609

on-the-spot verification (AD 6.7), as option AD 524, 983

harmless error principle DSU 311 n. 495

identification of specific measures (DSU 6.2) DSU 94

implementation of DSB recommendations and rulings (DSU 21), prompt compliance (DSU 21.1), judicial economy and DSU 653

interpretation of covered agreements, rules relating to including VCLT provisions, effectiveness principle (ut res magis valeat quam pereat/effet utile), meaning to be attributed to every word and phrase AD 598

judicial economy, precise recommendations and rulings by DSB and DSU 653

nullification or impairment (DSU 3.8)

adverse impact/prejudice, relevance DSU 94

presumption in case of inconsistency with covered agreement DSU 94

public notice and explanation of determinations (AD 12), confidential information (AD 6.5) and AD 599, 646

relationships within and between agreements

AD 2.4/AD 6.10 AD 625 n. 858, 643

AD 6.1.1/AD 6.8 AD 458

AD 6.5/AD 6.6 AD 519, 598

AD 6.5/AD 12 AD 845

AD 6.8/AD 3 AD 600

AD 6.8/AD 12 AD 599, 646

AD 6.10/AD 9.4 AD 625

request for establishment of panel, requirements (DSU 6.2)

clear presentation of the problem/ability to defend itself considerations DSU 94

due process/ability to defend itself considerations DSU 311 n. 495

sampling (AD 6.10)

as deviation from general rule AD 623

individual margin for each known exporter or producer AD 625 exporter or producer not originally selected (AD 6.10.2) AD 625

SPS measure, definition/classification as (Annex A(1)), measure to protect human or animal life (Annex A(1)(b)), “additive”, Codex definition, relevance SPS 479

standard/powers of review (panel) (AD 17.6), investigating authorities’ establishment of the facts (AD 17.6(i)), evaluation as at time of determination AD 923

Argentina — Footwear (EC) (AB), WT/DS121/AB/R

Agreement on Safeguards, as integral part of WTO Agreement WTO 19

causation analysis (SG 4.2(b)) (determination of serious injury or threat of)

analysis of conditions of competition, price analysis and SG 192

coincidence of trends in imports and in injury factors SG 182–3

“demonstrates” SG 175

relevance in absence of serious injury SG 175, 218

customs unions (GATT XXIV:5(a))

as defence or exception, on formation of customs union, limitation to, “would be prevented unless” requirement SG 64

definition (GATT XXIV:8(a)), internal trade arrangements (GATT XXIV:8(a)(i)) SG 64–5

safeguard measures (SG 2.1 footnote 1) GATT 1055 right to exclude members of customs union from SG 67

determination of serious injury or threat of, evaluation of all relevant factors of objective and quantifiable nature (SG 4.2(a)) SG 118

all factors listed in SG 4.2(a) SG 145

“factors other than increased imports” (SG 4.2(b)) SG 17

determination of serious injury or threat of (SG 4), requirements, “such increased quantities”, trends SG 27, 49, 159–60

dispute settlement (SG 14), standard of review (DSU 11), evidence, alleged disregard or distortion by panel, obligation to examine and evaluate all the evidence available to it SG 147

emergency action (GATT XIX)

“as a result of unforeseen developments” (GATT XIX:1(a)) SG 6

“as a result … of the effect of obligations incurred by Member” GATT 826–7

condition (SG 2.1) and circumstance distinguished GATT 815

critical date GATT 821

“demonstration”, need for GATT 805

omission from SG 2.1, relevance GATT 803, 805, 840, DSU 1555 n. 2388

RTAs/customs unions and (SG 2.1 footnote 1) GATT 1055, SG 64–5

evidence (panel) (DSU 12), time–limits for submission, panel’s right to admit “late” /new evidence DSU 729

GATT 1947/WTO continuity, GATT 1994 as distinct agreement (WTO II:4) WTO 27

interpretation of covered agreements, rules relating to including VCLT provisions

consistency with article/agreement as a whole DSU 1555 n. 2388

dictionaries GATT 803

effectiveness principle (ut res magis valeat quam pereat/effet utile), meaning to be attributed to every word and phrase WTO 19, DSU 1555 n. 2388

object and purpose GATT 798, DSU 1555 n. 2388

SG/GATT XIX GATT 798

same or closely related phrases in different agreements

GATT XIX:1(A)/SG 2.1 SG 6

GATT XIX:1(a)/SG 11.1(a) GATT 797

judicial economy

discretionary nature DSU 645

prior decision on another point rendering discussion otiose GATT 824, SG 175

legal basis of claim / “claim” / “matter referred” (DSU 6.2/7.1)

identification of treaty provisions, right of panel to address provisions other than those cited (DSU 7.2) DSU 424

limitation of jurisdiction to cited provisions (DSU 7.2) SG 220, DSU 424, 519

lex specialis/presumption against treaty conflicts, General Interpretative Note (WTO Annex 1A) DSU 1721

“measures at issue” (DSU 6.2), amended measures, amendment after establishment of panel DSU 259 n. 386

ordinary meaning of terms used in covered agreements

“apply as single unit or on behalf of a member State” (SG 2.1 footnote 1) SG 64

“as a result of unforeseen developments” (GATT XIX(1)(a)) GATT 803, SG 6

“conforms with the provisions” (SG 11.1(a)) GATT 839, SG 5

panel reports, rationale, need for (DSU 12.7), sufficiency DSU 702

relationships within and between agreements

GATT XIX:1 GATT 797, 803

GATT XIX:1/SG 2 and 4 GATT 805, 824

GATT XIX/SG 1 SG 5

SG 3/SG 4.2(c) SG 220, DSU 424

SG 3.1/SG 4.2(c) DSU 424

RTAs (GATT XXIV:5)

as affirmative defence SG 65

necessity test GATT 1005

safeguard measures, conditions (SG 2)

as extraordinary/emergency remedy GATT 797–8

parallelism between investigation (SG 2.1/SG 4.1(c)) and application of measure (SG 2.2) SG 66–7

“irrespective of source”, applicability to RTAs SG 66–7

regional agreements/customs unions and (SG 2.1 footnote 1) GATT 1055

right to exclude member of customs union from SG 67

“such increased quantities” (SG 2.1)

