4.420  In the view of the United States, WTO Agreement Article XVI:4 provides that each Member "shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreements".  By its terms, this provision does not state that there is now a "new legal environment".  Nor does Article XVI:4 by its terms "creat[e] . . .  an obligation to provide certainty and predictability in multilateral trade relations", as the European Communities asserts.  It should be added that Article XVI:4 does not, by its terms, provide that legal findings of WTO-inconsistency may be based on transparently political attacks.  The EC's contorted formulations cannot change the ordinary meaning of the text of Article XVI:4.

4.421  According to the United States, that text makes clear that the only obligation set forth in Article XVI:4 which is independent of the obligations in the annexed Agreements is that a Member "ensure the conformity" of its laws, regulations and administrative procedures with those obligations.  The European Communities has explained that the definition of "ensure" is "make certain".  According to the Oxford English Dictionary, it also means "make sure".  Members were thus required, as of January 1, 1995, to review and make certain, to make sure, that existing laws, regulations and procedures conformed with the substantive obligations in the annexed Agreements, and where they did not, to bring them into conformity.

4.422  The United States claims that this is precisely the meaning ascribed to Article XVI:4 by the Appellate Body in India - Patents (US).  The United States reiterates that the Appellate Body in India - Patents (US) referenced Article XVI:4 in order to reinforce its finding that India's obligation to bring itself into conformity with its TRIPs obligations dated from 1 January 1995, and could not be delayed.  The European Communities is thus incorrect that the US and Appellate Body interpretation of this provision renders it redundant.  In reinforcing the date by which Members had an affirmative obligation to bring measures into conformity, Article XVI:4 makes crystal clear that existing laws and regulations not in conformity had to be changed, that no such measures would be "grandfathered.

4.423  The United States maintains that the European Communities takes two contradictory positions on Article XVI:4.  On the one hand, the European Communities takes the position that Article XVI:4 obliges Members to structure their law in a manner that "makes certain" that Agreement violations will not occur.  However, the European Communities at the same time opposes the notion that discretionary legislation must include explicit language limiting discretion so as to preclude WTO-inconsistent actions.   This contradiction highlights how the EC's arguments are directed towards achieving a particular political result in this dispute, without regard to generally applicable legal reasoning or principles.  The European Communities apparently wants a panel finding that Sections 301-310 must be amended to remove "uncertainty", but is unwilling to accept panel intervention requiring the European Communities to limit its unfettered authority to implement WTO-inconsistent banana regimes or hormone bans, or to stop trade at any time, for any reason, without regard to DSU requirements, pursuant to Article 133 of the Treaty of Amsterdam.

4.424  The United States notes that the European Communities claims that Article XVI:4 requires an examination of a statute's structure, design and architecture.  The United States explained the Appellate Body's clear rejection of attempts to create obligations and modes of analysis based on "the design of the measure" where there is no textual basis for either.  The same reasoning would apply to the EC's attempt to create a generalized obligation to provide a "sound legal basis" for the implementation of US WTO obligations.  The  India - Patents (US) and US - Shrimp Appellate Body reports are clear that new obligations may not be created out of thin air.  The objectives of agreements are reflected in the specific obligations set forth in those agreements.

4.425  The United States then claims that the EC's analysis under Article XVI:4 ultimately degenerates into random accusations concerning past US actions not within the terms of reference of this Panel, and for which no GATT or WTO panel has made findings.  The EC's discussion strips bare the utter lack of legal foundation for the EC's arguments, and reinforces the fact that its goal in this case is to obtain a political declaration by this Panel that the United States is a "bad actor", a declaration it hopes will counter the impression left by the EC's consistent pattern of disregarding its obligations in connection with its banana import regime.  The European Communities particularly hopes to obtain a political declaration that the United States does not respect the multilateral dispute settlement system, to counter the impression left in the context of the Bananas dispute by the EC's unilateral disregard of several multilateral dispute settlement panel findings, its unilateral decision to disregard its pledge to bring its measure into compliance with these multilateral findings, and its unilateral efforts to block the operation of multilateral provisions of Article 22 through the unprecedented and extraordinary action of attempting to block the agenda of a DSB meeting.  The United States regrets having been forced to raise these matters, but the EC's attacks in its Second Submission have left us no choice.  The United States does not claim that these points are relevant to the Panel's legal analysis.  However, neither is the EC's discussion of such matters.  The question in this dispute, and the only question, is whether Sections 301-310 command the United States to violate specific WTO obligations found in the text of DSU Article 23, WTO Agreement Article XVI:4 and GATT 1994 Articles I, II, III, VIII and XI.

