第五章
争端解决机制及规则

几乎所有的法律体系，都会建立相应的争端解决机制。世界贸易组织也不例外。WTO解决成员争端的机制，被称为WTO皇冠上的明珠，是WTO最重要的成果之一。WTO的职能之一，就是管理争端解决的规则与程序，而争端解决机制，又是确保WTO体系的稳定性和可预测性关键的一个环节。

除GATT、《WTO协定》、多边贸易协定和诸边贸易协定的有关条款以外，WTO有关争端解决的规则集中体现在《WTO协定》的附件2《关于争端解决规则和程序谅解书》（以下简称“DSU”或“谅解书”）。谅解书共27条，4个附件，就WTO争端解决机制的适用范围、管理与运作、一般原则、基本程序、建议与裁决的实施和监督、补偿与减让的中止、涉及最不发达成员国的特殊程序、专家组的工作程序、专家复审等，分别作出了系统而“精致”的规定。

第一节 国际争端解决机制的方法论

传统的国际贸易争端有两种解决途径。一种是所谓的“势力导向型”（power-oriented approach）。另一种是所谓的“规则导向型”（rule-oriented approach）。前一种方式中，发生争端的各方以谈判的方式解决争端，谈判结果通常与各方政治和经济实力的强弱有关。后一种方式中，各方以事先制定的规则为依据，由独立第三方对争端进行裁决。

用第一种方式解决政府间争端时，实力强大的国家明显占优势。而且，这些国家往往将经济强势通过外交手段，如威胁终止经济援助、限制对方重要进口产品等，转换成胁迫对手就范的力量。原GATT的争端解决机制与这种方式接近。在拥护这种方式的国家看来，GATT的争端解决机制没有法定约束力，仅在于鼓励争端各方诚意协商，以谋求双方都能接受的解决途径。这种态度，无疑大大影响了GATT的效力，进而影响自由贸易的进程。

以规则导向为基础的争端解决机制能更有效地防止各成员违反规则。由于任何争端都将由独立的第三方根据事先约定的规则进行裁决，十分有利于促使争端各方根据对结果的预测来决定谈判的方式和策略。因此，相比起势力导向机制，规则导向的争端解决机制更能保障对国际贸易而言极为重要的稳定性和可预测性。同时，由于政治、经济势力所起的作用小得多，这种机制更可能带来公正的结果，备受小国，尤其是不发达和发展中国家的拥护。WTO的争端解决机制正是这种规则导向型机制。

对规则导向型机制存在正反两方面的意见。反对的观点认为，这种方式可能造成争端裁定结果不一致，动摇各成员对协定的信任，最终危害国际贸易体系。支持的观点认为，争端解决是经由各方协商同意，因此在执行上不应有太大的阻力。反过来，这种形式对维护争端解决机制的权威性十分有利。

反对规则导向型的观点认为，具有强迫性质的司法裁决给国际贸易带来一种不温和气氛，反而增加冲突的可能性。首先，各国之间的贸易是基于友好协商、互利互惠。同时，国际贸易的性质使各国之间相互协助、相互尊重至关重要。因此，一种友好合作的国际气氛，对推进国际贸易自由化进程十分必要和重要。规则导向的争端解决机制，使各方在最初的协商解决过程中轻易放弃协商解决的可能性，并在裁决过程中产生直接对抗，较易在争端各方产生对立现象，从而影响国际贸易的顺利进行。另外，裁决败诉方可能因国际司法体系的强制力不足而拒不遵守裁定，造成对体制权威性的破坏，甚至动摇各方对争端解决机构的信心。此外，如果裁决发生错误，则将从根本上影响争端解决机制的作用。如果按照错误的结果执行，则可能对国际贸易体系造成更为严重的危害。

然而，对实践经验的总结，使国际贸易争端解决机制渐渐向规则导向机制靠拢：依靠条约对事件的客观裁定，而不是外交斡旋来维护国际贸易体系的稳定，并促进国际贸易体系的发展。在近半个世纪的实践中，GATT凭借着第22、23条的简单规定，发展了一个“温和”的争端解决实践机制。WTO正是在这两个条款的基础上，细化出了“关于争端解决规则与程序的谅解”，明确将规则导向作为选择模式。这意味着WTO的争端解决将完全基于对争端事实的条约分析，包括对条约来源、来源的合法性、条约的立法目的等的分析。与此同时，考虑到国际贸易争端的特殊性质，WTO争端解决机制还仔细兼顾法律和政策的平衡，对执行机制进行监督。这些，无疑都是WTO对国际贸易争端解决的重大创新，并使WTO争端解决的法律，成为当今最复杂、最有效率的国际法。

第二节 GATT的争端解决机制

在近半个世纪的实际运行中，GATT采用了一套与WTO现行体制有很大不同的争端解决机制。现行WTO争端解决体系采用“反向协商一致”机制。在这种机制下，专家组报告基本上自动生效。而原GATT采用“协商一致”机制，任何缔约方，只要不满GATT裁决、违反GATT义务却不愿停止违规行为，或不愿修改或废止本国违反GATT规定的法律法规以及相关措施，都能轻易阻止裁定的生效。

GATT的争端解决机制，是希望通过争议各方的磋商，共同寻求解决争议的方式。如果磋商不成，再由缔约方大会进行裁定。需要时，由缔约方大会授权进行报复。GATT争端解决机制的目的，不仅是补偿受损一方，更是保护所有缔约方利益不受侵犯。

GATT第22、23条构成GATT争端解决机制的框架。第22条是关于磋商的规定。第23条是关于诉因的规定。根据第23条内容，任何缔约方，只要认为其GATT赋予的利益，或应当享有的GATT利益，因其他缔约方的行为而丧失或受到损害，就可以根据第23条主张权利。

作为GATT最主要的争端解决条款，第23条缺乏程序性的规定。于是，GATT各缔约方不得不在实践中发展出一套程序。最初，缔约方在例会上解决提起的争端。偶尔，缔约方大会任命工作组来解决某些纠纷。之后的50年代，在当时GATT总干事怀特（Eric Wyndham-White）的推动下，使用专家组来解决争端渐渐成为被各缔约方接受的“标准手段”。在1947～1994年间，GATT一共成立了120多个专家组。

作为标准手段，GATT形成了任命专家组解决争端的做法。通常，专家组由3人组成，有时为5人，分析争端事实与GATT规则，之后向总理事会提出建议。虽然各缔约方有资格派遣专家组成员，但是，无论由哪个缔约方政府派遣，专家组成员都以个人身份参加争端的审理，而不代表派遣方政府。这反映了GATT强调独立决策的组织哲学。

但是，GATT组织原则中的另一个原则——协商一致原则，却给GATT争端解决机制带来困难。由于专家组的成立需经总理事会“一致同意”，被诉方常常利用反对票阻止专家组的成立。同样的问题也发生在专家组成员的选定和权限的认定上。最后，败诉方如果不愿执行裁定，更是利用专家组报告的通过程序阻止报告的生效。虽然在GATT实践中很少发生这样的情况，但这个漏洞大大影响了各缔约方对GATT争端解决机制的信心。特别是在“东京回合”之后，情况变得更为严峻。“东京回合”出现了一系列只对接受方有效的协定（codes），其中的很多协定有自己的争端解决规定。这种情况使得出现争端结果不一致的几率大大增加，并为选择不同争端解决体系的投机行为（forum-shopping）提供了可能，对GATT整个体系构成严重的威胁。

这些实践经验，加上新增的GATS和TRIPS协定，促使WTO必须重新制定一个一体化机制来处理贸易争端。虽然WTO在很多方面有别于GATT，典型的如上诉机构的设立等，但GATT中的许多经验和操作还是在WTO中保留下来，如采用专家组，磋商程序等。WTO有关协定还特别强调与GATT第22、23条内容保持连贯。

尽管“一致同意”原则存在以上的严重问题，总体来说，GATT的争端解决机制相比其他国际组织来说还是成功的。很多争端在没有专家组的情况下获得了解决，只有大约40%的争端最终需要总理事会决定是否采纳专家组的报告。根据哈德克（Robert Hudec）教授对截至1989年的139个争端的统计，60%的申请方获得满意的结果，29%获得部分满意的结果，成功率几乎达到90%。这样的成功率，对一个成立时间相对较短的国际组织来说是非常高的。

第三节 WTO争端解决机制

现行WTO的争端解决“反向协商一致”的机制是国际法的一个发展，在国际法中是没有先例的。它基本上使争端解决裁定自动生效，解决了国际法约束力不足的问题，迫使各成员保持国内法与WTO条约的一致，迫使产生争端各方政府接受争端裁定结果，并监督这些结果在生效方的执行。WTO过去18年的实践证明，这样一个争端解决体系很有效率，绝大部分败诉方立即采取行动终止违规行为，或者废除或修改违规的法律、规章、措施等。

一 基本原则

“为多边贸易体系提供可靠性和可预测性”是WTO争端解决机制的中心任务之一。DSU的基本原则归纳起来有以下四点：

（1）保护各成员方的权利，监督各成员履行义务。DSU第3.2条指出，WTO争端解决体制是为保护各成员在适用协定项下的权利和义务，并根据公认的国际法条约解释惯例对WTO有关条款进行解释。DSU要求DSB在致力于“保护各成员在适用协定项下的权利和义务”时，不“增加或减少适用协定所规定的权利和义务”。

（2）权利义务的平衡。DSU要求争端解决机构在解决争端过程中注意保持各成员权利、义务的平衡。此外还有一些基于GATT经验的总结，包括迅速解决争端；保证WTO的有效运转；在保持各方权利义务平衡的基础上，根据这些权利和义务达成各方满意的争端解决方案；向各成员方阐述运用磋商和争端解决机制并不意味着与争议方政治对抗的理念等等。

（3）协商解决争端。WTO的争端解决机制让各成员根据已定规则自行判断裁定结果。但关于解决争端的方式，WTO鼓励争端各方最好采取协商解决的方式。最优选择为违规一方撤销违反WTO义务的措施，次之为各方协商赔偿数额。授权报复是WTO最不鼓励的解决方式。

（4）禁止单边报复。WTO在冠名为“加强多边体系”的第23条中特别强调成员不能采取单方报复行动原则，要求各成员方在争端解决体制下，运用有关规则解决争端。

二 法律渊源

WTO条约的法源包括GATT体系下的案件裁定和决定、DSU、DSB制定的有关规定以及国际法的相关内容。

1. GATT 1947的案例和决定

1966年，GATT采用“关于第23条的程序”解决发达国家与发展中国家缔约方之间的贸易纠纷，突破了第22、23条作为GATT框架性争端解决条款的情形。之后，东京回合又于1979年11月达成“关于通知、磋商、争端解决及监督的谅解书”及其附件，以及“有关GATT争端解决领域常规操作方法的一致意见”，进一步将GATT争端解决程序法制化。再后，又有3个决议分别对1979年11月生效的谅解书进行补充和确认。它们是：1982年部长级会议的“争端解决程序”, 1984年的法案，以及1989年的“GATT争端解决规定与程序的完善”。

上述内容，都是GATT争端解决中的法律依据。但是，这些依据只能算是GATT体系中的“二级法律”（secondary law）。它们大多在WTO争端解决程序中保留下来，成为WTO的正式条约。

WTO争端解决与GATT体系的争端解决有着密切的关系。《WTO协定》第16.1条规定：“除本协定或多边贸易协定项下另有规定，WTO应以GATT 1947缔约方全体和GATT 1947范围内设立的机构所遵循的决定、程序和惯例为指导。”同样，DSU第3.1条规定：“各成员方确定遵守迄今为止GATT 1947第22条和第23条实施的管理争端的原则，及在此进一步详述和修改的规则和程序。”

WTO争端解决与GATT争端解决保持法律连贯性具有十分重要的意义。虽然在GATT体制下发展起来的案例的裁决内容对WTO争端解决没有强制约束力，但“日本—酒精饮料案”上诉机构在裁定中指出，已被采纳的专家组报告“是GATT的一个重要组成部分，常常被之后的专家组借鉴。它们在WTO成员中起着预测法律在案件中的应用的作用，因此，任何与之相关的争议都应对其加以考虑。”

2．争端解决谅解书（DSU）

WTO最主要的法律渊源是《关于争端解决规则与程序的谅解书》（DSU）。该协定作为《WTO协定》的一部分对全体WTO成员具有约束力。根据WTO协定第4.3条，为了完成WTO有关协定赋予的任务，DSU的执行机构——争端解决机构（DSB），有权制定任何完成其规定任务所必需的规定。同时，上诉机构经与DSB主席及总干事协商，再与各成员沟通以后，可以制定工作需要的程序。例如，1996年DSB采用了“专家组成员及其他成员行为规范条例”; 1996年2月，上诉机构发布了一系列上诉审议工作程序，随后在1997年2月又对其进行了修订。

3．国际法

（1）国际法原则

国际公法是WTO争端解决的另一重要法律渊源。GATT作为一个政府间协定，属于国际条约的范畴。国际惯例法要求对条约的遵守遵循“Pacta Sunt Servanda”的基本原则（treaties must be followed in good faith），即善意遵守条约的基本原则。作为一个国际条约，GATT最初的建立无疑是以国际法为依据，而GATT的整个法律体系也是在善意和互惠原则的基础上发挥作用。虽然DSU中除对协定解释外，并没有关于以国际公法为依据的表述，事实上，在专家组的争端裁定中往往采用国际公法中的很多基本原则。

（2）协定内容的解释

DSU第3.2条直接引用国际法为法律渊源，规定对所有WTO协定条款内容的解释必须“依照解释国际公法的惯例”进行。这是DSU中唯一规定有关WTO协定解释原则的条款。在专家组及上诉机构的裁定中，本条中的“国际公法”被解释为遵照1969年《维也纳条约法公约》（“维也纳公约”）中条约解释的相关规定。

从公约内容可以看出，维也纳公约条约解释的方法有两种。一种是基于条约文字的“内容解释法”（the textual method），另一种是基于起草和签署条约的相关情况的“历史解释法”（the historical method）。前一种方法要求解释条约时根据条约内容，对文意进行字面和系统的理解（第31.1条）。如果条约中的某一具体条款已有实际运用的经验，维也纳公约明确规定相关实践经验应作为在条款解释中理解条款含义的参考（第31.3条）。后一种方法的运用，是当“内容解释法”不足以解释清楚条约含义时，参考条约产生的历史背景、起草过程、目标和宗旨等有关历史性的内容对条约及某一条款进行解释（第32条）。

三 争端解决机构

WTO有三个负责争端解决的主要机构：争端解决机构（Dispute Settlement Body, DSB），专家组（Panel）和上诉机构（Appellate Body）。

1. DSB

DSB是授权管理WTO争端解决的机构，有权成立专家组，采用专家组和上诉机构的报告，监督裁定和建议的执行，以及授权终止减让和其他协定中的义务。

2．专家组

专家组是专门为某一贸易纠纷的解决而成立的临时小组，通常由3人组成，个别的由5人组成，在争端解决过程中享有充分的独立性。其职能是协助DSB履行职责。具体方式是对审议事项做出客观评估，包括对事实、适用协定及其一致性的客观评估，以供DSB提出建议或做出裁定。每个专家组的成员从专家组指示性名单中选出。这些专家必须在国际贸易法律和政策方面具有丰富的经验。目前，专家组指示性名单中的中国籍专家共有19人。其中，只有一人作为专家组成员之一参加过WTO争端解决。

3．上诉机构

上诉机构是一个常设机构，由7名成员组成。成员身份必须能够广泛代表各WTO成员。成员由DSB任命，任期4年，可连任1次。候选人必须是在法律、国际贸易以及各WTO协定方面的专家，同时不得在行政上与任何政府有关联，以保证其独立性。解决争端采用轮换制，3人1组。

上诉机构的工作程序由DSB主席和WTO总干事协商拟定。这些程序是关于调整上诉机构的运作以及公布上诉案件及其审理的有关情况，具体规定在WTO网站上公布。

除上述有关人员外，WTO总干事与秘书长肩负着对争端解决的特别任务。总干事负责为争端各方提供斡旋、调解或调停，以协助各成员方解决争端。争端方自行决定是否参与总干事提供的这些程序，各方所做决定不影响之后各方在正式程序中的权利和义务。

在争端解决中，秘书长的任务是协助专家组，尤其是在专家组议题中涉及法律、历史和程序的有关内容方面给予专家组以协助。

四 诉因

任一成员要求DSB解决的贸易争端的诉因不是对WTO中某一具体条款的违反，而是基于成员方利益的“丧失或损害”，即由于另一成员的行为而导致申请方WTO有关协定赋予的利益的丧失或损害。这个诉因是GATT 1947中的第23条，被WTO继续采用。GATT第23条的条文内容如下：

Article XXIII Nullification or Impairment

1. If any contracting party should consider that any benefit accruing to it directly or indirectly under this Agreement is being nullified or impaired or that the attainment of any objective of the Agreement is being impeded as the result of

（a）the failure of another contracting party to carry out its obligations under this Agreement, or

（b）the application by another contracting party of any measure, whether or not it conflicts with the provisions of this Agreement, or

（c）the existence of any other situation

the contracting party may, with a view to the satisfactory adjustment of the matter, make written representations or proposals to the other contracting party or parties which it considers to be concerned. Any contracting party thus approached shall give sympathetic consideration to the representations or proposals made to it.

2. If no satisfactory adjustment is effected between the contracting parties concerned within a reasonable time, or if the difficulty is of the type described in paragraph 1（c）of this Article, the matter may be referred to the CONTRACTING PARTIES. The CONTRACTING PARTIES shall promptly investigate any matter so referred to them and shall make appropriate recommendations to the contracting parties which they consider to be concerned, or give a ruling on the matter, as appropriate……

根据以上内容，申请方的诉因可以有两个。一个是第23.1条的“利益丧失或损害”之诉。另一个是第23.2条规定的“调整”或其他原因之诉。第二种情况下的举证非常困难，迄今为止，各成员都是基于第一种诉因提起争端解决的申请。

第一种诉因下的争端主要包括两种情况。第一种情况是第23.1（a）条规定的违法之诉，即某成员对其WTO义务的违反导致申请方的利益丧失或受到损害。另一种情况是第23.1（b）条规定的非违法之诉，即虽然申请方的利益丧失或损害并非某缔约方违反其WTO义务的缘故，但其实施的某一措施造成了申请方利益丧失或损害的后果。

以第一种诉因为由提起争端解决申请时，申诉方首先必须证明利益丧失或受到损害。之后，再证明利益丧失或受到损害的原因是：（1）被申请方对其WTO义务的违反，或（2）被申请方采取的任何措施，不论措施是否与GATT相冲突。

1．违法之诉

根据第23.1（a）条提起的违法之诉（violation claims），是迄今为止GATT及WTO争端中最多的。虽然第23条条文本身并没有强调违反WTO义务是以该条款为由进行申诉的前提。但在法律实践中，对WTO义务的违反是使对方利益丧失或减免的直接证据。下面是“美国—禽肉案”关于违法之诉的裁定。

US-CERTAIN MEASURES AFFECTING IMPORTS OF POULTRY FROM CHINA WT/DS392/R

8.6 Under Article 3.8 of the DSU, in cases where there is infringement of the obligations assumed under a covered agreement, the action is considered prima facie to constitute a case of nullification or impairment of benefits under that agreement. Accordingly, we conclude that to the extent that the United States has acted inconsistently with the specified provisions of the SPS Agreement and the GATT 1994, it has nullified or impaired benefits accruing to China under those agreements.

2．非违反之诉

WTO绝大多数争端都涉及对WTO有关义务的违反。但在少数情况下，成员可以不因任何其他方对其WTO义务的违反而要求DSB对其受到的贸易损失进行救济。这就是所谓的非违法之诉。非违法之诉的法律依据，是GATT第23.1（b）条。自1950年以来唯一成功的非违法之诉，是1962年欧共体对油籽产品的“免税承诺”案件。

五 申请资格及代理人资格

1．申请人资格

关于谁有资格向WTO提起诉讼申请的问题，DSU并没有严格的要求。在1997年的“欧共体—香蕉进口、销售和分销制度案”中，欧共体认为，美国的香蕉产量很少且从未出口，因此缺乏实际和潜在的经济利益而不应当具备申请争端解决的资格。上诉机构与专家组裁定一致，认为DSU没有明文规定申请成立专家组的成员必须具有法律认可的利益。作为香蕉生产国，至少美国有潜在的出口利益。同时，美国国内香蕉市场会因欧共体的香蕉体制对世界香蕉市场的供应和价格的影响而受到影响。随着世界经济越来越相互影响，各成员较之从前更有必要维护WTO的有关规则，任何偏离通过谈判达成的权利和义务的平衡，都将直接或间接地影响各方。

2．代理人资格

WTO的法律体系如此庞大、复杂，要想在争端解决过程中作为一方代表参与诉讼，必须要有很好的法律训练及法律实践经验。关于WTO争端的代理人资格，DSU没有明确规定。同样在“欧共体—香蕉进口、销售和分销制度案”中，专家组裁定，只有政府成员和欧共体委员会成员才能参加专家组会议。原因是如果允许政府以外的专业人士参与争端解决代表一方，则发达国家相比起发展中国家会有较大的优势。但是，本案上诉机构推翻了专家组的上述裁定，同意政府以外的法律人员参与案件申请，并裁定各WTO成员有权自行决定代表团组成成员。

上诉机构的这一裁定符合国际公法的有关原则。谁有权代表政府的问题，是国内法范畴的问题。事实上，要想控制政府以外的人员参与非常困难。因为即便控制了参与者的身份，起草者的身份还是难以控制。如果起草者是律师，为什么不能让他们直接参与？因此，允许非政府官员的律师参与争端解决代表一方是很有道理的。

第四节 WTO争端解决程序

解决一个贸易争端主要分四个阶段：（1）争端各方通过磋商解决分歧；（2）磋商失败后，申诉方要求成立专家组裁定争端；（3）争端中任一方上诉到上诉机构；（4）争端解决机构负责监督由它提出的建议的执行。如果建议没有被执行，由谈判达成补偿或授权报复。

一 简介

WTO争端解决的具体程序步骤如下：（1）磋商；（2）成立专家组；（3）专家组成员组成及职权范围的确定；（4）专家组调查；（5）专家意见；（6）中期审议；（7）专家组对争议各方及DSB的裁定报告；（8）上诉；（9）DSB通过专家组或上诉机构报告；（10）合理期限内执行裁定；（11）对执行中的某些议题要求报告专家组进行裁定（可能发生）;（12）赔偿谈判及暂停减让等待专家组建议；（13）在不遵守裁定的情况下许可的报复；（14）可能的仲裁。附件一图四是WTO的争端解决程序图。

以下是对其中某些程序及程序中涉及的某些具体问题的叙述。

二 磋商

1．磋商申请书的要求

GATT第23条要求争端各方本着调整争端的态度进行磋商，在正式提起争端解决程序前解决问题。DSU第4.2条也要求各方进行充分的磋商。DSU第4.4条是对磋商的要求：以书面形式提交DSB；说明提出请求的理由；明确造成争端的措施；指出造成要求磋商的争端的法律依据。

但在提出磋商要求的申请书中，申请方是否需要穷尽所有的主张？上诉机构在1998年的“印度—对药品及农业化学产品的专利保护案”中对这个问题给予了否定的回答，裁定在磋商阶段仍可提出其他主张。上诉机构进一步裁定要求争端各方无论在磋商初期，还是在之后的正式争端解决程序中，都必须就主张和与主张相关的事实进行全面的披露和陈述。事实上，这种要求对正式启动争端程序时确定专家组的职权范围很有帮助。

2．磋商时间程序的规定

被要求进行磋商的一方必须在10日内回答申请方的要求，并在30天内正式开始与对方进行真诚的磋商。否则，在没有与申请方达成另外的时间安排协议的情况下，申请磋商方有权直接要求成立专家组（DSU，第4.3条）。在磋商双方都认为磋商不能解决争端的情况下，申请方可在提出磋商60天内要求成立专家组，否则申请方只有在60天磋商期满之后才有权要求成立专家组。（DSU第4.7条）。

3．有关利害关系第三方的规定

关于第三方的问题，DSU第4.11条是这样规定的：一个认为磋商问题涉及其实质性利益的第三方可以在磋商要求公告后的10天内通告DSB及磋商各方要求参与磋商。如果的确存在其所称的实质性利益，则其要求应当被接受。从“欧共体—香蕉进口、销售和分销制度案”关于申请人资格关于“实质性利益”的裁定可以看出，事实上，任何希望成为第三方的成员都有资格申请以第三方的身份参与案件的裁定。

三 成立专家组

磋商失败后，根据DSU第6.1条的规定，申请方即可申请成立专家组。

1．申请书的内容

DSU第6.2条规定，成立专家组申请书必须以书面形式提出，明确是否进行了磋商，确定引起争议的措施并提供一份足以明确陈述所要求的主张的法律依据概要。该条规定中较易引起争议的，是申请书是否确定了“引起争议的措施”并提供了“足以明确陈述所要求主张的法律依据概要”。

以下的案例，是“中国—原材料案”上诉机构关于美国、欧盟与墨西哥对中国提起的成立专家组申请书是否“足以”明确陈述所要求主张的法律依据概要的裁定。本案案情请参见附件五相关部分。

CHINA-MEASURES RELATED TO THE EXPORTATION OF VARIOUS RAW MATERIALS WT/DS394, 395, 398/AB/R

213. On 4 November 2009, the United States, the European Communities, and Mexico filed the panel requests that form the basis of the present dispute. At the request of the complainants, the DSB established a single panel pursuant to Article 9.1 of the DSU at its 21 December 2009 meeting. At this DSB meeting, China informed the DSB of its intention to seek a preliminary ruling on the adequacy of the complainants' panel requests and their consistency with the requirements of Article 6.2 of the DSU. On 31 March 2010, one day after Panel composition, China submitted a request for a preliminary ruling by the Panel. China contended that the panel requests did not comply with the requirements of Article 6.2 of the DSU because they failed to provide“a brief summary of the legal basis of the complaint sufficient to present the problem clearly”. In particular, with respect to Section III of the panel requests, China alleged that the requests failed to“plainly connect”:（Ⅰ）the narrative paragraphs and the 37 listed measures;（Ⅱ）the 37 listed measures and the 13 listed treaty provisions; and（Ⅲ）the 13 listed treaty provisions and the narrative paragraphs. …

215. The Panel issued a preliminary ruling in two phases responding to China's allegation…The first phase of the preliminary ruling was issued to the parties on 7 May 2010. . . . The Panel stated that“the sufficiency of a panel request is to be determined by taking into account the Parties' first written submissions in order to assess fully whether the ability of the respondent to defend itself was prejudiced. ”Accordingly, the Panel decided to“reserve its decision”on whether Section III of the complainants' panel requests satisfied the requirements of Article 6.2 of the DSU until after it had examined the parties' first written submissions and was“more able to take fully into account China's ability to defend itself”. In so doing, the Panel referred to an“undertaking from a representative”of the complainants to the effect that“all possible concerns over the undefined scope of their challenge [would] be answered once China and the Panel receive[d] the Complainants'first written submissions”. The Panel added that it was not saying that“all flaws in a panel request can be cured by a first written submission”. The Panel also said that it“expect[ed] that the Complainants [would] clarify in their first written submissions which of the listed measures（or group thereof）for which specific products（or group thereof）are inconsistent with which specific WTO obligations among those listed in the last part of Section III of their panel requests”.

