(d) Arguments specific to WTO Agreement Article XVI:4

4.361  The European Communities also argues that the third legal standard that domestic law must meet is set out in Article XVI:4 of the Marrakech Agreement according to which "each Member shall ensure the conformity of its laws, regulations and administrative procedures with its obligations [under the WTO agreements]".

4.362  The European Communities contends that by creating a new type of obligation that goes beyond the commitments under the GATT 1947, this specific provision governing domestic law sets without any doubt a standard more demanding than the standards that Members' domestic law must meet under the WTO practice in order to ensure a good faith implementation of their substantive obligations in accordance with principles codified in Articles 26 and 27 of the Vienna Convention on the Law of Treaties.

4.363  The European Communities then concludes that this third legal standard would therefore need to be considered by the Panel only if, and to the extent that, it were to conclude that Sections 301-310 do not mandate WTO-inconsistent determinations or actions and provide a sound legal basis for the implementation of the United States' WTO obligations.

4.364  The European Communities argues that the United States claims, without any supporting arguments, that "Sections 301-310 are not inconsistent with Article XVI:4 because they do not mandate action in violation of any provisions of the DSU or GATT 1994, nor do they preclude action consistent with those provisions".

4.365  The European Communities recalls that Article XVI:4 of the Marrakech Agreement requires a positive action by the WTO Member ensuring the conformity of its entire domestic law. The distinction between legislative and executive actions is not made in this provision. It covers also regulations and administrative procedures, which can typically be adopted and modified by the executive branch of the government. The question of whether the domestic law mandates the executive authorities to take WTO-inconsistent measures is therefore irrelevant under Article XVI:4.

4.366  The European Communities further maintains that moreover, if Article XVI:4 were interpreted to merely impose the requirements that arise already under the Vienna Convention on the Law of Treaties, it would be redundant. As the Appellate Body recognised in the US-Gasoline case,²⁵¹ interpretations rendering whole clauses of a treaty redundant are however not permitted under the principles of interpretations set out in the Vienna Convention on the Law of Treaties (Articles 31 and 32).

4.367  The European Communities alleges that the United States' reading of Article XVI:4 of the Marrakech Agreement is therefore clearly incompatible with the ordinary meaning to be given to its terms in their context and in the light of the object and purpose of the WTO Agreement to ensure security and predictability in international trade relations.

4.368  In the view of the European Communities, one of the important tasks before this Panel is to give meaning to the terms "ensure" and "conformity" in Article XVI:4. The principles of interpretation set out in the Vienna Convention require the Panel to interpret these terms in good faith in accordance with the ordinary meaning to be given to them in their context and in the light of the object and purpose of the WTO Agreement.

4.369  The European Communities points out that the ordinary meaning of the term "ensure" is to "make certain".   The ordinary meaning of the term "conformity" is, firstly, "action or behaviour in accordance with established practice; compliance" and, secondly, "correspondence in form or manner, likeness, agreement" (Oxford).

4.370  The European Communities repeats its argument that Article XVI:4 must be interpreted to impose requirements with respect to domestic law additional to the requirements that arise already from the substantive WTO obligations themselves. This is achieved if Article XVI:4 is interpreted to stipulate a "correspondence, likeness or agreement" between domestic law and the relevant WTO obligations.

4.371  In the view of the European Communities, the terms "ensure" and "conformity", taken together in their context, therefore indicate that Article XVI:4 obliges Members not merely to give their executive authorities formally the right to act consistently with WTO law, but to structure their law in a manner that "makes certain" that the objectives of the covered agreements will be achieved.

4.372  The European Communities notes that one basic objective of WTO law is to strengthen the multilateral system.   Another basic objective is to obtain greater legal certainty in multilateral trade relations.

4.373  The European Communities claims that a domestic law, regulation or administrative procedure whose structure, design and architecture is specifically framed to create uncertainty for the trade with other WTO Members could therefore never be deemed to ensure conformity with WTO law.

4.374  The European Communities further argues that the participants in the Uruguay Round expected the United States not only to commit itself to refrain from unilateral action but also to bring its domestic law into conformity with that commitment.  One of the earliest texts on dispute settlement submitted on 19 October 1990 by Mr. Julio Lacarte-Mur�, Chairman of the Negotiating Group on Dispute Settlement, contained the following provision:

"The contracting parties shall:

1. abide by GATT dispute settlement rules and procedures;
2. abide by the recommendations, rulings and decisions of the CONTRACTING PARTIES;
3. not resort to unilateral action inconsistent with GATT rules and procedures; and
4. for the purpose of (iii), undertake to adapt their domestic trade legislation and enforcement procedures in a manner ensuring the conformity of all measures with GATT dispute settlement procedures".

