Order of examination of the claims

Order of examination of the claims

1. 
   Both complainants have made claims that the measures in issue are in violation of both GATT 1994 and the TRIMs Agreement (Article 2). The Panel first wishes to consider whether it is desirable to consider these claims in any particular order.
   
2. 
   A number of factors should be considered in that regard. The Panel recalls the Appellate Body's comment in European Communities – Regime for the Importation, Sale and Distribution of Bananas (hereafter "EC – Bananas III") suggesting that a panel would normally be expected to examine the more specific agreement before the more general, where two Agreements apply simultaneously.³⁷³ The Panel also recalls that it is permitted to apply judicial economy in considering matters before it, so that "a panel need only address those claims which must be addressed in order to resolve the matter in issue in the dispute".³⁷⁴
   
3. 
   The Panel has also taken into account the fact that two complaints are effectively being addressed in this report, the scopes of which are not in all respects identical. In considering these questions of order and judicial economy, the Panel has been mindful of its obligations under Article 9 of the DSU in preserving the rights of all parties where multiple complaints are involved.
   
4. 
   Where the order of analysis of claims is concerned, it is important to consider if a particular order is compelled by principles of valid interpretative methodology, which, if not followed, might constitute an error of law.³⁷⁵
   
5. 
   In circumstances other than where a proper application of one provision might be hindered without prior consideration of other issues, the adoption by a panel of a particular order of examination of discrete claims would rarely lead to any errors of law. A panel would always be required to consider, inter alia, contextual aspects of interpretation of each of the relevant provisions in accordance with customary rules of interpretation, and to take account of the principle of effectiveness in such interpretation, whichever agreement it chooses to examine first. Here the Panel notes the comments of the Appellate Body in US – FSC concerning the United States' argument that the Panel erred by failing to begin its examination of the European Communities' claim under Article 3.1(a) of the SCM Agreement with footnote 59 of that Agreement. In the Appellate Body's view,
   

1. 
   In this case, the Panel is dealing with separate claims to the effect that a particular factual situation falls foul of both GATT 1994 provisions and provisions of the TRIMs Agreement. Previous panels confronted with concurrent claims concerning these two agreements have had diverse approaches to the choice of order of analysis of such claims.³⁷⁷
   
2. 
   As a general matter, even if there was some guiding principle to the effect that a specific covered Agreement might appropriately be examined before a general one where both may apply to the same measure, it might be difficult to characterize the TRIMs Agreement as necessarily more "specific" than the relevant GATT provisions. Although the TRIMS Agreement "has an autonomous legal existence", independent from the relevant GATT provisions, as noted by the Indonesia – Autos panel,³⁷⁸ the substance of its obligations refers directly to Articles III and XI of the GATT, and clarifies their meaning, inter alia, through an Illustrative list. On one view, it simply provides additional guidance as to the identification of certain measures considered to be inconsistent with Articles III:4 and XI:1 of the GATT 1994. On the other hand, the TRIMs Agreement also introduces rights and obligations that are specific to it, through its notification mechanism and related provisions. An interpretative question also arises in relation to the TRIMs Agreement as to whether a complainant must separately prove that the measure in issue is a "trade-related investment measure". For either of these reasons, the TRIMs Agreement might be arguably more specific in that it provides additional rules concerning the specific measures it covers. ³⁷⁹ The Panel is therefore not convinced that, as a general matter, the TRIMs Agreement could inherently be characterized as more specific than the relevant GATT provisions.
   
3. 
   In some circumstances, there may be a practical significance in determining a particular order of examination of claims based on the TRIMS and GATT 1994.³⁸⁰ One example might be where the temporary cover offered to notified TRIMs would be of relevance. In this instance, India has not claimed to have notified the measures at issue under the TRIMs Agreement. This issue therefore does not arise here. Indeed, in response to a question from the Panel, India has indicated that "the TRIMs Agreement (…) no longer entails rights and obligations in respect of India that are different from those under the GATT", and has encouraged the Panel to refrain from examining the TRIMs Agreement.³⁸¹ For the purposes of this case, therefore, there appears to be, in that respect, no particular reason to start our examination on any particular order. Nor does it find that the end result would be affected by either determination of order of analysis.
   
4. 
   Both complainants have also addressed their claims under GATT 1994 prior to their claims under the TRIMS Agreement. Their responses to specific questions from the Panel on the proper order of examination of their claims suggest that both would be in agreement with an approach leading to an examination of the GATT 1994 claims first.³⁸²
   
5. 
   In these circumstances, the Panel does not see that there is anything improper in either addressing the GATT claims or the TRIMs claims first.
   
6. 
   The order selected for examination of the claims may also have an impact on the potential to apply judicial economy. It seems that an examination of the GATT provisions in this case would be likely to make it unnecessary to address the TRIMs claims, but not vice-versa. If a violation of the GATT claims was found, it would be justifiable to refrain from examining the TRIMs claims under the principle of judicial economy. Even if no violation was found under the GATT claims, that also seems an efficient starting point since it would be difficult to imagine that if no violation has been found of Articles III or XI, a violation could be found of Article 2 of the TRIMs Agreement, which refers to the same provisions. Conversely, if no violation of the TRIMs Agreement were found, this would not necessarily preclude the existence of a violation of GATT Articles III:4 or XI:1 because the scope of the GATT provisions is arguably broader if India's argument was accepted that there is a need to prove that a measure is an investment measure and its assertion that this is not the case with the measures before this Panel.
   
7. 
   For all of these reasons the Panel will therefore examine the GATT claims first.
   
8. 
   Violations of Articles III and XI have been alleged with regard to two of the conditions foreseen under Public Notice No. 60 and in the MOUs, namely "indigenization" and "trade balancing". The Panel will address claims relating to these two conditions in turn.
   
1. 
   
   Directory: english -> tratop e -> dispu e
   dispu e -> Annex g list of exhibits submitted by the parties
   dispu e -> World Trade Organization
   dispu e -> World Trade Organization
   
   
   
   Download 1.04 Mb.
   
   Share with your friends: