WT/DS441/19  
 
   27 October 2014  
(14-6243)  Page: 1/24  
  Original: English  
 
 AUSTRALIA – CERTAIN MEASURES CONCERNING TRADEMARKS,  
GEOGRAPHICAL INDICATIONS AND OTHER PLAIN PACKAGING REQUIREMENTS  
APPLICABLE TO TOBACCO PRODUCTS AND PACKAGING 
COMMUNICATION FROM THE PANEL 
The following communication, dated 22 October 2014, was received from the Chairperson of the 
Panel with the request that it be circulated to the Dispute Settlement Body (DSB). 
 
_______________ 
  
On 7 May 2014, Australia submitted to the Panel a request for a preliminary ruling concerning the 
consistency of the Dominican Republic's request for the establishment of a Panel (WT/DS441/15) with Article 6.2 of the Understanding on Rule s and Procedures Governing the Settlement of 
Disputes 
 On 19 August 2014, the Panel issued the attached  preliminary ruling to the parties and third 
parties.   
 After consulting the parties to the dispute, the Panel decided to inform the Dispute Settlement Body (DSB) of the content of its preliminary ruling .  Therefore, I would be grateful if you would 
circulate this letter and the attached pre liminary ruling to the Members of the DSB  WT/DS441/19 
 
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  PRELIMINARY RULING BY THE PANEL 
1   PROCEDURAL BACKGROUND ....................................................................................... 2  
2   AUSTRALIA'S REQUEST FO R A PRELIMINARY RULING ................................................ 2  
3   MAIN ARGUMENTS OF THE PARTIES ........................................................................... 3  
3.1   Au stralia ............................................................................................................... ... 3 
3.2   The Dominican Republic ............................................................................................. 7  
4   MAIN ARGUMENTS OF  THE THIRD PARTIES .............................................................. 14  
5   ANALYSIS BY  THE PANEL .......................................................................................... 16  
5.1   The requirement to "identify the specific measur es at issue" ........................................... 16 
5.2   Whether the Dominican Republic's panel request identifies the specific measures at 
issue .............................................................................................................................. 21 
 
  
1  PROCEDURAL BACKGROUND 
1.1.  On 7 May 2014, Australia submitted to the Panel a request for a preliminary ruling concerning 
the consistency of the Dominican Republic's panel request with the DSU.  
1.2.  Australia requested that the Panel make a preliminary ruling on this matter as early as 
possible (and in particular, that the Panel issue its preliminary ruling before the filing of first written submissions by the parties). Australia also requested the opportunity to respond to any submissions made by the Dominican Republic in relation to this preliminary ruling request. 
1.3.  On 11 June 2014, the Dominican Republic responded to Australia's request. Also on 
11 June 2014, the Panel provided the third parties with an opportunity to comment on Australia's preliminary ruling request. On 17 June 2014, the Panel received comments from the European 
Union. On 18 June 2014, the Panel received comments from Argentina, the Dominican Republic, 
Guatemala, Honduras, Indonesia, and Mexico. 
1.4.  On 1 July 2014, the Panel received comments from Australia on the Dominican Republic's 
response to Australia's request for a preliminary ruling. On 8 July 2014, the Panel received from 
the Dominican Republic comments on Australia's comments. 
2  AUSTRALIA'S REQUEST FOR A PRELIMINARY RULING 2.1.  Australia requests that the Panel make a preliminary ruling excluding from its terms of 
reference "the non-exhaustive list of related me asures and measures that 'complement or add to' 
the measures explicitly identified in the Dominican Republic's panel request", on the basis that the panel request does not identify the specific measures at issue contrary to the requirements of 
Article 6.2 of the DSU.
1 
2.2.  We first describe below the arguments of the parties and third parties, before proceeding 
with our assessment of Australia's request. 
                                               