4.375  The European Communities goes on to state that subsequent drafts of the DSU no longer contained a provision on the adaptation of domestic legislation.  However, a provision to that effect was included in the proposed draft Agreement Establishing the Multilateral Trade Organisation.  Article XVI:4 of this draft Agreement stated:

"The Members shall endeavour to take all necessary steps, where changes to domestic laws will be required to implement the provisions of the agreements annexed hereto, to ensure the conformity of their laws with these agreements".²⁵²

4.376  The European Communities points out that in an informal note to the Legal Drafting Group, the Secretariat noted:

"Under general international law, a party to a treaty may not invoke the provisions of its internal law as justification for its failure to perform a treaty and according to several GATT panels, laws mandating action inconsistent with the General Agreement constitute themselves violations of the General Agreement, whether or not such action has been taken.   This paragraph would therefore provide for a lesser level of obligation under the Multilateral Trade Agreements than that provided for under the current GATT".²⁵³

4.377  The European Communities further notes that the final version of Article XVI:4 was therefore drafted not as a "best-endeavours" clause, applicable only to cases where changes to domestic laws are required, but as an unqualified obligation:

"Each Member shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreements".

4.378  The European Communities explains that the Tokyo Round agreements on government procurement, subsidies, licensing procedures, civil aircraft and anti-dumping each contained provisions similar to Article XVI:4.²⁵⁴ These provisions were taken over into the final provisions of the corresponding WTO agreements, but not however into the GATT 1994, the GATS or the DSU.²⁵⁵ The effect of Article XVI:4 is to extend the explicit requirement of the WTO-conformity of domestic law to all agreements and legal instruments in Annexes 1, 2 and 3 of the WTO Agreement, including the DSU.²⁵⁶

4.379  The United States points out that the EC's claims with respect to the GATT 1994 and WTO Agreement Article XVI:4 each rely on the assumption that the EC's claims with respect to DSU violations are correct. For example, there can be no violation of GATT 1994 if the United States takes no action and, for the reasons already discussed, one cannot assume that Sections 301-310 require such action. Moreover, it cannot be assumed that any action taken pursuant to Sections 301-310 would not be preceded by DSB authorization.

4.380  The United States argues that with respect to WTO Agreement Article XVI:4, it is important to recognise that a measure must first violate some other WTO commitment in order to violate Article XVI:4. The ordinary meaning of the text of this provision makes this clear: "Each Member shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreements". If those laws, regulations and administrative procedures conform with the obligations in the annexed agreements, including the DSU, there is no violation of Article XVI:4. The European Communities may not assume that Sections 301-310 violate the DSU for the purpose of finding a violation of Article XVI:4.

4.381  The United States points out that Article XVI:4 of the WTO Agreement provides:

"Each Member shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreements".

4.382  The United States argues that nothing in this provision suggests, let alone dictates, the redefinition of the concept of mandatory legislation as proposed by the European Communities.   The meaning of the text of Article XVI:4 is straightforward:  if a Member's law, regulation, or administrative procedure does not conform with its obligations as provided in the annexed Agreements, that Member has an affirmative obligation to bring it into conformity. Conversely, however, if those laws, regulations and administrative procedures conform with its obligations, it need undertake no further action.

4.383  The United States claims that Article XVI:4 does not in any way provide that the definition of "mandatory legislation" may now include "certain discretionary legislation".  Nor does Article XVI:4 create a "new legal environment" which would permit substantive obligations to be created out of whole cloth.

4.384  The United States notes that the European Communities suggests that Article XVI:4's inclusion of regulations and administrative procedures as well as laws is part of this "new legal environment". According to the European Communities, "[t]he distinction between law that binds the executive authorities and law that can be modified by them is thus no longer relevant". This EC distinction is baseless. Regulations and administrative procedures have always been subject to the rules of the GATT 1947,²⁵⁷ and there is absolutely nothing extraordinary about their inclusion in Article XVI:4. The obligation with respect to regulations and administrative procedures is the same as that for laws: if they are not in conformity with the Member's WTO obligations under the covered Agreements, they must be brought into conformity. However, if they are in conformity, they need not be changed.

