C. Cuba

1. Introduction

5.87 Cuba indicates that it has a substantial systemic interest in this dispute, which is important for the entire system of trading relations among Members of the Organization. The principle of multilateral decision-making which is the cornerstone of the WTO and on which its functioning is based is the crux of this case.

2. Legal Arguments

5.88  Cuba recalls that all WTO Members have freely accepted to belong to a multilateral system based on rules which must be respected.  To that end, they are obliged to ensure that their domestic legislation is adapted to and meets those rules.  Without the security that all Members will abide by the rules, there can be no certainty of a genuine multilateral system meeting the interests of all.

5.89  Cuba considers that the conflicts stemming from the actions of Members in their mutual relations must be resolved multilaterally and in accordance with the provisions of the Understanding on Rules and Procedures Governing the Settlement of Disputes.   Any unilateral action taken by a country is harmful to the predictability and stability of, and confidence in, the dispute settlement mechanism, as well as being a blatant violation of the WTO principles, objectives and rules and of the commitments entered into in the multilateral negotiating framework.   Various ministerial declarations adopted in this forum bear this out.  Recourse to unilateral measures encourages unilateral responses, which heightens and extends conflicts rather than helping to resolve them.

5.90  Cuba notes that the DSU is the applicable set of rules for making determinations as to whether a Member's law, policy or practice is incompatible with the covered WTO Agreements.  It also establishes provisions governing the application of sanctions against Members that infringe the multilateral rules.

5.91  Cuba argues that Sections 301-310 of the United States Foreign Trade Act of 1974 establish a unilateral procedure for applying sanctions against other States, including WTO Members, where the United States considers that its trade interests are affected.  The time-limits provided for carrying out this procedure are different from, and incompatible with, those laid down in the DSU.  The measures in question are adopted on the basis of unilateral determinations, outside the Dispute Settlement Body, and without its prior authorization.  Their duration is also a matter for unilateral decision by the United States.   The latter thus becomes both judge and party in international trade conflicts.

5.92  Cuba further claims that the WTO system of rules is based on the principles of public international law, of which it is a specialized sub-system.  In this connection, the above-mentioned provisions of the Foreign Trade Act of 1974 violate the principle of sovereign equality of States, one of the central pillars of public international law, according to which in the full exercise of their sovereignty all States enjoy equal rights and at the same time are equally obliged to respect the rules governing their mutual relations.  They also infringe the "pacta sunt servanda" principle governing the implementation of treaties, whereby the signatories to an international agreement must fulfill the agreed provisions.

5.93  Cuba also points out that in the dispute with which Cuba is concerned, another important factor is the particularity of the United States legal system in which national law has primacy over international law in cases where there is a conflict of provisions, regardless of the time at which one was adopted in comparison with the other.   By making domestic law prevail over multilateral law, the United States limits the complete fulfilment of the obligations entered into under international agreements, thereby reducing confidence in its undertakings.

5.94  Cuba further contends that as far as this Organization is concerned, pursuant to Article XVI:4 of the Agreement Establishing the WTO, Members have the responsibility to ensure the conformity of their domestic laws and administrative procedures with their obligations under the covered agreements.  The Foreign Trade Act of 1974 is a violation of this provision.

5.95  In the view of Cuba, the above-mentioned Act ignores the procedures provided for in the DSU, to which all of Members entrust the guardianship of their rights and obligations.  It disregards the undertaking to comply with the principles set out in Article 3, as well as the provisions on surveillance of implementation of recommendations and rulings of the Dispute Settlement Body and compensation or suspension of concessions contained in Articles 21 and 22 of the DSU.

5.96  Cuba argues that by adopting these unilateral measures, the United States weakens the multilateral trading system and disregards Article 23 of the DSU, which provides that Members shall not make a determination as to the existence of a violation or nullification or impairment of benefits, or the attainment of the objectives of the covered agreements, except through recourse to dispute settlement in accordance with the procedures of the DSU.  The above-mentioned legislation also encourages recourse to practices that lie outside the international trade rules, and creates a situation of uncertainty and disrespect for the multilaterally agreed provisions.

