WORLD TRADE
ORGANIZATION |
WT/DS231/AB/R
26 September 2002
(02-5137)
|
|
Original: English |
EUROPEAN COMMUNITIES - TRADE DESCRIPTION OF SARDINES
AB-2002-3
Report of the Appellate Body
(Continued)
5. Venezuela
131. Venezuela states that the Panel correctly found that the EC Regulation is a
"technical regulation". It also agrees with the Panel's finding that Article 2.4
of the TBT Agreement applies
to measures adopted before 1 January 1995, but which have not ceased to exist.
According to Venezuela, the Panel properly applied the principle set forth in
Article 28 of the Vienna Convention24, as interpreted by the Appellate Body.
132. Venezuela agrees with the Panel's conclusion that Codex Stan 94 is a
"relevant international standard" and contends that the EC Regulation does not
take into account the standard established in Codex Stan 94.
133. Venezuela disagrees with the European Communities' assertion that Codex
Stan 94, by authorizing use of the term "sardines" for products other than
Sardina pilchardus , is "ineffective or inappropriate" to fulfil the "legitimate
objectives" of consumer protection, market transparency, and fair competition.
Venezuela also submits that Peru presented sufficient evidence and legal
arguments to demonstrate that Codex Stan 94 is not "ineffective or
inappropriate" to fulfil the "legitimate objectives" pursued by the European
Communities through the EC Regulation.
III. Issues Raised in this Appeal
134. This appeal raises the following issues:
(a) whether the appeal is inadmissible as a result of the conditional withdrawal
of the Notice of Appeal filed on 25 June 2002, and the filing of a new Notice of
Appeal on 28 June 2002;
(b) whether the amicus curiae briefs submitted by the Kingdom of Morocco and a
private individual are admissible, and, if so, whether they assist us in this
appeal;
(c) whether the Panel erred by finding that Council Regulation (EEC) 2136/89
(the "EC Regulation") is a "technical regulation" within the meaning of Annex
1.1 of the Agreement on Technical Barriers to Trade (the "TBT Agreement ");
(d) whether the Panel erred by finding that Article 2.4 of the TBT Agreement
applies to existing measures, such as the EC Regulation;
(e) whether the Panel erred by finding that CODEX STAN 94-1981, Rev.1-1995
("Codex Stan 94") is a "relevant international standard" within the meaning of
Article 2.4 of the TBT Agreement ;
(f) whether the Panel erred by finding that Codex Stan 94 was not used "as a
basis for" the EC Regulation within the meaning of Article 2.4 of the TBT
Agreement;
(g) whether the Panel correctly interpreted and applied the second part of
Article 2.4 of the TBT Agreement , which allows Members not to use international
standards "as a basis for" their technical regulations "when such international
standards or relevant parts would be an ineffective or inappropriate means for
the fulfilment of the legitimate objectives pursued";
(h) whether the Panel properly discharged its duty under Article 11 of the
Understanding on Rules and Procedures Governing the Settlement of Disputes (the
"DSU") to make "an objective assessment of the facts of the case";
(i) whether the Panel has made a determination that the EC Regulation is
trade-restrictive, and, if so, whether the Panel erred in making such a
determination; and
(j) whether we should complete the analysis under Article 2.2 of the TBT
Agreement, Article 2.1 of the TBT Agreement , or Article III:4 of the
General
Agreement on Tariffs and Trade 1994 (the "GATT 1994"), in the event that we find
that the EC Regulation is consistent with Article 2.4 of the TBT Agreement .