4.385  The United States goes on to state that the European Communities also claims that the inclusion of the word "ensure" in Article XVI:4 means that laws must be structured in a manner that "makes certain" that "the objectives of the covered agreements will be achieved". As discussed above, the objectives of the covered agreements are reflected in their text, and in any event "objectives" are not themselves "obligations". One may not depart from the text on the basis of fanciful, results-driven constructions of agreement objectives. A Member may "ensure" that its laws, regulations and administrative procedures are in compliance with its obligations through any number of means:

"From the standpoint of international law states are generally free as to the manner in which, domestically, they put themselves in the position to meet their international obligations; the choice between the direct reception and application of international law, or its transformation into national law by way of statute, is a matter of indifference, as is the choice between the various forms of legislation, common law, or administrative action as the means for giving effect to international obligations. These are matters for each state to determine for itself according to its own constitutional practices".²⁵⁸

4.386  The United States indicates that one of those means by which a Member may ensure conformity with its obligations is to ensure that the Member's authorities have adequate discretion to comply with the Member's obligations. This notion lies at the heart of the doctrine of the non-actionability of discretionary legislation reflected in the consistent, unmodified GATT and WTO practice in this area. As Japan noted in responses to the Panel's questions, "laws are not inconsistent with WTO rules when … discretion [to comply with WTO obligations] is given to administrators under the laws".

4.387  The United States argues that there is no basis for distinguishing among different forms of discretionary legislation, or for recharacterising some discretionary legislation as "mandatory". If legislation provides adequate discretion for a Member's authorities to comply with their obligations, it may not be assumed that the Member will not exercise that discretion in good faith so as to comply with its obligations. The good faith principle of which the European Communities speaks is the very reason it may not be assumed that a Member's authorities will violate its international obligations.

4.388  In the view of the United States, even if there were some conceivable construction of the text of Article XVI:4 which would permit the redefinition of "mandatory legislation" so as to include legislation which does not require a Member to violate its international obligations, it would not be permissible to adopt that construction in interpreting Article XVI:4. The Appellate Body explained in EC – Hormones that the customary principle of interpretation of international law known as in dubio mitius is applicable in WTO disputes as a supplementary means of interpretation. That principle applies

"in interpreting treaties, in deference to the sovereignty of states. If the meaning of a term is ambiguous, that meaning is to be preferred which is less onerous to the party assuming an obligation, or which interferes less with the territorial and personal supremacy of a party, or involves less general restrictions upon the parties".²⁵⁹

4.389  The United States argues that the EC's proposed construction of Article XVI:4, even if it had so much as an ambiguous textual basis, would run afoul of the in dubio mitius principle, since that construction would interfere with a Member's sovereign right to choose the form by which it implements its obligations in domestic law, and require each and every Member to re-examine and potentially revise the form of various pieces of legislation they quite correctly assumed in 1995 to be consistent with their WTO obligations based on the consistent application of the doctrine of the non-actionability of discretionary legislation.

4.390  The United States points out that the European Communities claims that the India - Patents (US) case and DSU Article 3.2's reference to "security and predictability" support its claim that Article XVI:4 includes a prohibition against "uncertainty".  As discussed above, the reference to "security and predictability" in DSU Article 3.2 is made in the context of explaining that the dispute settlement system provides such security and predictability, and it does so through the substantive obligations in the text of the WTO Agreement and its annexes, enforced through the DSU. Article 3.2 also provides that DSB rulings and recommendations "cannot add to or diminish the rights and obligations provided in the covered agreements".

4.391  In view of the United States, neither the facts nor findings of India - Patents (US) support the EC position. As described above, that case stands strongly for the proposition that obligations may not be divined from vague and free-standing notions such as "uncertainty" divorced from the agreement's text.²⁶⁰ Nor in its specifics does India - Patents (US) support the EC's position that such an "uncertainty" principle may be found in the text of Article XVI:4. The India - Patents (US) Appellate Body report refers to Article XVI:4 only in the context of reinforcing the fact that India's WTO obligations dated from 1 January 1995, and could not be delayed.²⁶¹ There is no reference in the report to an obligation in Article XVI:4 to avoid "uncertainty". Rather, the obligation in Article XVI:4 is to comply with the obligations of the annexed Agreements.