5.97  Cuba further alleges that this is a question not only of the existence of the violation caused by the above-mentioned legislation, but also of the ensuing nullification or impairment of legitimate benefits accruing to Members directly or indirectly from the GATT 1994 and membership of the WTO, within the meaning of Article XXIII of the GATT 1994.

5.98  In the opinion of the Republic of Cuba, Sections 301-310 of the Foreign Trade Act of 1974 contribute to establishing a power-based policy in international economic relations, creating an atmosphere of insecurity and unpredictability.

5.99  Cuba notes that in practice, it has seen how far the friction among Members as a result of the application of this Act can lead, and the danger it represents for the stability of the Organization at a time when it is essential to preserve balance and security in order to achieve the objectives that Members have agreed upon multilaterally.

5.100  Cuba then urges the Panel to find that Sections 301-310 of the Foreign Trade Act of 1974 are inconsistent with the WTO rules and at the same time to recommend that the United States Government bring its legislation into line with the obligations imposed upon it as a Member of the Organization.

D. Dominica and St. Lucia

1. Introduction

5.101 Dominica and St. Lucia jointly indicate that the interest of the Commonwealth of Dominica and St Lucia in this case derives from the indirect impact of Section 301 procedures on their rights, and the attainment of the legitimate objectives of the WTO Agreements. It also stems from the important systemic issues raised in the case which threaten the multilateral system on which those without the power either to threaten unilateral measures or to defend themselves against them must depend.

2. Legal Arguments

5.102  Dominica and St. Lucia claim that the actions taken by the United States in the Bananas case are not the subject of the present proceedings. Their interventions on the clear violation of WTO rules with respect to US actions in that regard will be made before another panel. The initial EC complaint, on which this panel is expected to rule, is limited to the compatibility of US law as such with the obligations imposed on the United States by the WTO Agreements. The recent actions of the USTR in the Bananas dispute, however, are instructive in so far as they highlight US administrative practice and show that the strict timetables imposed by Section 301 procedures are in fact mandatory and can lead to conflict with US obligations in the WTO.

5.103  Dominica and St. Lucia argue that the "discretion" given to the USTR to delay action in certain limited circumstances and the never used Presidential discretion are in fact a legal nicety with no bearing on reality. The expectations of economic actors in the market place are not built upon the technical distinction between "compulsory" and "mandatory" in US domestic law.

5.104  Dominica and St. Lucia note that the USTR announcement on March 3rd, of the immediate withholding of customs liquidation and possible retroactive imposition of 100% duties on targeted EC imports, in spite of the "Initial Decision" of the Arbitration Panel that it required further time to make a determination in the case, is clear evidence of the USTR's interpretation of the legislation that precedence must be accorded to US domestic timetables over international rules of due process.

5.105  Dominica and St. Lucia claim that the trade measures taken by the United States in the Bananas dispute have clearly shown that US domestic law will not be constrained by WTO timetables.

5.106  Dominica and St. Lucia contend that the pressures imposed on WTO dispute settlement procedures and the complexities of particular cases have led the Dispute Settlement Body to adopt a flexible approach to time limitations specified in the DSU.  Section 301 procedures, however, do not provide sufficient flexibility for upholding the multilateral system.  They do not allow the United States to comply with the rules of the DSU and other WTO obligations in situations where the DSB has, by the end of those time limits, not made a prior determination that the WTO Member concerned has failed to comply with its WTO obligations and has not authorized the suspension of concessions or other obligations on that basis.

5.107  In the view of Dominica and St. Lucia, the strengthened multilateral system and judicialisation of the dispute settlement process were designed to promote the 'international rule of law'. The rule of international law requires that governments act under that law.

5.108  For Dominica and St. Lucia, Article XVI:4 of the Marrakesh Agreement requires each Member to "ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed [WTO] agreements".  The US domestic implementing legislation, the Uruguay Round Agreements Act of 1994 (URAA), explicitly states (in section 102(a)) that the Act shall not be construed to limit Section 301 authority.  Section 301 procedures were not designed to promote the security and predictability of the multilateral trading system.  Given the economic and political power of the United States, Section 301 procedures are in effect a sword of Damocles hanging over us all.