IV. Procedural Issues
A. Admissibility of Appeal
135. We begin with the question of the admissibility of the appeal. Peru submits
that the Notice of Appeal of 25 June 2002 was withdrawn, that the withdrawal was
subject to an "impermissible" condition of filing a new notice of appeal, and
that the Notice of Appeal filed on 28 June 2002 is inadmissible because there is
no right to appeal twice.25 The European Communities responds that it did not
appeal twice, that it withdrew the original Notice of Appeal in response to
Peru's request for additional information on the grounds of appeal, and that
Peru did not suffer any prejudice as a result of the timely filing of the new
Notice of Appeal based on the same legal grounds as the original Notice.26
136. We set out earlier in this Report27 the sequence of events relevant to the
filing by the European Communities of a Notice of Appeal on 25 June 2002, the
withdrawal of that Notice three days later, and the filing of a replacement
Notice of Appeal on 28 June 2002. Before commencing our analysis of the
admissibility of the Notice of Appeal of 28 June 2002, we note first that Peru
does not request that we rule in this Report on Peru's Request for a Preliminary
Ruling, submitted on 27 June 2002, regarding the sufficiency of paragraphs (d),
(f), (g), and (h) of the European Communities' Notice of Appeal dated 25 June
2002.28 Peru states in its appellee's submission that "[t]he Division presumably
considers the original Notice of Appeal to be withdrawn"29, and Peru does not
address further the question of the insufficiency of the original Notice of
Appeal. The European Communities submits that "the preliminary objections raised
by Peru on the adequacy of the Notice of Appeal filed by the [European
Communities] on 25 June 2002 is a matter that is now moot and settled."30 In the
light of these submissions, we need not, and, therefore, we do not decide the
issues raised in the Request for a Preliminary Ruling filed by Peru regarding
the sufficiency of the Notice of Appeal filed on 25 June 2002.
137. We turn to the claim by Peru that the European Communities was not entitled
to attach a condition to its withdrawal of the Notice of Appeal filed on 25 June
2002. Rule 30(1) of the Working Procedures for Appellate Review (the "Working
Procedures"), which governs the withdrawal of an appeal, provides:
At any time during an appeal, the appellant may withdraw its appeal by notifying
the Appellate Body, which shall forthwith notify the DSB.
138. This rule accords to the appellant a broad right to withdraw an appeal at
any time. This right appears, on its face, to be unfettered: an appellant is not
subject to any deadline by which to withdraw its appeal; an appellant need not
provide any reason for the withdrawal; and an appellant need not provide any
notice thereof to other participants in an appeal. More significantly for this
appeal, there is nothing in the Rule prohibiting the attachment of conditions to
a withdrawal. Indeed, in two previous cases, notices of appeal were withdrawn
subject to the condition that new notices would be filed.31 Nor is the right to
withdraw an appeal expressly subject to the condition that no new notice be
filed on the same matter after the withdrawal.
139. However, despite this permissive language, we emphasize that the Working
Procedures must not be interpreted in a way that could undermine the
effectiveness of the dispute settlement system, for they have been drawn up
pursuant to the DSU and as a means of ensuring that the dispute settlement
mechanism achieves the aim of securing a positive solution to a dispute.32 As we
have said:
The procedural rules of WTO dispute settlement are designed to promote � the
fair, prompt and effective resolution of trade disputes.33
140. This obligation to interpret the Working Procedures in a way that promotes
the effective resolution of disputes is complemented by the obligation of
Members, set out in Article 3.10 of the DSU, to "engage in [dispute settlement]
procedures in good faith in an effort to resolve the dispute." Hence, the right
to withdraw an appeal must be exercised subject to these limitations, which are
applicable generally to the dispute settlement process.
141. Peru submits that nothing in Rule 30 of the Working Procedures permits the
attachment of conditions to the withdrawal of a notice of appeal, and that,
therefore, this appeal must be deemed to have been withdrawn irrespective of
whether the conditions are met. We find no support in Rule 30 for Peru's
position. While it is true that nothing in the text of Rule 30(1) explicitly
permits an appellant to exercise its right subject to conditions, it is also
true that nothing in the same text prohibits an appellant from doing so. As we
have just explained, in our view, the right to withdraw a notice of appeal under
Rule 30(1) is broad, subject only to the limitations we have described.
Therefore, we see no reason to interpret Rule 30 as granting a right to withdraw
an appeal only if that withdrawal is unconditional. Rather, the correct
interpretation, in our view, is that Rule 30(1) permits conditional withdrawals,
unless the condition imposed undermines the "fair, prompt and effective
resolution of trade disputes", or unless the Member attaching the condition is
not "engag[ing] in [dispute settlement] procedures in good faith in an effort to
resolve the dispute." Therefore, it is necessary to examine any such conditions
attached to withdrawals on a case-by-case basis to determine whether, in fact,
the particular condition in a particular case in any way obstructs the dispute
settlement process, or in some way diminishes the rights of the appellee or
other participants in the appeal.