“rate and amount of the increase … in absolute and relative terms” (SG 4.2(a)) SG 25

as sudden and recent increase SG 30–1, 322

“sufficient to cause serious injury or threat” (SG 2.1) SG 31

safeguard measures (SG)/emergency action (GATT XIX), relationship between GATT 795

continuing applicability of GATT XIX GATT 839–40

rules for application of GATT XIX (SG 1 and 11.1(a)) GATT 839–40, SG 4–5

standard/powers of review (AB) (issues of law and legal interpretations) (DSU 17.6)

completion of the legal analysis in case of, agreement with panel DSU 863

excess of jurisdiction, consideration of treaty provisions other than those cited DSU 424

standard/powers of review (panel) (DSU 11)

applicability to Safeguards Agreement SG 147

“objective assessment of the facts”

de novo review, exclusion SG 147, 305

obligation to examine and evaluate all the evidence available to it SG 147

“objective assessment of matter before it”, independent assessment, reference to treaty provisions not cited by parties DSU 519

terms of reference of panels (DSU 7), as definition of jurisdiction/legal claims at issue, “relevant provisions” DSU 424

WTO Agreement

cumulative nature of obligations SG 6

as single undertaking (WTO II:2) WTO 19

Argentina — Footwear (EC) (Panel), WT/DS121/R SG 229

causation analysis (SG 4.2(b)) (determination of serious injury or threat of)

analysis of conditions of competition

like product determination compared SG 191

price analysis and SG 190, 192

“demonstrates” SG 174

“on the basis of objective data” SG 174, 191

evaluation of all relevant factors of objective and quantifiable nature SG 174

customs unions (GATT XXIV:5(a))

as defence or exception, on formation of customs union, limitation to, “would be prevented unless” requirement SG 64–5

definition (GATT XXIV:8(a)), internal trade arrangements (GATT XXIV:8(a)(i)) SG 64–5

safeguard measures (SG 2.1 footnote 1) GATT 1055

analysis of conditions of competition SG 190–2

coincidence of trends in imports and in injury factors SG 182, 187

determination of serious injury or threat of, definitions (SG 4.1)

“serious injury” (SG 4.1(a))/ “threat of serious injury” (SG 4.1 (b)), simultaneous determinations SG 128

“threat of serious injury” (SG 4.1(b)), actual increase in imports, need for SG 126

determination of serious injury or threat of, evaluation of all relevant factors of objective and quantifiable nature (SG 4.2(a))

“factors other than increased imports” (SG 4.2(b)) SG 17

non-attribution requirement SG 197–8

emergency action (GATT XIX), RTAs/customs unions and (SG 2.1 footnote 1) GATT 1055, SG 64

evaluation of all relevant factors of objective and quantifiable nature (SG 4.2(a))

all factors listed in SG 4.2(a) SG 144

segmented domestic industry and SG 167

identification of specific measures (DSU 6.2), “identify”, sufficiency of, numbers of measures and places of promulgation DSU 216

interpretation of covered agreements, rules relating to including VCLT provisions, same or closely related phrases in different agreements, ATC 6.4/SG 4.2(a) SG 144

lex specialis/presumption against treaty conflicts

General Interpretative Note (WTO Annex 1A) DSU 1720

possibilities of conflict considered by panel/AB, GATT XIX/SG 2.1 DSU 1720

“like or directly competitive product” (SG 2.1/SG 4.1(c)), causation analysis (SG 4.2(b)) compared SG 191

notification and consultation (SG 12)

“all pertinent information” (SG 12.2), precise description of proposed measure SG 289

modifications reducing restrictiveness of measure, limitation to SG 237

right to request additional information (SG 13.1(f)), relevance SG 289

“objective assessment of matter before it”, reasoned and adequate explanation (SG 4.2(a)) and SG 147

ordinary meaning of terms used in covered agreements, “apply as single unit or on behalf of a member State” (SG 2.1 footnote 1) SG 64

relationships within and between agreements

DSU 3.3/DSU 7 DSU 397, 426

GATT XIX/SPS WTO 19

SG 2 and 4/SG 5 SG 229

SG 2 and 4/SG 12 SG 289

SG 2/SG 4 SG 19

SG 2.1 and 4/SG 6 SG 85, 235

SG 2.1, 4.1(c) and 4.2(b)/SG 2.2, 3.1, 51.8, and 12 SG 85

SG 2.1/4.2(a) SG 25–8

SG 2.1/SG 4.2(a) SG 25–8

RTAs (GATT XXIV:5), safeguard measures (SG)/emergency actions (GATT XIX) and SG 64–5

safeguard measures, conditions (SG 2)

customs unions and (SG 2.1 footnote 1) GATT 1055

determination of serious injury or threat (SG 4), violation as violation of SG 2 SG 119

lex specialis/presumption against treaty conflicts

“conflict” DSU 1720

possibilities of conflict considered by panel/AB, precedence DSU 1720

RTAs (GATT XXIV:5), safeguard measures (SG)/emergency actions (GATT XIX) and SG 64–5

“such increased quantities” (SG 2.1)

absolute increase SG 50

quantity as determining factor SG 24

“rate and amount of the increase … in absolute and relative terms” (SG 4.2(a)) SG 25–8

as sudden and recent increase SG 30–1

trends SG 26–30, 159, 170

“under such conditions” SG 51, 53–5

price analysis, relevance SG 60

safeguard measures, duration and review (SG 7), modifications reducing restrictiveness (SG 7.4) SG 237, 291

safeguard measures (SG/GATT XIX), customs unions and free trade areas (GATT XXIV) exception, applicability, free trade agreements/customs unions and (SG 2.1 footnote 1) SG 64

standard/powers of review (panel) (DSU 11), applicability to Safeguards Agreement SG 147

terms of reference of panels (DSU 7), “measures at issue” (DSU 6.2), amended measures, amendment following establishment of panel DSU 397–8

transitional safeguards (ATC 6), relevaant factors (ATC 6.3), obligation to examine all SG 144

Argentina — Hides and Leather dispute, WT/DS155/12, “sequencing” (interrelationship between Article 21.5 and Article 22.6 arbitration, ad hoc procedural agreements), recourse to Article 21.5 before Article 22 DSU 1160, 1162

Argentina — Hides and Leather (Panel), WT/DS155/R and Corr.1, DSR 2001:II

AB procedures (DSU 17.9 and ABWP), reports, as clarification GATT 239

burden of proof (general rules), difficulty in collecting information and DSU 570

directly competitive or substitutable products (GATT III:2), “like products” distinguished/as sub-category GATT 252

General Exceptions (GATT XX(d)), measures necessary to secure compliance with GATT-consistent measure, “necessary” GATT 913