5.109  Dominica and St. Lucia recall that the basic notion behind the multilateral approach to retaliation was espoused half a century ago by the drafters of the Havana Charter. It was designed to "tame retaliation, to discipline it, to keep it within bounds ..., to convert it from a weapon of economic warfare to an instrument of international order". (UN Doc. E/PC/T/A/PV6, page 4) In the Bananas dispute at every step of the way there was the veiled threat of US unilateral action.

5.110  In support of this argument, Dominica and St. Lucia contend that the use of Section 301 procedures is widely associated with the threat of WTO-illegal action.⁵⁵⁴ Dominica and St. Lucia note that "veiled threats" are, by very definition, usually not documented. In light of this, Dominica and St. Lucia provided two letters as primary evidence of their assertion and further supplemental background materials on the Bananas crisis and the threat posed to the multilateral system by USTR rigid adherence to Section 301 timetables.⁵⁵⁵

5.111  In the view of Dominica and St. Lucia, Article 22.6 of the DSU clearly states that "[c]oncessions or other obligations shall not be suspended during the course of the arbitration". A deadline for retaliation which precedes the completion of arbitration proceedings is evidence of 'aggressive unilateralism'.

5.112  In response to the Panel's question regarding the relevance of a specific case under Section 301, Dominica and St. Lucia state that a panel has a duty to review all relevant evidence. As such, this Panel must take legal notice of US actions leading to the suspension of concessions in the Bananas case to the extent that it is evidence germane to the 'matter' referred to it by the DSB.

5.113  Dominica and St. Lucia recall that the "matter" referred to the Panel consists of two elements: "the specific measures at issue and the legal basis of the complaint (or the claims)".⁵⁵⁶ Taken together these elements constitute the dispute which is properly before the panel as defined in its terms of reference: "A panel's terms of reference are important for two reasons. First, terms of reference fulfil an important due process objective -- they give the parties and third parties sufficient information concerning the claims at issue in the dispute in order to allow them an opportunity to respond to the complainant's case. Second, they establish the jurisdiction of the panel by defining the precise claims at issue in the dispute".⁵⁵⁷

5.114  Dominica and St. Lucia point out that although measures not explicitly mentioned in a complaint may nevertheless be covered by a panel's terms of reference, "it seems clear that a 'measure' not explicitly described in a panel request must have a clear relationship to a 'measure' that is specifically described therein, so that it can be said to be 'included' in the specified 'measure'".⁵⁵⁸ Similarly, claims which a panel is entitled to consider should also be stated in the panel request. A distinction is made, however, between "actions", on the one hand, and "measures" and "claims", on the other.⁵⁵⁹

5.115  According to Dominica and St. Lucia, it is one thing to submit to a panel the examination of a particular measure claiming that that measure does not conform to the WTO obligations of a Member. It is another, completely different thing to submit to a panel the existence of a specific action of a Member as evidence supporting the claims with respect to the "matter" which is properly before the panel. The first hypothesis is the case of the "Import Measures" panel. The second, is the "Section 301" panel procedure.

5.116  Dominica and St. Lucia argue that there should be no question of confusion, or overlap or even divergence. This Panel may take legal notice of the US actions leading to the suspension of concessions in the Bananas case as pertinent evidence for the interpretation of Sections 301-310 as such. Whether US actions in this regard are themselves in conformity with US obligations under the WTO Agreements will be addressed by another panel and it is not required that this Panel rule on that issue.

5.117  Dominica and St. Lucia argue that the terms of reference of this Panel call for an examination of the specific claims stated by the complainant in WT/DS152/11. The EC complaint is limited to the compatibility of US law as such with the obligations imposed on the United States by the WTO Agreements. Where municipal law is examined as evidence of compliance or non-compliance with international obligations, it is within the competence of an international tribunal to review evidence on whether or not, in applying that law, the Executive is acting in conformity with its obligations under international law.⁵⁶⁰ In such a case, legislation cannot be assessed in abstract.

