Study On Terms Of Reference Of A Panel Under The WTO Dispute Settlement Mechanism

Under the WTO dispute settlement mechanism, a very fundamental procedural design called"terms of reference"undertakes two important objectives, i.e., to set forth the jurisdiction of a panel and its scope of mandate (this subsequently determines whether claims raised by the complaint shall successfully fall in the scope of mandate and decided by the panel); to protect the due process right of the respondent from prejudice. A bunch of cases of WTO disputes settlement dealt with and discussed this topic, which shows the importance and fundamentality of the terms of reference of a panel. Elements which define the terms of reference of a panel include "measure" and "legal basis" as components of request for establishment of panel, the questions whether these components are specifically identified according to the relevant WTO rules, especially Article 6.2 of DSU, and whether the inclusion or exclusion of these components keeps in line with the principles and aims of dispute settlement mechanism are frequently discusses by the panels and the Appellate Body. Thus, the parties especially the complaints shall treat the request for establishment of panel in due care.Dispute settlement cases provided us a path to get to know the opinion and way of thinking of the panels and Appellate Body while dealing with the disputes concerning the terms of reference of a panel. Study of these cases will provide references and help the complaints in drafting the request for establishment of panel, and guide the respondents in protecting its procedural right, even substantial benefits.However, the dispute settlement mechanism is not sticking to itself, but is also evolving. Dealing with disputes concerning the fundamental topic of terms of reference without flexibility would cause problems. In order to make the mechanism more efficient, to avoid wasting judicial resource and to show respect to the will of the Parties, it is necessary to modify and to perfect the provisions concerning the terms of reference of panel in a way consistent with the aims of dispute settlement mechanism.This paper is composed of 7 parts as follows:The first part discusses the meaning of and relationships between the relevant regulations of DSU, gets good command of the key concept, and define the terms of reference from a general view.The second part discusses the background of the design, the importance and procedural purposes of terms of reference, so as to gain a deep understanding out of all the considered matters and get the rough idea of where shall this design head for.The next three parts discuss individual cases, characterize and classify the main elements (i.e. "consultaion","measure","legal basis") that would affect the terms of reference of a panel, and finally gain an understanding of the jurisprudence and way of thinking of the panel and the Appellate Body.The sixth part discusses some topics relevant to terms of reference, such as the scope of mandate of the Article 21.5 panel, relationship between judicial economy and terms of reference.The last part concludes that after all these discussions, what shall be paid attention to while parties are involving in the proceeding and the suggestions for improvement of the design of terms of reference.