[ 劉成偉 ]——(2003-7-7) / 已閱75095次
The Panel notes, however, that the DSU differentiates in terms of rights between main parties and third parties and that this principle should be respected in order to keep with the spirit of the DSU in that respect. Enhanced third party rights have so far been granted for specific reasons only. In the EC - Hormones case, like in this case and the case initiated by Japan (WT/DS162), the two panels were composed of the same panelists and dealt with the same matter. While these elements appeared to play a significant role in the decisions taken by the panels and in their confirmation by the Appellate Body, we consider that they could not be decisive. Otherwise, enhanced third party rights would have to be granted in almost all cases where the same matter is subject to two or more complaints with the same panel composition. We note that particular circumstances existed in the EC - Hormones case which certainly contributed to the decisions of the panels to review the two cases concurrently, such as their highly technical and factually intensive nature, as well as the fact that the panels had decided to hold one single meeting with the parties and the experts consulted pursuant to Article 11.2 of the Agreement on Sanitary and Phytosanitary Measures. These decisions were largely based on practical reasons and due process had to be preserved. We conclude from the reports in the EC - Hormones case that enhanced third party rights were granted primarily because of the specific circumstances.
We find that no similar circumstances exist in the present matter, which does not involve the consideration of complex facts or scientific evidence. Moreover, none of the parties requested that the panels harmonise their timetables or hold concurrent deliberations in the two procedures (WT/DS136 and WT/DS162). In fact, the European Communities was not in favour of delaying the proceedings in WT/DS136 and the United States objected to concurrent deliberations. We are of the view that, in such a context, we ought to conduct this case independently from the case initiated by Japan both in terms of procedure and of analysis of the substantive issues before us.
We are of the view that respecting due process vis-à-vis Japan did not require the participation of Japan in the second substantive meeting of the Panel. This said, having regard to Article 18.2 of the DSU, we urged the EC and the United States, in the course of the proceedings, to communicate to Japan in due course meaningful non-confidential summaries of their submissions to the Panel, if requested to do so by Japan.
We therefore find that there was no reason to grant enhanced third party rights to Japan in these proceedings.”
While in US-1916 Act (by Japan) (DS162), a similar ruling as to a similar request by the EC, mutatis mutandis, is issued. 6 However, both EC and Japan appeal As to the appeal (DS136/DS162), the Appellate Body rules as: 7
“Although the European Communities and Japan invoke Article 9 of the DSU, and, in particular, Article 9.3, in support of their position, we note that Article 9 of the DSU, which concerns procedures for multiple complaints related to the same matter, does not address the issue of the rights of third parties in such procedures.
Under the DSU, as it currently stands, third parties are only entitled to the participatory rights provided for in Articles 10.2 and 10.3 and paragraph 6 of Appendix 3.
Article 12.1 of the DSU states: ‘Panels shall follow the Working Procedures in Appendix 3 unless the panel decides otherwise after consulting the parties to the dispute.’ Pursuant to Article 12.1, a panel is required to follow the Working Procedures in Appendix 3, unless it decides otherwise after consulting the parties to the dispute.
In support of their argument that the Panel should have granted them ‘enhanced’ third party rights, the European Communities and Japan refer to the considerations that led the panel in European Communities - Hormones to grant third parties ‘enhanced’ participatory rights, and stress the similarity between European Communities - Hormones and the present cases.
The Panel in the present cases gave the following reasons for refusing to grant the European Communities and Japan ‘enhanced’ participatory rights in the panel proceedings: ‘… We conclude from the reports in the EC - Hormones cases that enhanced third party rights were granted primarily because of the specific circumstances in those cases. We find that no similar circumstances exist in the present matter, which does not involve the consideration of complex facts or scientific evidence. Moreover, none of the parties requested that the panels harmonise their timetables or hold concurrent deliberations in the two procedures (WT/DS136 and WT/DS162). In fact, the European Communities was not in favour of delaying the proceedings in WT/DS136 and the United States objected to concurrent deliberations. …’
In our Report in European Communities - Hormones, we stated: ‘Although Article 12.1 and Appendix 3 of the DSU do not specifically require the Panel to grant [“enhanced” third party rights] to the United States, we believe that this decision falls within the sound discretion and authority of the Panel, particularly if the Panel considers it necessary for ensuring to all parties due process of law.’
A panel's decision whether to grant ‘enhanced’ participatory rights to third parties is thus a matter that falls within the discretionary authority of that panel. Such discretionary authority is, of course, not unlimited and is circumscribed, for example, by the requirements of due process. In the present cases, however, the European Communities and Japan have not shown that the Panel exceeded the limits of its discretionary authority. We, therefore, consider that there is no legal basis for concluding that the Panel erred in refusing to grant ‘enhanced’ third party rights to Japan or the European Communities.”
IV Summary and Conclusions
The interpretation of Art. 10.3 of the DSU must start from the express wording of the provision. Art. 10.3 does not say that third parties shall receive “the first submissions” of the parties, but rather that they shall receive “the submissions” of the parties. The number of submissions that third parties are entitled to receive is not stated. Rather, Art. 10.3 defines the submissions that third parties are entitled to receive by reference to a specific step in the proceedings – “the first meeting of the panel”. It follow that, under this provision, third parties must be given all of the submissions, irrespective of the number of such submissions which are made, including any rebuttal submissions filed in advance of the first meeting, made by the parties up to the time of the first panel meeting in which the third parties participate - whether that meeting is the first of two panel meetings, or the first and only panel meeting. However, in respect of the third party rights Art. 10.3 of the DSU only refers to submissions “of the parties”; not to any other submissions such as the expert replies advising the panel.
Only this strict compliance with the unequivocal text of Art. 10.3 secures that the interests and rights of third parties are “fully taken into account during the panel process” in a manner enabling the panel to receive “the benefit of a useful contribution by third parties which could help the Panel to make the objective assessment that it is required to make under Article 11 of the DSU”.
As it currently stands under the DSU, third parties are only entitled to the participatory rights provided for in Arts. 10.2 and 10.3 and paragraph 6 of Appendix 3. However, while the DSU does not provide for enhanced third party rights, neither Art. 10 of the DSU nor any other provision of the DSU prohibits panels from granting third party rights beyond those expressly mentioned in Art. 10. Beyond those minimum guarantees, it falls within the sound discretion and authority of panels, under Art. 12.1 and Appendix 3 of the DSU, to grant enhanced third party rights or additional participatory rights to third parties in particular cases, as long as such “enhanced” rights are consistent with the provisions of the DSU, particularly if the Panel considers it necessary for ensuring to all parties due process of law.
Nevertheless, enhanced third party rights have so far been granted largely based on practical reasons and due process had to be preserved. Panel practice shows that only in exceptional circumstances have third parties received such extended third party rights. After all, the DSU differentiates in terms of rights between main parties and third parties and that this principle should be respected in order to keep with the spirit of the DSU in that respect. In short, a panel's decision whether to grant ‘enhanced’ participatory rights to third parties is thus a matter that falls within the discretionary authority of that panel. Such discretionary authority is, of course, not unlimited and is circumscribed, for example, by the requirements of due process.
【NOTE】:
1. See, WT/DS103/RW; WT/DS113/RW/2.33-2.35.
2. See, WT/DS108/AB/RW/242-252.
3. See, WT/DS108/AB/RW/243.
4. See, WT/DS26/AB/R; WT/DS48/AB/R/151-154.
5. See, WT/DS136/R/6.32-6.36.
6. See, WT/DS162/R/6.32-6.35.
7. See, WT/DS136/AB/R; WT/DS162/AB/R/144-150.
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