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- Clarification of the claims in the course of the proceedings and requests for preliminary rulings
findingsThis dispute is based on the facts described in Section II above. The parties' claims and requests for findings are summarized in Section III of our Report.298 In this case, the United States and European Communities successively requested the establishment of panels concerning certain matters. The DSB decided, in accordance with Article 9 of the DSU, to entrust a single panel with the examination of both complaints.299 Both the United States and European Communities allege violations of Articles III:4 and XI:1 of GATT and of Article 2 of the TRIMs Agreement in relation to certain Indian measures affecting the automotive industry. Although these claims related to the same measures, they partly differed in their specific details. As a consequence, the Panel has sought to carefully reflect these differences in its report. It has also been mindful to organize its examination and present its findings to the DSB in such a manner as to in no way impair the rights which the parties to the dispute would have enjoyed had separate panels examined the complaints. This is in conformity with the requirements of Article 9.2 of the DSU. Neither party having requested the submission of separate reports as foreseen in Article 9.2 of the DSU, this report addresses both the United States and the European Communities complaints in a single report. India has raised defenses relating to the exact nature of the matter before the Panel and the extent of its jurisdiction. These jurisdictional arguments, which condition the Panel's ability to proceed further with the analysis of the claims, are addressed first. Before doing so, this Report begins with an examination of preliminary issues that arose in the course of the proceedings relating to the clarification of the claims. The Report then clarifies the measures within the Panel's terms of reference. This will assist the Panel in subsequently addressing the detail of India's procedural arguments. Clarification of the claims in the course of the proceedings and requests for preliminary rulingsDuring the first meeting with the parties, India requested the Panel to ask the complainants a number of questions in order to clarify the claims. India indicated that, depending on the complainants' answers to these questions, it would seek preliminary rulings from the Panel concerning the precise scope of the complaints. These requests for clarification and the Panel's approach to them will be detailed in this section. At the first meeting, (1) India requested the Panel to ask the complainants whether the measures on which they were requesting rulings were those that India was applying at the time when the requests for the establishment of a panel were submitted to the DSB or conversely, whether the measures were those that India might be applying as from 1 April 2001. It advised that "[i]f the complainants were to respond that they consider India's future measures to be part of the present proceedings, [India] would request the Panel to issue a preliminary ruling to the effect that these measures fall outside of its mandate".300 (2) India also requested the Panel to ask the complainants to clarify whether in their view, the measures at issue in this proceeding involved the enforcement of MOUs through the import licensing regime and PN60, or conversely, whether the claims were limited to the enforcement of MOUs outside the licensing regime and PN60. It advised that "[i]f the complainants were to respond that their complaints relate to the enforcement of the MOUs through the import licensing regime and Notice N° 60, India would ask the Panel to issue a preliminary ruling to the effect that both complaints are inadmissible because the DSU cannot be invoked in respect of the same matter twice."301 In response to this request, the Panel invited the parties to ask each other any questions that they felt might be useful. It indicated its own intention to ask the parties a range of questions, including questions relating to the preliminary issues raised by India. The Panel indicated that, if necessary, it would revert to the issue of preliminary rulings depending upon the parties' responses to these questions. This approach was in line with the "conditional" character of India's request for preliminary rulings. In the view of the Panel, it was also appropriate to seek further clarifications on the nature of the matter before it. 302 In light of the complainants' responses to questions, India indicated in its second submission that: "the European Communities and the United States appear[ed] to accept the validity of [India's] arguments because they made two matters clear. First, the European Communities and the United States clarified that their complaints are not directed against the application of discretionary licensing system to cars and components but against Public Notice No. 60 and the MOUs as such. Second, the European Communities and the United States clarified that their complaints relate to the measures applied by India at the time when they submitted their requests for the establishment to the DSB, and not to any measures that India may take in the future. With these clarifications as to the scope of the rulings requested from this Panel, two central arguments that India had advanced in its First Submission are no longer relevant. India's argument that no WTO Member may resort to the DSU on the same matter twice is no longer relevant because the European Communities and the United States have made clear that their case does not rest on the application of the discretionary licensing system that had been the subject of their prior complaints. India's argument that the Panel is not competent to rule on measures that India may take after 1 April 2001 is also no longer relevant." At that stage therefore, India did not pursue its initial request for a preliminary ruling, and the Panel did not revert to it. However, India made other comments at the same stage that led the Panel to believe that there was still some confusion between the parties as to the exact scope of the claims and that India's comments above were conditional. In particular, India indicated two paragraphs below the above quotation that it would: "assume throughout this submission that the Panel will examine the operation of Public Notice No. 60 and the MOUs as such, that is independently of the application of the discretionary licensing system. Specifically, India will assume that the Panel will examine whether the trade balancing and indigenization provisions set out in Public Notice No. 60 and the MOUs would have been inconsistent with Articles III:4 and XI:1 of the GATT even if India had not applied any import licensing restrictions for cars imported in the form of CKD/SKD kits and for car components at the time when the requests for the establishment of a panel were submitted. If the Panel does not share this understanding of the scope of the complaints, India would appreciate it if the Panel were to alert India to that effect before the next meeting and give it the opportunity to make a supplementary written submission." (emphasis in original)303 The Panel did not consider it appropriate to simply endorse or reject India's reading of the claims before it as suggested. Rather, it believed it was appropriate, and in conformity with the requirements of due process, to ensure that the complainants were given an opportunity to clarify the claims further in order to ensure India a full opportunity to respond comprehensively to the claims as presented. In a letter sent to the parties prior to the second meeting, the Panel therefore declined to make the interpretation of the claims before it as suggested by India. Instead, it invited the parties, including India, to present all the arguments that they felt may be of relevance in the course of the second meeting so as to allow the Panel to make an objective assessment of the matter before it, as required by Article 11 of the DSU.304 The Panel then put a number of additional questions to the parties after the second meeting. These included questions to India concerning its understanding of the claims following exchanges between the parties in the course of the second meeting. The Panel wished to further ensure that India was in a position to present the arguments and defenses it wished to rely on, in light of the complainants' latest clarifications. In the Panel's view, this procedure adequately preserved the interests of all parties, including India's opportunities to respond fully to the claims presented. In light of the evolving factual circumstances and successive clarifications in the course of the proceedings, the Panel sought to give the parties adequate opportunity at each stage to pursue the possibility of reaching a mutually satisfactory solution, as required by the final sentence of Article 11 of the DSU. The Panel thus drew the parties' attention to this provision at each of its formal meetings with them and when so requested, afforded them additional time to present their submissions to the Panel. 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:
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