142. With this in mind, we examine next whether, by withdrawing the Notice of
Appeal of 25 June 2002 subject to the condition of filing a replacement notice
of appeal, the European Communities has effectively undermined the "fair, prompt
and effective resolution of trade disputes" or has not "engage[d] in [dispute
settlement] procedures in good faith in an effort to resolve the dispute."
143. According to the European Communities, it withdrew the Notice of Appeal of
25 June 2002 after receiving Peru's Request for a Preliminary Ruling in order to
"enlarge � the description of the points" in paragraphs (d), (f), (g), and (h)
of the original Notice and, thus, "clarify the points that Peru considered were
not clear".34 The European Communities maintains that the "replacement"35 Notice
contained "no new grounds of appeal, or modified ones."36 Moreover, the European
Communities contends that "Peru's rights of defense have not been harmed in any
way by the replacement of the original Notice of Appeal with a new one and by
the new Working Schedule".37 The European Communities submits that it acted in a
timely manner, "within the 60 days provided by the DSU [for adoption of panel
reports]" and "well in advance of any substantial exchange between the parties".38
144. In our view, attaching the condition to the withdrawal was not unreasonable
under the circumstances. The conditioning by the European Communities of its
withdrawal of the Notice of Appeal of 25 June 2002 on the right to file a
replacement Notice of Appeal arose as a response to the Request for a
Preliminary Ruling filed by Peru. Although Peru contests the European
Communities' contention that no prejudice was suffered by Peru-arguing that Peru
was "forced to address a completely novel procedural issue and waste time on
that issue that [Peru] could have used for better purposes"39�we are not
persuaded that the European Communities' response in any way obstructed the
process or diminished Peru's rights. Indeed, it may well have had the opposite
effect. Although the European Communities states that it thought Peru's Request
for a Preliminary Ruling "to be without merit"40, the European Communities sought
to remedy the difficulty perceived by Peru, and not to delay the proceedings
further by contesting the allegations of insufficiency.
145. Moreover, the European Communities responded in a timely manner, providing
the additional information in a replacement Notice of Appeal the day following
receipt of Peru's objections to the Notice of Appeal of 25 June 2002, and only
three days after filing the original Notice of Appeal. The replacement Notice
was provided well before any submissions were filed. Thus, for the reasons
explained, we find that the withdrawal of the original Notice on condition of
filing a replacement Notice was appropriate and had the effect of conditionally
withdrawing the original Notice.
146. In making this finding, we are mindful of Peru's argument that allowing the
withdrawal of a notice of appeal subject to a unilaterally declared condition of
the right to file a new notice of appeal, and the filing thereafter of a new
notice of appeal, creates an "immense potential for abuse and disorder in
appellate review proceedings."41 Peru suggests a number of examples of possible
abusive practices that could result-including the delaying of the adoption of a
panel report by submitting a new notice of appeal each time a panel report is
before the Dispute Settlement Body (the "DSB"), the amending of allegations of
error in the light of arguments made by the appellee or of questions posed by
the Division at the oral hearing, and the attempt to have a different division
selected or a different date chosen for the oral hearing.42 We agree with Peru
that there may be situations where the withdrawal of an appeal on condition of
refiling a new notice, and the filing thereafter of a new notice, could be
abusive and disruptive. However, in such cases, we would have the right to
reject the condition, and also to reject any filing of a new notice of appeal,
on the grounds either that the Member seeking to file such a new notice would
not be engaging in dispute settlement proceedings in good faith, or that Rule
30(1) of the Working Procedures must not be used to undermine the fair, prompt,
and effective resolution of trade disputes. We agree with Peru that the rules
must be interpreted so as to "ensure that appellate review proceedings do not
become an arena for unfortunate litigation techniques that frustrate the
objectives of the DSU, and that developing countries do not have the resources
to deal with".43 The case before us, however, presents none of these
circumstances.