4.392  The United States argues that the India – Patents (US) discussion of mandatory/discretionary legislation in no way modifies that doctrine. That case, like the Malt Beverages case before it, stands for the proposition that the non-application of mandatory legislation does not render that mandatory legislation non-actionable.²⁶² The issue in India - Patents (US) was whether India's unpublished, unwritten "administrative instructions" prevailed over mandatory legislation which prohibited India from complying with its TRIPs obligations.²⁶³ The Appellate Body found that because of this conflict, the administrative instructions did not create a sound legal basis to preserve the novelty and priority of patent applications.²⁶⁴ Even then, however, the Appellate Body emphatically rejected the position that a Member is required to remove any reasonable doubts regarding whether a patent application could be rejected.²⁶⁵

4.393  The United States explains that the India - Patents (US) case thus offers no support for the EC position that Article XVI:4 provides for a new definition of mandatory legislation to be determined based on the legislation's "design, structure and architecture". In fact, India - Patents (US) undermines the EC's position. The analysis of whether Sections 301-310 is consistent with WTO Agreement Article XVI:4 must be based on the text of that provision. The ordinary meaning of Article XVI:4 is that a law, regulation or administrative procedure is not inconsistent with Article XVI:4 unless it is also inconsistent with a separate obligation of a covered agreement. Sections 301-310 are not inconsistent with any such provision, and are therefore consistent with Article XVI:4.

4.394  In response, the European Communities argues that as the Appellate Body has indicated in the Japan - Alcoholic Beverages case following its earlier decision in the US - Gasoline case, the principle of effectiveness (ut res magis valeat quam pereat) is a

"fundamental tenet of treaty interpretation flowing from the general rule of interpretation set out in Article 31".

4.395  The European Communities contends that with this rule in mind, the correct interpretation of Article XVI:4 of the Marrakech Agreement could not be such as to read this provision just as a useless replica of the obligations under the covered agreements. Such an interpretation would reach the non-permissible effect of rendering "whole clauses of a treaty redundant".

4.396  Thus, in the view of the European Communities, the US following assertion cannot be correct:

"[T]he ordinary meaning of Article XVI:4 is that a law, regulation or administrative procedure is not inconsistent with Article XVI:4 unless it is also inconsistent with a separate obligation of a covered agreement".

4.397  The European Communities argues that "discretionary" legislation is not as such defined under any of the WTO agreements. There is thus no textual basis in any of the WTO agreements to distinguish between "discretionary" and other legislation of a WTO Member.

4.398  The European Communities goes on to state that the relevance in the WTO legal system of a definition of discretionary legislation lies in the fact that WTO Members frequently adopt open-ended legislation, which delegates powers to the executive branch of government. This legal phenomenon should not, in our view, be sidelined or underestimated.

4.399  According to the European Communities, in addressing this issue, a balance must be struck between two basic sets of principles of WTO law and of public international law: on the one hand, the obligation to ensure the protection of "the security and predictability of the multilateral trading system" (Article 3.2 of the DSU) by "ensuring the conformity of [domestic] laws, regulations and administrative procedures" (Article XVI:4 of the Marrakech Agreement) through a "sound [domestic] legal basis" (Appellate Body Report on India - Patents (US)).

4.400  The European Communities maintains that on the other hand, the (rebuttable) presumption of compliance according to which one may not assume that WTO-Members' authorities will fail to implement their WTO obligations in good faith.

4.401  The European Communities argues that in this legal perspective, it is impossible to accept the US approach which would require WTO panels to mechanically continue past panel practice based on a legal situation which is no longer in force. The European Communities cannot, on the other extreme of the spectrum, go as far as Hong Kong, China has done in suggesting that any "potential deviation" is in breach of Article 3.2 of the DSU, Article XVI:4 of the Marrakech Agreement and the principles developed by the Appellate Body in the India - Patents (US) case. This will practically deny any distinction between "discretionary" and other legislation. In medio stat virtus (The truth lies in the middle ground).

4.402  In the view of the European Communities, there are a number of practical criteria that would assist panels in discerning the dividing line between a "genuinely discretionary" legislation and all the other legislation.

4.403 The European Communities recalls that the presumption of compliance would be overturned by a legislation which, by its terms, design, architecture and revealing structure, is biased against compatibility or otherwise creates a conflict with the Member's WTO obligations.

