B. Precision of the Request for the Establishment of the Panel

1. Arguments by the parties

6. Turkey submitted that it was incumbent upon the Panel to examine the request for its establishment to ensure its compliance with both the letter and the spirit of Article 6.2 of the DSU. It was important that a panel request be sufficiently precise because (i) it often formed the basis of the terms of reference of the panel pursuant to Article 7 of the DSU, and (ii) it informed the defending party and the third parties of the scope and the legal basis of the complaint. ⁴⁸ Since the jurisdiction of a panel was established on its terms of reference, by which it was bound, ⁴⁹ no uncertainty with regard to their scope was permissible, since any such uncertainty would be tantamount to a basic uncertainty concerning the scope of the jurisdiction of that panel.

7. Turkey also considered that, as noted by the Appellate Body in the EC � Regime for the Importation, Sale and Distribution of Bananas case, ⁵⁰ such a fundamental issue concerning the scope of the panel jurisdiction could be decided early in the panel procedure without unfairness to any party or third party, but Turkey did not believe that for this purpose detailed panel working procedures needed to be first established, since panels had regularly addressed preliminary issues of this kind in limine litis. ⁵¹

8. Turkey recalled that Article 6.2 of the DSU required a request for the establishment of a panel to identify "the specific measures at issue". In its request submitted in the present case, India merely referred to "the unilateral imposition of QRs by Turkey on imports of a broad range of textile and clothing products from India as from 1 January 1996", ⁵² which Turkey considered a clearly insufficient description of the "specific measures at issue". In particular, the measures complained of were not specified by reference to the place of publication, by a clear indication of the date of adoption or promulgation, the issuing authority and the type of measure, nor by a reference to their precise product coverage. In Turkey's view, such a lack of precision was contrary to the letter and the spirit of Article 6.2 of the DSU. The basic right of defense, or due process implicit in the DSU would be impaired if the identification of the specific measures complained of were not clear, so that the party with the better guess would prevail. It was fundamental for a fair process that the party that had allegedly committed a breach of its obligations be fully aware of the case held against it. Turkey considered that, this could only be achieved, in the circumstances of the present case, by a clear reference to the measures complained of and their exact product coverage.

9. India pointed out that Turkey could not claim that it was not adequately informed about the scope of the dispute at the beginning of the panel proceedings. The domestic legal basis and product coverage of Turkey's measures could not have escaped the notice of its own authorities since Turkey had itself notified all details to the WTO. Furthermore, India raised the matter of the restrictions imposed by Turkey on a number of separate occasions. ⁵³ On none of these occasions did Turkey indicate that the description of the measure left any uncertainty regarding the scope of the dispute. On the contrary, Turkey made it clear that it was fully aware of the product coverage when it stated before the DSB that "� with regard to Turkey�s textile quotas � none of the textiles and clothing categories which were subject to QRs had been fully utilised by any exporting country. In the case of India, textile and clothing quotas had been underutilised in both 1996 and 1997". ⁵⁴ All Members, including Turkey, were thus fully informed of the facts on which Turkey now claimed ignorance.

10. India noted further that one of the purposes of the requirement of prior consultations (Articles XXII and XXIII of GATT and Article 4 of the DSU) was to ensure that Members conducted a detailed exchange of facts and views before resorting to the panel procedure. During consultations the respondent had the opportunity to seek clarifications regarding the scope of the complaint. India recalled in this context that Turkey had refused to consult with India altogether without the presence of the European Communities, although, in India's view, it would have been free to raise in the consultations the issue of European Communities�s participation in the proceedings. To buttress its present claims, Turkey had invoked the principle of due process, recognized by the Appellate Body as inherent in the DSU. ⁵⁵ However, India failed to see how could it be consistent with the principle of due process if a Member were permitted to first refuse to hold consultations and then claim ignorance on matters that could have been clarified in those consultations. India therefore considered Turkey�s claim that it was insufficiently informed by India about the scope of the dispute as a case of venire contra factum proprium which should, for that reason alone, be rejected by the Panel.