147. In addition, we believe there are circumstances that, although not
constituting "abusive practices", would be in violation of the DSU, and would,
thus, compel us to disallow the conditional withdrawal of a notice of appeal as
well as the filing of a replacement notice. For example, if the conditional
withdrawal or the filing of a new notice were to take place after the 60-day
deadline in Article 16.4 of the DSU for adoption of panel reports, this would
effectively circumvent the requirement to file appeals within 60 days of
circulation of panel reports. In such circumstances, we would reject the
conditional withdrawal and the new notice of appeal.
148. We turn now to Peru's request that we declare the Notice of Appeal of 28
June 2002 inadmissible because neither the DSU nor the Working Procedures
"accord[s] an appellant the right to appeal the same panel report twice on
different grounds."44 In our view, this argument by Peru is also misplaced, for we
do not consider that the European Communities has in fact appealed "twice". The
European Communities maintains that it "never intended to appeal twice", and
also that it "considered that [the European Communities] only appealed once".45
The European Communities contends as well that the replacement Notice contained
"no new grounds of appeal, or modified ones."46 Peru, for its part, states that
the replacement Notice "reformulated the points to which Peru had objected"47 and
was based on "different allegations of error"48, but Peru does not point to any
new or modified grounds of appeal.49
149. As we have explained, we are of the view that the conditional withdrawal of
the Notice of Appeal of 25 June 2002 was appropriate and effective, and that,
therefore, the filing of a replacement Notice on 28 June 2002 did not constitute
a second appeal. Moreover, we agree with the European Communities that the
replacement Notice of Appeal contains no additional grounds of appeal, and that
it merely added information to the paragraphs in the initial Notice that Peru
considered deficient.
150. Peru alleges that, in sanctioning the approach of the European Communities
in this appeal, we would be creating a procedural right for which the DSU has
not provided-a right that can only be added to the DSU through a formal
amendment by the Members of the World Trade Organization (the "WTO"). We are,
however, not creating a new procedural right; we are only upholding the right to
withdraw an appeal. In addition, in admitting the replacement Notice of Appeal
in this dispute, we are, as we were in United States - Import Prohibition of
Certain Shrimp and Shrimp Products ("US - Shrimp"), seeking to:
� give full meaning and effect to the right of appeal and to give a party which
regards itself aggrieved by some legal finding or interpretation in a panel
report a real and effective opportunity to demonstrate the error in such finding
or interpretation.50
In that same Report, we added that "an appellee is, of course, always entitled
to its full measure of due process."51 In the circumstances of this case, we
believe that Peru has been accorded the full measure of its due process rights,
because the withdrawal of the original Notice and the filing of a replacement
Notice were carried out in response to objections raised by Peru, the
replacement Notice was filed in a timely manner and early in the process, and
the replacement Notice contained no new or modified grounds of appeal. Also,
Peru has not demonstrated that it suffered prejudice as a result. Moreover, Peru
was given an adequate opportunity to address its concerns about the European
Communities' actions during the course of the appeal.
151. In our view, the withdrawal of the original Notice of Appeal of 25 June
2002 and its replacement with the Notice of Appeal of 28 June 2002 was not an
exercise of abusive litigation techniques by the European Communities, but
rather was an appropriate response under the circumstances to Peru's objections
regarding the original Notice of Appeal.
152. For all these reasons, we reject Peru's claims that the withdrawal of the
Notice of Appeal of 25 June 2002 by the European Communities cannot be subject
to a condition, and that the Notice of Appeal of 28 June 2002 by the European
Communities is inadmissible.
B. Amicus curiae Briefs
153. We turn next to the second procedural issue in this case, namely whether we
may accept and consider the amicus curiae briefs that have been submitted to us.
One brief was filed by a private individual, and the other by the Kingdom of
Morocco ("Morocco"), a Member of the WTO that did not exercise its third party
rights at the panel stage of these proceedings.
154. Peru objects to our acceptance and consideration of these unsolicited
submissions. Peru argues that, although it "welcomes non-Member submissions
where they are attached to the submission of a WTO Member engaged in dispute
settlement proceedings, the DSU makes clear that only WTO Members can make
independent submissions to panels and to the Appellate Body".52 As for the brief
submitted by Morocco, a WTO Member, Peru contends that accepting such a brief
"would be to allow a WTO Member impermissibly to circumvent the DSU", which
"establishes the conditions under which WTO Members can participate as third
parties in dispute settlement proceedings."53 On this basis, Peru requests us to
reject both of these briefs.