4.426  The European Communities stresses a fundamental inconsistency in the US approach.  A quote from the US arguments is particularly revealing:

"Nowhere is the EC's "not genuinely discretionary" test found in WTO Agreement Article XVI:4, DSU Article 3.2, or any other provision of a covered agreement.  Indeed, the EC does not claim that it does.  Its test is based on extrapolation from the concept of "security and predictability" in Article 3.2 – an objective, not an obligation – and from a vague explanation of the "good faith" obligation in the VCLT – not a covered agreement".

4.427  According to the European Communities, however, the United States is incapable of showing that a distinction between mandatory versus discretionary legislation which constitutes the basis of its defence, can – to use the United States' own terms – be "found in WTO Agreement Article XVI:4, DSU Article 3.2, or any other provision of a covered agreement".

4.428  The European Communities claims that the United States is incapable of quoting any legal basis in WTO law in support of its defence simply because this legal basis does not exist. This becomes even clearer when the United States argued that:

"[T]he Superfund panel referred neither to prior panel reports, nor to the Protocol, in making its finding regarding discretionary legislation".

4.429  The European Communities maintains that logically, there is no legal basis under the WTO which allows the United States to insist that GATT 1947 precedents like the Superfund case are applicable sic et simpliciter to this case.

4.430  The European Communities accepts that, in general, the reasoning followed by panels when interpreting provisions of the GATT and, after the entry into force of the Marrakech Agreement, of the WTO agreements may constitute an extremely valuable source of inspiration for subsequent panels dealing with identical or similar issues of law. However, this cannot be mistaken with an implicit obligation of panels, of this Panel, to mechanically apply panel practice developed under the GATT 1947 that has lost its basis under  WTO law.

4.431  The European Communities recalls that the Appellate Body has entirely dismissed the existence of the principle stare decisis within the WTO legal system in the Japan - Alcoholic Beverages  report (quoted selectively by the United States):

"a decision to adopt a panel report did not under GATT 1947 constitute agreement by the CONTRACTING PARTIES on the legal reasoning in that panel report.  The generally-accepted view under GATT 1947 was that the conclusions and recommendations in an adopted panel report bound the parties to the dispute in that particular case, but subsequent panels did not feel legally bound by the details and reasoning of a previous panel report.

We do not believe that the CONTRACTING PARTIES, in deciding to adopt a panel report, intended that their decision would constitute a definitive interpretation of the relevant provisions of GATT 1947. Nor do we believe that this is contemplated under GATT 1994".

4.432  The European Communities goes on to state that in contrast to the legal situation in WTO law, under the GATT 1947 a legal basis providing for a distinction between mandatory and discretionary legislation existed. It was the Protocol of Provisional Application and, in particular, its "existing legislation" clause  as interpreted already in 1949 by a working party report adopted by the GATT CONTRACTING PARTIES:

"The working party agreed that a measure is so permitted, provided that the legislation on which it is based is by its terms or expressed intent of a mandatory character - that is, it imposes on the executive authority requirements which cannot be modified by executive action".

4.433  The European Communities then concludes that the "mandatory legislation" requirement evolved under the GATT 1947 as an interpretation of the "existing legislation" clause of the PPA. The GATT 1947 panel practice was therefore a development based on that fundamental initial decision within that specific context.

4.434  The European Communities argues that GATT 1947 standards to determine whether a legislation was mandatory were

1. the "text" and the "expressed intent" of the legislation and
2. the further requirement that the obligations imposed upon "the executive authorities" could not "be modified by executive action".

4.435  The European Communities, referring to the US argument that:

"It is not necessary to examine whether the character of the Member enacting the legislation is bad, whether that party had a WTO-inconsistent motive",

argues that this statement contradicts the interpretation of the GATT CONTRACTING PARTIES of mandatory legislation under the strict interpretation pursuant to the "existing legislation" clause of the PPA. It also contradicts the United States' own interpretation as expressed already 50 years ago during the discussions leading to the 1949 Working Party report on the "existing legislation" clause of the PPA:

"… The United States representative suggested the addition of the words 'without departing from the intent of a measure embodied in the legislation' to the last sentence cited, so as to cover the case of legislation which was mandatory in intent but couched in permissive terms. … It was agreed that the United States position would be met by the insertion of the wording 'by its terms or expressed intent' ".²⁶⁷

4.436  In the view of the European Communities, in the specific legal situation under the PPA, the strict interpretation of mandatory legislation had a decisive influence on the examination of domestic legislation by the GATT 1947 panels.