11. India also submitted that its request for the establishment of a panel stated that the measures at issue were the "QRs [imposed unilaterally] by Turkey on imports of a broad range of textile and clothing products from India as from 1 January 1996", ⁵⁶ thus clearly identifying the specific measures at issue. It noted that Turkey was aware of the details of the quantitative limits imposed by it, since these were notified jointly by the European Communities and Turkey to the CRTA and a copy of this notification was also sent to the Chairman of the TMB. There could be no uncertainty for the Turkish authorities regarding such details as the product coverage of these restrictions, the place of publication, the date of adoption or promulgation, the issuing authority or the type of measure. The identification of the specific measures at issue in India�s request for a panel, therefore, did not require Turkey to engage in conjectures as to the scope of the dispute.

12. India submitted further that its complaint was directed against Turkey�s restrictive regime for textile and clothing products from India agreed with the European Communities. The dispute between Turkey and India concerned one narrow legal issue, namely, whether Article XXIV of GATT, the only provision invoked by Turkey to justify its restrictions, permitted Turkey to impose new restrictions on imports of textile and clothing products from India that were inconsistent with the provisions of Article XI:1 of GATT and Article 2.4 of the ATC. The manner in which India had identified the measures at issue fully enabled Turkey to prepare its defense on this dispute and the Panel to rule on it. India considered that the identification of the measures at issue was, therefore, sufficiently precise for the purposes of Article 6.2 of the DSU.

13. Turkey recalled the findings of the panel on EEC � QRs against Imports of Certain Products from Hong Kong, which included the following:

    "The Panel considered that just as the terms of reference must be agreed between the parties prior to the commencement of the Panel�s examination, similarly the product coverage must be clearly understood and agreed between the parties to the dispute. The Panel considered that to allow the inclusion of an additional product item about which one party had not been formally advised prior to the commencement of the proceedings would be to introduce an element of inequity" (emphasis added). ⁵⁷

14. Turkey noted that, since under the DSU the parties to the dispute needed no longer to agree on the establishment of a panel, it was all the more important that the parties and the third parties be in the clear about the precise scope of the dispute, as the Appellate Body found in the EC � Bananas III case. ⁵⁸ It also noted that, in the EC � Customs Classification of Certain Computer Equipment case, the Appellate Body, taking into account such clear logical and legal necessities, stated that "it may also be necessary to identify the products subject to the measures in dispute", ⁵⁹ in this case rejecting the claim by the European Communities that the United States had violated Article 6.2 of the DSU on the basis that "the complaining parties may have identified [the products at issue] by broader grouping, but not spelled out in sufficient detail".⁶⁰

15. Turning to the present case, Turkey recalled that, in its request for the establishment of a panel, India had not even indicated a broader grouping of products, but limited itself to a generic reference to "a broad range of textile and clothing products". In Turkey's view, if such generic reference would be deemed to be sufficient to comply with Article 6.2 of the DSU, the word "specifically" in that provision would be inevitably reduced to redundancy or inutility, thus breaching a fundamental principle of interpretation of international public law. ⁶¹

16. India responded that Article 6.2 of the DSU did not prescribe the manner in which the specific measures at issue were to be identified. Turkey�s interpretation was supported neither by GATT/WTO practice nor by Appellate Body rulings. In most requests for the establishment of a panel made under the GATT and the WTO Agreement, the measures at issue were not identified by date and place of publication nor was the product coverage indicated with precision. The WTO EC � Bananas III case, cited by Turkey in support of its position, was no exception. Close to 100 different regulations made up the EC regime for the importation, sale and distribution of bananas, which applied to over a dozen different products. Both the panel and the Appellate Body examined the totality of this regime, irrespective of whether the regulations at issue were identified in the terms of reference in detail, and neither the panel nor the Appellate Body considered the generic description of the products to which this regime applied to be inconsistent with Article 6.2 of the DSU. ⁶²

17. In India's view, Article 6.2 of the DSU essentially required that the complainant identify clearly the matter in dispute. Details were in most cases irrelevant to its resolution. ⁶³ If Turkey�s interpretation were accepted, Members would only be able to bring complaints about elements of a trade regime whose domestic legal basis and product coverage could be identified with precision at a particular point in time, leaving the authorities of the respondent complete freedom to change a detail of the regime and claim that the new regime was no longer the measure ruled upon by the DSB. Requests for the establishment of a panel on defined aspects of a trade regime had frequently been made in the past and the panels and parties had not found an indication of the domestic legal basis and product coverage as necessary to resolve the disputes. India considered that the possibility to bring complaints on the basis of such requests should remain in the future if the DSU was to serve its purpose.

18. India noted further that the GATT and WTO precedents cited by Turkey did not support its position. For instance, Turkey had quoted the GATT Panel Report on EEC � Imports from Hong Kong. ⁶⁴ During the course of proceedings of this panel, Hong Kong had requested a ruling on a product not mentioned at all in its panel request. There was no parallel there with India�s complaint because India did not request in its first submission a ruling on products that it had not mentioned in its panel request. The panel on the EC � Computer Equipment case had pointed out that the EEC � Imports from Hong Kong s case had to be distinguished from the case in which the complaining party merely elucidated the product coverage already specified in the request for the establishment of a panel. ⁶⁵ India, just like the United States in the EC � Computer Equipment case, merely provided in its first submission details on the present product coverage of measures already identified in the panel request. Finally, Turkey referred to the Appellate Body Report on the EC � Computer Equipment case, in which the Appellate Body recognized that the complaining party might identify the products subject to the measures at issue "by broader grouping", rejecting the European Communities�s claim that each individual product had to be identified with precision. ⁶⁶ However, this Appellate Body ruling supported India�s position that the identification of the measures at issue as the restrictions Turkey imposed as from 1 January 1996 on imports of textiles and clothing from India was sufficiently precise.

19. Turkey recalled Article 22.4 of the DSU, which referred to the "level of nullification and impairment", questioning how such level could be established if the precise product coverage of the dispute was unknown.

20. India made reference to Article 22.6 of the DSU, according to which the level of suspension of concessions, in the case of a failure to comply with recommendations or rulings adopted by the DSB under the procedures of Article 22 of the DSU, should be equivalent to the level of the nullification or impairment. India considered that Turkey's argument that such equivalence could only be determined if the product coverage was precisely determined during the panel proceedings had no merit. The level of suspension to which the complainant was entitled to under Article 22.4 of the DSU obviously depended on the level of nullification or impairment at the time when the failure to comply with the DSU recommendations occurred. India�s rights under Article 22 of the DSU would in the present case thus depend on the nullification or impairment caused by the Turkish measures when the reasonable period for compliance with the DSB recommendations or rulings would have elapsed. Thus, if Turkey were to remove several items from the coverage of its restrictive regime for Indian textile and clothing products, India�s right to suspend concessions or other obligations would be curtailed correspondingly. In India's view, the product coverage at the present time was thus not relevant for the purposes of Article 22 of the DSU. Moreover, any dispute regarding the level of suspension was to be resolved under the separate procedures set out in Article 22.6 of the DSU. There was, therefore, no need to make in the panel proceedings the factual findings that might have to be made in a subsequent Article 22.6 proceeding.

21. Turkey also pointed out that a faulty request for the establishment of a panel could not be "cured" by a complaining party�s argumentation in its written submissions to the panel, in accordance with the findings of the Appellate Body in EC � Bananas III. ⁶⁷ The deficiency of India�s request for the establishment of a panel was therefore a fatal procedural obstacle to carrying this case any further. Any other decision would amount to a violation of Turkey�s essential procedural right as a respondent to be aware of the case held against it which was part of the demands of due process to be preserved by the Panel. ⁶⁸

22. India noted that no issue of a "cure", as implied in Turkey's reference to the Appellate Body ruling in EC � Bananas III, could arise when, as was the case of India�s request for a panel and its first submission, the measures at issue in the request for a panel were the same measures that were referred to in the first submission of the complainant.

23. India concluded that the identification of the measures at issue was sufficiently specific to enable Turkey to prepare its defense and the Panel to resolve the dispute, and it, therefore, met the requirements of Article 6.2 of the DSU.

