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panel (composition) (DSU 8)
determination by Director-General (DSU 8.7) DSU
293
indicative list (DSU 8.4) DSU 292
panel’s role DSU 293
panel reports
adoption by DSB
notice of appeal and (DSU 16.4) DSU
436–7
timing, adoption of report (DSU 16.4) DSU
436
developing country Members and (DSU 12.11) DSU
414–16
dissenting/separate opinions DSU
395
legal status
as acquis (WTO Art. XVI:1): see decisions, procedures and
customary practices under GATT 1947
(WTO XVI:1), panel reports
“other decisions of the Contracting Parties to GATT 1947” (GATT 1994 Art. 1(b)(iv)), whether
GATT 1–2, SCM
82–3
reports reversed by AB AD
257, 337
unadopted reports WTO 219,
AD 599
unappealed finding in adopted report DSU
533, 609
unappealed reports WTO
223, DSU 438
rationale, need for (DSU 12.7) DSU
408
Article 21.5 proceedings and DSU
409
direct quotation from previous report, desirability DSU
408
security and predictability of WTO obligations (DSU 3.2), aid to
DSU 408
sufficiency DSU 405–10
reference to previous panel report (DSU 21.5) DSU
408
time limits, inability to meet (DSU 12.9) DSU
412
panel, request for establishment: see request for establishment of
panel, general considerations (DS 6); request for establishment of panel,
requirements (DSU 6.2); request for establishment of panel, requirements (SCM
4.4)
Paris Convention (1967) (PC): see intellectual property
conventions (TRIPS 2), Paris Convention (1967), incorporation (TRIPS 2.1); trade
names (Paris Convention (1967) (PC 8)); trademarks (Paris Convention (1967))
(PC)
patents (TRIPS), pharmaceutical product, authorization of use in absence
of authorization of right holder (TRIPS 31(f) and (h)), waivers TRIPS
116
patents (TRIPS, Section 5): see also intellectual property rights
(TRIPS), limitations and exceptions (TRIPS 13)
Berne Convention as basis TRIPS
111
exceptions (TRIPS 30)
balance of agreement as a whole and TRIPS
101
compensatory adjustment TRIPS
113
conditions/criteria TRIPS 99,
102–7
curtailment of owner’s rights TRIPS
102–3
economic impact TRIPS 103–4
“exploitation of patent” TRIPS
105
“legitimate interests” TRIPS
108–11
“normal exploitation” TRIPS
106
“discrimination” (TRIPS 27.1), applicability TRIPS
94–5
exclusive rights (TRIPS 28) TRIPS
98
patentable subject matter (TRIPS 27): see also biodiversity,
protection
as context for interpretation of TRIPS 70 (protection of existing subject
matter) TRIPS 159
“discrimination” (TRIPS 27.1)
applicability to TRIPS 30 and 31 TRIPS
94–5
de facto discrimination TRIPS
89–90
necessary elements TRIPS 92
non-discriminatory terminology in other GATT/WTO agreements distinguished
TRIPS 89–90
plant and animal inventions (TRIPS 27.3(b)), review TRIPS
93
plant and animal inventions (TRIPS 27.3(b)), review: see also biodiversity,
protection
term of protection (TRIPS 33)
“available” TRIPS 118
“effectiveness”, relevance TRIPS
119
“existing subject matter” (TRIPS 70.2) and TRIPS
165
freedom to choose method of implementation (TRIPS 1.1) and, “filing date”
TRIPS 117
unwarranted curtailment, prohibition (TRIPS 62.2) as distinct and cumulative
provision TRIPS 3, 133
payments on export of agricultural product financed by virtue of governmental
action (AG 9.1(c)): see also determination of dumping (AD 2),
calculation of administrative, selling and general costs and profits (AD 2.2.2);
export subsidy, prohibited (SCM, Part II), “contingent upon export performance”
(SCM 3.1(a)); subsidy, definition (SCM 1), “direct subsidies, including
payments-in-kind” (AG 9.1(a))
benchmark/standard (AG 9 1(c))
absence of express provision, relevance AG 62
domestic price fixed by government GATS
63
factual and regulatory setting, relevance AG
62–3
industry-wide production costs AG
65–7
market rate, relevance, world market price AG
64
objective standard, need for AG
64
“by virtue of” AG 69–77
“but for” test AG 70
nexus, need for AG 70–7
“financed” AG 69–77
“whether or not a charge on the public account” AG
58, 69, 75
“government action” AG
68
government mandate or direction, relevance, AG 9.1(e), SCM 1.1 and SCM
Illustrative List of Export Subsidies distinguished SCM
408
“payments”
payment-in-kind as AG 58–61
transfer of economic resources, need for AG
58
payments by private parties as AG
72
pharmaceutical and agricultural chemical products, patent protection (TRIPS
70.8): see also patents (TRIPS, Section 5)
developing country Members, right to delay (TRIPS 65.2) TRIPS
96, 145
plants, patents: see biodiversity, protection
Plurilateral Agreements: see also Civil Aircraft, Agreement on
Trade in (AIR); Government Procurement Agreement
(GPA); International Bovine
Meat Agreement; International Dairy Agreement (IDA)
acceptance provisions (WTO XIV:4) WTO
210
accession to (WTO XX:3) WTO
198–200
additions and deletions (WTO X:9) WTO
174–5
amendments (WTO X:9) WTO 176–7
reservations (WTO XVI:5) WTO
236–7
waivers (WTO IX:9) WTO 167
withdrawal (WTO XV:2) WTO
215
Poland, ATC safeguard measures (ATC 6), TMB discussion
ATC 98
precautionary principle (SPS Agreement)
consistency of measures with SPS Agreement, need for SPS
3, DSU 78
customary international environmental law, as principle of
SPS 2, DSU 78
customary international law, whether SPS
2, DSU 78
harmonization of measures (SPS 3.3) and SPS
68
measures which result in a higher level of protection than international
standards (SPS 3.3) SPS 3, DSU
78
SPS Preamble SPS 3, DSU
78
sufficient scientific evidence (SPS 5.7) and SPS
3, 22, 169
precedent: see also Appellate Body (AB) (DSU 17),
reports;
decisions, procedures and customary practices under GATT 1947 (WTO XVI:1);
interpretation of covered agreements, guidelines, legitimate expectations,
relevance; panel reports
cases distinguished 166 n. 224
decisions, procedures and customary practices under GATT 1947 (WTO XVI:1),
panel reports preceding relevant AB decisions GATT
154 n. 245
ECJ decisions GATT 121
preliminary rulings on
adequacy of consultation (DSU 4) DSU
120, 940
admissibility of information not made available to investigating authorities
DSU 958–9
amicus curiae briefs DSU
970, 979, 1050–1
claims outside terms of reference DSU
949–52
composition of delegation/private counsel DSU
971–3
confidentiality issues DSU 135–6,
965–70
double fora DSU 948
executive summaries DSU 976
panel composition DSU 946
panel’s obligation to determine jurisdictional issues DSU
247, 289,
863
specificity of request for panel (DSU 6.2) DSU
941–5, 953
third party rights DSU 826,
935, 960–4
timetable for panel proceedings DSU
975
timing of objections DSU 980–5
timing of submission of evidence DSU
954–7
preliminary rulings (procedural aspects)
arbitration (DSU 22.6) DSU 693
refusal DSU 947
timing DSU 339, 919,
986–7
request for preliminary ruling DSU
824
working procedures, need for DSU
237, 919, 931–3
written submissions, opportunity to submit DSU
825
preparatory work: see interpretation of covered agreements, means,
preparatory work (VCLT 32)
Preshipment Inspection Agreement: see PSI Agreement
price undertakings (AD 8)/undertakings (SCM 18), practicality, relevance
(AD 8.3/SCM 18.3) AD 459
prima facie case: see burden of proof, prima facie case,
need for
private contractual arrangements as justification for breach of obligation
GATT 18, 255, SCM
167, 188
private counsel, inclusion in delegation
appellate review DSU 1022–5
panel proceedings DSU 971–3
privileges and immunities (WTO VIII): see also Headquarters
Agreement (WTO-Switzerland) (1995)