155. The European Communities does not address this issue in its written
submission. In response to our questioning at the oral hearing, however, the
European Communities stated that the amicus curiae briefs are pertinent, and
that we have the discretion to accept them. Among the third participants, Canada
argues that there is a lack of clear agreement among WTO Members as to the role
of amicus curiae briefs in dispute settlement, and contends that WTO Members
have a legal right to participate in dispute settlement proceedings only if they
reserve their third party rights at the outset of the dispute settlement
process. Moreover, Canada asserts that both amicus curiae briefs should be
rejected because they are not pertinent or useful. Chile and Ecuador also ask us
to reject the amicus curiae briefs, alleging that the DSU does not permit
participation by amici. The United States is of the view that we have the
authority to accept both briefs, but believes we should not consider either of
them because they are not pertinent or useful.
156. We recall that, in US - Shrimp54, we admitted three amicus curiae briefs
that were attached as exhibits to the appellant's submission in that appeal. We
concluded that those briefs formed part of the appellant's submission, and
observed that it is for a participant in an appeal to determine for itself what
to include in its submission.55 We followed this approach in
Thailand -
Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel
and H-Beams from Poland ("Thailand -
H-Beams")56, and in United States - Import Prohibition of Certain Shrimp and
Shrimp Products - Recourse to Article 21.5 of the DSU by Malaysia ("US - Shrimp
(Article 21.5 - Malaysia) ").57 In subsequent cases, amicus curiae briefs were
submitted by private individuals or organizations separately from participants'
submissions. We admitted those briefs as well.58
157. We have the authority to accept amicus curiae briefs. We enunciated this
authority for the first time in our Report in United States - Imposition of
Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel
Products Originating in the United Kingdom ("US - Lead and Bismuth II"), where
we reasoned:
In considering this matter, we first note that nothing in the DSU or the Working
Procedures specifically provides that the Appellate Body may accept and consider
submissions or briefs from sources other than the participants and third
participants in an appeal. On the other hand, neither the DSU nor the Working
Procedures explicitly prohibit[s] acceptance or consideration of such briefs. �
[Article 17.959] makes clear that the Appellate Body has broad authority to adopt
procedural rules which do not conflict with any rules and procedures in the DSU
or the covered agreements. Therefore, we are of the opinion that as long as we
act consistently with the provisions of the DSU and the covered agreements, we
have the legal authority to decide whether or not to accept and consider any
information that we believe is pertinent and useful in an appeal.60 (footnote
omitted)
158. In that finding, we drew a distinction between, on the one hand, parties
and third parties to a dispute, which have a legal right to participate in panel
and Appellate Body proceedings, and, on the other hand, private individuals and
organizations, which are not Members of the WTO, and which, therefore, do not
have a legal right to participate in dispute settlement proceedings. We said
there:
We wish to emphasize that in the dispute settlement system of the WTO, the DSU
envisages participation in panel or Appellate Body proceedings, as a matter of legal right,
only by parties and third parties to a dispute. And, under the DSU,
only Members of the WTO have a legal right to participate as parties or third
parties in a particular dispute. �
Individuals and organizations, which are not Members of the WTO, have no legal
right to make submissions to or to be heard by the Appellate Body. The Appellate
Body has no legal duty to accept or consider unsolicited amicus curiae briefs
submitted by individuals or organizations, not Members of the WTO. The Appellate
Body has a legal duty to accept and consider only submissions from WTO Members
which are parties or third parties in a particular dispute.61 (original emphasis;
underlining added; footnotes omitted)
159. We explained further in that appeal that participation by private
individuals and organizations is dependent upon our permitting such
participation if we find it useful to do so. We observed that:
� we have the legal authority under the DSU to accept and consider amicus curiae
briefs in an appeal in which we find it pertinent and useful to do so. In this
appeal, we have not found it necessary to take the two amicus curiae briefs
filed into account in rendering our decision.62
We have followed this same approach in a number of subsequent appeals.63
160. Peru conceded at the oral hearing that its "position is not exactly
supported by the case law of the Appellate Body".64 On this, Peru is correct.