    2. Arguments by third parties

24. Japan referred to the Japan � Measures Affecting Consumer Photographic Film and Paper case as an additional important precedent for the interpretation of Article 6.2 of the DSU. For the identification of the specific measures at issue in that case, the panel found that a measure not explicitly described in a request for the establishment of a panel, to be regarded as being included in the measures at issue, had to be subsidiary or so closely related to the latter that the responding party could reasonably be found to have received adequate notice. ⁶⁹

25. The Philippines submitted that there was no specific standard on the degree of specificity required in the phrase "identify the specific measures at issue" other than the phrase "sufficient to present the problem clearly", in Article 6.2 of the DSU. In the Philippines view, Turkey, by its own acts, had made it sufficiently clear that it understood the problem clearly, or ought to understand it, as a reasonable party acting in good faith in the context of non-contentious proceedings (as pointed out in Article 3.10 of the DSU). The Philippines also rejected Turkey's argument related to the level of nullification and impairment as having no relevance whatsoever to the identification of the specific measures at issue. The Philippines concluded that India was in compliance with Article 6.2 of the DSU.

To continue with Non-Participation of the European Communities in the Dispute

⁴⁸ See Appellate Body Report on EC � Regime for the Importation, Sale and Distribution of Bananas, adopted on 25 September 1997, WT/DS27/AB/R ("EC - Bananas III"), para. 142. See also Panel Report on EC � Regime for the Importation, Sale and Distribution of Bananas, adopted on 25 September 1997, WT/DS27/R/MEX ("EC - Bananas III"), para. 7.37.

⁴⁹ See Appellate Body Report on India � Patent Protection for Pharmaceutical and Agricultural Chemical Products, adopted on 16 January 1998, WT/DS50/AB/R ("India - Patent"), para. 92.

⁵⁰ See Appellate Body Report on EC - Bananas III, para. 144 (footnote 1).

⁵¹ For a recent example of preliminary rulings issued at the beginning of the first meeting with the parties by the Panel, see Panel Report on Indonesia � Certain Measures Affecting the Automobile Industry, adopted on 2 July 1998, WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R ("Indonesia - Autos"), Section XIV.A, paras. 14.1-9.

⁵² WT/DS34/2, para. 1.

⁵³ DSB meeting of 27 March 1996 (WT/DSB/M/13, dated 13 May 1996); DSB meeting of 24 April 1996 (WT/DSB/M/15, dated 15 May 1996); DSB meetings of 13 February 1998 and 13 March 1998 (WT/DSB/M/42, dated 16 March 1998, and WT/DSB/M/43, dated 8 April 1998); CRTA meeting of 16-18 and 20 February 1998 (WT/REG/M/16, dated 18 March 1998, paras. 140 and 141).

⁵⁴ WT/DSB/M/43, dated 8 April 1998, Item 2, para. 3.

⁵⁵ See Appellate Body Report on India � Patent, para. 94.

⁵⁶ WT/DS34/2, para.1.

⁵⁷ Panel Report on EEC � QRs against Imports of Certain Products from Hong Kong, adopted on 12 July 1983, BISD 30S/129 ("EEC - Imports from Hong Kong"), para. 30.

⁵⁸ See Appellate Body Report on EC � Bananas III, para. 142, footnote 1.

⁵⁹ Appellate Body Report on EC � Customs Classification of Certain Computer Equipment, adopted on 22 June 1998, WT/DS62, 67, 68/AB/R ("EC - Computer Equipment"), para. 67.

⁶⁰ Ibid., para. 70.

⁶¹ See Appellate Body Report on United States � Reformulated and Conventional Gasoline, adopted on 20 May 1996, WT/DS2/AB/R ("US - Gasoline"), p. 23, footnote 45.

⁶² See Panel and Appellate Body Reports on EC � Bananas III (Complaint by the United States).

⁶³ For instance, if a Member complained about the import licensing procedures of another Member, it would normally not be necessary to identify the place and date of publication of the regulation promulgating the procedures and its current product coverage. What was relevant for the resolution of such a dispute was the import licensing procedure as such, not its current domestic legal basis and the particular products to which it applied at a particular point in time.

⁶⁴ See BISD 30S/129

⁶⁵ See Panel Report on EC � Computer Equipment, para. 8.9.

⁶⁶ See Appellate Body Report on EC � Computer Equipment, para. 67.

⁶⁷ See Appellate Body Report on EC � Bananas III, para. 143.

⁶⁸ See Appellate Body Report on India � Patent, para. 94, where it is stated that "the demands of due process � are implicit in the DSU".

⁶⁹ See Panel Report on Japan � Measures Affecting Consumer Photographic Film and Paper, adopted on 22 April 1998, WT/DS44/R.