Sample WTO Case Law Index

* Explanation of WorldTradeLaw.net's WTO Case Law Index *

For many years, the GATT Analytical Index was the primary resource used to research GATT case law.  In order to provide a similar research tool for WTO disputes, where the number and complexity of the decisions has grown considerably, we have taken a different approach, making use of the Dispute Settlement Commentaries we prepare for each decision.  Our WTO Case Law Index works as follows.  For each WTO legal provision (e.g., AD Agreement Article 2.1, TRIPS Agreement Article 13, etc.) or legal term or concept (e.g., Consultations, Deadlines, Standing, etc.), we indicate the relevant WTO panel reports, Appellate Body reports or arbitrations.  For example, to identify cases that address TRIPS Agreement Article 3.1 (National Treatment), you would simply locate that provision in the Index.  The relevant cases are then listed in hyperlink form (these links open up the Dispute Settlement Commentary for that case).  Next to the case name as listed in the index, we provide a parenthetical explanation that indicates the manner in which this legal provision or term arose.  Once you have clicked on a hyperlink and entered a DSC, simply click on the relevant item in the table of contents.  In addition, following the description of the findings or reasoning, references to the relevant paragraphs are provided.  These paragraph references are a link to the first page in the actual case where the issue was discussed.

Our Index is the most up-to-date resource available.  We complete a Dispute Settlement Commentary within 1-3 weeks of the circulation of each new decision, and update the Index to reflect developments in the new decision immediately thereafter.

Some sample index entries are provided below (updated as of June 30, 2006).  The sample entries include all of the cases that discuss amicus submissions, as well as the cases that discuss selected TRIPS Agreement provisions.  Please note that most of the DSCs listed are available only to subscribers, so they will not be available as samples.  The cases listed below that are available as free samples are: EC - Asbestos (AB), EC - Asbestos (Panel), and Canada - Pharmaceuticals (Panel).

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A                        (Excerpt Only)    

Amicus Submissions

  • EC - Customs Matters (Panel) (Decided not to admit a letter self-described as amicus curiae because, inter alia, "it was filed too late and its admission would have unduly delayed the Panel's proceedings." See para. 7.76, fn. 209)
  • U.S. - "Zeroing" (Panel) (After inviting the parties and third parties to express their views on how the Panel should handle an amicus curiae brief it received, Panel decided that "it would not further consider the arguments in the [amicus] brief except to the extent that the parties reflected those arguments in their written submissions and/or oral statements." See para. 1.7)
  • Mexico - Taxes on Soft Drinks (AB) (Appellate Body received an amicus curiae brief from the National Chamber of the Sugar and Alcohol Industries of Mexico, but "did not find it necessary to take the brief into account in resolving the issues raised in this appeal." See para. 8)
  • EC - Chicken Classification (AB) (Appellate Body received an amicus curiae brief from the Association of Poultry Processors and Poultry Trade in the European Union Countries (avec), but did "not find it necessary to take the brief into account in resolving the issues raised in this appeal." See para. 12)
  • EC - Sugar Subsidies (AB) (Appellate Body received an amicus curiae brief from the Association of Central American Sugar Industries (Azucareros del Istmo Centroamericano (AICA)), but "did not find it necessary to take this amicus curiae brief into account." See para. 9)
  • EC - Sugar Subsidies (Panel) (Panel decided "not to consider further the amicus curiae from WVZ because, inter alia, it is based on confidential information [in one of Brazil's submissions] and is thus evidence of a breach of confidentiality which disqualifies the credibility of the authors." See para. 2.20 and paras. 7.76-85 of panel report in complaint by Australia; para. 2.20 and paras. 7.76-85 of panel report in complaint by Brazil; para. 2.20 and paras. 7.76-85 of panel report in complaint by Thailand)
  • U.S. - Lumber ITC Investigation (Panel) (After receiving an unsolicited amicus curiae brief, the Panel stated: "... we decided not to accept unsolicited amicus curiae submissions in the course of this dispute"; however, the Panel said that it "would consider any arguments raised by amici curiae to the extent that these arguments were taken up in the written submissions and/or oral statements of any party or third parties," and it observed, "as a consequence of our decision in this regard, the [amicus submission] ... does not form part of the record in this dispute."  See para. 7.10, fn. 75)
  • U.S. - Lumber CVDs Final (AB) (The Appellate Body "did not find it necessary" to take into account two amicus submissions received.  See para. 9)
  • U.S. - Lumber CVDs Final (Panel) (Panel stated, "prior to the first substantive meeting we ruled, in respect of three unsolicited amicus curiae briefs that were sent to us, that we would consider any arguments raised by amici curiae only to the extent that those arguments were taken up in the written submissions and/or oral statements of any party or third party." See para. 7.1, fn. 75)
  • U.S. - Steel Safeguards (AB) (Stated that, "the [amicus] brief [at issue] was directed primarily to a question that was not part of any of the claims. We did not find the brief to be of assistance in deciding this appeal." See paras. 9-10 and para. 268)
  • U.S. - CVDs on EC Products (AB) (After considering the views of the participants, decided not to take an amicus submission into account, noting that it did not find the submission to be "of assistance" in the appeal. See paras. 9-10 and para. 76)
  • U.S. - Lumber CVDs Prelim (Panel) (One amicus submission accepted; three amicus submissions rejected as untimely. See para. 7.2)
  • EC - Sardines (AB) (Appellate Body stated that it has the authority to accept amicus submissions from a "private individual" and from Morocco, a WTO Member, but said that these submissions "do not assist us in this appeal." See paras. 153-170 and para. 314)
  • U.S. - Shrimp, Article 21.5 (AB) (An amicus submission attached to participant's submission taken into account to the extent incorporated in participant's arguments; a second amicus submission was not taken into account. See paras. 75-78)
  • U.S. - Shrimp, Article 21.5 (Panel) (An amicus submission attached to party's submission taken into account; a second amicus submission was not taken into account. See paras. 5.14-16)
  • Thailand - Steel (AB) (Amicus submission rejected, based in part on allegations of breach of confidentiality. See paras. 62-78)
  • EC - Asbestos (AB) (Special procedures developed for amicus submissions; all amicus submissions received were rejected. See paras. 50-57)
  • EC - Asbestos (Panel) (Two amicus submissions taken into account; two rejected; one rejected as untimely. See paras. 8.12-14)
  • EC - Bed Linen (Panel) (Panel found it unnecessary to take into account amicus submission. See para. 6.1, fn. 10)
  • U.S. - Copyright (Panel) (Panel did not rely on letter sent to USTR and copied to Panel. See paras. 6.3-8)
  • U.S. - Lead Bars (AB) (Appellate Body may accept amicus submissions; found it unnecessary to take into account the amicus submissions received in this proceeding. See paras. 36-42)
  • U.S. - Lead Bars (Panel) (Amicus submission rejected as untimely. See para. 6.3)
  • Australia - Salmon, Article 21.5 (Panel) (Amicus submission accepted. See paras. 7.8-9)
  • U.S. - Shrimp (AB) (Panels may accept amicus submissions; parties may attach amicus submissions to their own submissions; participants in appellate proceedings may attach amicus submission to their own submissions. See paras. 79-91 and paras. 99-110)
  • U.S. - Shrimp (Panel) (Panels may not accept amicus submissions -- reversed on appeal; parties may attach amicus submissions to their own submissions. See paras. 7.7-8)