4.437  The European Communities then claims that the only possible way for a GATT 1947 panel to "marry" the limitation of the "existing legislation" clause of the PPA (aimed at applying the GATT 1947 as broadly as possible) with the need to control the implementation of the consequently broadly-defined discretionary legislation was, in extreme cases such as the US – Superfund case or the EEC Parts and Components case, to obtain from the defendant political assurances concerning the exercise of the executive power in the future.

4.438  According to the European Communities, for the rest, the United States does not contest the central point made by the European Communities that all the other GATT 1947 panel reports dealing with the issue of mandatory versus discretionary legislation made either direct reference to the PPA (or to the identical provisions in the Protocols of accession) or were based on panel precedents directly referring to the PPA. This is the objective legal context in which all these panels took their decision.

4.439  The European Communities points out that it was simply not necessary for the GATT 1947 panels to base every decision concerning this issue specifically on the "existing legislation" clause of the PPA as soon as they had already accepted, often without any further legal analysis, to apply that distinction based directly or by reference on the interpretation of the "existing legislation" clause of the PPA. When reading all the GATT 1947 panel reports that the European Communities has quoted with this approach in mind, it is clear that the US simply misses the point.

4.440  The European Communities maintains that the legal situation under WTO law is fundamentally different.   The PPA and its "existing legislation" clause are no longer in force. Rather, an opposite obligation has been agreed by the Uruguay Round participants according to which the conformity of the domestic (even pre-existing) legislation must be ensured  as from 1 January 1995.

4.441  The European Communities further argues that the insertion in the text of Article XVI:4 of the Marrakech Agreement of the terms "regulations and administrative procedures" renders from now on impossible the application of the third standard under the GATT 1947 definition of mandatory legislation, i.e. that the obligations imposed upon " the executive authorities" could not "be modified by executive action". In fact, regulations and administrative procedures are acts typically within the full powers of the executive authorities that, by definition, can always modify them "by executive action".

4.442  The United States disagrees with the European Communities that the European Communities is asking this Panel to disregard decades of GATT/WTO jurisprudence and practice in the name of "security and predictability".  In Japan – Taxes on Alcoholic Beverages, the Appellate Body explained,

"Article XVI:1 of the WTO Agreement and paragraph 1(b)(iv) of the language of Annex 1A incorporating the GATT 1994 into the WTO Agreement bring the legal history and experience under the GATT 1947 into the new realm of the WTO in a way that ensures continuity and consistency in a smooth transition from the GATT 1947 system. This affirms the importance to the Members of the WTO of the experience acquired by the CONTRACTING PARTIES to the GATT 1947 – and acknowledges the continuing relevance of that experience to the new trading system served by the WTO. Adopted panel reports are an important part of the GATT acquis. They are often considered by subsequent panels. They create legitimate expectations among WTO Members, and, therefore, should be taken into account where they are relevant to any dispute".²⁶⁸

4.443  The United States contends that WTO Members were most certainly aware of the discretionary/mandatory distinction when they signed the Marrakesh Agreement, and panels have continued to apply it. In the DSU review, the European Communities has even asked that WTO Members agree to remove it.²⁶⁹ However, the European Communities now asks this Panel, five years after the conclusion of the Uruguay Round, to discard a fundamental principle of jurisprudence and create uncertainty as to the WTO-consistency of an indeterminate number of domestic laws heretofore considered discretionary. Even if "security and predictability" were themselves an independent WTO obligation, it would be difficult to conclude that a law which permits WTO-consistent action in every instance would do more harm to "security and predictability" than what the European Communities now proposes. Beyond this, the European Communities simply fails in its attempt to argue that "discretionary means mandatory" because of changes under the WTO Agreement.

4.444  With regard to the textual basis for the mandatory/discretionary distinction, the United States refers to the text of DSU Article 23.2(a). That Article deals with "determinations to the effect that a violation has occurred". It prohibits Members from making these determinations without following DSU rules and procedures, and these determinations must be consistent with findings in panel and Appellate Body reports adopted by the DSB.

4.445  In the view of the United States, there is no "determination to the effect that a violation has occurred" before the Panel in this case.  The European Communities does not challenge a determination which has actually been made.  It is therefore not possible to analyze whether such a determination meets the requirements of Article 23.2(a).  One cannot say whether, in making such a determination, the United States followed DSU rules and procedures, nor whether the United States made a determination consistent with DSB-adopted findings.  Neither the findings nor the determination exist.

