On 11 April and 30 April 2001, the European Communities signed two separate Understandings on Bananas: one with the United States and one with Ecuador. On 22 June 2001, the European Communities notified both Understandings to the DSB as a "mutually agreed solution" within the meaning of Article 3.6 of the DSU (WT/DS27/58). On 2 and 9 July 2001, the United States and Ecuador issued separate communications stating that, while the Understandings identified the means by which the long-standing dispute over the European Communities' bananas import regime could be solved, the Understandings did not in themselves constitute a "mutually agreed solution" pursuant to Article 3.6 of the DSU (WT/DS27/59, G/C/W/270; WT/DS27/60, G/C/W/274). The European Communities alleged that the Panel erred in finding that Ecuador and the United States were not precluded from initiating Article 21.5 proceedings despite the Understandings on Bananas they each had agreed to with the European Communities in 2001. The Appellate Body considered that the complainants could be precluded from initiating Article 21.5 proceedings by means of these Understandings only if the parties to these Understandings had, either explicitly or by necessary implication, agreed to waive their right to have recourse to Article 21.5. In the AB view, the relinquishment of rights granted by the DSU cannot be lightly assumed. Rather, the language in the Understandings must reveal clearly that the parties intended to relinquish their rights. The AB disagreed with the European Communities' assertion that paragraph G of the Understanding involving Ecuador contains a manifestation of the intention of the parties to forego their right to initiate Article 21.5 proceedings because it states that "[t]he EC and Ecuador consider that this Understanding constitutes a mutually agreed solution to the banana dispute". In fact, according to the Appellate Body, the text of that clause is neutral with respect to the question of whether the solution entailed a relinquishment of the right of recourse to compliance proceedings. It therefore leaves the result of the above analysis untouched, and does nothing to alter the conclusion that the Understandings on Bananas did not contain a relinquishment of the right to initiate compliance proceedings. The Appellate Body therefore concluded that the complainants were not precluded from initiating these proceedings due to the Understandings on Bananas.

WT/DS27/AB/RW2/ECU, WT/DS27/AB/RW/USA, European Communities – Regime for the Importation, Sale and Distribution of Bananas, Second Recourse to Article 21.5 of the DSU by Ecuador, Recourse to Article 21.5 of the DSU by the United States), Reports of the Appellate Body issued on 26 November 2008, adopted on 11 December 2008 (Ecuador case), and on 22 December 2008 (US case) / elisa baroncini. - In: GLOBAL COMMUNITY. - ISSN 1535-9468. - STAMPA. - IX:(2010), pp. 369-371.

WT/DS27/AB/RW2/ECU, WT/DS27/AB/RW/USA, European Communities – Regime for the Importation, Sale and Distribution of Bananas, Second Recourse to Article 21.5 of the DSU by Ecuador, Recourse to Article 21.5 of the DSU by the United States), Reports of the Appellate Body issued on 26 November 2008, adopted on 11 December 2008 (Ecuador case), and on 22 December 2008 (US case)

BARONCINI, ELISA
2010

Abstract

On 11 April and 30 April 2001, the European Communities signed two separate Understandings on Bananas: one with the United States and one with Ecuador. On 22 June 2001, the European Communities notified both Understandings to the DSB as a "mutually agreed solution" within the meaning of Article 3.6 of the DSU (WT/DS27/58). On 2 and 9 July 2001, the United States and Ecuador issued separate communications stating that, while the Understandings identified the means by which the long-standing dispute over the European Communities' bananas import regime could be solved, the Understandings did not in themselves constitute a "mutually agreed solution" pursuant to Article 3.6 of the DSU (WT/DS27/59, G/C/W/270; WT/DS27/60, G/C/W/274). The European Communities alleged that the Panel erred in finding that Ecuador and the United States were not precluded from initiating Article 21.5 proceedings despite the Understandings on Bananas they each had agreed to with the European Communities in 2001. The Appellate Body considered that the complainants could be precluded from initiating Article 21.5 proceedings by means of these Understandings only if the parties to these Understandings had, either explicitly or by necessary implication, agreed to waive their right to have recourse to Article 21.5. In the AB view, the relinquishment of rights granted by the DSU cannot be lightly assumed. Rather, the language in the Understandings must reveal clearly that the parties intended to relinquish their rights. The AB disagreed with the European Communities' assertion that paragraph G of the Understanding involving Ecuador contains a manifestation of the intention of the parties to forego their right to initiate Article 21.5 proceedings because it states that "[t]he EC and Ecuador consider that this Understanding constitutes a mutually agreed solution to the banana dispute". In fact, according to the Appellate Body, the text of that clause is neutral with respect to the question of whether the solution entailed a relinquishment of the right of recourse to compliance proceedings. It therefore leaves the result of the above analysis untouched, and does nothing to alter the conclusion that the Understandings on Bananas did not contain a relinquishment of the right to initiate compliance proceedings. The Appellate Body therefore concluded that the complainants were not precluded from initiating these proceedings due to the Understandings on Bananas.
2010
WT/DS27/AB/RW2/ECU, WT/DS27/AB/RW/USA, European Communities – Regime for the Importation, Sale and Distribution of Bananas, Second Recourse to Article 21.5 of the DSU by Ecuador, Recourse to Article 21.5 of the DSU by the United States), Reports of the Appellate Body issued on 26 November 2008, adopted on 11 December 2008 (Ecuador case), and on 22 December 2008 (US case) / elisa baroncini. - In: GLOBAL COMMUNITY. - ISSN 1535-9468. - STAMPA. - IX:(2010), pp. 369-371.
elisa baroncini
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