Convention on Privileges an Immunities of Specialized Agencies (1947) as
model (WTO VIII:4) WTO 155
Members’ obligation to respect international character of WTO (WTO VI:4)
and WTO 154
WTO staff and representatives of Members (WTO VIII:3) functional nature
WTO 154
obligation of Secretariat officials to observe host State laws
WTO 154
waiver by Director-General WTO
154
WTO (WTO VIII:2), functional nature WTO
154
procedure: see also Working Procedures (appellate review (DSU 17.9
and ABWP)); Working Procedures (panel) (DSU 12.1 and Appendix 3 (WP))
international and municipal rules distinguished DSU
338, 344
progressive liberalization (GATS XIX), decisions and agreements relating to
Decision on Commitments in Basic Telecommunications (GATS, Fourth Protocol)
GATS 115
financial services
GATS: Second Protocol GATS 112
GATS: Fifth Protocol GATS 113
movement of natural persons (GATS: Third Protocol) GATS
111
obligation (GATTS XIX:1), information exchange (Singapore)
GATS 106
progressive liberalization negotiations (GATS XIX:3 and Doha Declaration,
para. 15)
guidelines and procedures (GATS XIX:3/Doha Declaration, para. 15)
assessment of trade in services as on-going exercise GATS
110
GATS objectives as basis (GATS Preamble)
Guidelines and Procedures for Negotiations (2001) GATS
109
obligation (GATTS XIX:1), GATS
106–8
Special Session of the Council for Trade in Services establishment
WTO 127
July package, para. 1(3) and
Annex C
responsibility for negotiations WTO
127
timetable
prompt and satisfactory resolution of disputes, Members’ right to (DSU 3)
failure to provide confidential information (SG 3.2) and AG
113
impairment of benefits by measures taken by another Member (DSU 3.3)
arbitration (DSU 21.5) and DSU 609
arbitration (DSU 25) and DSU
791, 803
“measure taken by another Member” DSU
86, 168
multiple complainants (DSU 9) and DSU
305
prompt compliance with DSB recommendations and rulings (DSU 21) and
DSU 557–8
Working Procedures (appellate review) and SCM
147, DSU 838, 889–91
proper parties DSU 1041–2: see also
amicus curiae briefs
proportionality
attribution of damage (ATC 6.4) ATC 89
countermeasures (SCM 4.10) SCM
179–80, 183,
197, DSU 71–2,
773–5
risk based on scientific evidence SPS
16
safeguard measures (ATC 6.4) and ATC
87
safeguard measures (SG 5.1) (“to the extent necessary”) and
AG 13–15,
219–22
State responsibility for breach of international obligations and
ATC 87, AG 222, DSU 71
countermeasures ATC 87
suspension of concessions (DSU 22.4) and ATC
87, SCM 179–80,
183–4, DSU
773–5
provisional measures: see also scientific evidence, need for
sufficient (SPS 2.2), provisional adoption of measures in case of insufficiency
of scientific evidence (SPS 5.7); transitional safeguards
(ATC 6), provisional
application of restraint measures authorized under ATC 10 (ATC 11)
provisional measures (AD 7)
duration (AD 7.4), claim relating to as claim relating to definitive
anti-dumping duty (AD 10) AD 615–16
judicial economy in case of overlap with previous determination relating to
definitive measure AD 452
preliminary affermative determination (AD 7.1(ii)), retroactive measures (AD
10.7) and AD 484
provisional measures (SCM
17)
date of commencement (SCM 17.3) SCM
276–7
duration (SCM 17.4) SCM 276–9
retroactivity (SCM 20) and SCM
277, 291–3
provisional measures (SG 6), tariff measures
GATT 395, AG 230
PSI Agreement
Independent Entity
annual reports PSI 5
establishment PSI 3
list of experts (PSI 4(b)) PSI 6
rules of procedure WTO 74,
PSI 3–4
independent review procedures (PSI 4): see PSI Agreement, Independent
Entity notification (PSI 5), requirements PSI 7
obligations of exporter Members (PSI 3), technical assistance activities
PSI 1