216. On 6 September 2010, following the first Panel meeting, the Panel requested the complainants to list all the measures for which they were seeking recommendations and which WTO provisions each of these measures was alleged to violate. In response, the complainants submitted, on 13 September 2010, a chart setting out, in three columns, the type of“Export Restraint”involved, the respective“Measures, i. e. , Legal Instruments”implicated, and the“WTO Provisions Violated”by each measure. Subsequently, on 1 October 2010, the Panel issued the second phase of its preliminary ruling, where it noted that the complainants“did not directly address in their submissions or in their subsequent oral statements”the question of whether Section III of the complainants' panel requests complied with Article 6.2 of the DSU. Nonetheless, the Panel ultimately concluded that“the complainants' first written submission[s] set out sufficient connections between the challenged measures and certain violations attributed to such measures. ”In reaching this conclusion, the Panel based itself on information contained in the charts filed by the complainants in response to a question posed by the Panel following the first Panel meeting. At the second Panel meeting on 22 November 2010, the United States, in order“[t]o clarify any confusion”, attached to its opening statement a revised chart specifying the measures on which it was seeking a finding by the Panel.

217. . . Ultimately, the Panel rejected China's claim that Section III of the complainants' panel requests failed to provide“a brief summary of the legal basis of the complaint sufficient to present the problem clearly”. . .

218. Article 6.2 of the DSU provides, in relevant part：

The request for the establishment of a panel shall be made in writing. It shall indicate whether consultations were held, identify the specific measures at issue and provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly.

219. The Appellate Body has explained that Article 6.2 of the DSU serves a pivotal function in WTO dispute settlement and sets out two key requirements that a complainant must satisfy in its panel request, namely, the“identification of the specific measures at issue, and the provision of a brief summary of the legal basis of the complaint（or the claims）”. Together, these two elements constitute the“matter referred to the DSB”, so that, if either of them is not properly identified, the matter would not be within the panel's terms of reference. Fulfillment of these requirements, therefore, is“not a mere formality”. As the Appellate Body has noted, a panel request forms the basis for the terms of reference of panels, in accordance with Article 7.1 of the DSU. Moreover, it serves the due process objective of notifying the respondent and third parties of the nature of the complainant's case. The identification of the specific measures at issue and the provision of“a brief summary of the legal basis of the complaint sufficient to present the problem clearly”are therefore central to defining the scope of the dispute to be addressed by the panel.

220. In order to determine whether a panel request is sufficiently precise to comply with Article 6.2 of the DSU, a panel must scrutinize carefully the language used in the panel request. This involves a case-by-case analysis. Submissions by a party may be referenced in order to confirm the meaning of the words used in the panel request; but the content of those submissions“cannot have the effect of curing the failings of a deficient panel request”. For example, whether a panel request identifies the“specific measures at issue”may depend on the particular context in which those measures operate and may require examining the extent to which they are capable of being precisely identified. At the same time, whether a panel request challenging a number of measures on the basis of multiple WTO provisions sets out“a brief summary of the legal basis of the complaint sufficient to present the problem clearly”may depend on whether it is sufficiently clear which“problem”is caused by which measure or group of measures. The Appellate Body has explained that, in order“to present the problem clearly”, a panel request must“plainly connect the challenged measure（s）with the provision（s）of the covered agreements claimed to have been infringed”. Furthermore, to the extent that a provision contains not one single, distinct obligation, but rather multiple obligations, a panel request might need to specify which of the obligations contained in the provision is being challenged. In our view, a defective panel request may impair a panel's ability to perform its adjudicative function within the strict timeframes contemplated in the DSU and, thus, may have implications for the prompt settlement of a dispute in accordance with Article 3.3 of the DSU. A complaining Member should therefore be particularly vigilant in preparing its panel request, especially when numerous measures are challenged under several different treaty provisions.

221. With these considerations in mind, we turn to the panel requests at issue in this dispute. We note that the complainants' panel requests are each structured in three separate sections. Section I, entitled“Export Quotas”, challenges the imposition of export quotas on bauxite, coke, fluorspar, silicon carbide, and zinc as inconsistent with Article XI: 1 of the GATT 1994 and Paragraphs 162 and 165 of the“China's Accession Working Party Report”. In Section II, entitled“Export Duties”, the complainants claim that China imposes export duties on bauxite in violation of its commitments under Paragraph 11.3 of the“China's Accession Protocol”. Whereas Sections I and II each addresses a single form of export restriction, Section III covers a wider set of allegations directed at what is referred to in the title of Section III as“Additional Restraints Imposed on Exportation”.

222. The introductory paragraph in Section III states, in broad terms, that“China imposes other restraints on the exportation of the materials, administers its measures in a manner that is not uniform, impartial, and reasonable, imposes excessive fees and formalities on exportation, and does not publish certain measures pertaining to requirements, restrictions, or prohibitions on exports. ”This paragraph is followed by five separate paragraphs in the case of the United States and Mexico, and six paragraphs in the case of the European Union, setting out different allegations of violation relating to varied situations in which obligations under the WTO agreements might not be satisfied, namely, allegations relating to the administration of export quotas, allocation of export quotas, publication of export quota amounts and application procedures, export licensing requirements, minimum export price requirements, and fees and formalities.

223. Each of these paragraphs briefly describes a number of different allegations of violation relating to different types of restraints. These narrative paragraphs are worded in virtually identical terms in each of the three panel requests. They state：

China administers the export quotas imposed on bauxite, coke, fluorspar, silicon carbide, and zinc discussed in Section I above, through its ministries and other organizations under the State Council as well as chambers of commerce and industry associations, in a manner that restricts exports and is not uniform, impartial and reasonable. In connection with the administration of the quotas for these materials, China imposes restrictions on the right of Chinese enterprises as well as foreign enterprises and individuals to export.

China allocates the export quotas imposed on bauxite, fluorspar, and silicon carbide discussed in Section I above, through a bidding system. China administers the requirements and procedures for this bidding system through its ministries and other organizations under the State Council as well as chambers of commerce and industry associations, in a manner that restricts exports and is not uniform, impartial and reasonable. In connection with the administration of this bidding system, China also requires foreign-invested enterprises to satisfy certain criteria in order to export these materials that Chinese enterprises need not satisfy. [Further, China requires enterprises to pay a charge in order to export these materials that is excessive and imposes excessive formalities on the exportation of these materials. ]

China does not publish the amount for the export quota for zinc or any conditions or procedures for applying entities to qualify to export zinc.

In addition, China restricts the exportation of bauxite, coke, fluorspar, manganese, silicon carbide, and zinc by subjecting these materials to non-automatic licensing. China imposes the non-automatic export licensing for bauxite, coke, fluorspar, silicon carbide, and zinc in connection with the administration of the export quotas discussed in Section I, as an additional restraint on the exportation of those materials.

China also imposes quantitative restrictions on the exportation of the materials by requiring that prices for the materials meet or exceed a minimum price before they may be exported. Further, through its ministries and other organizations under the State Council as well as chambers of commerce and industry associations, China administers the price requirements in a manner that restricts exports and is not uniform, impartial, and reasonable. China also does not publish certain measures relating to these requirements in a manner that enables governments and traders to become acquainted with them.

[China also imposes excessive fees and formalities in relation to the exportation of the materials. ]

224. Following these narrative paragraphs, each of the three panel requests provides an identical bullet point list of 37 legal instruments, introduced by the phrase: “[The complainant] understands that these Chinese measures are reflected in, among others: . . . ”The legal instruments listed range from entire codes or charters（such as the Foreign Trade Law of the People's Republic of China（China's“Foreign Trade Law”））to specific administrative measures（such as the Quotas of Fluorspar Lump（Powder）of 2009（“2009 First Round Fluorspar Bidding Procedures”））. The complainants' panel requests do not identify specific sections or provisions of any of the listed instruments.

225. The final paragraph of Section III of the panel requests consists of a list of 13 treaty provisions. The United States and Mexico state that they consider that“these measures are inconsistent with Article VIII: 1（a）and VIII: 4, Article X: 1 and X: 3（a）, and Article XI: 1 of the GATT 1994 and. . . ”The final paragraph in Section III of the European Union's panel request is textually identical, except that it refers to Article VIII: 1 of the GATT 1994 instead of Article VIII: 1（a）of the GATT 1994.

226. China does not contest that Section III of the panel requests identifies the challenged measures with sufficient specificity to comply with Article 6.2 of the DSU. Rather, at issue here is whether Section III provides“a brief summary of the legal basis of the complaint sufficient to present the problem clearly”. As the Appellate Body found in EC-Selected Customs Matters, a brief summary of the legal basis of the complaint as required by Article 6.2 of the DSU should“explain succinctly how or why the measure at issue is considered by the complaining Member to be violating the WTO obligation in question”. Based on our reading of the complainants' panel requests in the present case, it is not clear which allegations of error pertain to which particular measure or set of measures identified in the panel requests. Furthermore, it is unclear whether each of the listed measures relates to one specific allegation described in the narrative paragraphs, or to several or even all of these allegations, and whether each of the listed measures allegedly violates one specific provision of the covered agreements, or several of them.

227. First, the complainants identify, for instance, China's Foreign Trade Law as a measure at issue. Yet from the language of Section III of the panel requests it is impossible to discern which of the several allegations of violation described in the narrative paragraphs is alleged to have been caused by the Foreign Trade Law, or which provision or provisions of the covered agreements listed in the concluding paragraph are alleged to have been violated by that measure.

228. Second, the WTO provisions listed in Section III contain a wide array of dissimilar obligations. More specifically, the complainants state that they consider that“these measures are inconsistent with Article VIII: 1（a）and VIII: 4, Article X: 1 and X: 3（a）, and Article XI: 1 of the GATT 1994 and. . . , which incorporates commitments in paragraphs 83, 84, 162, and 165 of the Working Party Report. ”China's obligations under these various provisions are quite diverse and therefore it cannot be discerned what the particular“problem”is under Article 6.2 of the DSU with respect to the legal instruments listed in Section III.

229. Third, the narrative paragraphs describe in a general manner different allegations of error related to different types of restraints, and do not make clear which measures, or which groups of measures acting collectively, are alleged to be inconsistent with which treaty provisions. For example, the second narrative paragraph of the complainants' panel requests states that“China administers the export quotas. . . through its ministries and other organizations under the State Council as well as chambers of commerce and industry associations, in a manner that restricts exports and is not uniform, impartial and reasonable”and alleges that, “[i]n connection with the administration of the quotas for these materials, China imposes restrictions on the right of Chinese enterprises as well as foreign enterprises and individuals to export”. This language, when read together with the legal instruments identified in the panel requests and the WTO provisions identified in Section III, groups together disparate problems arising under different treaty provisions.

230. As the Appellate Body has explained, a claim must be presented in a manner that presents the problem clearly within the meaning of Article 6.2. We do not consider this to have been the case here, where Section III of the complainants' panel requests refers generically to“Additional Restraints Imposed on Exportation”and raises multiple problems stemming from several different obligations arising under various provisions of the GATT 1994, China's Accession Protocol, and China's Accession Working Party Report. Neither the titles of the measures nor the narrative paragraphs reveal the different groups of measures that are alleged to act collectively to cause each of the various violations, or whether certain of the measures is considered to act alone in causing a violation of one or more of the obligations.

231. Like the Panel, we do not read Section III of the complainants' panel requests as advancing all claims, under all treaty provisions, with respect to all measures. Instead, it appears to us that the complainants were challenging some（groups of）measures as inconsistent with some（groups）of the listed WTO obligations. In the present case, the combination of a wide-ranging list of obligations together with 37 legal instruments ranging from China's Foreign Trade Law to specific administrative measures applying to particular products is such that it does not allow the“problem”or“problems”to be discerned clearly from the panel requests. Because the complainants did not, in either the narrative paragraphs or in the final listing of the provisions of the covered agreements alleged to have been violated, provide the basis on which the Panel and China could determine with sufficient clarity what“problem”or“problems”were alleged to have been caused by which measures, they failed to present the legal basis for their complaints with sufficient clarity to comply with Article 6.2 of the DSU.

232. With respect to the consequences of the failure to comply with the requirements of Article 6.2 of the DSU, the participants disagree as to whether the Panel frustrated China's due process rights under that provision. China alleges that, when the panel requests were filed, it was not able to begin preparation of its defence with respect to the claims listed in Section III of the panel requests, “because the measures implicated by the different narrative paragraphs, and the claims made regarding those measures, could not be identified”. The European Union responds that China“effectively and exhaustively”defended all the claims made by the complainants in its first written submission to the Panel, and that this demonstrates that China's due process rights were not compromised. Referring to China's statement that the complainants have made“several subsets of claims with respect to several subsets of measures affecting several subsets of product categories”, the United States and Mexico argue that China was aware of“both the possible and likely claims that the Co-Complainants could advance against it”.

233. The Appellate Body has clarified that due process“is not constitutive of, but rather follows from, the proper establishment of a panel's jurisdiction”. We find it troubling therefore that the Panel, having correctly recognized that a deficient panel request cannot be cured by a complaining party's subsequent written submissions, nonetheless decided to“reserve its decision”on whether the panel requests complied with the requirements of Article 6.2 until after it had examined the parties' first written submissions and was“more able to take fully into account China's ability to defend itself”. The fact that China may have been able to defend itself does not mean that Section III of the complainants' panel requests in this dispute complied with Article 6.2 of the DSU. In any event, compliance with the due process objective of Article 6.2 cannot be inferred from a respondent's response to arguments and claims found in a complaining party's first written submission. Instead, it is reasonable to expect, in our view, that a rebuttal submission would address arguments contained in the complaining party's first written submission. We also find it troubling that the second phase of the Panel's preliminary ruling came only at an advanced stage in the proceedings, on 1 October 2010.

