• The United States followed this dispute as a third party, in particular the issues raised with respect to the interpretation and application of Article X:3(b) of the GATT 1994 and
Article 11 of the DSU.
• We would like to thank the Panel, the Appellate Body and their Secretariats for their work on this dispute.
• The United States agrees that the obligations of Article X:3(b) serve an important purpose.
• However, we are concerned by the Appellate Body’s statement that “[a] basic object and purpose of the GATT 1994, as reflected in Article X:3(b), is to ensure due process in relation to customs matters.”1 While Article X:3(b) may reflect such a due process objective, it does not follow that this is an object and purpose of the GATT 1994 itself.
• The customary rules of interpretation reflected in the Vienna Convention on the Law of Treaties speak of the object and purpose of the treaty, not an individual provision, as relevant for purposes of interpretation. References to the object and purpose of an individual provision may encourage an interpreter to paraphrase the text of a provision and refer to that paraphrase as the “object and purpose” of that provision, which then in turn risks substituting that paraphrase for the actual text of the provision.
• In its analysis of Thailand’s defense under Article XX(d) of the GATT 1994, the Appellate Body stated that it is the differential treatment that must be “necessary” to secure compliance.2 However, this seems at odds with the Appellate Body’s prior reports in which it found that it is the “measure” that must be “necessary.”3 Like Australia, the United States is concerned with respect to this different approach, which appears to depart from the text of Article XX(d).
• Members would also benefit from a better explanation of how the discussion of, and focus on, “due process” in connection with Thailand’s appeal under Article 11 of the 4 Communication from the Appellate Body, WT/DS371/10 (21 June 2011).
DSU relates to the text of Article 11, in particular the provision for an “objective assessment of the matter before it”. The discussion did not seem to indicate why views as to what constitutes “due process” in a panel proceeding are necessarily part of an analysis of whether a panel conducted an “objective assessment” of the matter.
• Finally, the United States notes that, although the communication from the Appellate Body to the DSB Chair transmitting the report states that the report “will be circulated to Members . . . in accordance with paragraph 5 of Article 17” of the DSU,4 in fact the report of the Appellate Body was circulated outside the 90-day period stipulated in Article 17.5 of the DSU. The United States understands from the parties to the dispute that the Appellate Body consulted with the parties on this issue and that each party agreed to accept a report circulated outside the 90-day period. We further understand that the parties provided a letter to the Appellate Body to that effect.
• However, contrary to past practice,5 this agreement by the parties was not mentioned in the Appellate Body’s Article 17.5 notification to the DSB that it could not provide its report within 60 days.6 Further, this agreement by the parties was not reflected in the report of the Appellate Body, as has been the practice of the Appellate Body in prior disputes.7
• The approach followed in this dispute results in less transparency for Members on the circumstances leading to the consideration by the DSB of a report circulated outside the 90-day period in Article 17.5. We do not see how less transparency for the DSB is desirable. In future disputes, Members should be provided with the level of transparency provided by the Appellate Body in the past.
1 Appellate Body Report, para. 202.
2 Appellate Body Report, para. 179.
3 Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Frozen and Chilled Beef,
WT/DS161/AB/R, WT/DS169/AB/R, paras. 158, 162-165, 178-182 (12 Dec. 2000).
4 Communication from the Appellate Body, WT/DS371/10 (21 June 2011).
5 See, e.g., Communication from the Appellate Body, US – Continued Suspension / Canada – Continued
Suspension, WT/DS320/14, WT/DS321/14 (24 July 2008).
6 WT/DS371/9 (26 April 2011).
7 See, e.g., Canada – Continued Suspension, WT/DS321/AB/R at para. 29; EC – Export Subsidies on
Sugar, WT/DS265/AB/R at para. 7.