obligations of user Members (PSI 2), recommendation relating to (1997)
PSI 1
review/monitoring (PSI 6)
final review PSI 12
as responsibility of
Customs Valuation Committee VAL 23
PSI Working Party PSI 8
Working Party on Preshipment Inspection: see PSI Working Party
PSI Working Party
establishment WTO 45, PSI
8
extension PSI 10–11
final review PSI 12
notification PSI 7
recommendations on
monitoring of PSI Agreement VAL
23
obligations of user Members (PSI 2) PSI
1
reports PSI 9
technical assistance activities PSI
2
public health: see TRIPS Agreement and Public Health, Declaration
on (2000)
public notice and explanation of determinations (AD 12)
AD 3.4 factors, written record of analysis and AD
167
confidentiality of information (AD 6.5) and AD
417, 449
due process and AD 167
notification to government of exporting Member (AD 5.5) distinguished
AD 304
as procedural requirement AD
167
public notice of initiation of investigation (AD 12.1) AD
553
“interested parties”, obligation to in absence of contact details
AD 550
notification and public notice distinguished AD
549
separate report (AD 12.1.1), need for reference to AD
551–2
summary of factors (AD 12.1.1(iv)) AD 554–5
time limits for making views known (AD 12.1.1(vi)) AD
310
timing (AD 12.1)
initiation of investigation and AD
547–8
satisfaction as to sufficiency of evidence (AD 5.3), relevance
AD 548
public notice of preliminary or final determination (AD 12.2)
“all relevant information on the matters of fact and law and
reasons” for measures (AD 12.2.2) AD
112, 149
change of legal basis, obligation to inform interested parties, whether (AD
12.2) AD 313–14,
336, 432
compliance with other obligations, dependence on AD
561–74
data collection period, inclusion of reasons for (AD 12.2.2)
AD 8, 556
explanations for initiation of investigations (AD 12.2.2), relevance
AD 558–60
publication and administration of trade regulations (GATT X)
Anti-Dumping Agreement and GATT
393–4
“date of this Agreement” (GATT X:3(c)), GATT practice GATT
386
GATT practice GATT 385,
386
measures of general application (GATT X:1) GATT
364, 376–9
GATT practice GATT 368
national treatment (GATT X:1) and GATT
372, 388: see also publication
and administration of trade regulations (GATT X), uniform, impartial and
reasonable administration (GATT X:3(a)), discrimination between Members,
relevance
relationship with other GATT provisions GATT
373, 387: see also
separate subject headings such as national treatment (GATT X:1) above
retroactivity of trade measures (ATC 6.10) and GATT
370
transparency and due process (GATT X:2) GATT
369–70
uniform, impartial and reasonable administration (GATT X:3(a))
GATT 371, 373,
376
applicability to individual traders GATT
380
discrimination between Members, relevance GATT
375, 389
general impact on overall administration, need for GATT
397
“impartial” (presence of private parties during customs process)
GATT 382, DSU 202
as procedural requirement GATT
387 n. 585
“uniform” GATT 381,
384
publication of findings and reasoned conclusions on all pertinent issues of
fact and law, authorities’ obligation (SG 3.1) GATT
532–3, 540,
AG 68, 72,
75: see also reasoned and adequate explanation, need for (SG 3.1)
absence of claim relating to, effect on possibility of SG 4 claims
AG 89
confidential information (SG 3.2) and AG
108–9
format of report, relevance AG
102
multiple findings AG 93
“pertinent issues”, unforeseen developments AG
101
“publish”/”make publicly available”, equivalence AG
98
timing of report, relevance AG
103
publication of measures such as laws, decrees or ordinances (transparency of
SPS Regulations (Annex B) (para. 1, footnote 5)) SPS
225
legal instruments as “measure” DSU 173
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