A Case Study on the WTO Dispute Settlement Mechanism:U.S.-Measure Affecting Imports of Wooven Wool Shirts and Blouses from India

1. Claims at the Panel Stage
India claimed that the United States violated Article 6 of the Agreement on Textile and Clothing ("ATC") in imposing the safeguard measure. India brought the matter before the DSB, arguing that the United States nullified or impaired benifits accruing to India under the ATC. However, the United States rejected those claims, arguing that it had complied with all the requirements of Article 6 of the ATC. Major issues in the dispute are as follows:
On the issue of burden of proof, India argued that, since the transitional safeguard measure taken by the the exceptions. On the other hand, the United States argued that India, as the party making the claim, bore the burden of presenting a prima facie case of violation before panel.
On the issue of standard of review, India argued that the task of the Panel was to determine whether the United States had observed the requirements of Article 6 in good faith, not whether it had acted reasonably. On the other hand, the United States responded that the task of the Panel was to consider whether the US authorities could reasonably and in good faith have determined that serious damage or actual threat thereof existed, not whether serious damage or actual threat thereof existed as such.
On the role of the Textiles Monitoring Board("TMB"), India asserted that the United States had failed to obtain the endorsement by the TMB of the proposed safeguard measure. On the substantive requirements of Article 6 of the ATC, India argued that the US determination had not met the requirements of Article 6 of the ATC in terms of economic factors and data to be considered for determination of serious damage or actual threat thereof as well as causation. The United States rejected the claims, arguing that it had complied with all the requirements of Article 6 of the ATC.

2. Panel Findings
The Panel supported the main claims of India, and made the following principal findings and conclusions:
o On burden of proof, the Panel found that since India was the party that initiated the dispute settlement proceedings, it was for India to put forward factual and legal arguments in order to establish that the US restriction was inconsistent with Article 2 of the ATC and that the US determination was inconsistent with Article 6 of the ATC;
o On the standard of review, the Panel found that its function was limited to making an objective assessment of the facts surrounding the application of the specific restraint by the United States, and of the conformity of such restraint with the relevant WTO agreements;o On the role of the TMB and DSU processes, the Panel concluded that its was required to make an objective assessment as to whether the United Sates respected the conditions of Article 6.2 and 6.3 of the ATC at the time of the determination by the United States;o On the substantive requirements of Article 6 of the ATC, the Panel found that the United States had not met its obligations, since of the eleven economic criteria mentioned in Article 6.3 of the ATC, no information or comment was provided by the United States in respect of productivity, inventories and exports;

3. Claims at the Appeals Stage
Although India agreed with the overall conclusions of the Panel, it appealed certain of its findings of law:
o on burden of proof, India contested the Panel's finding that India had the obligation to establish that the United States had violated Article 6 of the ATC, or that it had the obligation to present a prima facie case to that effect;
o on the relationship between the TMB and the DSU process, India asserted that the Panel's finding on TMB powers denied exporting Members two important procedural rights:the right to hold consultations on a proposed transitional safeguard action on the basis of specific and factual information, and the right to a review of a transitional safeguard action by the TMB.
o on the general powers of the TMB, India asserted that the Panel made statements giving the TMB powers that went far beyond those attributed to it by the ATC.
o on whether the Panel should have made findings on all the issues raised, India argued that the determination on the two issues that the Panel did not make findings on was necessary to resolve the dispute.
The United States disagreed with India's claims, arguing that:
o the Panel correctly required India to meet the burden of going forward with the evidence;
o the Panel's discussion of the TMB and its powers was mere obiter dicta, and that in any case nothing in the text of the ATC supported India's assertion; and
o the Panel did not err by declining to rule on all claims made by India.

4. Appollate Body's Findings
The Appellate Body upheld all the Panel findings under appeal. In particular:
o On burden of proof, it agreed with the Panel that it was for India to present evidence of an argument sufficient to establish a presumption that the transitional safeguard determination by the United States was inconsistent with its obligations under Article 6 of the ATC;
o On the relationship between the TMB and the DSU, the Appellate Body did not consider the comment by the Panel on this issue to be "a legal finding or conclusion" which the Appellate Body" may uphold, modify or reverse"; and
o On the issue of judicial economy, the Appellate Body agreed with the Panel that nothing in Article 11 of the DSU required the panel to examine all legal claims made by the complaining party.

5. Implications
The dispute provides good guidelines for developing relevant logics in the future disputes regarding the legal and economic issues as follows;
First, it is found that the party initiating a dispute settlement proceeding has the burden of putting forward factual and legal arguments in order to establish its case, while the defending party as respondent has the burden of demonstrating that it has complied with the relevant conditions of application of the provisions which it invoked.
Second, in establishing damages, all the relevant variables including those specified in the relevant provisions should be examined in order to provide an accurate picture of the dynamics of the industry concerned. In doing that, the reliability and representativeness of the data is crucial.
Third, in order to justifiably impose a restraint, it is crucial to establish that an increase in imports, not some other factors, is causing serious damage or actual threat thereof in the domestic industry. To prove it, it is strongly desired to make comparison between the current situation and the situation in the absence of the import surge, which may require econometric analysis to forecast future trends in various economic indices.

序言
要約

Ⅰ. 패널節次
1. 사안의 개요
2. 주요쟁점
3. 패널의 결정(Findings)

Ⅱ. 上訴節次
1. 절차적 진행
2. 주요쟁점
3. 상소기구의 평결

Ⅲ. 示唆點
1. 법적이슈
2. 경제적 이슈

參考文獻

附錄

Executive Summary