1 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
para. 1. WT/DS441/19 
 
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  3  MAIN ARGUMENTS OF THE PARTIES  
3.1  Australia 3.1.  Australia requests that the Panel make preliminary procedural rulings excluding from its 
terms of reference the "non-exhaustive list of re lated measures and measures that 'complement or 
add to' the measures explicitly identified in the Dominican Republic's panel request".
2 Australia 
requests this ruling on the basis that the request does not identify the specific measures at issue, contrary to the requirements of Article 6.2 of  the DSU. In Australia's view, the Dominican 
Republic's panel request should read: 
[A]ny related measures adopted by Australi a, including measures that implement, 
complement or add to these laws and regulations, as well as any measures that 
amend or replace these laws and regulations.3 
3.2.  Australia submits that, as a responding party, it  is entitled to know the case it is required to 
answer, and that the deficiencies in the Dominica n Republic's panel request have prejudiced, and 
continue to prejudice, the preparation of its de fence, thereby violating Australia's "fundamental 
right to due process in these proceedings".4 
3.3.  Australia submits that it is crucial that a complainant identify in its panel request the specific 
measures at issue as required by Article 6.2 of  the DSU because this sets the panel's terms of 
reference and also serves an important due process objective.5 Referring to the Oxford English 
Dictionary, Australia submits that "specific" is defined as "[s]pecially or peculiarly pertaining to a particular thing or person, or a class of these… clearly or explicitly defined; precise, exact; definite".
6 Australia argues that a complaining party must therefore establish the identity of the 
precise measures at issue.7 It further submits that , in determining consistency with Article 6.2 of 
the DSU, a panel must "analyse whether the measures that the complaining party is contesting were identified such that the respondent party received 'adequate notice'" of the measures at 
issue.
8 
3.4.  Australia observes that the Dominican Republic has identified the measures at issue in its 
panel request by listing the specific instruments that it considers constitute the "plain packaging 
measures" as follows: 
The measures at issue, which the Dominican Republic collectively refers to as the 
"plain packaging measures", are the following: 
Tobacco Plain Packaging Act 2011 , Act No. 148 of 2011, "An Act to discourage the use 
of tobacco products, and for related purposes"; 
Tobacco Plain Packaging Regulations 2011  (Select Legislative Instrument 2011, No. 
263), as amended by the Tobacco Plain Packaging Amendment Regulation 2012 
(No.1)  (Select Legislative Instrument 2012, No. 29); 
                                               
2 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
para. 1 (citing the Dominican Republic's re quest for the establishment of a panel). 
3 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
footnote 2. 
4 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
para. 2. 
5 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
para. 4 (citing Panel Report, Canada – Wheat Exports and Grain Imports , para. 6.10). 
6 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
para. 5 (citing Shorter Oxford English Dictionary , (6th ed., 2007), p. 2944). 
7 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
para. 5 (citing Panel Report, Canada – Wheat Exports and Grain Imports , para. 6.10). 
8 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
para. 5 (citing Panel Report, China – Publications and Audiovisual Products , para. 7.20). WT/DS441/19 
 
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  Trade Marks Amendment (Tobacco Plain Packaging) Act 2011 , Act No. 149 of 2011, 
"An Act to amend the Trade Marks Act 1995, and for related purposes"…9 
3.5.  While not challenging this approach, Australia refers to the following additional language in 
the Dominican Republic's panel request: 
Any related measures adopted by Australia, including measures that implement, 
complement or add to these laws and regulations, as well as any measures that amend or replace these laws and regulations.
10  
3.6.  Australia submits that the Dominican Republic's panel request does not identify the specific 
measures at issue for two reasons. First, Australia argues that the use of the term "including" defines the "related measures" in a non-exhaustive  way. Second, Australia contests "the attempt 
to include unspecified measures that 'complement or add to' those explicitly named in the panel 
request ('complementary or additional measures')".
11  
3.7.  In relation to the use of the word "including", Australia argues that the Dominican Republic 
"attempts to include a non-exhaustive and therefore indeterminate list" of "related measures" 
within the Panel's terms of reference. As a result, the Dominican Republic has not provided 
Australia with adequate notice of the measures being challenged, "or even a complete and specific list" of the "related measures" that it purports to challenge.
12 Australia draws an analogy with the 
panel request in China – Raw Materials , in which the complainants preceded the list of challenged 
measures with the phrase "among others". In response to this, the panel concluded that the 
complainants could not use this phrase to include an "open-ended" list of measures, as this would "not contribute to the 'security and predicta bility' of the WTO dispute settlement system".
13 
Australia notes that, in that dispute, only those measures that were explicitly identified by the 
complainants fell within the panel's terms of reference.14 Australia submits that the issue before 
the panel in  China – Raw Materials is analogous to the one presented in the Dominican Republic's 
panel request. In particular, the Dominican Republic attempts to challenge an "open-ended" list of 
"related measures" and, apart from the categories of "related measures" actually listed, the Dominican Republic provides no indication of what "other forms" such unspecified measures could 
take. Australia therefore argues that it has not b een provided with notice of the measures under 
challenge, which creates "considerable uncertainty " as to the identity, number and content of the 
measures at issue.
15  
3.8.  Australia also submits that the Dominican Republic's panel request fails to identify the 
specific measures at issue because it provides no guidance on what it means when it refers to 
measures that "complement or add to" the listed instruments. Australia argues that this adds further to the uncertainty regarding the identity, number and content of the laws and regulations 
under challenge, and "forces Australia to speculate regarding the measures at issue if it is to begin 
to prepare its defence".
16 Australia submits that the Domi nican Republic's panel request 
impermissibly shifts the burden of attempting to identify the complementary or additional 
measures at issue to Australia.17 
                                               