4.404  The European Communities maintains that on the other hand, the fewer criteria such legislation contains and the more freedom it leaves to the executive authorities with regard to the decision-making process, in principle the less problematic such legislation is from a WTO standpoint.

4.405  According to the European Communities, an additional argument in this issue was submitted by the United States. In the US's view, all legislation that is not "mandatory" in the sense of the definition adopted by the 1949 GATT Working Party decision with respect to the "existing legislation" clause of the PPA must thus be "discretionary" and, by way of consequence, cannot be construed to be in violation of the relevant WTO obligations. This US view is obviously incorrect on several counts.

4.406  The European Communities firstly argues that as the Appellate Body has found in the India - Patents (US) case, the implementation of WTO obligations must take place on a "sound legal basis". This would not be the case if a given piece of legislation creates a situation biased against WTO compatibility, because the situation created by such a piece of legislation undermines the security and predictability of the multilateral trade relations. It could also not be considered in line with the presumption of compliance, given that its text would already defeat such a presumption.

4.407  The European Communities further contends that the bias against WTO compatibility will be discernible in particular where WTO-inconsistent measures are required by the law as a rule and WTO-consistent action is permitted only as an exception under limited circumstances. In this way, the competitive opportunities, which the WTO Agreements intend to foster, cannot be achieved.

4.408  The European Communities secondly supposes that the legislation of a WTO Member provides that in a given factual situation, described in some detail in the piece of law, the executive authorities have the choice between several actions, each of them being WTO-inconsistent. While such a law may be described as "discretionary", because it allows several different types of action, such a law must nevertheless be considered WTO-incompatible, simply because it does not allow for an action of the executive authorities that is WTO-compatible.

4.409  The European Communities goes on to state that even under the GATT 1947, domestic legislation which gave the executive branch of government only a choice between several measures which all were inconsistent with the GATT 1947 would not have qualified as genuinely "discretionary" legislation. In the view of the European Communities, this is the situation that characterises the present case. This, of course, does not mean that the panel practice under the GATT 1947 still holds good under the WTO to the extent that it was based on the much narrower interpretation of "mandatory legislation".

4.410  The European Communities thirdly contends that, to come even closer to the legal situation underlying this case, it may happen that the law requires the executive authorities to take action on the basis of the results of an investigation. Suppose the fiscal authorities are required to take WTO-inconsistent action each time they find on the basis of an investigation that an act of tax fraud has been committed. Of course, the tax authorities are not "free" to abstain from finding a case of fraud and in this way avoid WTO-inconsistent action. Any other reading of such a piece of legislation would defy its intent, as expressed in the law. It should be noted in this context that it was clearly understood under the GATT 1947 that legislation could be mandatory not only by its terms but also by its expressed intent.²⁶⁶

4.411  Fourthly, the European Communities disagrees with the US allegation that a domestic legislation such as Section 301(a) contains sufficient discretionary powers for the executive authorities to take WTO consistent action because the highest political authorities of the WTO Member concerned, in casu the US President, may give directions to the administration. It would defy the purpose and the spirit of the law to consider this legislation discretionary rather than mandatory.

4.412  The European Communities recalls that Sections 301-310 provide as a rule strict time limitations on the actions of the USTR. This is in fact one of the most characteristic features of this piece of legislation. At the end of these firmly set time frames, the USTR is required to take action based on the result of the investigation initiated under section 302. Such action shall be taken "subject to the specific direction, if any, of the President regarding any such action".

4.413  In the view of the European Communities, it is simply not credible that such a clause should be understood as providing the President with the discretionary power to grant waivers on a regular basis. This would obviously run counter to the express will of the legislator, in casu the US Congress, by reversing the relationship between rules and exceptions. As a matter of fact, the President has never granted such a waiver.

4.414  Moreover, the European Communities notes that the vague formulations contained in Section 301(a) do not mean that the President would be entitled to direct the USTR against what she is required to do by the law itself. This provision, unlike other US legislation providing for explicit powers of the President to waive requirements of the law, states that any direction from the President concerns "any other appropriate and feasible action within the power of the President". The President does not have the power to ignore a law providing that an action must be taken within a mandatory time limit.