5.118  Dominica and St. Lucia note that the European Communities refers to US actions leading to the suspension of concessions in the Bananas case as confirming "what the text of Section 306(b) indicates, namely that the USTR must implement the further action decided upon irrespective of whether that action conforms to the requirements of Article 22 of the DSU". Dominica and St. Lucia assert that US actions in the Bananas dispute highlight US administrative practice and show that the strict timetables imposed by Section 301 procedures are in fact mandatory and can lead to conflict with US obligations in the WTO. The mere fact that certain of these actions are now subject to review by another panel does not preclude this Panel from taking legal notice of all relevant evidence.

5.119  In response to the US inquiry, Dominica and St. Lucia state that a series of reports to Congress on 'Section 301' developments as required by section 309(a)(3) of the Trade Act of 1974 chronicle the implementation of Section 301 mandates in the Bananas case. The term "Section 301" is generally used as shorthand for Chapter 1 of Title III of the Trade Act of 1974, as amended, which covers Sections 301-310, the subject of the EC complaint.

5.120  Dominica and St. Lucia point out that with regard to the March 3^rd announcement, the USTR made clear in a public notice requesting comments on anticipated US action as required under Sections 301-310 that:

"Given that the reasonable period of time for the EC's implementation of the WTO recommendations concerning the EC banana regime expires on January 1, 1999, the USTR must make the determination required by section 306(b) no later than January 31, 1999, and, in the event of an affirmative determination, must implement further action no later than 30 days thereafter".⁵⁶¹

5.121  Dominica and St. Lucia argue that although the March 3^rd announcement does not explicitly refer to Section 301 authority, this does not infer that the March 3^rd announcement "did not involve Section 301".

5.122  Dominica and St. Lucia note that a number of GATT/WTO panels have examined complaints by different contracting parties involving the same or similar measures of a responding party. To the extent that there is overlap in the scope of review panels have taken into account the reasoning in previous panel and Appellate Body reports. Additionally, the Appellate Body has been mindful of its role in providing security and predictability to the multilateral system through ensuring consistency and coherence in WTO jurisprudence.

5.123  Dominica and St. Lucia claim that the task of this Panel is to make an objective assessment of the matter before it, including an objective assessment of the facts of the case.⁵⁶² Even where there are multiple complaints related to the same matter the DSU does not circumscribe the jurisdiction of any panel(s) established to examine the complaints. Article 9 of the DSU on 'Procedures for Multiple Complainants' is "a code of conduct for the DSB because its provisions pertain to the establishment of a panel, the authority for which is exclusively reserved for the DSB".⁵⁶³ Neither Article 9 nor any other provision of the DSU authorizes a panel to retroactively redefine the scope of its review simply because another panel has been established to examine related issues. The jurisdiction of a panel is defined at the moment at which it becomes seised of a 'matter'. Events occurring subsequent to this should not be presumed to exclude from a panel's consideration evidence which would otherwise be deemed relevant.⁵⁶⁴

5.124  Dominica and St. Lucia then conclude that the establishment of a panel to review certain US actions leading to the suspension of concessions in the Bananas case involves procedural considerations which do not diminish the responsibility of this Panel to make an objective assessment of the matter before it, including an objective assessment of all relevant evidence adduced in the case.

5.125  Dominica and St. Lucia further contend that WTO/GATT jurisprudence suggests that the GATT and the GATS covers both de jure and de facto breaches; viz. the issue is not whether regulations on the face of it comply with WTO rules but whether as administered they in fact do.

5.126  Dominica and St. Lucia note that when one's livelihood and survival depends on something, it is impossible to ignore the frightening ramifications of a situation in which what a powerful country "considers" to be WTO-compatible or incompatible may be even more important than what the multilateral system determines.

5.127  Dominica and St. Lucia then respectfully request the Panel to find that the challenged Section 301 procedures are inconsistent with US obligations under the WTO Agreements and recommend that the DSB request the United States to bring its Trade Act of 1974 into conformity with its WTO obligations.

5.128  In response to the Panel's question as to whether DSU Article 23.2 prohibits any determination on WTO consistency or any determination to the effect that a violation has occurred, Dominica and St. Lucia state that Article 23.2(a) of the DSU prohibits WTO Members from making "a determination to the effect that a violation has occurred, that benefits have been nullified or impaired or that the attainment of any objective of the covered agreements has been impeded, except through recourse to dispute settlement in accordance with the rules and procedures of this Understanding". The preambular words of Article 23.2 refer to "such cases" as addressed in Article 23.1. Article 23.1 concerns actions taken to redress measures which violate WTO rules or otherwise impede the attainment of any objective of the WTO agreements.