Accordingly, we believe that the objections of Peru with regard to the amicus
curiae brief submitted by a private individual are unfounded. We find that we
have the authority to accept the brief filed by a private individual, and to
consider it. We also find that the brief submitted by a private individual does
not assist us in this appeal.
161. We turn now to the issue of the amicus curiae brief filed by Morocco, which
raises a novel issue, as this is the first time that a WTO Member has submitted
such a brief in any WTO dispute settlement proceeding. The European Communities
is of the view that we should not treat amicus curiae briefs submitted by
private individuals differently from amicus curiae briefs submitted by WTO
Members.65 Peru objects to our accepting Morocco's brief, arguing that such
acceptance would circumvent the rules in the DSU setting out the conditions
under which WTO Members can participate as third parties in dispute settlement
proceedings.66 Peru refers specifically to Articles 10.2 and 17.4 of the DSU,
which provide, respectively:
Article 10
2. Any Member having a substantial interest in a matter before a panel and
having notified its interest to the DSB (referred to in this Understanding as a
"third party") shall have an opportunity to be heard by the panel and to make
written submissions to the panel. These submissions shall also be given to the
parties to the dispute and shall be reflected in the panel report.
Article 17
4. Only parties to the dispute, not third parties, may appeal a panel report.
Third parties which have notified the DSB of a substantial interest in the
matter pursuant to paragraph 2 of Article 10 may make written submissions to,
and be given an opportunity to be heard by, the Appellate Body.
Peru asserts that, because Morocco did not notify its interest to the DSB in
accordance with these provisions, Morocco cannot be given an opportunity to be
heard by us.
162. We do not agree. As we said earlier, we found in US - Lead and Bismuth II
that "nothing in the DSU or the Working Procedures specifically provides that we
may accept and consider submissions or briefs from sources other than the
participants and third participants in an appeal."67 We also stated in that appeal
that "neither the DSU nor the Working Procedures explicitly prohibit acceptance
or consideration of such briefs."68 In so ruling, we did
not distinguish between,
on the one hand, submissions from WTO Members that are not participants or third
participants in a particular appeal, and, on the other hand, submissions from
non-WTO Members.
163. It is true that, unlike private individuals or organizations, WTO Members
are given an explicit right, under Articles 10.2 and 17.4 of the DSU, to
participate in dispute settlement proceedings as third parties. Thus, the
question arises whether the existence of this explicit right, which is not
accorded to non-Members, justifies treating WTO Members differently from non-WTO
Members in the exercise of our authority to receive amicus curiae briefs. We do
not believe that it does.
164. We have been urged by the parties to this dispute not to treat Members less
favourably than non-Members with regard to participation as amicus curiae.69 We
agree. We have not. And we will not. As we have already determined that we have
the authority to receive an amicus curiae brief from a private individual or an
organization, a fortiori we are entitled to accept such a brief from a WTO
Member, provided there is no prohibition on doing so in the DSU. We find no such
prohibition.
165. None of the participants in this appeal has pointed to any provision of the
DSU that can be understood as prohibiting WTO Members from participating in
panel or appellate proceedings as an amicus curiae . Nor has any participant in
this appeal demonstrated how such participation would contravene the DSU. Peru
states only that the DSU provides that participation as a third party is
governed by Articles 10.2 and 17.4, and appears to draw from this a negative
inference such that Members may participate pursuant to those rules, or not at
all. We have examined Articles 10.2 and 17.4, and we do not share Peru's view.
Just because those provisions stipulate when a Member may participate in a
dispute settlement proceeding as a third party or third participant, does not,
in our view, lead inevitably to the conclusion that participation by a Member as
an amicus curiae is prohibited.
166. As we explained in US - Lead and Bismuth II, the DSU gives WTO Members that
are participants and third participants a legal right to participate in
appellate proceedings.70 In particular, WTO Members that are third participants in
an appeal have the right to make written and oral submissions. The corollary is
that we have a duty, by virtue of the DSU, to accept and consider
these submissions from WTO Members. By contrast, participation as amici in WTO
appellate proceedings is not a legal right, and we have no duty to accept any
amicus curiae brief. We may do so, however, based on our legal authority to
regulate our own procedures as stipulated in Article 17.9 of the DSU. The fact
that Morocco, as a sovereign State, has chosen not to exercise its right to
participate in this dispute by availing itself of its third-party rights at the
panel stage does not, in our opinion, undermine our legal authority under the
DSU and our Working Procedures to accept and consider the amicus curiae brief
submitted by Morocco.