4.415  The European Communities claims that if on this basis Sections 301-310 were considered to be entirely discretionary and thus not capable of being challenged as such under WTO dispute settlement procedures, this would mean that an exception that was never applied in practice would be considered, from the standpoint of WTO law, as governing the entire legislation that is under scrutiny, in clear conflict with the design, architecture and revealing structure of this piece of legislation.

4.416  The European Communities submits that this cannot be correct under WTO law as a result of its enhanced requirement to "ensure the conformity" of domestic legislation under Article XVI:4 of the WTO Agreement and the requirement of a "sound legal basis" for administrative action developed from the provision contained in Article 3.2 of the DSU. These legal standards, which the United States itself has taken great pains to develop before the panel and the Appellate Body in the India - Patents (US) case, are of course applicable in other contexts as well.

4.417  The European Communities then concludes that under WTO law, an ill-defined exception that is not applied in practice and that goes against the main purpose of a piece of domestic legislation cannot possibly be the basis of the analysis of that piece of domestic legislation.

4.418  The United States rebuts the EC claim that Sections 301-310 are inconsistent with WTO Agreement Article XVI:4.  The United States recalls that the European Communities asks the Panel "to rule":

"that the United States, by failing to bring the Trade Act of 1974 into compliance with the requirements of Article 23 of the DSU and of Articles I, II, III, VIII and XI of the GATT 1994, acted inconsistently with its obligations under those provisions and under Article XVI:4 of the WTO Agreement … ". (emphasis added)

4.419  The United States notes that the European Communities thus acknowledges that there must be a violation of another WTO provision before there can be a violation of Article XVI:4.  Unfortunately, elsewhere the European Communities argues that Article XVI:4 forms the basis of a new set of obligations not derived from the text of that provision. 

TO CONTINUE WITH UNITED STATES – SECTIONS 301-310 OF THE TRADE ACT OF 1974

²⁵¹ Appellate Body Report on United States � Standards for Reformulated and Conventional Gasoline ("US - Gasoline"), adopted 20 March 1996, WT/DS2/AB/R.

²⁵² Informal note by the Secretariat "Draft Agreement Establishing the Multilateral Trade Organisation" (No. 462, dated 12 March 1992), page 26.

²⁵³ Ibid.

²⁵⁴ The European Communities refers to Article IX.4(a) of the Agreement on Government Procurement, Article 19.5(a) of the Agreement on Interpretation and Application of Article VI, XVI and XXIII, Article 5.4 (a) of the Agreement on Import Licensing Procedures,  Article 9.4.1 of the Agreement on Trade in Civil Aircraft, and Article 16.6(a)  of the Agreement on Implementation of Article VI.

²⁵⁵ The European Communities refers to Article XXIV.5(a) of the Agreement on Government Procurement, Article 32.5 of the Agreement on Subsidies and Countervailing Measures, Article 8.2(a) of the Agreement on Import Licensing Procedures, Article 9.4.1 of the Agreement on Civil Aircraft, and Article 18.4 of the Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994.

²⁵⁶ The European Communities refers to Article II.1 of the WTO Agreement.

²⁵⁷ E.g. GATT 1947 Article III:4 covers "laws, regulations and requirements".

²⁵⁸ Oppenheim's International Law, 9th ed., at 82-83 (footnote omitted).

²⁵⁹ Appellate Body Report on EC – Hormones, op. cit., para. 165 and footnote 154, citing Oppenheim's International Law, 9^th ed., at 1278.

²⁶⁰ The United States refers to Appellate Body Report on India - Patents (US), op. cit., para. 45.

²⁶¹ The United States refers to id., paras. 78-84. 

²⁶² The United States refers to Panel Report on India - Patents (US), op. cit., para. 7.35.

²⁶³ The United States refers to Appellate Body Report on India - Patents (US), op. cit., paras. 60-62.

²⁶⁴ Ibid., paras. 69-70.

²⁶⁵ Ibid., para. 58. The United States notes that the Appellate Body stated, "[W]e do not agree with the Panel that Article 70.8(a) requires a Member to establish a means ‘so as to eliminate any reasonable doubts regarding whether mailbox applications and eventual patents based on them could be rejected or invalidated ….  In our view, India is obliged, by Article 70.8(a), to provide a legal mechanism for the filing of mailbox applications that provides a sound legal basis to preserve … novelty … and priority of the applications ….  No more". (Emphasis in original)

²⁶⁶ "Guide to GATT Law and Practice" (Analytical Index), 1995 edition, page 1075, penultimate paragraph.