9 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
para. 6 (citing the Dominican Republic's re quest for the establishment of a panel). 
10 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
para. 7 (citing the Dominican Republic's re quest for the establishment of a panel). 
11 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
para. 8. 
12 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
para. 9. 
13 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
para. 10 (citing Panel Reports, China – Raw Materials , Annex F-1, para.  12, p. F-6). 
14 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
para. 10 (citing Panel Reports, China – Raw Materials , Annex F-1, para. 13, p. F-6). 
15 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
para. 10 (referring to Panel Report, Canada – Wheat Exports and Grain Imports , para. 6.10). 
16 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
para. 12. 
17 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
para. 12 (referring to Panel Report, Canada – Wheat Exports and Grain Imports , para. 6.10). WT/DS441/19 
 
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  3.9.  Australia notes that whether a panel request identifies the specific measures at issue may 
depend on the particular context in which those measures operate and may require examining the extent to which they are capable of being precisely identified.
18 Australia submits that in the 
specific context of tobacco regulation, the Dominican Republic's attempt to include complementary 
or additional measures does not identify the "precise, exact or definite measures at issue" and fails 
to provide Australia with adequate notice of these measures.19 
3.10.  Australia notes that, "in speculating about the possible complementary or additional 
measures that the Dominican Republic purports to challenge, Australia has had cause to consider 
that, in line with established international best  practice, its tobacco plain packaging measure is 
part of a comprehensive range of tobacco control measures". Australia submits that this comprehensive approach to tobacco control is mandated by the World Health Organization 
Framework Convention on Tobacco Control (FCTC). Australia notes that the FCTC emphasizes that 
"comprehensive multisectoral measures and responses" to reduce consumption of all tobacco products are essential to prevent the incidence of  diseases, premature disability and mortality due 
to tobacco consumption and exposure to tobacco smoke.
20 Australia also observes that the FCTC 
"mandates" that each party to it "develop, implement, periodically update and review comprehensive multisectoral national tobacco control strategies, plans and programmes"  in 
accordance with the FCTC.
21 
3.11.  Australia submits that "the uncertainty regarding the scope of the related measures arises 
because of the particular context in which Australia's tobacco plain packaging measure exists and operates, namely as part of a comprehens ive range of complementary tobacco control 
measures".
22 It considers that in this context, the references in the panel request of the Dominican 
Republic to a non-exhaustive list of "related" measures, "including" those that "complement" or "add to" the named measures, are not sufficient to id entify the specific measures at issue in this 
dispute. Rather, Australia submits that the inclusio n of "these broad and vague terms" in a dispute 
that concerns one of Australia's tobacco control measures (that is, tobacco plain packaging in its context as part of a complementary range of tobacco control measures) does not identify 
sufficiently the scope of the measures at issue such that Australia is informed of the case it has to 
answer.
23 
3.12.  Australia notes that if "general tobacco control measures" are "indeed the types of 
complementary or additional measures the Dominican Republic refers to in its panel request 
(which is not clear and is a matter of speculation)", Australia's tobacco control measures "span 
back decades" and have been implemented at  the federal, state and territory, and local 
municipality level. Australia asserts that it has implemented its tobacco plain packaging measure 
as part of a comprehensive range of measures in order to achieve its public health objectives, "in 
line with its FCTC obligations". Australia identifies a number of measures included in its "comprehensive range of tobacco control measures".
24 Australia adds that this is a non-exhaustive 
                                               