General Exceptions (GATT XX(d)), measures necessary to secure compliance with GATT-consistent measure, constituent elements, “necessary” to secure compliance GATT 913

Illustrative List (TRIMs 2.2), QRs (GATT XI:1) and GATT 628

interpretation of covered agreements, rules relating to including VCLT provisions, same or closely related phrases in same agreement, GATT VII:2(b)/GATT X:3(a) GATT 591

“like product” (GATT III:2 and III:4)

relevant factors GATT 243

differences between sellers GATT 252

nationality of producer or origin of product (“hypothetical” like products)

GATT 250, 339

national treatment, general principle (GATT III:1)

applicability, measures imposed at the time or point of importation (“internal measures”) (Ad Article), imposition on like domestic product requirement GATT 208–9

“so as to afford protection”, equality of competitive relationship GATT 204

national treatment, regulatory discrimination (GATT III:4), “less favourable treatment”, grouping approach GATT 302

national treatment, tax discrimination (GATT III:2)

“charge of any kind” GATT 261

determination of violation, elements (GATT III:2, first sentence)

actual tax burden GATT 266

aims and effects test/policy purpose GATT 214

balancing of tax burden, exclusion GATT 267

duration of tax differential, relevance GATT 272

economic impact GATT 204, 266

“directly or indirectly” (GATT III:2, first sentence) GATT 278

“in excess of those applied” (GATT III:2, first sentence)

methodology of comparison, individual transactions basis GATT 266–7

regulatory objectives, relevance GATT 275

“so as to afford protection”

as application of general principle (GATT III:1) GATT 239

design and structure of measure as evidence of protective application GATT 250

non-discriminatory administration of QRs (GATT XIII), publication and administration of trade regulations (GATT X:3(a)), “reasonable” (risk of disclosure of confidential information) GATT 573

publication and administration of trade regulations (GATT X)

“laws, regulations, judicial decisions and administrative rulings” (GATT X:1), “of general application” GATT 554

measures of general application (GATT X:1) GATT 554

relationship with other GATT provisions GATT 589

uniform, impartial and reasonable administration (GATT X:3(a))

applicability to individual traders GATT 563

“impartial” (presence of private parties during customs process) GATT 569, 570, DSU 251

“reasonable” GATT 573

“shall administer” /applicability to substantive rule GATT 553, 554

transparency between WTO members and with respect to individual traders distinguished GATT 563

“uniform” GATT 553, 591

discrimination between Members and GATT 553

discrimination between Members, relevance GATT 591

quantitative restrictions, elimination (GATT XI)

due diligence requirement GATT 603 n. 855

“prohibition or restriction” (GATT XI:1)

causal link, need for GATT 604

de facto restrictions GATT 602–4

equality of competitive conditions as test GATT 604

private action, relevance GATT 603, DSU 251–2

prohibition or restriction on exportation or sale for export GATT 628

“restriction” GATT 604

trade effects, relevance GATT 604

relationships within and between agreements

GATT I/GATT X GATT 591

GATT III:1/GATT III:2 GATT 228

GATT /GATT as a whole GATT 553

GATT XI:1/TRIMs Illustrative List GATT 628

State responsibility as rule/general principle of international law (ILC Articles)

responsibility for act or omission of

customs officials DSU 1681

private parties GATT 603, DSU 251–2

TRIMs Agreement, quantitative measures (GATT XI and) GATT 628

Argentina — Hides and Leather (Article 21.3(c)), WT/DS155/10, DSR 2001:XII

developing countries (DSU 21.2) (implementation of DSB recommendations and rulings), “reasonable period” (DSU 21.3(c)) DSU 1065

implementation of DSB recommendations and rulings (DSU 21)

impracticality of immediate compliance/reasonable period of time (DSU 21.3, chapeau), modification of underlying economic or social conditions distinguished DSU 998

prompt compliance (DSU 21.1), modification of underlying economic or social conditions distinguished DSU 997–8

implementation of DSB recommendations and rulings, surveillance (DSU 21), prompt compliance (DSU 21.1), “compliance” DSU 997–8

“reasonable period” for implementation of recommendations and rulings (Article 21.3(c) arbitrations)

developing countries and (DSU 21.2) DSU 1065

economic and social conditions, relevance DSU 998, 1031, 1065

shortest period possible within Member’s normal legislative process DSU 1031

structural adjustment, relevance of need for DSU 1065

Argentina — Poultry Anti-Dumping Duties (Panel), WT/DS241/R, DSR 2003:V

anti-dumping duties, imposition and collection (AD 9)

“appropriate” amounts (AD 9.2) AD 663

assessment (AD 9.3)

retrospective assessment (AD 9.3.1) AD 675

variable duties, possibility of AD 674–5

applicable law, customary rules of interpretation of public international law [as codified in VCLT], treaty application and treaty interpretation distinguished DSU 1590

burden of proof (general rules), prima facie case requirement AD 172

confidentiality of proceedings (DSU 14/DSU 17.10/DSU 18.2/WP 3)

“submissions” and statements of own position distinguished DSU 910

time–limits for non-disclosure DSU 911

data collection period (AD 2 and AD 3)

“positive evidence” / “objective examination” requirement (AD 3.1) and AD 172–3

use of different periods

dumping/injury determinations AD 173

injury factors AD 172

determination of dumping (AD 2)

calculation of dumping margins (AD 2.4), comparison of weighted average normal value with weighted average of all comparable export transactions (AD 2.4.2), sampling of domestic transactions AD 126–7

“normal value … in the ordinary course of trade” (AD 2.1), calculation of dumping margins (AD 2.4), comparison of weighted average normal value with weighted average of all comparable export transactions (AD 2.4.2), “comparable” AD 357–9

determination of injury (AD 3)

evaluation of injury factors (AD 3.4), “objective examination” requirement (AD 3.1) and AD 209

“positive evidence” / “objective examination” requirement (AD 3.1)

“objective examination”, “consequent impact” (AD 3.1(b)) AD 209

use of different periods for data collection and AD 172

for dumping and injury investigations AD 173

“domestic industry” (AD 4)