4.446  The United States asks how the Panel can perform its analysis under these circumstances.  In the absence of a concrete determination, how is it possible to know whether a Member has breached its obligations under Article 23.2(a)?  It is not permissible to speculate about how the Member will make its determination in the future.  It is not permissible to look at determinations made in the past which are not within the terms of reference.  It is not permissible to assume that certain Members are not to be trusted.   It is not permissible to assume that they will act in bad faith.  Under these circumstance, must the conclusion be that without a concrete determination, there can be no violation of Article 23.2(a)?

4.447  The United States points out that over 10 years ago, in 1987, a GATT panel wrestled with this type of question.  It looked at a statute which would not go into effect for another three years and asked, may a panel determine whether this law is inconsistent with a party's GATT obligations when it is possible that the party may change the law before it goes into effect?  The panel's conclusion was that it could, but it was very careful in how it drew this conclusion.  The panel found that only if a statute commands a party's authorities to violate a specific GATT obligation could that statute be found inconsistent with that obligation.   In enacting such legislation, the party crossed a line.  It left itself with no choice but to violate its obligations, even if only at some point in the future.   Conversely, the panel found, if a statute does not command the party's authorities to violate a specific GATT obligation, it is not possible to conclude that the statute violates that obligation.  The party may exercise its discretion so as to comply with its international obligations.  Any other conclusion would be speculation as to whether the party will act in bad faith, speculation with no more foundation than if the statute did not exist at all.

4.448  The United States again states that the reasoning of the Superfund panel made very good sense.  It was so good that at least five GATT panels adopted it as their own.   At least three WTO panels have also adopted it.  And none of those panels in any way revised the core question asked by the Superfund panel: does the statute command, does it mandate, a violation of a specific agreement obligation?

4.449  The United States further argues that the Superfund analysis is not an analysis of character.  It is not necessary to examine whether the character of the Member enacting the legislation is bad, whether that party had a WTO-inconsistent motive.  Nor is it necessary to examine whether the "character" of the legislation is bad, whether the legislation reflects an intent to breach WTO-obligations.  All that matters is whether the law commands an action which violates a specific textual obligation.   Absent such a command, the Panel is left with the fundamental problem – there is nothing that can be said to violate a specific textual obligation.  Legislation which leaves open the possibility of a violation cannot be considered a violation, any more than may a constitutional system which provides broad authority to act.  However, by including a specific command in legislation to violate a specific obligation, the legislation itself becomes that violation.

4.450  In response to the Panel's request for any travaux preparatoires that may be relevant for an interpretation of Article XVI:4 of the WTO Agreement, the United States first indicates that there was no decision to create any official travaux preparatoires for the Marrakesh Agreement Establishing the WTO.  The discussions of October and November 1993, when the most contentious and politically sensitive issues in the WTO Agreement text were settled, were conducted orally in small meetings that did not include all delegations.  Some issues, including the final wording of Article XVI:4, were resolved in plurilateral working groups that were smaller still. When the plurilateral subgroups reported to the larger Institutions Group, some delegations objected to having written documents become part of a negotiating history, because if there were to be an official negotiating history, its importance would be such that its contents would have to be negotiated line by line, and this added burden was clearly impossible given the November 15, 1993 deadline for finishing the Institutions Group's work.  In any event, absent a complete picture of every note and proposal from every delegation, it would be difficult to obtain an accurate picture of the parties' intentions.   For these reasons, the Chairman, Ambassador Julio Lacarte, announced during these discussions that no negotiating history would be issued and all trade-offs had to be made in the text of the agreement itself.

4.451  According to the United States, the informal record of the final negotiations on the "MTO Agreement" (as it was known at the time) therefore is incomplete, and consists only of a series of  "room" documents circulated in the room where the Institutions Group met, and the notes of individual negotiators.   No official summary of these meetings was prepared, and no documents prepared for negotiating sessions were collected as an official negotiating record.

