[ 劉成偉 ]——(2003-7-7) / 已閱72245次
Section Four
The Mandate of Compliance Panels: Art. 21.5
I Introduction
In the WTO context, members may initiate a normal panel procedure under Art. 6.2 of the DSU. Furthermore, they may also initiate a compliance panel proceeding under Art. 21.5 of the DSU which reads as:
“Where there is disagreement as to the existence or consistency with a covered agreement of measures taken to comply with the recommendations and rulings such dispute shall be decided through recourse to these dispute settlement procedures, including wherever possible resort to the original panel. The panel shall circulate its report within 90 days after the date of referral of the matter to it. When the panel considers that it cannot provide its report within this time frame, it shall inform the DSB in writing of the reasons for the delay together with an estimate of the period within which it will submit its report.”
In Art. 21.5 panel proceedings, the mandate issue often causes controversy. Against the particular background of Art. 21.5 panel proceedings, “[t]wo benchmarks apply when defining our [panel’s] terms of reference. First, Article 21.5 of the DSU pursuant to which this Panel was established. Second, our [panel’s] specific terms of reference set out in document WT/DS18/15, a document that refers, in turn, to the matter and relevant provisions of the covered agreements referred to by Canada in its request for this Panel (document WT/DS18/14) [the request for the establishment of a panel].”1
Thus, the mandate of a compliance panel is defined by two benchmarks: Art. 21.5; the specific terms of reference set out in the panel request. With regard to the second benchmark, it has been discussed in detail in previous sections; panel’s terms of reference are normally defined in Art. 7 of the DSU, and “the matter referred to the DSB” for purposes of Art. 7 of the DSU is the “matter” identified in the request for establishment of a panel under Art. 6.2 of the DSU. The “matter referred to the DSB”, therefore, consists of two elements: the specific measures at issue and the legal basis of the complaint (or the claims). Therefore, we will focus in this section on the first benchmark, i.e. Art. 21.5 of the DSU, under which the mandate of a panel is to examine the “existence or consistency with a covered agreement of measures taken to comply with the recommendations and rulings” of the DSB.
II Clarification of “measures taken to comply”
“Since Article 21.5 exclusively refers to disagreements as to ‘measures taken to comply’, any other measures fall outside the scope of a compliance panel.”2 And in this case, is there any precise definition of “measures taken to comply” that should apply in all cases?
The Appellate Body rules concerning the mandate of Art. 21.5 panel in Canada-Aircraft (DS70)（21.5）that: “Proceedings under Article 21.5 do not concern just any measure of a Member of the WTO; rather, Article 21.5 proceedings are limited to those ‘measures taken to comply with the recommendations and rulings’ of the DSB. In our view, the phrase ‘measures taken to comply’ refers to measures which have been, or which should be, adopted by a Member to bring about compliance with the recommendations and rulings of the DSB. In principle, a measure which has been ‘taken to comply with the recommendations and rulings’ of the DSB will not be the same measure as the measure which was the subject of the original dispute, so that, in principle, there would be two separate and distinct measures: the original measure which gave rise to the recommendations and rulings of the DSB, and the ‘measures taken to comply’ which are-or should be-adopted to implement those recommendations and rulings.”3
And in this respect, we think the three points below made by the Compliance Panel in the Australia-Salmon (DS18)（21.5）merits attention for an appropriate understanding of “the measures taken to comply”:
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