“a major proportion of the total domestic production” (AD 4.1) AD 329

interpretation in accordance with AD 4.1, obligation AD 337

DSU, applicability, covered agreements (DSU 1.1/DSU 7.2), DSU DSU 5

“dumping” / “margin of dumping” (AD 2.1), product specific requirement, sampling technique and AD 200 n. 271

estoppel, panel competence, related proceedings in another forum and DSU 1704

evidence (dumping investigation) (AD 6)

access to information provided by another interested party (AD 6.1.1/AD 6.1.2), “interested parties participating in the investigation” AD 451

communication of full text of application (AD 6.1.3), “to provide” AD 454–5

“facts available”, right of resort to (AD 6.8/Annex II), “information appropriately submitted so that it can be used … without undue difficulties” (Annex II(3)) AD 561

notification to all interested parties of essential facts under consideration (AD 6.9)

“essential facts” AD 611–12

“facts” vs “reasoning” AD 612

questionnaires (AD 6.1.1), failure to send, relevance AD 441

good faith (including pacta sunt servanda principle (VCLT 26)), as fundamental rule of treaty interpretation DSU 1508

implementation of panel or AB recommendations (DSU 19.1), panel’s discretionary suggestions DSU 961

international law / “relevant rules of international law” (VCLT 31 (3)(c)) with particular reference to the interpretation of covered agreements (DSU 3(2))

rules applicable between WTO Members as “parties”, rule applicable only to some WTO Members, whether DSU 1590–1

treaty interpretation and treaty application distinguished DSU 1590

investigation of dumping (AD 5)/subsidy (SCM 11)

simultaneous consideration of evidence of dumping and injury (AD 5.7), initiation of investigation in absence of sufficient evidence (AD 5.3) and AD 395

sufficiency of evidence (AD 5.2)

determination of sufficiency (AD 5.3), AD 2.4 compared AD 358–9

evidence of dumping AD 358

sufficiency to initiate (AD 5.2) and for final determination (AD 2) distinguished

AD 356 n. 474

MERCOSUR ad hoc Arbitral Tribunal, proceedings before as impediment (estoppel) to DSU proceedings DSU 1704

MERCOSUR ad hoc Arbitral Tribunal, relevance of decisions in DSU proceedings DSU 1590

ordinary meaning of terms used in covered agreements, “fact” (AD 6.9) AD 612

precedent, as source of rule of international law DSU 1590

public notice of initiation of investigation (AD 12.1)

“interested parties”, obligation to in absence of contact details AD 825

“known exporters” (AD 6.1) / “interested parties known” (AD 12.1) AD 451

notification and public notice distinguished AD 824

relationships within and between agreements, AD 9.2/AD 9.3 AD 663

sampling (AD 6.10), procedural nature AD 626

standard/powers of review (panel) (AD 17.6)

interpretation of relevant provisions of AD (AD 17.6(ii)), “admits of more than one permissible interpretation” AD 329 n. 442

investigating authorities’ establishment of the facts (AD 17.6(i)), evaluation as at time of determination AD 924

third party rights (DSU 10 and Appendix 3), panel’s right to draw on third party submissions DSU 496

Argentina — Preserved Peaches (Panel), WT/DS238/R, DSR 2003:II

emergency action (GATT XIX)

“as a result of unforeseen developments” (GATT XIX:1(a)) GATT 804

critical date GATT 823

“demonstration”, need for GATT 808–9

“objective assessment of matter before it”, reasoned and adequate explanation requirement (SG 3.1), “as a result of unforeseen developments” (GATT XIX:1(a)), “demonstration”, need for GATT 808–9

relationships within and between agreements, GATT XIX/SG 1 SG 9

safeguard measures, conditions (SG 2)

“such increased quantities” (SG 2.1)

qualitative test SG 38–9

as sudden and recent increase SG 38–9

Argentina — Textiles and Apparel (AB), WT/DS56/AB/R, DSR 1998:III

due process (dispute settlement proceedings)

opportunity to respond to evidence/presentations of other parties, timing of submission of evidence (DS 12) and DSU 622

panel working procedures, need for DSU 622 n. 1015, 672

evidence (panel) (DSU 12)

time–limits for submission

absence of provision (Working Procedures (Appendix 3)) DSU 622

panel’s right to admit “late” /new evidence SCM 188, DSU 622

absence of objection by other party DSU 622

time limit for rebuttal DSU 622

as two-stage process DSU 622

presentation of case including facts DSU 622

rebuttal of arguments and evidence DSU 622

fees and formalities connected with importation and exportation “limited … to the approximate cost of services rendered” (GATT VIII:1(a)), IMF obligations and GATT 507

GATT 1947/WTO, xGATT 1947/WTO continuity, decisions, procedures and customary practices under GATT 1947 (WTO XVI:1) (GATT acquis), panel reports (unadopted) WTO 280

IMF/WTO relationship (WTO III:5)

Agreement (1997)

as fulfilment of WTO mandate to cooperate as appropriate with IMF WTO 46

Members’ rights and obligations under IMF and WTO Agreements, effect on WTO 46

consultations and exchange of information, WTO panels and WTO 47

Declaration of Coherence in Global Economic Policymaking (1994), legal effect WTO 46, 307

Declaration on the Relationship Between the IMF and WTO (1994) WTO 46, 308

GATT VIII obligations and WTO 46, 307, 308, GATT 507

information or technical advice, panel’s right to seek (DSU 13.1/SPS 11.2)

discretion not to seek DSU 607 n. 977, 754 n. 1216, 756, 757 n. 1220

“information from any relevant source” (DSU 13.2) DSU 429

interpretation of covered agreements, rules relating to including VCLT provisions, “any subsequent practice … which establishes the agreement of the parties regarding its interpretation” (VCLT 31(3)(b)), panel reports (unadopted) WTO 280

legal status of panel reports, unadopted reports WTO 280

margin of discretion [in accordance with due process] (panel) (DSU 12.1 and Appendix 3) DSU 622

“measures at issue” (DSU 6.2), amended measures, amendment during AB proceedings DSU 402

panel procedures (DSU 12 and Appendix 3 (WP))

applicable law

agreement of parties to alternative procedure DSU 622

panel’s right to determine DSU 622

panel proceedings as two-stage process DSU 622

relationships within and between agreements, GATT II:1(a)/GATT II:1(b) GATT 133

Schedules of Concessions (GATT II)

interpretation and clarification, GATT II:1(a) and (b), interrelationship GATT 133

ordinary customs duties in excess of those provided for in Schedule (GATT II:1(b)), “in excess of” GATT 146

ordinary customs duties in excess of those provided for in Schedule (GATT II:1(b)), duty different in type GATT 146

standard/powers of review (panel) (DSU 11), “objective assessment of matter before it”, failure to make as abuse of discretion DSU 622

terms of reference of panels (DSU 7), “measures at issue” (DSU 6.2), amended measures, amendment during AB proceedings DSU 402

