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ON THIS PAGE:
> EC — Hormones, paras. 32, 38
> Australia — Salmon, para. 35
> Korea — Alcoholic Beverages, para. 45
> Canada — Pharmaceutical Patents, para. 40
> Canada — Pharmaceutical Patents, para. 41
> Canada — Pharmaceutical Patents, para. 42
> Canada — Pharmaceutical Patents, para. 43
> Canada — Pharmaceutical Patents, footnote 30 to para. 52
> US — Hot-Rolled Steel, para. 30
> US — Offset Act (Byrd Amendment), para. 48
> EC — Tariff Preferences, para. 30
> US — Gambling, para. 33
> EC — Chicken Cuts, para. 49
> EC — Chicken Cuts, para. 62
> Japan — DRAMs (Korea) (Article 21.3(c)), para. 26
> Brazil — Retreaded Tyres (Article 21.3(c)), para. 47
> US — Stainless Steel (Mexico) (Article 21.3(c)), para. 41
> US — Stainless Steel (Mexico) (Article 21.3(c)), para. 42
> Colombia — Ports of Entry (Article 21.3(c)), para. 64
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ARB.1.1 EC — Hormones, paras. 32, 38
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(WTDS26/15, WT/DS48/13)
There is an issue in this arbitration as to what constitutes “implementation
of the recommendations and rulings of the DSB” under Article 21.3 of
the DSU. …
…
It is not within my mandate under Article 21.3(c) of the DSU, to
suggest ways or means to the European Communities to implement the
recommendations and rulings of the Appellate Body Report and Panel
Reports. My task is to determine the reasonable period of time within
which implementation must be completed. Article 3.7 of the DSU provides,
in relevant part, that “the first objective of the dispute settlement
mechanism is usually to secure the withdrawal of the measures
concerned if these are found to be inconsistent with the provisions
of any of the covered agreements” (emphasis added). Although
withdrawal of an inconsistent measure is the preferred means of
complying with the recommendations and rulings of the DSB in a violation
case, it is not necessarily the only means of implementation
consistent with the covered agreements. An implementing Member,
therefore, has a measure of discretion in choosing the means of
implementation, as long as the means chosen are consistent with the
recommendations and rulings of the DSB and with the covered agreements.
ARB.1.2 Australia — Salmon, para. 35 back to top
(WT/DS18/9)
I am mindful of the limits of my mandate in this arbitration. I am
particularly aware that suggesting ways and means of implementation is
not part of my mandate and that my task is confined to the determination
of the “reasonable period of time”. Choosing the means of
implementation is, and should be, the prerogative of the implementing
Member. …
ARB.1.3 Korea — Alcoholic Beverages, para. 45
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(WT/DS75/16, WT/DS84/14)
My mandate in this arbitration relates exclusively to determining the
reasonable period of time for implementation under Article 21.3(c) of
the DSU. It is not within my mandate to suggest ways and means to
implement the recommendations and rulings of the DSB. Choosing the means
of implementation is, and should be, the prerogative of the implementing
Member, as long as the means chosen are consistent with the
recommendations and rulings of the DSB and the provisions of the covered
agreements. I consider it, therefore, inappropriate to determine
whether, and to what extent, amendments to various regulatory
instruments are required before the new tax legislation comes into
effect.
ARB.1.4 Canada — Pharmaceutical Patents, para. 40
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(WT/DS114/13)
Moreover, I am of the view that whether the means of implementation
chosen by a Member is consistent with that Member’s obligations under
the WTO covered agreements is not a question that falls within the
jurisdiction of an arbitrator under Article 21.3(c).As the text of the
provision makes clear, the sole task of an arbitrator under Article
21.3(c) is to determine a “reasonable period of time” in which a
Member must complete implementation. …
ARB.1.5 Canada — Pharmaceutical Patents, para. 41
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(WT/DS114/13)
As an arbitrator under Article 21.3(c), certainly my responsibility
includes examining closely the relevance and duration of each of the
necessary steps leading to implementation to determine when a “reasonable
period of time” for implementation will end. My responsibility does
not, however, include in any respect a determination of the consistency
of the proposed implementing measure with the recommendations and
rulings of the DSB. The proper concern of an arbitrator under Article
21.3(c) is with when, not what.