234. In the light of the failure to provide sufficiently clear linkages between the broad range of obligations contained in Articles VIII: 1（a）, VIII: 4, X: 1, X: 3（a）, and XI: 1 of the GATT 1994, Paragraphs 2（A）2, 5.1, 5.2, and 8.2 of Part I of China's Accession Protocol, and Paragraphs 83,84,162, and 165 of China's Accession Working Party Report, and the 37 challenged measures, we do not consider that Section III of the complainants' panel requests satisfies the requirement in Article 6.2 of the DSU to provide“a brief summary of the legal basis of the complaint sufficient to present the problem clearly”.

235. Consequently, we find that the Panel erred under Article 6.2 of the DSU in making findings regarding claims allegedly identified in Section III of the complainants' panel requests. We therefore declare moot and of no legal effect the Panel's findings in paragraphs … of the Panel Reports in respect of claims concerning fees and formalities in connection with exportation. In these circumstances, we have no basis to consider further the arguments raised by China in its appeal and by the complainants in their other appeals regarding these findings.

2．专家组成员

专家组成员由秘书长指定。反对其指定人选的一方必须提出令人信服的理由，其反对意见才有可能被考虑（DSU第8.6条）。如果争端各方在专家组建立20天内提出不同意专家组成员，且争议各方不能就专家组成员达成一致意见，总干事在任何一个争议方的要求下，经会商DSB主席与争端各方，自行决定专家组人选，10天后人选选派生效（DSU第8.7条）。在WTO实践中，总干事几乎在一半的案件中指定过专家组成员。

关于成员的资格问题，DSU第8.1条规定专家组应由“资深政府和/或非政府个人组成，包括曾在专家组任职或曾向专家组陈述案件的人员、曾任一成员代表或一GATT 1947缔约方代表或任何适用协会或其先前协会的理事会或委员会代表的人员、秘书处人员、曾讲授或出版国际贸易法或政策著作的人员，以及曾任一成员高级贸易政策官员的人员”。

总结起来，有三类人可以成为专家组成员：现任或前任政府官员，GATT或WTO官员，贸易方面的学者或律师。事实上，专家组成员绝大多数是现职或前任的政府官员。DSU第8.3条规定，在没有当事各方协议的情况下，专家组成员不应当是参与争端的当事方或第三方的公民。在涉及发展中国家的案件中，如果发展中国家要求，专家组至少有一名成员必须来自发展中国家（第8.10条）。当专家组进行案件审理时，应以个人身份任职，既不作为政府代表，也不作为成员方代表，因此，DSU禁止各成员方就专家组审议事项向他们作出指示或对他们施加影响（第8.9条）。

3．专家组职权范围（Term of Reference）

专家组人选决定后的下一个议题，是决定专家组的职权范围。DSU第7.1条规定了专家组的标准职权范围为：“按照（争端各方引用的适用协定名称）的有关规定审查（争端方名称）在……文件中提交DSB的事项，并提出调查结果以协助DSB提出建议或做出该协定规定的裁决。”这个标准职权范围几乎成为专家组在所有案件裁定中统一的职权范围。该规定突破了国际仲裁中仲裁庭职权范围由当事各方自行协商确定的惯例。由于专家组的职权范围事关重大，常常引起争议。例如专家组如何决定那些其他条款与争议条款有关，因此应当被引用来决定最终裁定，或如果争议方提出某一其他条款与争议条款有关时，专家组如何决定是否有关等。

专家组职权范围非常重要。正如上诉机构在“巴西—影响椰子干的措施案”中指出，专家组职权范围的设定满足了正当程序（due process）的要求。它为争端各方提供了有关争议的充分信息，使他们有机会对申请提出反驳意见，同时，通过准确界定有关争议的申请请求，确立了专家组的司法管辖权。

以下“欧盟—紧固件案”中，就其职权范围的确定，专家组较为详细地总结了之前案例中的相关分析。本案案情请参加附件五相关部分。

EC-DEFINITIVE ANTI-DUMPING MEASURES ON CERTAIN IRON OR STEEL FASTENERS FROM CHINA WT/DS397/R

7.11 The European Union argues that a number of the claims addressed in China's first written submission are not within the Panel's terms of reference either because（1）they were not identified in China's panel request consistently with the requirements of Article 6.2 of the DSU, or（2）they were not subject to consultations. . . .

7.13 The first set of terms of reference objections raised by the European Union pertains to China's panel request. We note that under Article 7.1 of the DSU, it is the complaining party's request for establishment of a panel-that is, the panel request-that determines the terms of reference of a WTO panel. Article 6.2 of the DSU provides, in relevant part:（contents omitted）

Therefore, a panel request must identify the specific measures at issue and must provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly. Together, these two elements constitute the“matter referred to the DSB”, which forms the basis of a panel's terms of reference under Article 7.1 of the DSU. It is important that the panel request be sufficiently clear for two reasons: first, it defines the jurisdiction of the panel, since only the matter（s）raised in the panel request fall within the panel's terms of reference; and second, it serves the due process objective of notifying the parties and potential third parties of the nature of a complainant's case. To ensure the fulfilment of these objectives, a panel has to examine the panel request carefully“to ensure its compliance with both the letter and the spirit of Article 6.2 of the DSU”.

7.14 The Appellate Body's analysis in Korea-Dairy offers guidance as to how a panel should address the issue of whether a panel request provides“a brief summary of the legal basis of the complaint sufficient to present the problem clearly”in accordance with Article 6.2 of the DSU. First, the issue is to be resolved on a case-by-case basis. Second, the panel must examine the panel request very carefully to ensure its compliance with both the letter and the spirit of Article 6.2 of the DSU. Third, the panel should take into account the nature of the particular provision at issue-i. e. , where the Articles listed establish not one single, distinct obligation, but rather multiple obligations, the mere listing of treaty Articles may not satisfy the standard of Article 6.2.

7.15 Thus, with respect to the European Union's argument that certain claims addressed in China's first written submission were not identified in its panel request consistently with the requirements of Article 6.2 of the DSU, we shall base our assessment on the principles outlined above. This will require us, in each instance, to consider the text of China's panel request to determine whether it identifies the specific measure, and provides a brief summary of the legal basis of the complaint, and potentially whether the European Union has been prejudiced by the formulation of the panel request. Moreover, as stated by the Appellate Body, compliance with the requirements of Article 6.2 of the DSU must be demonstrated on the basis of the text of the panel request read as a whole, and defects in the panel request cannot be cured in the subsequent submissions of the parties.

7.16 The second set of terms of reference objections raised by the European Union relates to consultations. The European Union asserts that some of the claims which it acknowledges are sufficiently set out in China's panel request, are nonetheless outside the Panel's terms of reference because they were not subject to consultations. In support of its assertions, the European Union refers to alleged inadequacies in China's request for consultations and/or asserts that no consultations took place with respect to certain claims.

7.17 This portion of the European Union's terms of reference objections raises the question of the relationship between a complaining party's request for consultations and the panel's terms of reference. We note that the DSU does not contain a provision that directly addresses this issue. Article 4 of the DSU, entitled“Consultations”, provides in relevant part:（contents omitted）

Article 17 of the AD Agreement also contains provisions regarding consultations between WTO Members in disputes under that Agreement, providing in relevant part: （contents omitted）

7.18 Thus, Article 4.4 of the DSU provides that a request for consultations has to identify the measures at issue and indicate the legal basis of the complaint. Article 4.7 of the DSU, in turn, stipulates that if parties fail to settle the dispute within 60 days from the receipt of the consultations request, the complaining party may request the establishment of a panel. Article 17.1 of the AD Agreement states that the DSU applies to the consultations and the settlement of disputes that arise under the AD Agreement. Article 17.3 of the AD Agreement provides that if a Member considers that any benefit accruing to it, directly or indirectly, under the AD Agreement is nullified or impaired, or that the achievement of any objective is impeded by another Member, it may request consultations with the Member concerned. Article 17.4 states that if parties fail to settle the dispute through consultations, the complaining Member may refer the matter to the DSB to seek the establishment of a panel. Finally, Article 17.5 provides that the DSB would, in such a situation, establish a panel to resolve the dispute.

7.19 In our view, none of these legal provisions supports the proposition that a complaining Member is precluded from identifying in its panel request claims not specifically identified in its request for consultations. Article 6.2 of the DSU requires that a panel request must indicate whether consultations were held, but neither it nor any other provision of the DSU indicates that the scope of the request for consultations determines the precise scope of the subsequent panel request.

7.20 We note that the effect of a complaining Member's request for consultations on a panel's terms of reference has been discussed extensively in prior panel and Appellate Body reports. In Canada-Aircraft, for instance, the respondent argued that certain claims raised with respect to measures that were not identified in the complaining Member's request for consultations fell outside the panel's terms of reference. The panel rejected this argument. The panel underlined the fact that a panel's terms of reference were determined by the complaining Member's panel request, adding that as long as the request for consultations and the panel request concerned the same“dispute”, the claims raised in the panel request would fall within its terms of reference even if they were not raised in the request for consultations. In the panel's view, “this approach [sought] to preserve due process while also recognising that the”matter“on which consultations are requested [would] not necessarily be identical to the”matter“identified in the request for establishment of a panel”. It follows from this reasoning that the scope of a request for consultations and that of a panel request do not have to be identical. The panel's findings on this particular issue were not appealed.

7.21 A similar issue arose in Brazil-Aircraft. The respondent in that case argued that certain subsidy programmes not identified in the complaining Member's request for consultations were not within the panel's terms of reference, even though they were identified in the panel request. The panel noted that under the DSU, the terms of reference of a WTO panel were determined by the complaining Member's panel request, not its request for consultations. While acknowledging the importance of the consultations in terms of clarifying the situation between the parties to the dispute, the panel nevertheless reasoned that“to limit the scope of the panel proceedings to the identical matter with respect to which consultations were held could undermine the effectiveness of the panel process”. According to the panel：

“[A] panel may consider whether consultations have been held with respect to a“dispute”, and that a preliminary objection may properly be sustained if a party can establish that the required consultations had not been held with respect to a dispute. We do not believe, however, that either Article 4.7 of the DSU or Article 4.4 of the SCM Agreement requires a precise identity between the matter with respect to which consultations were held and that with respect to which establishment of a panel was requested. ”

On appeal, the Appellate Body agreed with the panel's reasoning:

“We do not believe, however, that Articles 4 and 6 of the DSU, or paragraphs 1 to 4 of Article 4 of the SCM Agreement, require a precise and exact identity between the specific measures that were the subject of consultations and the specific measures identified in the request for the establishment of a panel. As stated by the Panel, ” [o]ne purpose of consultations, as set forth in Article 4.3 of the SCM Agreement, is to ‘clarify the facts of the situation', and it can be expected that information obtained during the course of consultations may enable the complainant to focus the scope of the matter with respect to which it seeks establishment of a panel.“We are confident that the specific measures at issue in this case are the Brazilian export subsidies for regional aircraft under PROEX. Consultations were held by the parties on these subsidies, and it is these same subsidies that were referred to the DSB for the establishment of a panel. . . .

7.22 More recently, the Appellate Body, in US-Upland Cotton, underlined the importance of not allowing the request for consultations to inappropriately limit the scope of the dispute, observing：

“As long as the complaining party does not expand the scope of the dispute, we hesitate to impose too rigid a standard for the‘precise and exact identity' between the scope of consultations and the request for the establishment of a panel, as this would substitute the request for consultations for the panel request. According to Article 7 of the DSU, it is the request for the establishment of a panel that governs its terms of reference, unless the parties agree otherwise. ”

7.23 In Mexico-Anti-Dumping Measures on Rice, the respondent argued that the complainant had broadened the scope of the legal basis of the complaint in the panel request compared with the request for consultations and asked the panel to find that the claims associated with the new legal provisions cited in the panel request were outside the panel's terms of reference. The panel declined the request, stating：

“In our view, the fact that certain provisions were added to the list of alleged violations in the request for establishment compared to the request for consultations is a consequence of the consultation process which serves the purpose of clarifying the facts of the situation enabling the complainant to focus the scope of the matter with respect to which it seeks the establishment of a panel. It does not mean that no consultations were held on the matter, as the only difference between the request for consultations and the request for establishment consists of the fact that a number of closely related legal provisions alleged to have been violated were added. The measures remained the same and so did the legal basis for the complaint, as is evident from the narrative provided in the request for establishment. In our view, consultations were thus held on the matter on which the establishment of a Panel was requested. We therefore reject Mexico's request in this respect. ”

The Appellate Body upheld the panel's findings in this regard. The Appellate Body recalled its previous findings on this issue and pointed out that the reasoning of prior reports regarding the difference between the scope of the request for consultations and the panel request with respect to the specific measures at issue equally applied to the difference between these two documents with respect to the legal basis of the complaint. The Appellate Body emphasised that the role of consultations was to allow the exchange of information necessary to refine the contours of the dispute, as a result of which the complaining Member might reformulate its claims in its panel request. According to the Appellate Body：

“[It] is not necessary that the provisions referred to in the request for consultations be identical to those set out in the panel request, provided that the‘legal basis' in the panel request may reasonably be said to have evolved from the‘legal basis' that formed the subject of consultations. In other words, the addition of provisions must not have the effect of changing the essence of the complaint. ”

7.24 Based on the foregoing, we consider that there does not have to be precise identity between China's request for consultations and its panel request, either with regard to the specific measures at issue or with regard to the legal basis of the complaint. As long as the request for consultations and the panel request concern“the same matter”or, put differently, as long as the legal basis of the panel request“may reasonably be said to have evolved from the legal basis identified in the request for consultations”, a claim not specifically identified in China's request for consultations, but properly identified in the panel request, will fall within our terms of reference.