167. Therefore, we find that we are entitled to accept the amicus curiae brief
submitted by Morocco, and to consider it. We wish to emphasize, however, that,
in accepting the brief filed by Morocco in this appeal, we are not suggesting
that each time a Member files such a brief we are required to accept and
consider it. To the contrary, acceptance of any amicus curiae brief is a matter
of discretion, which we must exercise on a case-by-case basis. We recall our
statement that:
The procedural rules of WTO dispute settlement are designed to promote � the
fair, prompt and effective resolution of trade disputes.71
Therefore, we could exercise our discretion to reject an amicus curiae brief if,
by accepting it, this would interfere with the "fair, prompt and effective
resolution of trade disputes." This could arise, for example, if a WTO Member
were to seek to submit an amicus curiae brief at a very late stage in the
appellate proceedings, with the result that accepting the brief would impose an
undue burden on other participants.
168. Having concluded that we have the legal authority to accept the amicus
curiae brief submitted by Morocco, we now consider whether Morocco's brief
assists us in this appeal.
169. Morocco's amicus curiae brief provides mainly factual information. It
refers to the scientific differences between Sardina pilchardus Walbaum
("Sardina pilchardus ") and Sardinops sagax sagax ("Sardinops sagax"), and it
also provides economic information about the Moroccan fishing and canning
industries. As Article 17.6 of the DSU limits an appeal to issues of law and
legal interpretations developed by the panel, the factual information provided
in Morocco's amicus curiae brief is not pertinent in this appeal. In addition,
Morocco has alleged in its amicus curiae brief that the measure at issue in this
appeal is consistent with relevant international standards, including those of
the Codex Alimentarius Commission (the "Codex Commission"). Morocco does not
elaborate on this allegation, and provides no support for this position.
Therefore, this, too, fails to assist us in this appeal. However, some of the
legal arguments put forward by Morocco relate to Article 2.1 of the TBT
Agreement and to the GATT 1994. Therefore, we will consider whether these
arguments are of assistance when we consider Article 2.1 and the GATT 1994 later
in this Report.
170. In sum, with the exception of the arguments relating to Article 2.1 of the
TBT Agreement and the GATT 1994, to which we will return later, we find that
Morocco's amicus curiae brief does not assist us in this appeal.
24
Supra, footnote 16.
25 Peru's letter dated 2 July 2002.
26 European Communities' response to questioning at the oral
hearing.
27
Supra, paras. 11 ff.
28 WT/DS231/10, 27 June 2002.
29 Peru's appellee's submission, para. 42.
30 European Communities' appellant's submission, para. 235.
31 We note that, in both previous cases, unlike in this case,
the Divisions hearing those appeals and the appellees had prior knowledge of,
and agreed with, the process. (Appellate Body Report, US - FSC, supra,
footnote 20, para. 4; Appellate Body Report, US - Line Pipe, supra,
footnote 19, para. 13) Peru distinguishes this case on that basis; however, the
mere fact that there was both notice and agreement in those cases does not, on
its own, mean that such notice and agreement are required.
32 DSU, Article 3.7.
33 Appellate Body Report, US - FSC, supra,
footnote 20, para. 166.
34 European Communities' response to questioning at the oral
hearing.
35 European Communities' appellant's submission, para. 235.
36 European Communities' response to questioning at the oral
hearing.
37 European Communities' appellant's submission, para. 235.
38 European Communities' response to questioning at the oral
hearing.
39 Peru's response to questioning at the oral hearing.
40 European Communities' letter to the Appellate Body dated 28
June 2002.
41 Peru's appellee's submission, para. 45.
42
Ibid.
43
Ibid., para. 51.
44 Peru's appellee's submission, para. 179.
45 European Communities' response to questioning at the oral
hearing.
46
Ibid.
47 Peru's appellee's submission, para. 38.
48
Ibid., para. 48.