5.129  Dominica and St. Lucia further argue that Article 23, read in its context,⁵⁶⁵ suggests that the strengthened multilateral system proscribes any unilateral determination on WTO consistency which has consequences for other WTO Members without respect for due process.

5.130  In the view of Dominica and St. Lucia, a multilateral determination on WTO consistency is a necessary and central element in providing security and predictability in the implementation of WTO rules. The Appellate Body Report on the EC – Bananas III case emphasizes that "with the increased interdependence of the global economy, which means that actions taken in one country are likely to have significant effects on trade and foreign direct investment flows in others, Members have a greater stake in enforcing WTO rules than in the past since any deviation from the negotiated balance of rights and obligations is more likely than ever to affect them, directly or indirectly".⁵⁶⁶ If every Member has a stake in enforcing WTO rules then no unilateral determination on WTO consistency which in any way prejudices the rights of other Members is permissible, except through recourse to the rules and procedures of the DSU.⁵⁶⁷

5.131  Dominica and St. Lucia contend that Article 3.7 of the DSU exhorts a Member before bringing a case to exercise its judgement as to whether action under dispute settlement procedures would be fruitful. This is likely to entail an assessment of the WTO-consistency of measures taken by another Member. Such a preliminary determination per se would not be a "determination" on WTO consistency in violation of Article 23 as it should not preclude other Members from challenging the legitimacy of the measures in question.

5.132  Dominica and St. Lucia are of the view that legislation merely facilitating such a "determination", however, must be distinguished from legislation which triggers retaliatory action where one "considers" non-implementation to have occurred. The "threat advantage" of WTO-illegality undermines the fundamental objectives of Article 23 of the DSU. The very fact that a determination must be made whether or not WTO rules are being infringed holds other WTO Members to ransom.

5.133  Dominica and St. Lucia then argue that the strengthened multilateral system requires that Members have recourse to, and abide by, the rules and procedures of the DSU. The principle of 'automaticity' ensures that the strengthened multilateral system will function. The wheels of justice may, at times, turn slowly but the multilateral determination on WTO consistency should be, at all times, all important. If the unilateral determinations of a WTO Member are viewed as of greater significance, then the multilateral system is threatened.

5.134  In the view of Dominica and St. Lucia, Article 23.2(a) of the DSU effectively prohibits Members to take any determination on WTO consistency with consequences for the multilateral system without recourse to dispute settlement in accordance with the rules and procedures of the DSU.

5.135  Dominica and St. Lucia, in response to the Panel's question as to whether an official US statement binding in international law that the US government will not exercise its discretion in a way contrary to WTO rule remove the WTO inconsistency of Sections 301-10 on the assumptions that the USTR and the President have the discretion to avoid determinations and actions contrary to WTO rules in all circumstances, and that, nevertheless, Sections 301-310 were found inconsistent with WTO rules, state that such an official US statement, whether or not binding in international law, would not remove the WTO inconsistency. The binding nature of unilateral declarations is a matter of wide jurisprudential debate. Article 38 of the Statute of the International Court of Justice (ICJ) refers to international conventions, whether general or particular; international custom, as evidence of a general practice accepted as law; general principles of law; and other subsidiary means for the determination of rules of law. It does not mention unilateral declarations.

5.136  Dominica and St. Lucia explain that Article 38 of the ICJ Statute, arguably, is not an exhaustive statement of the sources of international law. The Nuclear Test cases⁵⁶⁸ and Frontier Dispute case⁵⁶⁹ suggest that in certain limited circumstances an official statement, if given publicly, with the clear intent of binding a State to a particular course of conduct will be upheld by an international tribunal. Appellate Body reports increasingly refer to general international law principles as applied in the case law of the ICJ. This 'cooperation among international courts' and 'cross-fertilization' of legal systems enhances the legitimacy, consistency and political acceptability of WTO dispute settlement rulings.⁵⁷⁰ The Nuclear Test cases and Frontier Dispute case, however, stand as the exception rather than the rule. It is widely believed that, "States don't mean what they say, and don't say what they mean". It therefore seems questionable whether the existing degree of legal insecurity surrounding Section 301 procedures would be removed by an official US statement.⁵⁷¹