Argentina — Textiles and Apparel (Panel),WT/DS56/R, DSR 1998:III

burden of proof (general rules)

cooperation of parties and DSU 573

disclosure obligation and DSU 573

competence of panels and AB (DSU 3.2/DSU 11/DSU 17), “clarification of existing provisions” DSU 386

disclosure obligation, burden of proof and DSU 573

exchange arrangements (IMF/WTO) (GATT XV), consultations (GATT XV:2), dispute settlement and GATT 700

fees and formalities connected with importation and exportation “limited … to the approximate cost of services rendered” (GATT VIII:1(a))

ad valorem charge GATT 499–500, 506

fiscal charge GATT 500

Schedules of Concessions (GATT II), recording of changes (GATT II:1(b)) and GATT 506

good faith (including pacta sunt servanda principle (VCLT 26))

burden of proof/presumption of DSU 387, 393, 1502

as fundamental rule of treaty interpretation DSU 1502

as general principle of international law DSU 387, 393

IMF/WTO relationship (WTO III:5)

Declaration on Coherence in Global Economic Policymaking (1994), legal effect WTO 307

GATT VIII obligations and WTO 307, GATT 700

interpretation of covered agreements, rules relating to including VCLT provisions, “any subsequent agreement … regarding its interpretation or application” (VCLT 31(3) (a)), Report of Working Party on DRC Accession GATT 500

judicial economy, limitation of consideration to claims essential to resolution of dispute (DSU 3.2) DSU 386

“measures at issue” (DSU 6.2)

terminated measures

continuing relevance DSU 388

good faith obligation not to reintroduce DSU 387, 393

termination before agreement on terms of reference DSU 386–8

relationships within and between agreements, GATT II:1(b)/GATT VIII GATT 506

Schedules of Concessions (GATT II)

fees and formalities connected with importation and exportation (GATT VIII) and GATT 506

ordinary customs duties in excess of those provided for in Schedule (GATT II:1(b)), “in excess of” GATT 146

ordinary customs duties in excess of those provided for in Schedule (GATT II:1(b)), duty different in type GATT 146

terms of reference of panels (DSU 7), unilateral amendment, exclusion DSU 386

arguendo assumptions

Article 21.5 proceedings and DSU 355 n. 575, 657, 1152

estoppel and DSU 663

“even assuming” DSU 111, 135, 313, 658–9, 1573, 1706

guidelines on the use of DSU 664

judicial economy and GATT 1041, DSU 646, 660

“objective assessment” (DSU 11) and DSU 657–64

security and predictability (DSU 11) and DSU 49–50

“to enhance simplicity” DSU 49, 661, 664

ASEAN Free Trade Area, Common Effective Preferential Tariffs (CEPT) scheme, Enabling Clause and GATT 66

Assets, Liabilities, Records, Staff and Functions from GATT to the WTO, Agreement on (1994), Director-General’s depositary functions WTO 195, 267

ATC (Agreement on Textiles and Clothing): see Textiles and Clothing Agreement (ATC)

Australia

Enabling Clause notifications, special treatment of least-developed countries GATT 79

Schedules of Concessions (GATT II), commitments not to impose export duties GATT 135–6

Australia — Ammonium Sulphate (Working Party Report), BISD 11/188

non-violation claims (GATT XXIII:1(b))

nullification or impairment, need for

causality GATT 986

competitive relationship as key factor GATT 986

Australia — Apples (AB), WT/DS367/AB/R

AB procedures (DSU 17.9 and ABWP), documents (ABWP 18), failure to file by deadline (ABWP 18(1)) DSU 1400, 11400

ALOPs (SPS 5.4–5.6 and Annex A(5))

measures “not more trade restrictive than required to achieve their appropriate level of … protection” (SPS 5.6)

alternative measure “significantly less restrictive to trade”

compliance with Member’s ALOP SPS 273–4

experts’ role SPS 261

“appropriate level”, determination

“acceptable level of risk” test (SPS 5.1/Annex A(4)) and SPS 266, 279

sufficient scientific evidence (SPS 2.2) and SPS 284

burden of proof, scientific evidence requirement SPS 260

legal characterization of measure as matter for panel DSU 767

confidentiality of proceedings (DSU 14/DSU 17.10/DSU 18.2/WP 3), third party rights (ABWP 27) DSU 888

confidentiality of proceedings (DSU 14/DSU 17.10/DSU 18.2/WP 3/ABWP 27), third party obligations DSU 517

due process (dispute settlement proceedings), prejudice to party, relevance DSU 203

due process/ability to defend itself considerations, clear presentation of the problem/ability to defend itself and DSU 200 n. 269

expert evidence (DSU 13.2/SPS 11.2)

legal characterisation of measure as matter for panel DSU 767

significant investigative authority, panel’s ‘broad discretion’ SPS 420

identification of specific measures (DSU 6.2)

discretion in identifying, desirability DSU 200

jurisdictional issues distinguished DSU 200

interpretation of covered agreements, rules relating to including VCLT provisions, effectiveness principle (ut res magis valeat quam pereat/effet utile), meaning to be attributed to every word and phrase SPS 493

legal basis of claim / “claim” / “matter referred” (DSU 6.2/7.1), identification of specific measure distinguished DSU 198–9

order of analysis, ALOPs (SPS 5.6) SPS 262

public hearings, AB DSU 888

public observation of oral hearing / “passive participation” (ABWP 27(3)), reasons for allowing DSU 888

relationships within and between agreements

GATT III:1/SPS Annex A(1) WTO 24

SPS 2.2/SPS 5.6 SPS 284

SPS 5.1/Annex A(3)(c) SPS 502

request for establishment of panel, requirements (DSU 6.2)

compliance, importance of

demonstration of on the “face of the request”, need for DSU 203

subsequent cure of defect, exclusion DSU 203

risk assessment, need for (SPS 5.1–5.3)

“appropriate level of protection” (SPS 5.6) and SPS 266, 279

“available scientific evidence” (relevant factors) (SPS 5.2), compliance with SPS 5.1 requirement for risk assessment, basis for determining SPS 191

measures based on, need for (SPS 5.1), rational relationship between measure and risk, need for, case-by-case approach SPS 140

“sufficient scientific evidence” requirement (SPS 2.2) and, scientific uncertainty, relevance SPS 138