18 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
para. 13 (citing Appellate Body Reports, China – Raw Materials , para. 220). 
19 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
para. 14. 
20 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
para. 15 (citing The WHO Framework Convention on Tobacco Control (FCTC), done at Geneva, 3 May 2003, 
2302 U.N.T.S.166; 42 International Legal Materials 518, Article 4.4). 
21 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
para. 16 (citing The WHO Framework Convention on Tobacco Control (FCTC), done at Geneva, 3 May 2003, 
2302 U.N.T.S.166; 42 International Legal Materials 518, Article 5.1). 
22 Australia's comments on responses to Australia ’s requests for prelimin ary rulings, para. 29. 
23 Australia's comments on responses to Australia ’s requests for prelimin ary rulings, para. 29. 
24 Australia cites "increasing excise and excise-equivalent customs duty on tobacco and tobacco-related 
products; minimum age restrictions on the purchase an d sale of tobacco products ; comprehensive bans on 
tobacco advertising and promotion, including bans on internet advertising of tobacco products; retail display bans; bans on smoking in offices, ba rs, restaurants and other indoor publ ic spaces, and increasingly outdoor 
places, particularly those where children may be expo sed to environmental tobacco smoke; extensive and 
continuing public education campaigns on the danger s of smoking; compulsory health warnings on the 
packaging of tobacco products; the listing of nicoti ne replacement therapies and other smoking cessation 
supports on Australia's Pharmaceutical Benefits Sche me; "Quitlines" and other smoking cessation support 
services; investment in anti-smoking  social marketing campaigns; support for Aboriginal and Torres Strait 
Islander communities to reduce sm oking rates; and stronger penaltie s for people convicted of tobacco WT/DS441/19 
 
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  list, and that each of these measures includes multiple laws and regulations that may have been 
adopted at the federal, state or local level, such that Australia's tobacco control measures number in the hundreds. Australia argues that it "cannot be the case that the Dominican Republic intends to challenge every current or future tobacco cont rol measure implemented in Australia" and that, 
in these circumstances, the Dominican Republic is obliged to identify the specific measures at issue 
so that Australia is informed of the case it has to answer.
25 
3.13.  Australia adds that if the Dominican Republic's reference to complementary or additional 
measures "is intended to refer to certain tobacco control measures currently in force in Australia 
(apart from tobacco plain packaging), there is no reason why these measures could not be explicitly named, other than to prejudice Australia's defence". Australia argues that this is in contrast to amending measures which may not come into existence until after a panel request is 
submitted and therefore may legitimately be listed by category rather than by the unknown future 
name of the amending law or regulation.
26  
3.14.  In sum, Australia considers that the Dominican Republic has not identified the specific 
measures at issue in a way that is "precise", "exact" or "definite", contrary to Article 6.2 of the 
DSU, and has not provided reasonable notice to Australia as to the case it has to answer.27 
Australia requests that the Panel find that its terms of reference are limited to the measures 
specifically identified in the panel request, and that the remainder of its terms of reference be 
limited in the following manner: 
Any related measures adopted by Australia, including measures that implement, 
complement or add to these laws and regulations, as well as any measures that 
amend or replace these laws and regulations.28  
3.15.  Australia notes that "a deficient panel request will fail to meet the requirements of Article 
6.2 of the DSU regardless of whether the respondent is able to defend itself", but also that the 
deficiencies in the Dominican Republic's panel request have in fact prejudiced Australia's ability to 
defend itself in this dispute.29 Australia observes that "[i]n a WTO dispute, the complainant decides 
when to bring its dispute, and may therefore take as much time as it needs to prepare its offensive 
case. By contrast, a responding party has only a limited timeframe in which to respond to the 
complainant's first written submission." Australia submits that it is therefore critical that a panel request provide a responding party with sufficient clarity as to the case it has to answer in advance of receiving the complainant's first written submission, and notes that "[t]his due process 
requirement 'is fundamental to ensuring a fa ir and orderly conduct of dispute settlement 
proceedings'".
30 In light of this, Australia argues that a panel request should be examined very 
carefully to ensure its compliance with both the letter and the spirit of Article 6.2 of the DSU.31 
3.16.  Citing the Appellate Body, Australia argues that prejudice is to be determined on the basis 
of whether a defending party was made aware of the claims presented by the complaining party, 
sufficient to allow it to defend itself.32 It submits that, for the reasons outlined in its submission, 
the Dominican Republic's panel request has not made Australia aware of the claims presented 
                                                                                                                                               
