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WT/DS162/R/Add.1 Page 20

to decide what are the rules which in actual fact, are applied in the country the law of which is recognized as applicable in a given case."66  This principle "rests in part on the concept of the reserved domain of domestic jurisdiction, and in part on the practical need of avoiding contradictory versions of the law of a state from different sources."67  


In response to a question of the Panel regarding the import of the Appellate Body report in India – Patents in terms of the Panel's consideration of domestic law and case law, the United States notes that the term "examination" as used by the Appellate Body in India - Patents means that the Panel must review the domestic law (including relevant court decisions law interpreting the law) to determine the fact of domestic law.  The Appellate Body's statement on this point was in response to India's argument that the panel should have "sought guidance" from India as a party to the dispute on matters relating to the interpretation of Indian law implying that the panel should have deferred to India and not examined the law itself.  The Appellate Body rejected this argument and noted approvingly that the panel examined Indian law to determine the fact of the law and that "the Panel was not interpreting Indian law 'as such.'"68


The United States considers that, similarly, in the present case, it is not for the Panel to interpret the 1916 Act itself, but the Panel must examine the domestic law and relevant case law to determine how the law is interpreted and applied in the United States.  The United States is not advocating that the Panel refrain from "examining" US law and accept the US interpretation as a party in the present dispute.  To the contrary, the United States provided copies of the relevant decisions and other materials to assist the Panel in examining the 1916 Act and the US case law interpreting the Act.  However, it is not the role of the Panel to agree or disagree with the final judicial decisions interpreting and applying the Act.  


The United States emphasizes, however, that it is not suggesting that the Panel has no interpretative role.  As noted by the Appellate Body in India - Patents, once the Panel has determined the interpretation of the municipal law as a factual matter, it is the Panel's function to determine the applicability of the relevant WTO agreements to those facts.  These determinations are questions of WTO law to be made by the Panel in the first instance.


  Japan recalls the US assertion that the Panel should defer to the US characterisation of the 1916 Act in the present case.  This is incorrect.  A WTO Panel must conduct its own examination and assessment of a challenged law (in the instant case the 1916 Act) to fulfill its obligation under Article 11 of the DSU.  The present Panel should not accept US unilateral assertions or interpretations about this law and its WTO-consistency.  It must itself determine the conformity of the challenged law with the relevant WTO agreements.  The present Panel's role is clear.  It is to examine the 1916 Act's WTO-consistency; to accept the US characterisation would be to ignore this duty.


In response to the same question of the Panel regarding the import of the Appellate Body report in India – Patents in terms of the Panel's consideration of domestic law and case law, Japan states that India – Patents calls upon a WTO panel, at the very least, to analyse the text of a national law in question.  A WTO panel should not accept a nation's judicial interpretations of a law as binding, but must review the text of the law itself.  In doing so, a WTO panel may also analyse how courts and administrative agencies have applied the law and the effects the law's existence and/or application has on imports.  Case law may inform a panel about possible interpretations of a statute.  Again, however, case law should not be taken as the final word of a statute's effect on imports,

66 The United States refers to Brazilian Loans,  Op. Cit., pp. 12425.

67 The United States refers to I. Brownlie, Principles of Public International Law, 4th ed., Clarendon Press (1990), p.41.

68 The United States refers to the Appellate Body Report on India Patents, Op. Cit., para. 66.

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