|
Heads of Argument
- The Panel erred in ruling that Article 13 of the DSU prohibits a WTO Panel from accepting non-requested information from non-governmental sources, such as amicus curiae briefs.
- The Panel’s approach to amicus curiae briefs reflects a misunderstanding of the role such documents are intended to play.
- The Panel erred in its interpretation and application of the chapeau of Article XX by failing to follow the customary rules of interpretation of public international law, and by deviating substantially from the established practice of GATT/WTO dispute settlement.
- The Panel erred by interpreting the chapeau of Article XX without direct reference to the immediate context of the specific exceptions set out in the body of Article XX, and without taking into account the ordinary meaning of Article XX as read in its entirety.
- The Panel erred by deviating substantially from the established practice of GATT/WTO dispute settlement, by applying the chapeau of Article XX without undertaking a case-by-case assessment of the factual and legal context of the challenged measure.
- The Panel erred in interpreting the term "unjustifiable" without reference to the facts of the case before it, and in particular, without balancing whether the trade implications of the importer’s measures were"necessary to protect . . . animal life or health" or "relat[ed] to the conservation of exhaustible natural resources."
- The Panel’s narrow interpretation of the "scope" of Article XX, is both vague and arbitrary and threatens to severely restrict the range of legitimate measures available to Member states in implementing multilateral environmental agreements.
- The Panel’s test for violation of Article XX on the basis of whether a measure or a "type" of measure, "would threaten the security and predictability of the multi-lateral trading system" has no basis in the text of the GATT 1994, and if adopted, would empower future panels to exercise an arbitrary basis for reviewing measures implemented by Members.
- The Panel erred in interpreting the scope of Article XX general exceptions on the basis of a vague and unsubstantiated hypothetical scenario, rather than on the facts before it.
- The Panel’s interpretation of the Preamble to the WTO Agreement reflects a funda-mental misunderstanding of the objective of sustainable development, by drawing a distinction between "the promotion of economic development"and "environ-mental considerations" and by subor-dinating the latter to the former.
- The Panel erred in failing to take into account customary and treaty law as part of the context in which all international law must be interpreted.
- The Panel’s emphasis on the need for multilateral approaches to environmental protection, while well-intentioned, fails to appreciate that multilateral initiatives may entail domestic measures that have trade consequences.
- Contrary to the Panel’s findings, GATT 1994 does allow a Member to adopt measures conditioning access to its market for a given product on the basis of whether an exporting member has adopted certain policies should those measures meet the specific objectives and constraints set out in Article XX.
- In any event, the Complainants are estopped from asserting their WTO rights which are inconsistent with obligations freely entered into to protect and conserve sea turtles, and which prevents the Respondent from fulfilling her obligations under International Conservation law.
 |
|
|