“taking into account risk assessment techniques” (SPS 5.1), internationally developed techniques SPS 175

risk assessment (SPS Annex A(4)(4)), relationship with “available scientific evidence” (SPS 5.2) SPS 191

scientific evidence, need for sufficient (SPS 2.2)

burden of proof, SPS 5.6 and SPS 260

standard/powers of review (panel), own assessment, exclusion SPS 126–9

SPS control, inspection and approval procedures (SPS 8 and Annex C)

“any procedure to check and ensure”, applicability (Annex C(1)(a))

measures other than “procedures” SPS 555

measures prior to “procedures” SPS 556

“without undue delay” (Annex C(1)(a))

definition SPS 564

determination SPS 567

SPS measure, definition/classification as (Annex A(1))

“measure so as to afford protection” (GATT III) compared SPS 469

as measure to protect, measure to protect a listed issue of prevent/limit specified damage SPS 450

principal and ancillary measures, distinguishability SPS 458

purpose as test

applicability to both adoption and maintenance/application SPS 460

objectivity SPS 460

standard/powers of review (AB) (issues of law and legal interpretations) (DSU 17.6)

completion of the legal analysis in case of, contentiousness/omission/insufficiency of facts DSU 881

law vs fact, alleged failure of panel to make objective assessment (DSU 11) SPS 126

terms of reference of panels (DSU 7)

“matter referred to the DSB” (DSU 7.1), legal basis of claim distinguished DSU 198–9

request for establishment of panel as basis DSU 203

WTO Agreement, as single undertaking (WTO II:2), common context WTO 24

Australia — Apples (Panel), WT/DS367/R

ALOPs (SPS 5.4–5.6 and Annex A(5))

consistency in application (SPS 5.5)

comparable situations SPS 228

cumulative nature of obligations SPS 212

elements required for SPS 213–14

“specific” SPS 220

measures “not more trade restrictive than required to achieve their appropriate level of … protection” (SPS 5.6)

alternative measure “significantly less restrictive to trade”, experts’ role SPS 261

“appropriate level”, determination, as preliminary to/distinction from decision on measure SPS 533

order of analysis SPS 262

due process (dispute settlement proceedings)

expert evidence and SPS 423–4, DSU 1481

prejudice to party, relevance DSU 200 n. 269

expert evidence (DSU 13.2/SPS 11.2)

due process and

case-by-case approach SPS 423

framing of questions SPS 424

independence and impartiality

affiliations raising doubts SPS 416, DSU 1481

panel’s obligation to ensure DSU 1481

Rules of Conduct (RoC I and III:2) DSU 1481

number of experts SPS 405

identification of specific measures (DSU 6.2), “identify”, sufficiency of, measures cited in request, limitation to DSU 223

legal basis of claim / “claim” / “matter referred” (DSU 6.2/7.1), arguments distinguished DSU 334

“measures at issue” (DSU 6.2), several instruments as single measure DSU 276

multiple authentic languages, interpretation (VCLT 33), presumption of identity of meaning (VCLT 33(3)) SPS 454

order of analysis, specific/general provision SPS 189

relationships within and between agreements

SPS 2.2/SPS 5.1 and 5.2 SPS 48, 189

SPS 5.1/SPS 5.2 SPS 182

SPS 5.1/SPS 5.6 SPS 279

risk assessment, need for (SPS 5.1–5.3)

methodology

parties’ right to choose SPS 194

as scientific process SPS 194

risk assessment (SPS Annex A(4)(4)), quantification, relevance (including SPS 5.2 requirements) SPS 194

SPS control, inspection and approval procedures (SPS 8 and Annex C)

procedures to check and control (Annex C(1)(a)), development of SPS measures and SPS 552

“undertake and complete” (Annex C(1)(a)) SPS 560

SPS measure, definition/classification as (Annex A(1))

“laws, decrees, regulations, requirements and procedures”, ordinary meaning SPS 453

legal form and nature, relevance/distinguishability SPS 453–5

principal and ancillary measures, distinguishability SPS 458

terms of reference of panels (DSU 7)

as definition of jurisdiction/legal claims at issue DSU 363 consideration of issues outside terms of reference, exclusion SPS 422

“matter referred to the DSB” (DSU 7.1/AD 17.4) DSU 372

third party rights (DSU 10 and Appendix 3), panel’s right to draw on third party submissions DSU 495–500, 500

Australia — Automotive Leather II dispute (WT/DSR126, DSR 1999:III)

“sequencing” (interrelationship between Article 21.5 and Article 22.6 arbitration, ad hoc procedural agreements)

agreement not to appeal Article 21.5 panel report DSU 1162

non-application of 30-day Article 22.6 deadline DSU 1167

recourse to Article 21.5 before Article 22 DSU 1158

Australia — Automotive Leather II (Panel), WT/DS126/R, DSR 1991:III

accelerated/expedited procedures, consultations (SCM 4.1–4), statement of evidence (SCM 4.2) and SCM 192–4

competence of panels and AB (DSU 3.2/11), determination of establishment/termination of panel DSU 182

consultations (DSU 4), confidentiality (DSU 4.6), disclosure of information obtained in different proceedings DSU 167

consultations (SCM 4.1–4)

object and purpose, clarification and development of the facts of the situation (SCM 4.3) SCM 194

“statement of available evidence” (SCM 4.2)

accelerated proceedings and SCM 192–4

all facts distinguished SCM 192

disclosure of arguments distinguished SCM 192

DSU 4.4 distinguished SCM 194

new evidence, right to submit, objective assessment (DSU 11) and SCM 193

request for establishment of panel (SCM 4.4) distinguished GATS 192

evidence (panel) (DSU 12), time–limits for submission, accelerated procedures (SCM 4.3) and SCM 192–4

expert evidence (DSU 13.2/SPS 11.2), SCM 4.2 (statement of available evidence) and SCM 194

export subsidy, prohibited (SCM, Part II)

“contingent in fact …” (SCM 3.1(a))

case-by-case approach SCM 141–2

close connection, need for SCM 132

examination of all relevant facts, need for (SCM 3.1(a) footnote 4) SCM 141

facts at time of establishment of conditions for grant, limitation to SCM 142

knowledge or expectation, sufficiency SCM 145

“tied to” (SCM 3.1(a) footnote 4) SCM 132

information or technical advice, panel’s right to seek (DSU 13.1/SPS 11.2), “from any individual or body”, parties, frequency of exercise DSU 746

multiple panels/same parties/same dispute (DSU 9.3) DSU 182

ordinary meaning of terms used in covered agreements

“contingent” (SCM 3.1) SCM 132

“statement of available evidence” (SCM 4.2) SCM 192

“tied to” (SCM 3.1(a)) SCM 132

relationships within and between agreements, DSU 19.1/SCM 4.7 DSU 992

standard/powers of review (AB) (issues of law and legal interpretations) (DSU 17.6), law vs fact, panel as trier of facts DSU 604

standard/powers of review (panel) (DSU 11)