5.137  Dominica and St. Lucia recall that Article 3.7 of the DSU suggests that "[t]he aim of dispute settlement mechanism is to secure a positive solution to a dispute". A positive solution is one which promotes the security and predictability of the multilateral trading system. An official statement that the US government will not exercise its discretion in a way contrary to WTO rules seems hardly adequate in light of the clear pressure which may be applied on the Executive in individual cases. The "threat advantage" of WTO-illegality is further bolstered by section 102(a) of the Uruguay Round Agreements Act of 1994 (URRA), which explicitly provides that the Act shall not be construed to limit Section 301 authority. The debates on the legislation which evidence Congressional intent further reinforce this view. Statements of the USTR at the time show the Executive's clear concurrence:

"Just as the United States may now choose to take Section 301 actions that are not GATT-authorized, governments that are the subject of such actions may choose to respond in kind. That situation will not change under the Uruguay Round Agreements. The risk of counter-retaliation under the GATT has not prevented the United States from taking actions in connection with such matters as semiconductors, pharmaceuticals, beer, and hormone-treated beef".⁵⁷²

5.138  Dominica and St. Lucia then argue that a positive solution is one which removes the "threat advantage" in the administration of Section 301 procedures. It is one which provides the secure basis on which those without the power either to threaten unilateral measures or to defend themselves against them must depend.

5.139  Dominica and St. Lucia state that the suggestion that an official statement may be sufficient to comply with the mandates imposed in Article XVI:4 of the Marrakesh Agreement that "[e]ach Member shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreements", indeed, could create an even more fundamental problem than the one this Panel is now addressing.

5.140  Dominica and St Lucia add that both of them are parliamentary democracies with dualist legal systems. No legislation has been passed specifically directing Executive action on making determinations regarding WTO rights and obligations before panel and Appellate Body reports have been adopted. Additionally, the Commonwealth of Dominica and St Lucia have not been a complainant or respondent in WTO dispute settlement proceedings, nor initiated consultations under the DSU. Where the Commonwealth of Dominica and St Lucia have requested to be joined in consultations they have sought to protect their interests through recourse to the rules and procedures of the DSU.

TO CONTINUE WITH UNITED STATES – SECTIONS 301-310 OF THE TRADE ACT OF 1974

⁵⁵⁴ Dominica and St. Lucia cite, e.g. David Palmeter, "A Few - Very Few - Kind Words for Section 301", in Philip Ruttley, Ian Mac Vay & Carol George, eds., The WTO and International Trade Regulation (London: Cameron May, 1998) 123, indicating at 124: "Section 301 was, and to many, still is, notorious.  It is the vehicle by which the United States is perceived, with an extremely high degree of accuracy, to pursue whatever threat advantage it possessed.  Section 301,it is safe to say, embodies few principles of justice, Rawlsian or otherwise".

⁵⁵⁵ Dominica and St. Lucia submitted WT/DSB/M/54, p. 4; WT/GC/M/37, pp. 3-4; WT/DSB/M/53; WT/DSB/M/59; Guy de Jonquieres, "Bananas and beef take trade conflict to the brink", Financial Times, 22/10/98, p.8; Frances Williams, "US steps up banana battle with EU", Financial Times, 22/10/98, p.8; Guy de Jonquieres, "Nerves are taut as leaders hint at an EU-US trade war", Financial Times, 9/11/98, p.3; Guy de Jonquieres, "Trade war edges closer as US plans action against EU exports", Financial Times, 9/11/98, p.22; "The US and EU go Bananas", Financial Times, 11/11/98, p.19; Neil Buckley, "Brussels rejects US banana peace offer", Financial Times, 20/11/98, p.5.

⁵⁵⁶ Guatemala - Anti-dumping Investigation Regarding Portland Cement from Mexico, adopted on 25 November 1998,WT/DS60/AB/R, para. 72.  See also DSU, Article 6.2.