 

T                       (Excerpts Only)     

 TRIPS Agreement 

       .     .     .

Article 9 (Copyright and Related Rights under the Berne Convention)

  • U.S. - Copyright (Panel) (Discussed in the context of the "minor exceptions" doctrine; incorporation into the TRIPS Agreement of Berne Convention Articles 11 and 11bis and their entire acquis, including the minor exceptions doctrine. See paras. 6.42-70)

Article 13 (Exceptions to Copyright Protections)

  • U.S. - Copyright (Panel) (Article 13 provides for exceptions of only a limited nature; found that "homestyle exemption" under the U.S. law at issue was justified under Article 13, while the "business exemption" failed to meet the Article 13 criteria. See paras. 6.71-272)

Article 15 (Protectable Subject Matter Relating to Trademarks)

Article 15.1 (Protectable Trademarks)

  • U.S. - Section 211 (AB) (Article 15.1 simply defines the types of signs that are eligible for trademark; it does not establish an obligation that Members must award registrations to all signs that meet the Article 15.1 criteria. See paras. 149-178)
  • U.S. - Section 211 (Panel) (Because the measure at issue deals with the "ownership" of a trademark, the measure is justified as one of the "other grounds" for denial of a trademark under Article 15.2. See paras. 8.42-70)

Article 15.2 (Denial of Trademark Registration on Other Grounds)

  • U.S. - Section 211 (AB) ("Other grounds" are not limited to grounds expressly provided for in the exceptions contained in the Paris Convention or the TRIPS Agreement. See paras. 149-178)
  • U.S. - Section 211 (Panel) (Because Section 211 is domestic legislation that deals with the "ownership" of a trademark, it is justified as one of the "other grounds" for denial of a trademark under Article 15.2. See paras. 8.42-70)

Article 16 (Rights Conferred on Trademarks)

Article 16.1 (Rights Conferred on Trademarks)