“objective assessment of the facts” /alleged disregard or distortion of the evidence

evidence, alleged disregard or distortion by panel, obligation to examine and evaluate evidence DSU 604

obligation to examine and evaluate all the evidence available to it DSU 604

“objective assessment of matter before it”, SCM 4.2 (statement of available evidence) and SCM 193

termination of panel DSU 182

Australia — Automotive Leather II (Article 21.5 — US) (Panel), WT/DS126/RW and Corr.1, DSR 2000:III

adverse effects (SCM 5), obligation to remove adverse threats or withdraw subsidy (SCM 7.8), “withdrawal of subsidy without delay” (SCM 4.7) compared SCM 208, 215

countervailing duties (SCM Part V), “throught the effects of subsidy” (SCM 19), retroactive effect of withdrawal of subsidy (SMC 4.7) and SCM 208, 462

evidence, acceptability as for “objective assessment” (DSU 11) purposes, public statements by company executives/government officials DSU 636

identification of specific measures (DSU 6.2), inclusion of measure, sufficiency for inclusion in terms of reference (DSU 7) DSU 374

ordinary meaning of terms used in covered agreements, “withdraw” (SCM 4.7) SCM 208

preliminary rulings on, third party rights (DSU 10 and Appendix 3) DSU 503

relationships within and between agreements, DSU 19.1/SCM 4.7 and 4.8 DSU 20, 992

review of implementation of DSB recommendations and rulings (DSB 21.5)

third party rights (DSU 10)

access to second written submissions DSU 503

right to receive submissions to first meeting of the panel, limitation to (DSU 10.3) DSU 503

standard/powers of review (panel) (DSU 11)

“objective assessment of the facts” /alleged disregard or distortion of the evidence, public statements by company executives/government officials DSU 636

“objective assessment of matter before it”

all arguments DSU 520

independent assessment, panel’s right to choose position other than that articulated by parties DSU 520

third party enhanced rights/rights beyond those indicated in DSU 10.2, DSU 10.3 and Appendix 3, para. 6, right to receive submissions to first meeting of the panel, limitation to (DSU 10.3) DSU 503

third party rights (Article 21.5 proceedings) DSU 503

“withdrawal of subsidy without delay” (SCM 4.7)

repayment of past subsidy/retroactive effect SCM 208–9

“bring into conformity” (DSU 19) distinguished SCM 216, DSU 20

countervailing duties (SCM 19.1) and SCM 208, 462

special or additional rules and procedures (DSU 1.2 and Appendix 2), relevance DSU 20

withdrawal of subsidy as SCM7.8 remedy compared SCM 208, 215

Australia — Salmon (AB), WT/DS18/AB/R, DSR 1998:VIII

ALOPs (SPS 5.4–5.6 and Annex A(5))

consistency in application (SPS 5.5)

alternative measure “significantly less restrictive to trade”, “taking into account technical and economic feasibility” SPS 282

comparable situations SPS 227–8

discrimination or disguised restriction of trade resulting from inconsistency, Member’s obligation SPS 220

measures “not more trade restrictive than required to achieve their appropriate level of … protection” (SPS 5.6)

alternative measure “significantly less restrictive to trade” SPS 276

“appropriate level”, determination

Member’s explicit statement, right of Panel/AB to challenge SPS 271

Member’s obligation to determine [in accordance with SPS obligations] SPS 207, 220, 270

Member’s prerogative SPS 267, 529

as preliminary to decision on measure SPS 265

cumulative elements (SPS 5.6 footnote 3) SPS 257

arbitrary or unjustifiable discrimination, exclusion (SPS 2.3), ALOPs and (SPS 5.5) SPS 64

arbitrary or unjustifiable distinctions resulting in discrimination or disguised restriction on international trade (SPS 5.5), disguised restriction on international trade/warning signals SPS 237, 239

due process (dispute settlement proceedings), opportunity to respond to evidence/presentations of other parties DSU 679, 694

Equivalence, Decision on Implementation of SPS 4 (26 October 2001), Members’ obligation to determine ALOP SPS 103

identification of specific measures (DSU 6.2) DSU 228

identification of product, need for DSU 228

measure actually applied DSU 228

judicial economy, “positive solution to dispute” requirement (DSU 3.7)/false judicial economy and DSU 651

ordinary meaning of terms used in covered agreements, “likelihood” SPS 508

panel procedures (DSU 12 and Appendix 3 (WP)), high quality reports/avoidance of delay, flexibility in achieving balance (DSU 12.2) DSU 678, 694

panel reports, high quality/flexibility of panel procedures balance (DSU 12.2) DSU 678, 694

relationships within and between agreements

SPS 2.2/SPS 5.1 SPS 45, 142, 201

SPS 2.2/SPS 5.6 SPS 282

SPS 2.3/SPS 5.5 SPS 64

request for establishment of panel, requirements (DSU 6.2)

factors to be taken into account including “available scientific evidence” (SPS 2), unknown and uncertain elements, effect SPS 142, 203

standard/powers of review (AB) (issues of law and legal interpretations) (DSU 17.6), completion of analysis SPS 165

risk assessment (SPS Annex A(4)(4))

elements/three-pronged nature of test SPS 147

types of risk (“likelihood” vs “potential”) SPS 504–5

“likelihood” SPS 147, 508

standard/powers of review (AB) (issues of law and legal interpretations) (DSU 17.6)

completion of the legal analysis in case of

disagreement with the panel DSU 862

panel’s failure to address correct issue SPS 276, 282, DSU 862

legal findings or developed interpretations, limitation to (DSU 17.13) SPS 345

“objective assessment of the facts” /alleged disregard or distortion of the evidence, discretion in assessment of evidence DSU 844

standard/powers of review (panel) (DSU 11)

“objective assessment of the facts” /alleged disregard or distortion of the evidence

discretion in assessment of evidence DSU 602

egregious error, need for DSU 614

“objective assessment of matter before it”, independent assessment, evaluation of evidence DSU 602

terms of reference of panels (DSU 7), as definition of jurisdiction/ legal claims at issue SPS 345

