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from Part I - Appellate Body Reports

Published online by Cambridge University Press:  05 March 2015

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Summary

Languages. See Interpretation, Multiple authentic languages – Article 33 of the Vienna Convention (I.3.11)

Law vs. Fact. See Scope of Appellate Review, Issues of law vs. Issues of fact (Article 17.6 of the DSU) (S.3.3)

Least-Developed Countries

L.0.1 US – Upland Cotton, para. 512

(WT/DS267/AB/R)

… we recall that Article 24.1 of the DSU requires that “[a]t all stages of the determination of the causes of a dispute and of dispute settlement procedures involving a least-developed country Member, particular consideration shall be given to the special situation of least-developed country Members”. We fully recognize the importance of this provision. …

Legislation as such vs. Specific Application. See also Anti-Dumping Agreement, Article 17.3 – Consultations (A.3.55); Anti-Dumping Agreement, Article 17.4 – “matter referred to the DSB” (A.3.56); Burden of Proof, General (B.3.1); Jurisdiction, General (J.2.1); Mandatory and Discretionary Legislation (M.1); Municipal Law (M.5); Non-Violation Claims, Article XXIII:1(b) of the GATT 1994 – “any measure” (N.2.2); Terms of Reference of Panels, Specific measures at issue (T.6.3)

L.1.1 US – 1916 Act, paras. 60–61

(WT/DS136/AB/R, WT/DS162/AB/R)

Prior to the entry into force of the WTO Agreement, it was firmly established that Article XXIII:1(a) of the GATT 1947 allowed a Contracting Party to challenge legislation as such, independently from the application of that legislation in specific instances. While the text of Article XXIII does not expressly address the matter, panels consistently considered that, under Article XXIII, they had the jurisdiction to deal with claims against legislation as such. In examining such claims, panels developed the concept that mandatory and discretionary legislation should be distinguished from each other, reasoning that only legislation that mandates a violation of the GATT obligations can be found as such to be inconsistent with those obligations. We consider the application of this distinction to the present cases in section IV(B) below.

Thus, that a Contracting Party could challenge legislation as such before a panel was well-settled under the GATT 1947.

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Publisher: Cambridge University Press
Print publication year: 2014

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  • Book: WTO Appellate Body Repertory of Reports and Awards
  • Online publication: 05 March 2015
  • Chapter DOI: https://doi.org/10.1017/CBO9781107446427.013
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  • Book: WTO Appellate Body Repertory of Reports and Awards
  • Online publication: 05 March 2015
  • Chapter DOI: https://doi.org/10.1017/CBO9781107446427.013
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  • L
  • Book: WTO Appellate Body Repertory of Reports and Awards
  • Online publication: 05 March 2015
  • Chapter DOI: https://doi.org/10.1017/CBO9781107446427.013
Available formats
×