  • EC - Trademarks / GIs (Panel) (Concluded that, "with respect to the coexistence of GIs with prior trademarks, the Regulation is inconsistent with Article 16.1 of the TRIPS Agreement ... "; however, found that the Regulation is justified under the Article 17 exception; also stated that Articles 24.3 and 24.5 are "inapplicable." See paras. 7.516-686 of panel report in complaint by Australia; paras. 7.512-688 of panel report in complaint by U.S.; rejected Australia's claims that the Regulation is inconsistent with TRIPS Agreement Article 16.1 because (1) "it does not ensure that objections to registration are admissible on the grounds that use of the GI would result in a likelihood of confusion," and (2) it does not ensure that they will be "considered" by the "ultimate decision maker," that is, the regulatory committee of EC member States. See paras. 7.694-704 of panel report in complaint by Australia; rejected Australia's claims in respect of existing individual registrations under TRIPS Agreement Articles 16.1, 22.2, 41.1, 41.2, 41.3 and 42 and GATT Article III:4, concluding that "Australia has failed to make a prima facie case in support of its claims with respect to individual registrations." See paras. 7.737-751 of panel report in complaint by Australia)
  • U.S. - Section 211 (AB) (Article 16 confers an "internationally agreed minimum level" of "exclusive rights" on the owner of a registered trademark; because the measure at issue deals with a determination of ownership, it does not violate Article 16.1. See paras. 179-202)
  • U.S. - Section 211 (Panel) (Article 16 requires that certain rights be conferred on the "owner" of a mark; because Section 211 deals with a threshold determination of ownership, it does not violate Article 16.1. See paras. 8.103-112 and paras. 8.149-159)

Article 17 (Exceptions to Trademark Rights)

  • EC - Trademarks / GIs (Panel) (Concluded that, "with respect to the coexistence of GIs with prior trademarks, the Regulation is inconsistent with Article 16.1 of the TRIPS Agreement ... "; however, found that the Regulation is justified under the Article 17 exception; also stated that Articles 24.3 and 24.5 are "inapplicable." See paras. 7.516-686 of panel report in complaint by Australia; paras. 7.512-688 of panel report in complaint by U.S.)

Article 20 (No Unjustifiable Encumbrances on Trademarks)

Article 22 (Protection of Geographical Indications)

Article 22.2

  • EC - Trademarks / GIs (Panel) (Rejected separate Australian and U.S. claims that the European Communities violated Article 22.2. See paras. 7.705-718 of panel report in complaint by Australia; paras. 7.730-757 of panel report in complaint by U.S.; rejected Australia's claims in respect of existing individual registrations under TRIPS Agreement Articles 16.1, 22.2, 41.1, 41.2, 41.3 and 42 and GATT Article III:4, concluding that "Australia has failed to make a prima facie case in support of its claims with respect to individual registrations." See paras. 7.737-751 of panel report in complaint by Australia)

Article 24 (International Negotiations and Exceptions Related to Geographical Indications)

Article 24.3 (Shall Not Diminish the Protection of Geographical Indications that Existed Prior to WTO Agreement's Entry into Force)

  • EC - Trademarks / GIs (Panel) (Concluded that, "with respect to the coexistence of GIs with prior trademarks, the Regulation is inconsistent with Article 16.1 of the TRIPS Agreement ... "; however, found that the Regulation is justified under the Article 17 exception; also stated that Articles 24.3 and 24.5 are "inapplicable." See paras. 7.516-686 of panel report in complaint by Australia; paras. 7.512-688 of panel report in complaint by U.S.)

Article 24.5 (Shall Not Prejudice Eligibility for or the Validity of the Registration of a Trademark, or the Right to use a Trademark)

  • EC - Trademarks / GIs (Panel) (Concluded that, "with respect to the coexistence of GIs with prior trademarks, the Regulation is inconsistent with Article 16.1 of the TRIPS Agreement ... "; however, found that the Regulation is justified under the Article 17 exception; also stated that Articles 24.3 and 24.5 are "inapplicable." See paras. 7.516-686 of panel report in complaint by Australia; paras. 7.512-688 of panel report in complaint by U.S.)

Article 27 (Patentable Subject Matter)

Article 27.1 (Discrimination by Field of Technology)

  • Canada - Pharmaceuticals (Panel) (The non-discrimination requirement applies to measures that fall within the exception of Article 30; here, the measure at issue did not discriminate against pharmaceuticals on its face and there was no evidence of de facto discrimination. See paras. 7.85-105)

Article 28 (Rights Conferred on Patents)

Article 28.1

  • Canada - Pharmaceuticals (Panel) (Article 28.1 sets out five legal rights that stem from a patent:  making, using, offering for sale, selling and importing. Here, there was no dispute that the measures at issue violate Article 28.1; the issue was whether they were justified under Article 30. See paras. 7.17-18 and para. 7.39)

Article 30 (Exceptions to Patent Right Protections)