Australia — Salmon (Panel), WT/DS18/R and Corr.1, DSR 1998:VIII

ALOPs (SPS 5.4–5.6 and Annex A(5))

consistency in application (SPS 5.5)

comparable situations SPS 229

cumulative nature of obligations SPS 63

recommendations of relevant international organizations and SPS 87

measures “not more trade restrictive than required to achieve their appropriate level of … protection” (SPS 5.6)

alternative measure “significantly less restrictive to trade” SPS 275–6

“taking into account technical and economic feasibility” SPS 282

“appropriate level”, determination

Member’s explicit statement, right of Panel/AB to challenge SPS 271

Member’s obligation to determine [in accordance with SPS obligations] SPS 270–1

arbitrary or unjustifiable distinctions resulting in discrimination or disguised restriction on international trade (SPS 5.5), disguised restriction on international trade/warning signals SPS 235–9

harmonization of SPS measures (SPS 3)

measures based on international standards (SPS 3.1)

validity of OIE standards SPS 75

“where they exist”, availability for some but not all diseases SPS 74

identification of specific measures (DSU 6.2), identification of product, need for DSU 228

interim review (DSU 15), “precise aspects of the interim report”, limitation to (DSU 15.2) DSU 779

judicial economy, prior decision on another point rendering discussion otiose SPS 593

order of analysis, specific/general provision SPS 591, 595

quantitative restrictions, elimination (GATT XI), SPS Agreement and GATT 647

relationships within and between agreements

GATT III/GATT XI SPS 593

GATT XI/SPS 2.4 SPS 591

GATT XI/SPS GATT 647, SPS 593

SPS 2/SPS 3 SPS 66

SPS 2/SPS 5 SPS 66

SPS 2.2/SPS 5.1 and 5.2 SPS 201

SPS 2.2/SPS 5.1 SPS 44 n. 59

SPS 2.2/SPS 5.6 SPS 282

SPS 2.3/SPS 5.5 SPS 63

SPS 3.2/SPS 5.6 SPS 87

SPS 5.1/SPS 5.5 SPS 184

SPS 5.1/SPS 5.7 SPS 185

SPS Annex A(1)(a) and A(1)(b) SPS 486

risk assessment, need for (SPS 5.1–5.3)

arbitrary or unjustifiable inconsistencies, obligation to avoid (SPS 5.5) and SPS 184

identification of specific measures (DSU 6.2), measure actually applied DSU 228

measures “appropriate to the circumstances” (SPS 5.1) SPS 167, 171

duty to base measures on risk assessment and SPS 171

methodology

different product categories, interrelationship SPS 159

substantive obligation (SPS 5.1) distinguished SPS 190, 202

relevance of, format of the assessment, official status of report, relevance SPS 149

“sufficient scientific evidence” requirement (SPS 2.2) and SPS 201

timing of assessment (SPS 5.1) SPS 153

zero risk, unacceptability of concept SPS 164

risk assessment (SPS Annex A(4)(4))

specificity of assessment, need for SPS 507

types of risk (“likelihood” vs “potential”) SPS 145–6, 505, 507

distinction/comparison SPS 515

scientific evidence, need for sufficient (SPS 2.2), standard/powers of review (panel), own assessment, exclusion SPS 123

SPS Agreement, QRs (GATT XI) and GATT 647

SPS measure, definition/classification as (Annex A(1)), relationship between Annex A(1)(a) and A(1)(b) SPS 486

standard/powers of review (AB) (issues of law and legal interpretations) (DSU 17.6), completion of the legal analysis in case of, disagreement with panel finding SPS 165

standard/powers of review (panel) (DSU 11), risk assessment/ALOT (SPS Agreement), exclusion SPS 123, 217, 219

transparency of SPS regulations (SPS 7 and Annex B), enquiry points (Annex B, para. 3), obligation to identify ALOP, whether SPS 545

Australia — Salmon (Article 21.5 — Canada) (Panel), WT/DS18/RW, DSR 2000:IV

ALOPs (SPS 5.4–5.6 and Annex A(5))

consistency in application (SPS 5.5)

“appropriate level”, determination, as preliminary to/distinction from decision on measure SPS 532

“specific” SPS 222

measures “not more trade restrictive than required to achieve their appropriate level of … protection” (SPS 5.6), alternative measure “significantly less restrictive to trade”, “is reasonably available” SPS 263

arbitrary or unjustifiable discrimination, exclusion (SPS 2.3)

discrimination between different products SPS 59

elements of violation SPS 58

competence of panels andAB(DSU3.2/DSU11/DSU17), not to add to or diminish rights and obligations (DSU 3.2/19.2) SPS 503

conformity of laws, regulations and administrative procedures with WTO obligations, obligation to ensure (WTO XVI:4), non-performance of obligations under covered agreements, exclusion of domestic law as justification (VCLT 27) DSU 1679

information or technical advice, panel’s right to seek (DSU 13.1/SPS 11.2), role/value SPS 396

preliminary rulings on, third party rights (DSU 10 and Appendix 3) DSU 504

relationships within and between agreements

SPS 2/SPS 5 SPS 63

SPS 5.1 and 5.6/Annex A(4) SPS 503

review of implementation of DSB rulings (DSU 21.5)

“measures taken to comply”, parties’ assessment, relevance DSU 1121

third party rights (DSU 10), right to receive submissions to first meeting of the panel, limitation to (DSU 10.3) DSU 504

risk assessment, need for (SPS 5.1–5.3)

identification of diseases and potential biological and economic consequences to be protected against SPS 503

timing of assessment, publication of assessment, relevance SPS 154

risk assessment (SPS Annex A(4)(4)) SPS 503

elements/three-pronged nature of test SPS 147 n. 183

SPS Agreement

applicability (SPS 1.1), measures taken by body other than central government (SPS 13) SPS 446

implementation (SPS 13), measures taken by body other than central government SPS 446

SPS control, inspection and approval procedures (SPS 8 and Annex C)

“any procedure to check and ensure”, applicability (Annex C(1) (c)), substantive and control procedures distinguished SPS 584

information requirements (Annex C(1)(c)), procedures to check compliance with SPS measures, limitation to SPS 584

State responsibility as rule/general principle of international law (ILC Articles), responsibility for act or omission of, constituent part of federal State DSU 1679

third party rights (Article 21.5 proceedings) DSU 504

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