ARB.1.6 Canada — Pharmaceutical Patents, para. 42
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(WT/DS114/13)
… If there is any question about whether what a Member
chooses as a means of implementation is sufficient to comply with the
recommendations and rulings of the DSB, as opposed to when that
Member proposes to do it, then Article 21.5 applies, not Article 21.3.
The reasons are many and obvious. For example, if the consistency of
implementing measures could also be examined during arbitrations under
Article 21.3(c), then Article 21.5 would lose much of its effect.
Parties would have little to lose in requesting also from an arbitrator
under Article 21.3(c) an immediate ruling on the consistency of a
proposed measure. Also, the more elaborate Article 21.5 procedures,
involving a panel of three or five members and a report adopted by the
DSB, seem more suitable than the more constrained legal domain of
Article 21.3(c) for assessing the consistency of substantive obligations
under WTO covered agreements.
ARB.1.7 Canada — Pharmaceutical Patents, para. 43
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(WT/DS114/13)
… Accordingly, I conclude that the “reasonable period of time”
for implementation that must be determined in this Article 21.3
proceeding is the “reasonable period of time” for implementing what
has been proposed by Canada, and nothing else. Thus, I offer no
opinion whatsoever on whether Canada’s proposed regulatory change is
sufficient, or whether legislative change may be required instead for
consistency with the recommendations and rulings of the DSB.
ARB.1.8 Canada — Pharmaceutical Patents, footnote 30 to para.
52 back to top
(WT/DS114/13)
In paras. 3 and 10 of its submission, the European Communities stated
that, during earlier consultations, Canada had offered to implement the
recommendations and rulings of the DSB in nine months. Canada argued in
the oral hearing in this arbitration that this offer had been made
without prejudice during confidential consultations, and that, by
submitting this evidence to me, the European Communities was in breach
of Article 4.6 of the DSU. … It is not clear to me that my
mandate allows me to rule on whether submission by the European
Communities of evidence of an earlier offer by Canada on defining “a
reasonable period of time” in this case is inconsistent with Article
4.6 of the DSU. … Therefore, I make no ruling on Canada’s
argument relating to Article 4.6.
ARB.1.9 US — Hot-Rolled Steel, para. 30
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(WT/DS184/13)
… I do not believe that an arbitrator acting under Article 21.3(c)
of the DSU is vested with jurisdiction to make any determination of the
proper scope and content of implementing legislation, and hence do not
propose to deal with it. The degree of complexity of the contemplated
implementing legislation may be relevant for the arbitrator, to the
extent that such complexity bears upon the length of time that may
reasonably be allocated to the enactment of such legislation. But the
proper scope and content of anticipated legislation are, in principle,
left to the implementing WTO Member to determine.
ARB.1.10 US — Offset Act (Byrd Amendment), para. 48
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(WT/DS217/14, WT/DS234/22)
I recall that my mandate, under Article 21.3(c), is confined to the
determination of the reasonable period of time for implementation of the
recommendations and rulings of the DSB. I am particularly aware that it
is not part of my mandate to determine or even to suggest the
manner in which the United States is to implement the recommendations
and rulings of the DSB. …
ARB.1.11 EC — Tariff Preferences, para. 30
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(WT/DS246/14)
It is, of course, beyond the scope of my mandate to determine how the
European Communities should implement the recommendations and rulings of
the DSB. It is for the European Communities to choose the method of
implementation, provided that the method chosen is consistent with the
relevant recommendations and rulings and with the provisions of the
covered agreements. Within these limitations, the European Communities
is thus entitled to bring the Drug Arrangements into conformity through
whatever method it deems appropriate, be it at the same time and within
the same instrument as its GSP scheme, or otherwise.
ARB.1.12 US — Gambling, para. 33 back to top
(WT/DS285/13 )
It is not the role of an arbitrator under Article 21.3(c) to identify
a particular method of implementation and to determine the “reasonable
period of time” on the basis of that method. Rather, the implementing
Member retains the discretion to choose its preferred method of
implementation. Nevertheless, it will be necessary for me to consider
certain aspects of the means of implementation proposed by each of the
parties, as explained in more detail below.