49 Peru stated that the first Notice was "vague as to the scope
of the appeal" and therefore it did not know whether the new Notice covered the
same grounds. (Peru's response to questioning at the oral hearing)
50 Appellate Body Report, WT/DS58/AB/R, adopted 6 November 1998,
DSR 1998:VII, 2755, para. 97.
51
Ibid.
52 Peru's letter dated 26 July 2002.
53 Peru's letter dated 26 July 2002.
54 Appellate Body Report, supra, footnote 50.
55
Ibid., para 91.
56 Appellate Body Report, Thailand - Anti-Dumping Duties on
Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-Beams from Poland
("Thailand - H-Beams "), WT/DS122/AB/R, adopted 5 April 2001.
57 Appellate Body Report, United States - Import Prohibition
of Certain Shrimp and Shrimp Products - Recourse to Article 21.5 of the DSU by
Malaysia ("US - Shrimp (Article 21.5 - Malaysia)"), WT/DS58/AB/RW,
adopted 21 November 2001.
58 Appellate Body Report, EC - Asbestos, supra,
footnote 15, Appellate Body Report, Thailand -
H-Beams, supra, footnote 56, Appellate Body Report, US - Lead and
Bismuth II, WT/DS138/AB/R, adopted 7 June 2000, DSR 2000:V, 2601.
59 Article 17.9 of the DSU provides as follows:
Procedures for Appellate Review
9. Working Procedures shall be drawn up by the
Appellate Body in consultation with the Chairman of the DSB and the
Director-General, and communicated to the Members for their information.
60 Appellate Body Report, supra, footnote 58, para. 39.
61
Ibid., paras. 40-41.
62 Appellate Body Report, US - Lead and Bismuth II,
supra, footnote 58, para. 42.
63 The issue of unsolicited amicus curiae briefs
submitted to us by private individuals also arose in EC - Asbestos,
supra, footnote 15; Thailand - H-Beams, supra, footnote 56;
and US - Shrimp (Article 21.5 - Malaysia), supra, footnote 57.
64 Peru's response to questioning at the oral hearing.
65 European Communities' response to questioning at the oral
hearing.
66 Peru's letter dated 26 July 2002.
67 Appellate Body Report, supra, footnote 58, para. 39.
68
Ibid.
69 European Communities' response to questioning at the oral
hearing; Peru's response to questioning at the oral hearing.
Ecuador and Chile argued that if we were to accept and
consider an amicus curiae brief submitted by a WTO Member that had not
followed the procedures for participation as a third party or third participant,
we would be according such Member greater rights than we would a WTO Member
which had followed those procedures, but had not filed a written submission on
appeal as specified in Rule 27(3) of our Working Procedures . According to
Chile and Ecuador, the Member that had not filed a written submission on appeal
would have an opportunity only to participate as a passive observer at the oral
hearing, but would not be permitted to make its views known at that hearing.
Chile and Ecuador argue that, by contrast, the Member which had filed an
amicus curiae brief would have greater rights because its views would be
before us. We do not agree. A Member that has participated as a third party at
the panel stage has a right to file a written submission on appeal in accordance
with Rule 24, and if it does so we would have a duty to consider it. If such
Member chooses for its own reasons not to file a written submission on appeal,
our practice is to permit such Member to attend the oral hearing. By contrast, a
Member which files an amicus curiae brief is not guaranteed that we will
accept or consider the brief, and the Member will not be entitled to attend the
oral hearing in any capacity.
70
Appellate Body Report, supra, footnote 58, para. 40.
This is subject to meeting the requirements in Rule 27(3) of the Working
Procedures, which provides that "[a]ny third participant who has filed a
submission pursuant to Rule 24 may appear to make oral arguments or
presentations at the oral hearing." However, we have on several occasions
permitted third parties who have not filed a submission to attend the oral
hearing as passive observers.
71
Appellate Body Report, US - FSC, supra,
footnote 20, para. 166. In that appeal, we were not referring in the quoted
excerpt to the issue of amicus curiae briefs. The issue there related to
the exercise of the right of appeal. We nevertheless believe that our views on
how to interpret the Working Procedures are of general application and
are thus pertinent to the amicus curiae issue as it arises in this case.
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