smuggling offences." Australia 's request for a preliminary ruling in re lation to the Dominican Republic's panel 
request, para. 17. 
25 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
paras. 17-18. 
26 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
para. 19. 
27 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
para. 20. 
28 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
para. 22. 
29 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
para. 23. 
30 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
para. 24 (citing Appellate Body Report, Thailand – H-Beams , para. 88). 
31 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
para. 24 (citing Appellate Body Reports, EC – Bananas (III) , para. 142 and Korea – Dairy , para. 130). 
32 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
para. 25 (citing Appellate Body Report, Thailand – H-Beams , para. 95). WT/DS441/19 
 
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  sufficient to allow Australia to defend itself, to the extent that it fails to identify sufficiently the 
specific measures at issue.33 
3.17.  Australia also notes that defects in a panel request cannot be cured by subsequent 
submissions of the parties during the panel proceedings34, and that compliance with the 
requirements of Article 6.2 must be demonstrated on the face of the request for the establishment 
of a panel.35 Australia therefore submits that the Dominican Republic cannot overcome the 
deficiencies in its panel request by clarifying the legal basis of this claim in its first written 
submission.36 
3.2  The Dominican Republic 3.18.  The Dominican Republic submits that its panel request is fully consistent with the 
requirements of Article 6.2 of the DSU. In partic ular, considered as a whole and in light of the 
attendant circumstances, the Dominican Republic argues that its panel request identifies the 
measures at issue with ample precision. Prior A ppellate Body and panel decisions confirm that use 
of the terms to which Australia objects is proper, and that Australia's analogy to China – Raw 
Materials  is inapposite. The inclusion of the challenged terms is important to protect the Dominican 
Republic's interests in this dispute and has not prejudiced Australia's ability to begin to prepare its defence.
37 
3.19.  The Dominican Republic argues that Australia's "speculative objections" are baseless 
because Australia "improperly fixates on three isol ated terms, without considering their context". 
The Dominican Republic submits that, when consider ed as a whole, as required by prior Appellate 
Body and panel decisions, the Dominican Republic panel request "clearly identifies the challenged 
measures with sufficient precision, consistent with Article 6.2 of the DSU".38 The Dominican 
Republic argues (i) that the measures at issue – the "plain packaging measures" for tobacco products – can be discerned from the face of the panel request; (ii) that, in light of prior Appellate 
Body and panel decisions, the three contested terms used in the panel request are sufficiently 
precise to meet the requirement of specificity; and (iii) that the attendant circumstances confirm 
that the Dominican Republic is challenging only Australia's plain packaging measures.
39 
3.20.  The Dominican Republic submits that, on the face of the panel request, considered as a 
whole, the measures are framed "with sufficient pa rticularity so as to indicate the nature of the 
measure and the gist of what is at issue".40 The Dominican Republic identifies four main reasons to 
support this submission. 
3.21.  First, the Dominican Republic notes that by referring to the measures at issue, and 
throughout its panel request, it consistently refers to the challenged measures as "plain packaging measures". Thus, the Dominican Republic submits, by  its very terms, this description specifies that 
the measures at issue relate to elements of "packaging" that are "plain".
41 This alone 
demonstrates that Australia has no plausible basis for its speculation that the measures at issue could encompass tobacco control measures besides "plain packaging measures", such as smoking 
cessation support services, or penalties for toba cco smuggling. The Dominican Republic observes 
that Australia itself has used the term "plain packaging" to refer to the "plain packaging measures" 
                                               
33 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
para. 26. 
34 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
para. 28 (citing Appellate Body Report, US – Carbon Steel , para. 127). 
35 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
para. 28 (citing Appellate Body Report, US – Carbon Steel , para. 127). 
36 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
para. 28. 
37 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's pa nel request, para. 4. 
38 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's pa nel request, para. 13. 
39 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's pa nel request, para. 14. 
40 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's pa nel request, para. 20. 
41 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's pa nel request, para. 21. WT/DS441/19 
 