7.25 Finally, with regard to consultations, we recall that China, in Exhibit CHN-65, submitted a list of questions that were allegedly sent to the European Union prior to consultations and were discussed during consultations. China submitted this document in response to the factual assertion made by the European Union that some claims identified in China's panel request were not discussed during consultations. This raises the question of what determines the scope of consultations between the parties to a dispute: the request for consultations or what is actually discussed in such consultations We note that this particular issue also arose in US-Upland Cotton. The factual circumstances presented in US-Upland Cotton were very similar to those presented in these proceedings. The complaining party in that dispute presented to the panel a list of questions that had been submitted in writing to the respondent during consultations. In determining whether the complainant had broadened the scope of the dispute in its panel request, the panel took this list into consideration in considering what had actually been discussed during the consultations between the parties. The Appellate Body, however, disapproved the panel's actions in this regard, concluding that panels should limit their analysis regarding the scope of consultations to the written request for consultations. The Appellate Body considered that to examine what happened in consultations would be contrary to Articles 4.6 and 4.4 of the DSU, which provide, respectively, that consultations shall be confidential and that the request for consultations be made in writing and notified to the DSB. The Appellate Body also noted that often it would be difficult for a panel to find out what was discussed in consultations because there is no public record of those discussions and parties often disagree about what was discussed.

7.26 Taking the Appellate Body's reasoning into consideration, we find that it would not be appropriate to look into what was actually discussed between China and the European Union in the consultations between the parties, and we will therefore limit our analysis regarding the scope of consultations to the text of China's request for consultations. …

Whether All Claims Raised by China in Connection With the Basic AD Regulation are Within the Panel's Terms of Reference

7.43 We note that the premise for the European Union's preliminary objection with respect to China's claims under Articles 6.10,9.3 and 9.4 of the AD Agreement is the allegation that the specific measure at issue, i. e. , Article 9（5）of the Basic AD Regulation, addresses only the imposition of anti-dumping duties, whereas the three provisions of the AD Agreement cited by China concern the determination of dumping margins or the establishment of the level of anti-dumping duties. Since, according to the European Union, the specific measure at issue does not address the calculation of dumping margins, the European Union argues that claims under the provisions of the AD Agreement which deal with the calculation of margins fall outside our terms of reference.

7.44 In this regard, we agree with China that the European Union confuses the identification of the claims in the panel request with the arguments that are to be developed in the subsequent panel proceedings. We find it relevant and important in this regard that the European Union dedicates a significant portion of its substantive arguments regarding these three claims to its effort to demonstrate that Article 9（5）of the Basic AD Regulation does not concern the calculation of dumping margins and therefore does not fall within the scope of the obligations set forth under these three provisions. Indeed, it is clear to us that whether Article 9（5）of the Basic AD Regulation is limited to the imposition of dumping duties, or also relates to the calculation of dumping margins or the establishment of the level of anti-dumping duties, is a disputed matter that must be resolved as part of the substance of this case, rather than a matter to be assumed in the context of resolving a preliminary objection. We note that this argument is the only basis for the European Union's terms of reference objection in this context. We therefore find that China's claims under Articles 6.10,9.3 and 9.4 of the AD Agreement are within our terms of reference.

以下“美国—禽肉案”部分，讨论了专家组职权范围规则运用中出现的一种特殊情况。本案案情请参见附件五相关部分。

US-CERTAIN MEASURES AFFECTING IMPORTS OF POULTRY FROM CHINA WT/DS392/R

7.3. . . the United States argues that consultations were not requested under the SPS Agreement. China's consultations request reads in the relevant parts as follows：

“In addition, although China does not believe that the US measures at issue restricting imports of poultry products from China constitute sanitary and phytosanitary measures（‘SPS measure'）within the meaning of the‘SPS Agreement', if it were demonstrated that any such measure is an SPS measure, China also requests consultations with the US pursuant to Article 11 of the SPS Agreement. In particular, to the extent any such measure is demonstrated to be an SPS measure, China considers that the measure is in breach of the US obligations under the SPS Agreement, including but not limited to Articles 2.1-2.3,3.1,3.3,5.1-5.7, and 8 thereof.

Generally, to the extent it is demonstrated that any such measure is an SPS measure, China is concerned that the US measure may violate Articles 2.1, 2.2, 5.1-5.4, and 5.6 of the SPS Agreement, because any SPS measure is not based on a proper assessment of the particular risks presented and is not supported by sufficient scientific evidence. China is also concerned that any such measure, to the extent not applied with respect to similarly situated imports from other Members, may violate Articles 2.3 and 5.5 of the SPS Agreement. Moreover, China is concerned that any SPS measure fails to observe the provisions of Annex C of the SPS Agreement with respect to the operation of control, inspection and approval procedures, and may therefore violate Article 8 of the SPS Agreement. Additionally, China is unaware of any basis on which any such US measure is justified under international standards, guidelines or recommendations, or otherwise, consistently with Articles 3.1 and 3.3 of the SPS Agreement. Finally, China is unaware of any basis on which such US measure is justified by Article 5.7 of the SPS Agreement, if applicable. ”…

7.12 Although China's consultations request does refer to Article 11 of the SPS Agreement, the United States argues that China's conditional language means that consultations were not actually requested. The United States explains that China first stated in its consultations request that it does not believe that the measures at issue fall within the SPS Agreement. China then stated that if it were demonstrated that any such measure is an SPS measure, it also requests consultations with the United States pursuant to Article 11 of the SPS Agreement. The United States argues that as China stated that it does not believe that the relevant measures are SPS measures, China also rendered it clear that the imposed condition for a request for consultations pursuant to Article 11 of the SPS Agreement had not been fulfilled. The United States therefore submits that the only conclusion that can be reached is that the condition was not fulfilled and thus that no request pursuant to Article 11 of the SPS Agreement was made. …

7.25 The Panel is therefore called upon to determine whether China's use of the conditional tense in its consultations request means that China has not requested consultations under the SPS Agreement and whether that would deprive the Panel of jurisdiction to hear China's claims under the SPS Agreement. We note that there is substantial jurisprudence on the relevance of the consultations request and the holding of consultations to a panel's terms of reference. However, the implications of using the conditional tense in a consultations request have never been considered by previous panels or the Appellate Body.

7.26 A panel's terms of reference, as provided for in Article 7.1 of the DSU, are generally set in the Panel Request which must follow the rules set forth in Article 6.2 of the DSU. Additionally, the Appellate Body has explained that“as a general matter, consultations are a prerequisite to panel proceedings”and has underscored the importance and benefits of consultations. In particular the Appellate Body has pointed out that consultations serve to help the parties assess the strengths and weaknesses of the case, narrow the scope of differences between them and reach a mutually agreed solution. In addition, consultations provide the parties with an opportunity to define and delimit the scope of the dispute.

7.27 Consultations are regulated in Article 4 of the DSU. Article 4.2 of the DSU provides that“[e]ach Member undertakes to. . . afford adequate opportunity for consultation regarding any representations made by another Member concerning measures affecting the operation of any covered agreement taken within the territory of the former”.

7.28 The Appellate Body also observed in Brazil-Aircraft, that“Articles 4 and 6 of the DSU. . . set forth a process by which a complaining party must request consultations, and consultations must be held, before a matter may be referred to the DSB for the establishment of a panel”. In that same proceeding, the panel had considered that because the DSU essentially requires the DSB to establish a panel automatically upon request of a party, a panel cannot rely upon the DSB to ascertain that requisite consultations have been held and to establish a panel only in those cases. Accordingly, the panel determined“that a panel may consider whether consultations have been held with respect to a ‘dispute', and that a preliminary objection may properly be sustained if a party can establish that the required consultations had not been held with respect to a dispute. ”

7.29 The requirements that apply to consultations requests are set out in Article 4.4 of the DSU, which provides, in relevant part, that“[a] ny request for consultations shall be submitted in writing and shall give the reasons for the request, including identification of the measures at issue and an indication of the legal basis for the complaint. ”

7.30 We note that the term“legal basis of the complaint”has not been interpreted in respect of Article 4.4 of the DSU. The Appellate Body has, however, interpreted the same term as used in Article 6.2 of the DSU to mean the claim made by the complaining party. The Appellate Body has also clarified that a claim sets forth the complainant's view“that the respondent party has violated, or nullified or impaired the benefits arising from, an identified provision of a particular agreement. ”Given the nearly identical language in Article 4.4 of the DSU, we consider that this understanding could also be applied to the term“legal basis for the complaint”in Article 4.4.

7.31 Article 4.4 of the DSU however requires the consultations request to include an“indication of the legal basis of the complaint”while Article 6.2 of the DSU requires the panel request to“provide a brief summary of the legal basis for the complaint sufficient to present the problem clearly”.

7.32 In this respect, China argues that“indication”of the legal basis of the complaint under Article 4.4 requires significantly less than what is required under Article 6.2, i. e.“identify the specific measures at issue and provide a brief summary of the legal basis for the complaint sufficient to present the problem clearly”. In China's view, an“indication”under Article 4.4 is a“hint suggestion, or piece of information from which more may be inferred”while Article 6.2 requires a description that is“sufficient”meaning adequate for a certain purpose, enough, to present the problem clearly. China considers that this difference reflects the heightened burden of panel requests under Article 6.2 of the DSU and the understanding that the legal basis of a claim often evolve during the course of consultations. China thus submits that it had met the burden of providing as“indication”in terms of Article 4.4 of the DSU.

7.33 The United States agrees that an“indication”of the legal basis does not require that all the claims be spelled out in the consultations request. However, the United States argues that this distinction is not pertinent to the issue of whether claims under the SPS Agreement are within the Panel's terms of reference, because, in its view, China's consultations request plainly states China's view that the United States' measure is not subject to the SPS Agreement.

7.34 In describing how a panel must examine a panel request for consistency with the obligations in Article 6.2 of the DSU, the Appellate Body has noted that the panel request must be examined as a whole and in light of attendant circumstances. Given the relationship between the consultations request and the panel request, the shared language in Article 4 and Article 6.2 of the DSU, the similar purposes of the two requests, i. e. to delimit the scope of the dispute，and the need to interpret both provisions in a harmonious way, we find the Appellate Body reasoning pertinent for the analysis of the consistency of consultations requests with the obligations of Article 4.4 of the DSU as well.

7.35 The Panel is aware that in making its analysis of whether a particular claim was included in the consultations request, it should not inquire as to what actually occurred during consultations. The panel in Korea-Alcoholic Beverages correctly noted that“[t]he only requirement under the DSU is that consultations were in fact held. . . [w]hat takes place in those consultations is not the concern of a panel”. The Appellate Body explained in US-Upland Cotton that examining what took place in the consultations would seem contrary to Article 4.6 of the DSU, which provides that“consultations shall be confidential, and without prejudice to the rights of any Member in any further proceedings. ”Finally, the Appellate Body noted that, there is no public record of what actually transpires during consultations and parties will often disagree about what, precisely, was discussed.

7.36 Therefore, the Panel will inquire whether China indicated the SPS Agreement as a

legal basis for its complaint in its consultations request and in doing so will look at that consultations request as a whole and in light of the attendant circumstances. However, the Panel will not use as a basis for its determination what either party alleges took place during consultations. Therefore, while we will consider the exchange of letters in April 2009-which are precisely about the scope of China's consultations request-we will not consider any questions posed or answers given during the consultations.

Whether China has requested consultations pursuant to the SPS Agreement

7.37 The United States focuses its argumentation on China's statement that it does not believe that the United States'measures are SPS measures and that it is requesting consultations with the United States pursuant to Article 11 of the SPS Agreement“if it were demonstrated that any such measure is an SPS measure”.

7.38 According to the United States, a“conditional”request for consultations under Article 11 of the SPS Agreement does not amount to an“actual”request for consultations pursuant to Article 11 of the SPS Agreement. Most importantly, the United States contends that it would have no way of knowing whether the condition had been satisfied and that China's request had become operative.

7.39 Although the language in China's consultations request and, in particular, the reference to a“demonstration”that the measures in question are SPS measures, is not the most artful, the Panel, further to the abovementioned jurisprudence, should not look at one phrase in the consultations request in isolation, but rather examine the consultations request as a whole and in light of the“attendant circumstances. ”This means that the Panel needs to consider the consultations request in its entirety and place the SPS references in the context of the rest of the consultations request. Additionally, the Panel will consider whether the exchange of letters are part of the“attendant circumstances”of the consultations request.

7.40 With respect to the rest of the consultations request, the Panel notes that China's consultations request deals with US measures affecting the importation of poultry products from China into the United States. Additionally, in paragraph 1 of the consultations request, China states that it“is concerned that Section 727, in conjunction with the overall US regime for regulating imports of poultry products places restrictions on the import from China of poultry products that are inconsistent with the United States' WTO obligations. ”The Panel is of the view that it is reasonable to interpret this reference to the overall regime for the importation of poultry products to be a reference to the PPIA as well as its implementing regulations, especially given China's reference, in the immediately succeeding paragraph to 9 CFR § 381.196 as one of several US regulations that cannot be implemented because of Section 727. There is no dispute among the parties that the PPIA and the regulatory regime set up pursuant to its mandate are SPS measures.

7.41 China's consultation request, after outlining the legal basis for its complaint with respect to Articles I and XI of the GATT 1994, includes, in paragraphs 6 and 7, controversial language where it specifically references the SPS Agreement.

7.42 It appears to the Panel that China was attempting to challenge Section 727 under the GATT 1994 and the Agreement on Agriculture, and, in the alternative, under the SPS Agreement in the event the United States argued that Section 727 is an SPS measure within the scope of the SPS Agreement. It thus seems to the Panel that China wanted to ensure that the SPS Agreement was within the Panel's terms of reference in such a case. Rather than being confusing, this seems consistent with the panel's reasoning in Korea-Commercial Vessels that“if a complaining party wishes to pursue claims in respect of a given measure under multiple provisions, whether complementarily or alternatively, not only is it permitted by Article 6.2 of the DSU to refer to all of those provisions in its request for establishment, but it is required to do so. ”The Panel is of the view that the same logic should also apply to consultations requests.