ARB.1.13 EC — Chicken Cuts, para. 49 back to top
(WT/DS269/13, WT/DS286/15)
My role as arbitrator in this dispute is limited. My sole mandate
under Article 21.3 of the DSU is to determine the “reasonable period
of time” needed for implementation of the recommendations and rulings
of the DSB in this dispute. Thus, in fulfilling this limited mandate, I
acknowledge that the implementing Member has a measure of discretion in
selecting the means of implementation that it deems most appropriate; in
other words, with respect to the implementing measure, my task focuses
on the when, not the what. My concern is with time, not
technique. …
ARB.1.14 EC — Chicken Cuts, para. 62 back to top
(WT/DS269/13, WT/DS286/15)
… Where the Panel and the Appellate Body have expressed one view on
issues relating to the substance of this dispute, I am not free, in
fulfilling my limited mandate as arbitrator, to express another. I am
certainly not free in this limited role to contradict the reasoning of
the Panel and Appellate Body that led to the recommendations and rulings
that have been adopted by the DSB. The purpose of an Article 21.3
arbitration is not to question the recommendations and rulings of the
DSB; it is to establish the reasonable period of time a Member should
have to implement them. …
ARB.1.15 Japan — DRAMs (Korea) (Article 21.3(c)), para. 26
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(WT/DS336/16)
Whilst my task is to determine by when an implementing Member
must comply, to do so requires that some consideration be given to the means
of implementation chosen by the implementing Member. As one
arbitrator has explained: “[t]urning to the question of what would
constitute the ‘reasonable period of time’ for implementation in
this case, I need to look first at the type of measure proposed to be
used for implementation.” In other words, to determine when a
Member must comply, it may be necessary to consider how a Member
proposes to do so.
ARB.1.16 Brazil — Retreaded Tyres (Article 21.3(c)), para. 47
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(WT/DS332/16)
… my mandate relates to the time by when the implementing
Member must have achieved compliance, not to the manner in which
that Member achieves compliance. Yet, I consider that when a
Member must comply cannot be determined in isolation from the chosen
means of implementation. It closely relates to the question of how a
Member intends to comply with the recommendations and rulings of the DSB.
…
ARB.1.17 US — Stainless Steel (Mexico) (Article 21.3(c)), para.
41 back to top
(WT/DS344/15)
My mandate relates to the time by which the implementing
Member must have achieved compliance, not to the manner in which
that Member achieves compliance. I am mindful that it is beyond my
mandate to determine the consistency with WTO law of the measure
eventually taken to comply; this can only be assessed in Article
21.5 proceedings. Yet, I consider that when a Member must comply
with the recommendations and rulings of the DSB cannot be determined in
isolation from the chosen means of implementation. In order “to
determine when a Member must comply, it may be necessary to
consider how a Member proposes to do so”. In making my
determination pursuant to Article 21.3(c), the means of implementation
chosen by the Member concerned is, therefore, a relevant consideration.
…
ARB.1.18 US — Stainless Steel (Mexico) (Article 21.3(c)), para.
42 back to top
(WT/DS344/15)
While the implementing Member enjoys a certain discretion in choosing
the means and method of implementation, this discretion is not without
bounds. As stated by previous arbitrators, “the implementing Member
does not have an unfettered right to choose any method of implementation”.
I must consider, in particular, “whether the implementing action falls
within the range of permissible actions that can be taken in order to
implement the DSB’s recommendations and rulings”. …
ARB.1.19 Colombia — Ports of Entry (Article 21.3(c)), para. 64
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(WT/DS366/13)
While an implementing Member has discretion in selecting the means of
implementation, this discretion is not “an unfettered right to choose
any method of implementation”. In my view, implementation of the
recommendations and rulings of the DSB in this case is an “obligation
of result”, and therefore the means of implementation chosen must be
apt in form, nature, and content to effect compliance, and should
otherwise be consistent with the covered agreements. Thus, although I am
mindful that it falls within the scope of Article 21.5 proceedings to
assess whether the measures eventually taken to comply are WTO-consistent,
in making my determination under Article 21.3(c) I must consider “whether
the implementing action falls within the range of permissible actions
that can be taken in order to implement the DSB’s recommendations and
rulings”. …
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