|
||
|
TWN
Info Service on WTO and Trade Issues (Dec23/11) Geneva, 15 Dec (D. Ravi Kanth) — India has appealed to the Appellate Body a dispute panel ruling on the tariff treatment on certain goods in the information and communications technology (ICT) sector on grounds of “alleged errors of law and legal interpretation by the Panel in its report.” The dispute was raised by the European Union against India’s tariff treatment on certain goods in the ICT sector. In its appeal to the Appellate Body filed on 8 December, and circulated to WTO Members on 14 December, India argued that “the Panel has committed legal errors in Sections 2.2 and 3.2 of its Decision dated 7 July 2021.” India said the panel erred in its interpretation and application of Articles 8.6 and 8.7 of the Dispute Settlement Understanding (DSU), in so far as the Panel found that its composition was not in violation of the said Articles of the DSU. According to India, the Panel erred on several grounds such as: (a) The panel did not allow India to adequately pursue its claims and establish the facts in the proceedings in the substantive meetings, thereby violating India’s due process rights in the proceedings. (b) Article 8 of the DSU contains a hierarchy of procedure, whereby a party can request the Director-General (“DG”) to compose a Panel under Article 8.7 only when the parties to the dispute, having first followed the steps outlined in Article 8.6, are unable to agree on the composition of the Panel. As the Panel has noted, “the main responsibility for the composition of a panel rests with the parties and, in certain circumstances, with the Director-General”. Such responsibility for the composition of parties can only be fulfilled by the Parties via procedures under Article 8.6 of the DSU. It is only when the parties are unable to do so through Article 8.6, that recourse to the composition of the Panel through Article 8.7 may be taken. (c) Article 8.6 places a “positive obligation” on the Secretariat to propose nominations for a panel to the parties, as reflected in the use of the term “shall” in that provision. However, the Secretariat did not propose the names of potential panelists despite India’s requests. (d) Article 3.10 of the DSU provides that the “Members will engage in these proceedings in good faith in an effort to resolve the dispute”. The EU has not acted in good faith by altogether bypassing any attempt at a mutual selection of the Panellists, and by directly approaching the DG for the composition of the Panel. (e) the Panel has erroneously concluded that it has no basis in Article 8.7 or generally in the DSU that would allow it, in this case, to review the propriety of the Panel’s composition, as determined by the DG by the discretionary authority conferred by Article 8.7. Article 1.1 of the DSU provides that the DSU is applicable to disputes brought pursuant to dispute settlement provisions of the covered agreements. Appendix 1 of the DSU lists the DSU itself as a covered agreement. Article 3.2 entrusts the Panel to “preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements by customary rules of interpretation of public international law.” Thus, Article 1.1 of the DSU read with Article 3.2 of the DSU provides the Panel with the basis to interpret Article 8.7 of the DSU. Further, the reports cited by the Panel in support of its position do not apply to the facts of the case. The Panels were faced “with an objection to the propriety of their composition – determined by the Director-General under Article 8.7…” As opposed to previous Panels, where the propriety of the Panel was challenged on grounds such as the nationality of Panelists, the objectivity and independence of the Panel, and the application of DSU provisions by the DG – all of which relate to how the discretion by the DG has been exercised. Rather, the issue in the case is whether the procedure under the DSU has been followed before the discretion was exercised by the DG. A ruling by the Panel regarding the procedural aspects of the dispute would be in consonance with Article 1.1 of the DSU. (f) The panel has inherent powers to determine its jurisdiction. The principle of competence de la competence is a well-established principle in the WTO. The Panel dismisses India’s argument, stating that it cannot be assumed that deficiencies in the Panel composition process under Articles 8.6 or 8.7, would bear on whether the Panel has “validly established jurisdiction”. Further, the Panel has dismissed India’s reliance on Mexico – Corn Syrup (Article 21.5 – US) and US – 1916 Act, on the basis that the “need for panels to verify the validity of their jurisdiction were not made in the context of allegations of deficiencies in the panel composition process”. The Panel erred because the competence/ability of the Panel to decide its jurisdiction encompasses the competence/ability of the Panel to decide whether its composition was valid. For the above reasons, India asked “the Appellate Body to reverse or set aside the Panel’s conclusions as well as the Panel’s legal interpretations contained in paragraphs 2.4 to 2.11 and 3.10 to 3.19 of its Decision dated 7 July 2021 enclosed as Annex E-2 to the Panel Report.” +
|
||