7.43 Given the surrounding context, the Panel is of the view that China's consultations request did“indicate”an SPS basis for its complaint, even if that basis, seen in isolation, was qualified in somewhat unclear conditional language. In that respect, it is important to note that although there are many similarities between Articles 4.4 and 6.2 of the DSU and they should be interpreted in an harmonious way, the obligation on a Member in its consultations request is to“indicate”the legal basis for the complaint whereas the obligation in the panel request is to provide a“brief legal summary of the legal basis of the complaint sufficient to present the problem clearly. ”Therefore, an indication is something less than a summary sufficient to present the problem clearly. While the Panel does not wish to be perceived as encouraging WTO Members to present their problems confusingly in their consultations request, it does seem that there is a bit more leeway in how WTO Members phrase complaints in a consultations request vis-à-vis the clarity required in a panel request which is the final word on the scope of the dispute.

7.44 Additionally, if we move beyond the consultations request itself to an examination of the“attendant circumstances”and include in that examination the exchange of letters between the United States and China, China's intentions and the United States' understanding thereof，becomes even clearer.

7.45 We note that China's letter advises the United States that its understanding is not correct and goes on to say that：

“Through its request for consultations（WT/DS392/1）, China has requested consultations under Article 11 of the SPS Agreement to cover a contingency, namely the demonstration that any of the listed measures is an SPS measure. To that end, China will shortly provide the United States with written questions requesting the United States to provide answers during the consultations concerning the nature and status of measures identified in the consultation request. Thus, China has indeed requested, and the United States and China will engage in, a consultation that fully addresses relevant questions concerning whether any of the U. S. measures are SPS measures within the meaning of the SPS Agreement. The parties will also consult on the questions regarding the various claims under the SPS Agreement applicable to such measures, as stated in China's consultations request. ”

7.46 As noted by the United States itself, the Appellate Body has concluded that“consultations provide the parties an opportunity to define and delimit the scope of the dispute between them. ”Accordingly, if through consultations the complaining party obtains a better understanding of the operation of a challenged measure such that additional provisions of the covered agreements become relevant, it may reformulate its complaint to include these other provisions, even from covered agreements not mentioned in the consultations request, so long as the legal basis in the panel request may reasonably be said to have evolved from the legal basis that formed the subject of consultations.

7.47 We also recall the reasoning of the panel in China-Publications and Audiovisual Products, pursuant to the Appellate Body's conclusions in Mexico-Anti-Dumping Measures on Rice, that：

“[I]n some circumstances, a claim based upon a WTO provision of a covered agreement which was not contained in the request for consultations, can nevertheless be considered to be within a panel's terms of reference. If through consultations the complaining party obtains a better understanding of the operation of a challenged measure such that additional provisions of the covered agreements become relevant it may reformulate its complaint to include these other provisions so long as the legal basis in the panel request may reasonably be said to have evolved from the legal basis that formed the subject of consultations. ”

7.48 It seems to us that what has happened in this case is that China merely forecasted its expectation of obtaining a better understanding of the operation of the challenged measures and that the SPS Agreement might be relevant in the consultations request rather than simply waiting to reveal the possibility of an SPS claim in the Panel Request. The Panel finds it difficult to sustain a reading of Articles 4 and 6 of the DSU whereby a complainant could make no reference to the possibility of an evolution of its claims in its consultations request and nevertheless have those claims included in the terms of reference of the panel, yet a complainant who did mention them would have them excluded.

7.49 In light of the above, the Panel therefore concludes, examining the consultations request as a whole, that China, in its Consultation Request, indicated that the SPS Agreement would serve as the basis of its claims, albeit in a conditional manner. Additionally, an examination of the attendant circumstances, most notably the exchange of letters prior to consultations taking place, supports the conclusion that the SPS Agreement was indicated as a basis for China's claims. Accordingly, the Panel finds that China did request consultations inter alia pursuant to Article 11 of the SPS Agreement and that, therefore, China's SPS claims are within its terms of reference.

7.50 The Panel therefore disagrees with the United States' contention that China did not request consultations under the SPS Agreement and finds that China did request consultations pursuant to Article 11 of the SPS Agreement, indicated the various provisions of that Agreement that were the basis for its claims, and that, therefore, China's SPS claims are within its terms of reference.

 

对于一个已经过期失效的贸易措施，专家组是否有权裁定？以下“美国—禽肉案”的分析回答这个问题。

US-CERTAIN MEASURES AFFECTING IMPORTS OF POULTRY FROM CHINA WT/DS392/R

7.51 The United States has contended, and China agreed, that Section 727 expired on 30 September 2009, i. e. two days after the deadline for China's first written submission. This raises the question of whether the Panel should make findings on a measure that is no longer in force. We note that the United States has not requested the Panel not to make findings on an expired measure. Nevertheless, the Panel believes that before going ahead and examining the WTO consistency of Section 727 pursuant to China's various claims, we need to decide whether we may make rulings and recommendations on a measure that is no longer in force.

7.52 The United States alleges that Section 727 has expired and thus has been supplanted by Section 743. The United States further argues that any funding restriction imposed by Section 743 has been lifted as a consequence of the Secretary of Agriculture's issuance of a letter to the US Congress on 12 November 2009. As indicated above, the United States has not requested the Panel not to rule on Section 727.

7.53 China does not contest that Section 727 is no longer in force. For China, though, the expiration of Section 727 has no bearing on the Panel's terms of reference, as Section 727 expired after the Panel was established and its terms of reference were set. China contends that measures expiring after the establishment of a panel or during the panel process have repeatedly been found by panels and the Appellate Body to be within a panel's jurisdiction. As an example, China argues, in Indonesia-Autos, the panel rejected Indonesia's argument that the National Car program was a moot issue because it had expired. In doing so, China explains, the panel referenced several GATT and WTO disputes where measures included in the terms of reference were terminated after the commencement of the panel proceedings, and where panels nevertheless went on to make findings in respect of those measures. China submits that this approach has been followed in subsequent disputes, such as EC-Selected Customs Matters and US-Upland Cotton. China stresses that, in US-Upland Cotton, the Appellate Body noted that“GATT and WTO panels have frequently made findings with respect to measures withdrawn after the establishment of the panel[and] [i] n none of these cases has a panel or the Appellate Body premised its decision on the view that, a priori, an expired measure could not be within a panel's terms of reference”.

7.54 The Panel will therefore determine whether it should rule on an expired measure. The Appellate Body explained in EC-Bananas III（Article 21.5-Ecuador II）, “once a panel has been established and the terms of reference for the panel have been set, the panel has the competence to make findings with respect to the measures covered by its terms of reference. ”The Appellate Body thus concluded that it is“within the discretion of the panel to decide how it takes into account. . . a repeal of the measure at issue. ”It is therefore within our discretion to decide whether to make findings on Section 727.

7.55 We note that, in the past, panels have decided to make rulings on expired measures where the respondent Member had not conceded the WTO inconsistency of the measure and the repealed measure could be easily re-imposed. In our view, this is precisely the case of Section 727 since the United States does not concede the alleged WTO inconsistency of Section 727 and the appropriations legislation in the United States is of an annual nature. As explained. . . above, Section 727 reiterated the language of a previous annual appropriations provision with identical wording, Section 733, and it has now expired and a new provision, Section 743, has been adopted to address FSIS access to appropriated funds for activities regarding China's equivalence application. Although we acknowledge that Section 743 does not share the same language as Section 727 and its predecessor, Section 733, we consider that if we were to refuse to make findings on the expired measure-Section 727-the Panel might be depriving China of any meaningful review of the consistency of the United States' actions with its WTO obligations, while allowing the repetition of the potentially WTOinconsistent conduct. This would certainly call to mind the“moving target”scenario which the Appellate Body in Chile-Price Band System stated that a complainant should not have to face.

7.56 The Panel will thus proceed to make findings on the WTO consistency of Section 727 which is within its terms of reference. Nevertheless, the Panel recognizes that it would not be appropriate to make recommendations pursuant to Article 19 of the DSU with respect to a WTO-inconsistent repealed measure that has ceased to have legal effect. Indeed, if the Panel finds that Section 727 was inconsistent with any of the provisions of the covered agreements within its terms of reference, it would be pointless to ask the United States to bring Section 727 into conformity with those covered agreements since the measure is no longer in force.

7.57 The Panel therefore concludes that it will proceed to make findings on the WTO-consistency of Section 727 which is within its terms of reference.

4．专家组的审议标准（Standards of Review）

DSU第11条是关于专家组审议标准的一般规定，要求专家组对其审议的事项，包括案件事实和有关适用协定的可适用性，以及事项与可适用协定的一致性“作出客观评估”。除此之外，WTO《反倾销协定》第17.6条规定以“客观”和“无偏见”作为专家组的审议标准。以下“欧盟—紧固件案”裁定分析了反倾销案件中专家组的审议标准。本案案情请参见附件五相关部分。

EC-DEFINITIVE ANTI-DUMPING MEASURES ON CERTAIN IRON OR STEEL FASTENERS FROM CHINA WT/DS397/R

7.2 Article 11 of the DSU provides the standard of review for WTO panels in general. Article 11 imposes upon panels a comprehensive obligation to make an“objective assessment of the matter”, an obligation which embraces all aspects of a panel's examination of the“matter”, both factual and legal.

7.3 Article 17.6 of the AD Agreement, which sets forth the special standard of review applicable to disputes under the AD Agreement, provides：

“（Ⅰ）in its assessment of the facts of the matter, the panel shall determine whether the authorities' establishment of the facts was proper and whether their evaluation of those facts was unbiased and objective. If the establishment of the facts was proper and the evaluation was unbiased and objective, even though the panel might have reached a different conclusion, the evaluation shall not be overturned；

（Ⅱ）the panel shall interpret the relevant provisions of the Agreement in accordance with customary rules of interpretation of public international law. Where the panel finds that a relevant provision of the Agreement admits of more than one permissible interpretation, the panel shall find the authorities' measure to be in conformity with the Agreement if it rests upon one of those permissible interpretations. ”

Taken together Article 11 of the DSU and Article 17.6 of the AD Agreement establish the standard of review we will apply with respect to both the factual and the legal aspects of the present dispute.

7.4 Thus, we will find the challenged anti-dumping determination to be consistent with the AD Agreement if we find that the EU investigating authorities established the facts properly and evaluated them in an unbiased and objective manner, and that the determinations in question were based on a permissible interpretation of the relevant treaty provisions. In our assessment of the matter, we must limit our review to the“facts made available in conformity with appropriate domestic procedures to the authorities of the importing Member”, in accordance with Article 17.5（ii）of the AD Agreement. We will not undertake a de novo review of the evidence before the investigating authority during the proceeding, and will not substitute our judgement for that of the EU investigating authorities even though we might have made a different determination were we examining the evidence that was before the investigating authorities ourselves.

7.5 The Appellate Body has clarified a panel's standard of review of the facts pursuant to the above provisions in the following terms：

“It is well established that a panel must neither conduct a de novo review nor simply defer to the conclusions of the national authority. A panel's examination of those conclusions must be critical and searching, and be based on the information contained in the record and the explanations given by the authority in its published report. A panel must examine whether, in the light of the evidence on the record, the conclusions reached by the investigating authority are reasoned and adequate. What is ‘adequate' will inevitably depend on the facts and circumstances of the case and the particular claims made, but several general lines of inquiry are likely to be relevant. The panel's scrutiny should test whether the reasoning of the authority is coherent and internally consistent. The panel must undertake an in-depth examination of whether the explanations given disclose how the investigating authority treated the facts and evidence in the record and whether there was positive evidence before it to support the inferences made and conclusions reached by it. The panel must examine whether the explanations provided demonstrate that the investigating authority took proper account of the complexities of the data before it, and that it explained why it rejected or discounted alternative explanations and interpretations of the record evidence. A panel must be open to the possibility that the explanations given by the authority are not reasoned or adequate in the light of other plausible alternative explanations, and must take care not to assume itself the role of initial trier of facts, nor to be passive by ‘simply accept[ing] the conclusions of the competent authorities. '”

 

以下，专家组在“美国—钢铁保障措施案”中分析了保障措施争议中的审议标准。本案案情请参见附件五相关部分。

US-DEFINITIVE SAFEGUARD MEASURES ON IMPORTS OF CERTAIN STEEL PRODUCTS WT/DS252/R

10.21. . . The Panel would like to recall at this early stage that the general standard of review contained in Article 11 of the DSU is applicable to disputes involving claims of violation of the Agreement on Safeguards and Article XIX of GATT 1994.

10.22 The jurisprudence has examined the application of such general standard of review in the specific context of the Agreement on Safeguards. In Argentina-Footwear（EC）, the Appellate Body stated that, pursuant to Article 4, a Panel cannot conduct a de novo review of the evidence or substitute its analysis and judgment for that of the importing Member, but“[t] o determine whether the safeguard investigation and the resulting safeguard measure applied by [a Member] were consistent with Article 4 of the Agreement on Safeguards, the Panel was obliged, by the very terms of Article 4, to assess whether the [Member's] authorities had examined all the relevant facts and had provided a reasoned explanation of how the facts supported their determination. ”

10.23 The panels in US-Wheat Gluten and in US-Line Pipe concluded that a panel must assess whether a reasoned and adequate explanation has been provided as to how the facts support the determination. In US-Lamb, the Appellate Body added that“a panel can assess whether the competent authorities' explanation for its determination is reasoned and adequate only if the panel critically examines that explanation, in depth, and in the light of the facts before the panel. Panels must, therefore, review whether the competent authorities' explanation fully addresses the nature, and, especially, the complexities, of the data, and responds to other plausible interpretations of that data. A panel must find, in particular, that an explanation is not reasoned, or is not adequate, if some alternative explanation of the facts is plausible, and if the competent authorities' explanation does not seem adequate in the light of that alternative explanation. ”

10.24 In US-Cotton Yarn, the Appellate Body referred to its jurisprudence developed under the Agreement on Safeguards and relied upon it for a dispute under the Agreement on Textiles and Clothing：

“Our Reports in these disputes under the Agreement on Safeguards spell out key elements of a panel's standard of review under Article 11 of the DSU in assessing whether the competent authorities complied with their obligations in making their determinations. This standard may be summarized as follows: panels must examine whether the competent authority has evaluated all relevant factors; they must assess whether the competent authority has examined all the pertinent facts and assessed whether an adequate explanation has been provided as to how those facts support the determination; and they must also consider whether the competent authority's explanation addresses fully the nature and complexities of the data and responds to other plausible interpretations of the data. However, panels must not conduct a de novo review of the evidence nor substitute their judgement for that of the competent authority. ”

10.25 The Panel is of the view that the standard of review applicable in the present dispute must be seen in light of the distinction between the first and second enquiry that the Panel must perform when assessing a Member's compliance with the requirements of the Agreement on Safeguards and Article XIX of GATT 1994. When assessing a Member's compliance with its obligations pursuant to Articles 2,3 and 4 of the Agreement on Safeguards and Article XIX of GATT, the Panel is not the initial fact-finder. Rather, the role of the Panel is to“review”determinations and demonstrations made and reported by an investigating authority.