⁵⁵⁷ Appellate Body Report on Brazil – Measures Affecting Dessicated Coconut, adopted on 20 March 1997, WT/DS22/AB/R, p. 21.

⁵⁵⁸ Panel Report on Japan - Measures Affecting Consumer Photographic Film and Paper, adopted on 22 April 1998, WT/DS/44/R, para. 10.8. Dominica and St. Lucia also cite, e.g. Appellate Body Report on EC – Bananas III, op. cit., para. 142; Appellate Body Report on Australia – Measures Affecting the Importation of Salmon ("Australia – Salmon"), adopted 6 November 1998, WT/DS18/AB/R, op. cit., paras. 90-105; Panel Report on Argentina – Safeguard Measures on Imports of Footwear, circulated 25 June 1999, WT/DS121/R, paras. 8.23-8.46.

⁵⁵⁹ Dominica and St. Lucia cite e.g. Appellate Body Report on Guatemala - Cement, op. cit., paras. 69-73, 84-86.

⁵⁶⁰ Dominica and St. Lucia refer to Appellate Body Report on India – Patents (US), op. cit., paras. 65-66, citing Certain German Interests in Polish Upper Silesia [1926], PCIJ Rep., Series A, No.7, p.19.

⁵⁶¹ Federal Register, Vol. 63, No.204, Thursday, 22 October 1998, pp. 56688 and 56689.

⁵⁶² See DSU, Article 11.

⁵⁶³ Panel Report on India – Patents (EC), op. cit., para. 7.14.

⁵⁶⁴ Dominica and St. Lucia note that GATT/WTO jurisprudence affirms the legitimacy of using updated information concerning the same measures to inform an assessment of the substantive complaint before a panel, e.g. Panel Reports on Korea - Beef, all adopted on 7 November 1989 (BISD 36S/202, 234 and 268), paras. 99-101, 115-117, 121-123).

⁵⁶⁵ Dominica and St. Lucia point out that for example, Article 3 of the DSU also underscores the precedence of the multilateral system over the positions adopted by individual Members.  Article 3.6, for example, provides that where the parties to a dispute achieve a mutually agreed solution to matters formally raised under the consultation and dispute settlement provisions of the covered agreements, this shall be notified to the DSB and the relevant Councils and Committees, where any Member may raise any point relating thereto.  As such, even where there is a mutually agreed solution between parties to a dispute this is subject to multilateral review.

⁵⁶⁶ Appellate Body Report on EC – Bananas III, op. cit., para. 7.50.

⁵⁶⁷ Dominica and St. Lucia note that the Uruguay Round Agreements essentially deny a right of auto-interpretation in the multilateral trading system.  Article IX:2 of the Marrakesh Agreement complements Article 23 of the DSU; see also DSU, Article 3.9.  The strengthened multilateral system empowers the collective will to make "determinations" not individual Members.  Significantly, the Appellate Body report on Japan - Alcoholic Beverages, op. cit., Section E states: "The fact that such an 'exclusive authority' in interpreting the treaty has been established so specifically in the WTO Agreement is reason enough to conclude that such authority does not exist by implication or by inadvertence elsewhere".

⁵⁶⁸ (Australia v. France; New Zealand v. France) ICJ Rep. 1974, pp.253, 457, esp. paras. 43-45; but see Sir Garfield Barwick J., diss. op. See also Legal Status of Eastern Greenland (Denmark v. Norway) (1933) PCIJ Rep., Series A/B, No. 53, Anzilotti J., diss. op.

⁵⁶⁹ ICJ Rep. 1986, p.554 at p.573.

⁵⁷⁰ Dominica and St. Lucia cite Ernst-Ulrich Petersmann, "Dispute Settlement in International Economic Law - Lessons for Strengthening International Dispute Settlement in Non-Economic Areas" (1999) 2 J.I.E.L. 189 at 209.

⁵⁷¹ Dominica and St. Lucia also cite Panel Report on India – Patents (US), op. cit., paras. 63-71 on the need to provide a sound legal basis for implementing WTO obligations.

⁵⁷² SSA, 367, 1994 USCCAN at 4321.