4.452  The United States then provided the following documents as US Exhibit 23:

1. Draft Agreement Establishing the Multilateral Trade Organization, Informal Note by the Secretariat (Third Revised Text of the MTO Agreement (27 May 1992);
2. Comparison of the Second and Third Revised Texts of the Draft Agreement Establishing the Multilateral Trade Organization (27 May 1992) (Document 551).
3. Draft of Article XVI:4 (11 November 1993).
4. Excerpt from Daily Report From US Negotiator on MTO Issues, Including Article XVI:4 (November 11, 1993).
5. Draft of Article XVI:4 (12 November 1993).
6. Draft Agreement Establishing the Multilateral Trade Organization, Revised Text (14 November 1993).
7. Draft Agreement Establishing the Multilateral Trade Organization (24 November 1993).

4.453  The United States explains that the Dunkel Draft Final Act included the text of an Agreement Establishing a Multilateral Trade Organization (MTO), with the caveat that the MTO text required further elaboration "to ensure a proper relation to the other results of the Uruguay Round".  Participants in the negotiations generally understood that further negotiation concerning establishment of an organization would be required.  Negotiations proceeded from February through December 1992 with additional problems being raised with the draft text.  The Secretariat produced a "third revised text" on May 27, 1992 and a comparison document (document 551), which the United States has included in Exhibit 23.  When work on the MTO text intensified in September 1993, the May 1992 text was the starting point.

4.454  In the view of the United States, two points relevant to the negotiating history of Article XVI:4 must be noted from the "third draft" document that the Secretariat produced.  First, the language states that

"[T]he Members shall endeavor 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" (emphasis added)

4.455  According to the United States, it was the view of several delegations, including the United States, that this language required a government to take the relevant procedural steps to implement the other agreements negotiated in the Uruguay Round.  Moreover, use of the term "endeavor" called into question the obligatory nature of even this limited undertaking.

4.456  Second, the United States claims that while it merely questioned the need for this provision, other delegations actively opposed the provision as indicated in the remarks column of the May 1992 document.  The document states that "Further discussions are necessary to determine whether the provision should be retained, deleted, reformulated or moved into the Final Act".  This comment is unique in this document.

4.457  The United States points out that while the European Communities correctly notes that the use of the term "endeavor" in the third draft called into question the obligatory nature of this undertaking, it neglects to explain several steps in the negotiating process which followed.  As described below, when the term "endeavor" was removed, the trade-off was removal of terms including "taking all necessary steps" and the clarification that only obligations were subject to this provision (through inclusion of the phrase "obligations as provided in the annexed agreements").

4.458  The United States goes on to state that in the fall of 1993, the "Lacarte Group" working on institutional issues held several discussions of Article XVI:4. During these negotiations, the European Communities recognised the weakness of the "endeavor" language and proposed to delete the "endeavor" language and make the provision mandatory.

4.459  The United States further points out that several objections were raised. Brazil and other Latin delegations with legal systems providing for "direct incorporation" of certain international agreements into their law were concerned that the draft language could require them to attempt to enact laws on matters of extreme sensitivity. Second, delegations with federal systems, such as Canada, Brazil and the United States, questioned the interaction between the new language and provisions in Article XXIV:12 of GATT 1994 and GATS Article I:3(a). These provisions related to measures of regional and local governments and require national governments to take "such reasonable steps as may be available to it" to ensure compliance.

4.460  In the view of the United States, direct negotiations between those delegations and the European Communities took place in November 1993. Our negotiators' notes show that as of November 11^th, the EC's latest proposal – "The Members shall take all necessary steps to ensure the conformity of their laws, regulations and administrative procedures with the provisions of the annexed agreements, in accordance with their individual constitutional or legal systems" – was rejected because it was seen to weaken the duty under international law to implement agreements.²⁷⁰

4.461  The United States notes that the European Communities on the following day (November 12) proposed that the language read, "The Members shall ensure the conformity of their laws, regulations and administrative procedures with the provisions of the annexed Agreements". This draft, as well, was opposed by Brazil and others. It was incorporated in brackets into a November 14 draft of the agreement as a whole, along with the note, "For further consideration".

4.462  The United States further explains that the draft Agreement Establishing the Multilateral Trade Organization of 24 November 1993 includes bracketed language on Article XVI:4 that was ultimately agreed upon.²⁷¹ This language included the phrase "obligations as provided in the annexed agreements", limiting language making clear that an expansive interpretation of Article XVI:4 was not intended. On the basis of the inclusion of this term, (and the earlier removal of EC language which would have created a weaker obligation than that under VCLT Article 26), the Members agreed to include Article XVI:4 in the WTO Agreement.

4.463  The United States points out that a final point is that, near the end of the negotiations on this provision, Brazil and other delegations asked the EC legal expert who was present how this provision differed from Article 26 of the Vienna Convention. The EC's legal adviser did not identify a difference or distinction.