10.26 The situation is different in the context of the second enquiry when assessing whether the measures were applied only to the extent necessary to prevent the serious injury caused by increased imports. In that situation, it is before the Panel, during the WTO dispute settlement process, that the importing Member is forced for the first time to respond to allegations relating to the level and extent of its safeguard measures. For us, this is clear from the following statement of the Appellate Body in US-Line Pipe：

“[I]t is clear, therefore, that, [. . . ] Article 5.1, including the first sentence, does not oblige a Member to justify, at the time of application, that the safeguard measure at issue is applied only to the extent necessary.

Article 5.1 does not establish a general procedural obligation to demonstrate compliance with Article 5.1, first sentence, at the time a measure is applied. ”

 

以下“美国—汽车轮胎案”裁定分析了中国议定书第16条“市场扰乱”争端中的专家组审议标准。本案案情请参见附件五相关部分。

US-MEASURES AFFECTING IMPORTS OF CERTAIN PASSENGER VEHICLE AND LIGHT TRUCK TYRES FROM CHINA WT/DS399/R

7.11 Article 11 of the DSU, and, in particular, its requirement that“. . . a panel should make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements”, sets forth the appropriate standard of review for WTO Agreements. Since the Protocol is silent as to the appropriate standard of review, Article 11 of the DSU will be applied by the Panel in examining the consistency of the U. S. Tyres measure with Paragraph 16 of the Protocol.

7.12 Although there is a disagreement between the parties regarding certain aspects of the nature of the“objective assessment”we must undertake in this case, there is much regarding our standard of review that the parties do agree on.

7.13 The United States submits that:

in order for the Panel to make an“objective assessment”of the market disruption determination by the ITC, it must examine whether the ITC provided a reasoned explanation as to how the evidence before it（on the record）supported its conclusion that the requirements set out in paragraph 16.4 of the Protocol were met. The Panel is not acting as an initial trier of fact, and therefore must not conduct a de novo review. However, we do not suggest that the Panel should grant total deference to the competent authority. The Panel should review whether the analysis and explanations provided in the ITC Report reveal how the ITC considered the factors under paragraph 16.4 and whether the ITC provided a reasoned explanation as to how the facts supported the market disruption determination.

7.14 China agreed with this part of the United States' understanding of our standard of review. In particular：

China agrees the Panel must not conduct de novo review. China agrees the Panel must not grant total deference to the authorities. China agrees the“Panel should review whether the analysis and explanations provided in the ITC Report reveal how the ITC considered the factors under paragraph 16.4 and whether the ITC provided a reasoned explanation as to how the facts supported the market disruption determination”-the focus must be on the USITC Determination as it was written, and that rationale must constitute a“reasoned and adequate explanation. ”

7.15 We agree with this part of the parties' assessment of our standard of review. It is well established in WTO case law regarding trade remedy cases that a Panel should neither conduct a de novo review, nor grant total deference to an investigating authority. It is also well established that the Panel's standard of review“must be understood in the light of the obligations of the particular covered agreement at issue”. Taking into account the obligations imposed by Paragraph 16, we consider that our review of China's claims under Paragraph 16 of the Protocol should contain both a formal and a substantive element. The formal aspect is whether the USITC evaluated“objective factors”, as required by Paragraph 16.4. The substantive element is whether the USITC provided a reasoned and adequate explanation of its determination, in line with its obligation under Paragraph 16.5.

7.16 The main disagreement between the parties concerns the USITC's treatment of alternative explanations of the evidence and data before it. China relies on the Appellate Body Report in US-Countervailing Duty Investigation on DRAMS to argue that“the explanation provided by the investigating authority ‘should also address alternative explanations that could reasonably be drawn from the evidence, as well as the reasons why the agency chose to discount such alternatives in coming to its conclusions'”. The United States denies that the USITC was required to address any alternative explanations in its determination. The United States claims that, in US-Countervailing Duty Investigation on DRAMS, “this level of detail [of requiring an assessment of alternative explanations] is derived from the requirements found in Articles 22.3 and 22.5 of the SCM Agreement, and particularly the requirement in Article 22.5 for the notice or report to contain“the reasons for acceptance or rejection of relevant arguments or claims made by interested Members and by the exporters and importers”. The United States notes that no such provision is contained in Paragraph 16 of the Protocol.

7.17 In making the abovementioned finding in US-Countervailing Duty Investigation on DRAMS, the Appellate Body referred in a footnote to para. 106 of its Report in US-Lamb, which reads in relevant part：

A panel must find, in particular, that an explanation is not reasoned, or is not adequate, if some alternative explanation of the facts is plausible, and if the competent authorities' explanation does not seem adequate in the light of that alternative explanation. Thus, in making an“objective assessment”of a claim under Article 4.2（a）, panels must be open to the possibility that the explanation given by the competent authorities is not reasoned or adequate.

7.18 We note that there is no obligation in Paragraph 16 of the Protocol requiring the USITC to address, in its determination, alternative explanations that could reasonably be drawn from the evidence or data before it. Nor is there any provision equivalent to Article 22.5 of the SCM Agreement. Since a panel's standard of review is necessarily distinct from the substantive and procedural obligations of the investigating authority, our standard of review cannot impose any such obligation on the USITC. For this reason, and guided by the abovementioned finding of the Appellate Body in US-Lamb, we consider that, in order to review whether the reasoning of the USITC was reasoned and adequate, we must assess whether the reasoning provided by the USITC in its determination seems adequate in light of plausible alternative explanations of the record evidence or data advanced by China in this proceeding.

7.19 The other disagreement between the parties concerns our review of the U. S. remedy determination. China contends that our review of remedy should take account of the fact that the“United States must. . . provide a ‘reasoned explanation' for the remedy being imposed-both the level of the tariffs, and the decision to continue the tariffs for three years”. According to the United States, our review should take account of the fact that“the Protocol does not contain an obligation for a Member to consider particular factors or to demonstrate at the time of the imposition of the measure how the measure meets the requirement of Paragraphs 16.3 and 16.6”.

7.20 We recall that our standard of review“must be understood in the light of the obligations of the particular covered agreement at issue”. In this regard, we note that the last sentence of Paragraph 16.5 of the Protocol requires a Member to“provide written notice of the decision to apply a measure, including the reasons for such measure and its scope and duration”. This provision refers to the need to provide a statement of the“reasons for such measure”. It does not refer to the need to provide a statement of the“reasons for the scope and duration of such measure”. In our view, therefore, a Member need only provide written notice of the scope and duration of the measure. It need not provide written notice of the reasons for the scope and duration of that measure.

7.21 Our interpretation of the last sentence of Paragraph 16.5 is consistent with the Appellate Body's finding in US-Line Pipe that Article 5.1 generally does not require a Member to justify, at the time of application, that the safeguard measure at issue is applied“only to the extent necessary”. The burden, therefore, is on China to establish that the Tyres measure is excessive. China cannot simply point to any failure on the part of the United States to explain, in a published determination, that the measure is not excessive. Instead, we consider that our review of the U. S. remedy should be based on the arguments and evidence put forward by the parties during the present WTO dispute settlement proceeding.

四 专家组审议程序

关于专家组对争端申请的审议程序涉及以下几个问题：审议的时间程序、听证、专家组寻求信息的权利、专家组如何处理未索取的信息以及专家组讨论与报告的起草。

1．时间程序

通常情况下，从专家组成立及职权范围的确定起，专家组应在6个月内完成裁定。DSU第12.2条规定，在有灵活性保证质量的前提下，专家组不应无故延长规定的程序时间。如果专家组认为6个月内无法完成裁定，必须通知DSB其原因及估计完成裁定的时间。但最迟专家组在9个月内必须完成裁定。

2．听证

争端各方在听证会上可以采用书面提交文件和口头论辩的方式。通常听证会举行两次。第一次提出法律和事实上要点和主张，第二次解决第一次未解决的问题。第一次听证后，专家组成员就提出的问题与意见方交换看法，进行讨论，提出问题，以便就不能解决的问题在第二次听证中进行更为详细的论辩。

3．专家组寻求信息的权利

DSU第13条规定，专家组有权就专业和技术性问题听取有关专家的意见，成立此类专家小组的程序在DSU附录4中有具体规定。同时，专家组可以自行向任何来源寻求其认为必要的信息。

使用技术专家来对案件进行分析，是专家组运用比较成熟的经验。几乎在每个案件的审理中，专家组都要求争端各方提供有关方面专家的线索，并从相关国际科学机构寻求信息。

在“欧共体—有关肉类及肉类制品（荷尔蒙）的措施案”中，上诉机构裁定，DSU第13条赋予专家组在特定案件中，在认为适当的情况下，主动寻求信息和技术建议的权利。上诉机构认为，DSU也给予专家组充分权限决定是否有必要设立专家审议小组。

在“阿根廷—影响鞋类、纺织品、服装和其他物品进口的措施案”中，上诉机构裁定，根据DSU第13.2条的规定，专家组可向任何有关来源寻求信息，并与专家进行磋商并获得有关争议事项某些方面的意见。这是一项任意处置的授权，按这一规定，专家组并无义务在每一案件中寻求信息，或者与特定专家进行磋商。

4．专家组对未索取的信息的处理

在“美国—某些虾及虾类制品的进口禁令案”中，专家组认为它无权接受由非政府组织主动提出的信息，除非争端方将此信息作为其意见的一部分提出。上诉机构采纳了美国的主张，认为专家组裁定错误，因为DSU没有规定专家组不能接受不需要的信息。上诉机构认为专家组对“寻求”一词的理解过于刻板。无论提交给专家组的信息或建议是否专家组需要的信息，专家组都有权决定是否予以接受、考虑或驳回。

5．证据

（1）司法效率

司法效率是每一个司法机构都要考虑的问题。DSB也不例外。经济效率方面的考虑体现在裁定的不同层面，如取证、证据认定的范围、争议范围的确定等。

在“美国—影响羊毛编织衫和外套进口的措施案”中，上诉机构裁定，专家组只需审议与解决争端相关的争议。同时，专家组只需裁定申请方质疑的措施是否违反申请方指出的WTO相关协定中的某一具体条款。专家组无须进一步裁定该措施是否也违反了该协定的其他条款。

此外，在“欧共体—影响某些家禽产品进口的措施案”中，上诉机构裁定，专家组只应考虑那些对解决争议焦点必不可少的论辩。如果裁定结果表明专家组已对某一特定申诉进行了合理的裁定，则不能仅因裁定报告中未提及某个与此争议焦点有关的论辩，而得出专家组没有客观对争议进行评价的结论。

（2）举证责任

在“美国—影响羊毛编织衫和外套进口的措施案”中，上诉机构肯定了谁主张谁举证的国际及国内法通用原则。上诉机构裁定，举证责任在对一个争议持肯定观点一方，无论其对该观点进行主张还是反驳。当举证一方列举的证据足以使其主张的假设成立时，举证责任转移到另一方。至于证据举到什么程度可以将举证责任转移则视具体案件、具体条款、具体协定而定。

在以下三个案件关于举证责任的裁定中，第一个“中国—出版物案”裁定陈述了举证责任的规则，第二个“中国—知识产权案”裁定讨论了“as such”案件中的举证责任，第三个“中国—原材料案”裁定分析了“affirmative defense”的举证责任。案件案情请参加附件五相关部分。

CHINA-MEASURES AFFECTING TRADING RIGHTS AND DISTRIBUTION SERVICES FOR CERTAIN PUBLICATIONS AND AUDIOVISUAL ENTERTAINMENT PRODUCTS, WT/DS363/AB/R

We recall the general principles applicable to burden of proof in WTO dispute settlement, i. e. , that a party claiming a violation of a provision of a covered agreement by another Member must assert and prove its claim. We also recall that any party who asserts a fact, whether the claimant or the respondent, is responsible for providing proof thereof. This is in conformity with generally accepted canons of evidence in civil law, common law, and, in fact, in most jurisdictions, that the burden of proof rests upon the party, whether complaining or defending, who asserts the affirmative of a particular claim or defence. If that party adduces evidence sufficient to raise a presumption that what is claimed is true, the burden then shifts to the other party, who will fail unless it adduces sufficient evidence to rebut the presumption.

7.1 These general canons also apply in WTO dispute settlement, such that once a complaining party has made a prima facie case, the burden of proof moves to the defending party, which must in turn counter or refute the claimed inconsistency. The Appellate Body explained, in Canada-Dairy（Article 21.5 New Zealand and US II）that：

“as a general matter, the burden of proof rests upon the complaining Member. That Member must make out a prima facie case by presenting sufficient evidence to raise a presumption in favour of its claim. If the complaining Member succeeds, the responding Member may then seek to rebut this presumption. Therefore, under the usual allocation of the burden of proof, a responding Member's measure will be treated as WTO-consistent, until sufficient evidence is presented to prove the contrary. ”

7.2 It is also well to remember that“a prima facie case is one which, in the absence of effective refutation by the defending party, requires a panel, as a matter of law, to rule in favor of the complaining party presenting the prima facie case. ”

7.3 The Appellate Body also has clarified that in the context of WTO dispute settlement“[a] prima facie case must be based on ‘evidence and legal argument' put forward by the complaining party in relation to each of the elements of the claim. A complaining party may not simply submit evidence and expect the panel to divine from it a claim of WTO-inconsistency. Nor may a complaining party simply allege facts without relating them to its legal arguments. ”

7.4 Precisely how much and precisely what kind of evidence will be required to establish such a presumption will necessarily vary from measure to measure, provision to provision, and case to case.