4.464  The United States further indicates that on the other hand, shortly afterward, this same legal adviser provided the following views on Article XVI:4:

"A provision that has been championed to a large extent by the Community, but which may have serious consequences for the Community itself, and for the Member States too, is Article XVI:4 of the WTO. . . . This may turn out to be a very onerous obligation, requiring full conformity of all Community and national laws . . . with the precise provisions of the WTO's annexes. It may also have hardly any consequences at all, compared to the present situation, if it is interpreted in the light of standing panel case law which determines that a law or regulation is contrary to the GATT only if it is mandatory and as such contrary to GATT terms, but that such is not the case, if the text of the law or regulation permits a GATT conform [sic] application of the text.²⁷² If conformity to WTO obligations is interpreted in this way - which would not be unreasonable in the light of the succession of the WTO to the �acquis gattien�²⁷³ – it should be clear that the added value of Article XVI:4 is rather limited". ²⁷⁴

4.465  The United States notes that the EC legal adviser stated in a footnote that the conclusion that the value of Article XVI:4 is "rather limited" "is the view of the author himself".²⁷⁵ He went on to note that if a more expansive view of Article XVI:4 were adopted, "it must be clear that the European Communities and the Member States have an obligation to maintain their laws and regulations in constant conformity with the terms of the WTO Agreement and its annexes. That is no simple matter".²⁷⁶

4.466  According to the United States, this Article provides a nearly contemporaneous record of the understanding of the legal adviser to the EC negotiators, who was the chief GATT lawyer in the EC Legal Service and a former professor of public international law. While he earlier could not explain the difference between Article XVI:4 and VCLT Article 26, he shortly afterward recognised that Article XVI:4 would have a limited impact, and that, were a contrary interpretation adopted, it would be highly disruptive to the sovereignty of WTO Members, including the EC itself. The EC lawyer also expressed his expectation that the Superfund reasoning would not be affected by Article XVI:4; indeed, he was relying on this conclusion.

4.467  The European Communities challenges the US quote from an article written by Mr. Pieter-Jan Kuyper in his personal capacity²⁷⁷ in order to contest the EC's interpretation of Article XVI:4 of the WTO Agreement.   The United States purposefully omits to indicate that the quotation stems from a chapter of the article dealing with the relations between the European Communities and its member States. It is with this concern in mind that the author refers to the potential burden imposed on the European Communities by Article XVI:4 o the WTO Agreement, and not in the much more general way that the United States would have it now.

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

²⁶⁷ "Guide to GATT Law and Practice" (Analytical Index), 1995 edition, page 1075, penultimate paragraph.

²⁶⁸ Appellate Body Report on Japan – Alcoholic Beverages, op. cit., p. 14.

²⁶⁹ See Review of the Dispute Settlement Understanding, Non-Paper by the European Communities (Oct. 1998) (emphasis added); see also, Review of the DSU, Note by the Secretariat, Compilation of Comments Submitted by Members – Rev. 3 (12 December 1998).

²⁷⁰ See Daily Report From U.S. Negotiator on MTO Issues, Including Article XVI:4 (November 11, 1993).

²⁷¹ The United States notes that the only changes were the modifications to number and tense made throughout the WTO Agreement during the legal review in early 1994.

²⁷² See the Panel Report on US - Superfund, op. cit., para. 5.2.9. and the Panel Report on EEC – Part and Components, op. cit., para. 5.25-26.  (Citation in original.  The United States specifically requests the Panel to note that no reference is made to the Protocol of Provisional Application, or to cases citing the Protocol of Provisional Application.)

²⁷³ (citation in original) See Article XVI:1 of the WTO Agreement.

²⁷⁴ Pieter-Jan Kuyper, The New WTO Dispute Settlement System: The Impact on the Community, in The Uruguay Round Results, A European Lawyers' Perspective 87, 110 (Jacques H.J. Bourgeois, Fr�d�rique Berrod & Eric Gippini Fournier eds. 1995) (emphasis added) (US Exhibit 25).

²⁷⁵ Ibid. at footnote 46.

²⁷⁶ Ibid. at 110.

²⁷⁷ Pieter-Jan Kuyper, The New WTO Dispute Settlement System: The Impact on the Community, in: J.H.J. Bourgeois et al., The Uruguay Round Results, A European Lawyers' Perspective, p. 87, publishing the papers of a conference held in Bruges in October 1994.