7.5 Given this general rule, it is the complainant in a given case who initially bears the burden of proof to establish a prima facie case of inconsistency of a measure with a provision of a WTO covered agreement, before the burden of showing consistency with a provision or defending it under an exceptional provision（e. g. Article XX of the GATT 1994）shifts to the defending party.

7.6 In the present case, therefore, it is the United States who has the initial burden of proof to establish a prima facie case of alleged inconsistencies of China's measures with the various provisions it has cited, including China's Protocol of Accession, Article XVI and XVII of the GATS and Article III: 4 of the GATT 1994. With respect to the US claims regarding China's trading rights commitments in the Protocol of Accession, China, as the party making an affirmative defence of its measures under Article XX（a）of the GATT 1994, bears the initial burden of proof.

CHINA-MEASURES AFFECTING THE PROTECTION AND ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS WT/DS362/R

7.140 China emphasizes that the United States bears the burden of proof of this“as such”claim. China alleges that the only evidence that the United States has offered is the text of Article 4（1）of the Copyright Law itself.

7.141 The Panel notes that the United States provided more evidence than the text of the provision. In any case, the Panel recalls the following statement in the Appellate Body Report in US-Corrosion-Resistant Steel Sunset Review：

“When a measure is challenged‘as such', the starting point for an analysis must be the measure on its face. If the meaning and content of the measure are clear on its face, then the consistency of the measure as such can be assessed on that basis alone. If, however, the meaning or content of the measure is not evident on its face, further examination is required. . . . ”

7.142 In the present case, the Panel's review of the Copyright Law, in particular Article 4（1）, on its face, shows that the measure is sufficiently clear to conclude that the United States has made a prima facie case of inconsistency. Article 5（1）of the Berne Convention（1971）provides that Members shall ensure that authors shall enjoy in respect of their works the rights specially granted by that Convention. Article 4（1）of the Copyright Law provides that certain works shall not receive the protection of that Law and that Law provides the rights specially granted by that Convention. Whilst the Panel has not accepted all the United States' allegations regarding the range of works that fall within Article 4（1）, that does not undermine the basic finding of an inconsistency.

CHINA-MEASURES RELATED TO THE EXPORTATION OF VARIOUS RAW MATERIALS WT/DS394, 395, 398/R

7.209 China does not contest that any of these products（China's export quotas as applied to bauxite, coke, fluorspar, silicon carbide, and zinc. By the author）are subject to quotas under the 2009 measures. However, China considers that the complainants have failed to establish a violation under Article XI: 1 of the GATT 1994 because they failed“to establish China's non-compliance with the terms of Article XI: 2（a）with respect to the export quotas on all of the products at issue. ”China argues that the chapeau to Article XI: 2“links the scope of application of the obligation in Article XI: 1 to the further requirements in Article XI: 2（a）-（c）”by providing that Articles XI: 1 shall“not extend to”the types of export restriction described in Article XI: 2. Accordingly, it requests the Panel to reject the complainants' claims on the basis that they failed to demonstrate that the quotas at issue do not“fall [] within Articles XI: 2（a）,（b）, or（c）”and thereby demonstrate that a violation should apply. China finds support for this in what it asserts was the Appellate Body's treatment in similar provisions, namely Article 27.2 of the SCM Agreement and GATT Articles II: 1（a）and II: 1（b）of the GATT 1994 in India-Additional Import Duties.

7.210 The complainants reject this view, arguing that the Appellate Body made clear in US-Wool Shirts and Blouses that the provisions under Article XI: 2 are“affirmative defences”and that the burden is therefore on the respondent-and not the complainant-to demonstrate that Article XI: 2 is somehow applicable. China characterizes the Appellate Body's statement as“obiter”and no longer applicable in light of an evolving“taxonomy”adopted by the Appellate Body.

7.211 The Panel finds itself at odds with China's view that the Appellate Body statement in US-Wools Shirts and Blouses regarding Article XI: 2 is not applicable to the matter at hand. The Appellate Body was clear in its statement on the operation of Article XI: 2（c）（i）, stating:“Articles XX and XI:（2）（c）（i）are limited exceptions from obligations

under certain other provisions of the GATT 1994, not positive rules establishing obligations in themselves. They are in the nature of affirmative defences. It is only reasonable that the burden of establishing such a defence should rest on the party asserting it”.

7.212 The Panel sees no basis to conclude that the logic applicable to Article XI: 2（c）（i）would not apply as well to the separate subparagraph, Article XI: 2（a）, which falls under the same chapeau paragraph. In addition, as the European Union also points out, China's interpretation would suggest that a complainant might need to demonstrate that other GATT provisions, such as GATT Articles XII, XVIII, XX or XXI, are also inapplicable.

7.213 Accordingly, the Panel concludes that the burden is on the respondent（China in this case）to demonstrate that the conditions of Article XI: 2（a）are met in order to demonstrate that no inconsistency arises under Article XI: 1. . .

（3）证据认定

DUS中没有关于证据列举、认定等方面的规定，只在附录3提及在专家组第一次会议前，双方应将各自的事实及论辩以书面形式提交。此外，DSU第13.1条提及，专家组有权向相关专家咨询意见，任何WTO成员方有义务对专家组的询问给予及时的答复。在“阿根廷—影响鞋类、纺织品、服装及其他物品进口的措施案”中，上诉机构裁定对提供证据的时间没有限制，同时专家组对证据的认可与拒绝有自由裁量权。在“印度尼西亚—某些影响汽车工业的措施案”中，上诉机构裁定对汽车型号的介绍以作出的计划介绍作为证据太过于一般化，必须以报刊报道作为证据。在“欧共体—有关肉类及肉类制品（荷尔蒙）的措施案”中，上诉机构裁定专家组可以拒绝那些未被拿来支持抗辩主张的证据。

6．中期审议

DSU第15条规定了一个中期审议阶段。内容如下：“在接受争端各方书面意见的设定期限截止后，专家组应向各方提交一份中期报告，既包括描述部分也包括专家组的调查结果与结论。在专家组设定的期限内，一方可提出书面请求，请专家组在最终报告散发各成员方之前，审议中期报告中的具体方面。应一方请求，专家组应就书面意见中所确认的问题，与各方再次召开会议。如在征求意见期间未受到任何一方的意见，中期报告应被视为最终报告，并迅速散发各成员。”

7．专家组报告的通过

原GATT的争端解决实践中，专家组做出裁定以后，上报GATT总理事会讨论通过。通过程序要求以“一致同意”的方式，意味着任何一方，包括败诉争端方，都能阻止总理事会采用专家组报告。实践中有很多报告搁浅的案例。即使有的报告最终获得通过采用，也往往有较长时间的延迟。

WTO争端解决体系从根本上改变了这个状况。DSU第16条规定“在专家组报告散发各成员方之日起60天内，该报告应在DSB会议上通过，除非争端一方正式通知DSB其上诉决定，或DSB经协商一致决定不通过该报告”。这个规定就是著名的“反向一致”原则，是WTO的一大创举。这个原则保证了专家组或上诉机构报告的通过采用，非常有效地控制了贸易强势国家采取单边行动阻扰争端解决进程的可能性。

五 上诉程序

专家报告出来以后，一旦败诉方要求上诉，则DSB要在上诉程序结束后再审议是否通过专家组报告。

DSU第17.6条将上诉机构的职权范围限定在专家组报告涉及的法律问题和专家组所作的法律解释。具体表现在上诉机构可“维持、修改或撤销专家组的法律调查结果和结论”（DSU第17.13条）。上诉报告内容在起草阶段必须对各方保密（DSU第17.10条），在时间程序上，上诉报告的期限是60天，最多不超过90天（DSU第17.5条）。

根据DSU（第17.14条），上诉报告“由DSB通过，争端各方应无条件接受，除非在报告散发各成员方30天内，DSB经协商一致决定不通过该报告”。但报告的通过“不损害各成员方就上诉机构报告发表意见的权利”。在上诉报告通过的同时，专家组报告也同样通过，包括上诉小组修改过的专家组报告。

六DSB对报告的通过和建议

上述程序表明，专家组报告的通过或在上诉的情况下，上诉报告的通过几乎是自动的。因为除非连胜诉方也不同意报告通过的情况下报告才有可能搁浅。如果裁定违反有关WTO协定，DSB通常会建议违规方对违规措施或法规采取行动以使其与WTO义务一致。至此，争端程序结束。

报告通过以后，DSB通常对违规方做出“建议”停止违反义务的行动或修改与协定内容不符的规定等。虽然只是建议，但这个“建议”有隐含的法律效力。根据国际公法惯例，各条约方有义务善意遵守签订的条约并终止非法行为。同时，DSU第23条要求成员方放弃单方报复行动而向WTO争端解决体系寻求救援，这本身就隐含WTO的DSB裁定应该具有强制约束力以保证整个WTO体系的正常运作。

第五节 DSB建议的执行

执行涉及的问题有制裁体制和有效救济几个方面。其中，制裁体制包括合理执行期限、拒绝执行、报复、仲裁、制裁的临时性质等问题。

一 制裁体制

GATT体系的制裁主要是暂停关税减让、终止关税减让，或暂停或终止GATT的其他义务等合同式的制裁方式。WTO则采用基于报复的组织制裁体制，通过取消互惠承诺中的某些利益而迫使违规方放弃违规措施。经济补偿只有在“利益丧失或损害”的非违法之诉情况下才加以采用。作为一个政府间协定的GATT按照合同规则实施制裁可以理解，而WTO采用的制裁体制也与其作为一个互惠贸易组织的特征相符。这就是为什么国际经济组织如WTO，比国际政治组织如联合国更有效率的原因。

1．合理执行期限

DSU第21.3条规定，在专家组或上诉机构报告通过后30天内，DSB将举行会议要求败诉方通知DSB其执行DSB建议的安排。如果立即执行不可行的话，DSB将给予败诉方一个合理的期限完成执行。确定这个期限有三种方式：一是获DSB批准的有关成员提出的期限；二是在裁决后45天内争端各方达成的期限；三是裁决后90天内仲裁决定。目前，15个月内都可以被认为是合理的期限。

执行将在DSB的严格监督下进行。任何成员可就执行问题询问DSB。除非DSB另外规定，在确定的合理期限到期6个月后，DSB应将执行裁决或建议的情况列入DSB会议议程，直至问题解决（DSU第21.6条）。

2．拒绝执行

如果在规定的合理期限内败诉方拒不执行，DSU第22.2条规定败诉方在申请方的要求下应与申请方进行谈判，以达成双方均可接受的补偿。如在合理期限到期20天内不能达成补偿协议，则申请方可要求DSB授权终止对败诉方的有关减让或其他协定义务。

3．报复与单方报复

在考虑终止哪些减让或其他义务时，起诉方必须遵循一定的程序和原则。总原则是起诉方应首先确定由专家组或上诉机构认定违反WTO义务的部门，之后针对相同的部门终止减让或其他义务；如果不可行，则寻求终止同一协定项下其他部门的减让或其他义务；如果还不可行，而且情况足够严重，则可寻求终止另一协定项下的减让或其他义务。总之，没有采取单方报复的权利（DSU第22.3条）。

如果DSB授权报复，则授权的范围是终止与利益丧失或减损程度相当的减让或其他义务（DSU第22.4条）。如果被报复方认为不应在另一协定或本协定另一部门终止减让，或对减让的程度有异议，则可要求仲裁确定（DSU第22.6条）。

4．仲裁

WTO认可仲裁作为解决争端的另一个手段。DSU第25条规定争端可以通过仲裁解决，只要各方能就仲裁、仲裁程序和规则达成协议。在决定仲裁和达成仲裁有关的协议后，争端方必须将仲裁的决定在仲裁开始前一段时间内通知WTO各成员。仲裁中，只有经协议仲裁各方同意，其他方才能加入。仲裁裁定后，结果应通知DSB以及其他有关适用协定的理事会。

5．制裁的性质

DSU第22条明确指出，经济补偿、减让终止，或其他义务终止等制裁的性质是临时性的，只在败诉方未能在规定的合理期限内完成裁定和建议要求的情况下适用。最终，WTO要求违规方与WTO要求保持一致，正如WTO协定第16.4条明确要求的，“每一成员方应保证其法律、法规和行政程序与所附各协定对其规定的义务一致。”同时，当WTO协定条款与任何多边贸易条款产生抵触时，以WTO协定条款为准（WTO协定第16.3条）。

二 有效救济

研究GATT及WTO争端解决裁定的法律救济会发现，当专家组或上诉机构裁定被诉方确有违反GATT/WTO义务后，裁定的救济通常是要求将违反义务的措施撤销或修改以符合GATT/WTO义务的要求，而不是实际的损失弥补。这样一种救济制度，理论上导致了成员制定违反WTO义务的贸易政策的故意，而实际上这种行为的确时有发生。

专家组在“挪威—特隆赫姆城市收费设施的采购案”的裁定部分解释了这种救济制度安排的原因，指出该案中能够使挪威特隆赫姆市的采购措施符合政府采购协定义务的唯一方式，是重新开始采购程序。专家组指出，这样的建议是不适当的，因为它造成资源浪费并可能损害第三方利益。

但是，在反倾销和反补贴案件中，胜诉方可要求恢复原状。许多这类案件的专家组要求违反义务一方既撤销违反规定的措施，又赔偿受损方的关税损失。