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  at issue and has never (to the knowledge of the Dominican Republic) described its other tobacco 
control measures, such as a minimum legal purchase age requirement, as "plain packaging measures".
42 
3.22.  Second, the Dominican Republic observes that, in Section A of its panel request, it provides 
a narrative description of the substantive nature, content and effects of the measures at issue.43 
The Dominican Republic elaborates that the panel request states that the measures at issue "apply 
to the retail sale of cigarettes, cigars, and other tobacco products" and "establish comprehensive 
regulation of the appearance and form of the reta il packaging of tobacco products, as well as of 
the tobacco products themselves".44 This is followed by the longer narrative description of the 
substantive content and operation of the challenged measures which makes clear that the measures being challenged relate to "the appearance and form of the retail packaging of tobacco 
products, as well as of the tobacco products themselves". The Dominican Republic observes that 
previous panels have recognized that a narrative description of the measures at issue is relevant to establishing whether they are properly identified.
45 The Dominican Republic adds that the 
narrative description also makes Australia's speculative objections untenable, as it is simply not 
possible to understand the panel request as encompassing tobacco control measures that have nothing to do with the standardized appearance and form of the retail packaging. The Dominican 
Republic argues that the only way to arrive at this reading is to read the terms "including", 
"complement", and "add to" in isolation from the rest of the panel request and, thereafter, to engage in "speculation".
46 
3.23.  Third, the Dominican Republic argues that the structure of its panel request, coupled with 
the immediate context of the three contested term s, also imparts meaning to these terms. The 
Dominican Republic observes that the three contested terms – "including", "complement", and "add to" – appear in the fourth bullet point of Section A of the panel request, which identifies 
certain "related measures", which "have a substantive nexus or relationship to other measures", 
namely, between the "related measures" and the "law s and regulations" specified in the first three 
bullets, all of which are exclusively plain packaging measures. The Dominican Republic submits 
that, for these reasons, the "related measures" in the fourth bullet must enjoy a sufficiently close 
nexus to the named plain packaging measures.
47 In addition, the Dominican Republic submits that 
the scope of that relationship is clarified by the terms that follow the reference to "related measures": specifically, the measures are those that implement, complement or add to these laws 
and regulations, as well as any measures that amend or replace them. The Dominican Republic 
further specifies that the word "including" cont ributes to defining the meaning of "related 
measures", and that under the common interpretive principle of ejusdem generis , a general term 
will be understood to refer to things of the same type as the more specific terms which are 
included within it.
48 In addition, the Dominican Republic argues that the word "related" must "be 
read in light of the general appellation given to the measures at issue ([that is] the 'plain 
packaging measures'), as well as the narrative description of the nature, content and effect of 
these measures". This is because any "related measures, including measures that … complement or add to" the named plain packaging laws and regulations are necessarily among the measures 
identified in the panel request as the "plain pack aging measures". It is also because the Dominican 
Republic in its panel request describes the "plain packaging measures" as measures that "apply to 
the retail sale of cigarettes, cigars, and other tobacco products" and "establish comprehensive 
                                               
42 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's pa nel request, para. 22. 
43 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's panel reques t, para. 23 (emphasis omitted). 
44 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's panel re quest, para. 23 (citing the Dominican Republic's request for the establishment of 
a panel, p. 2). 
45 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's pa nel request, para. 23 (c iting Panel Reports, EC – IT Products , para. 7.1181; and China 
– Publications and Audiovisual Products , para. 7.47; Preliminary Ruling, India – Agricultural Products , 
para. 3.19). 
46 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's pa nel request, para. 24. 
47 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's pa nel request, para. 25. 
48 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's panel requ est, para. 26 and footnote 35 (c iting Appellate Body Report, US – Large Civil 
Aircraft (2nd complaint) , footnote 1290). WT/DS441/19 
 
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  regulation of the appearance and form of the reta il packaging of tobacco products, as well as of 
the tobacco products themselves".49 
3.24.  Fourth, the Dominican Republic submits that the limited scope of "related measures" is 
confirmed by Section B of its panel request, which explains that the "plain packaging measures 
appear to be inconsistent with" the enumerated provisions of the TRIPS Agreement, the TBT 
Agreement, and the GATT 1994, together with reasons for each apparent inconsistency.50 This 
description "show[s] that the measures at issue are limited to those that denude tobacco products 
and packaging of differentiating elements, including through interference with the use of 
trademarks on packaging", and that non-plain-packaging tobacco-control measures, such as smoking cessation programs and minimum legal purc hase age requirements do not fall within the 
substantive ambit of the stated claims  under the TRIPS or TBT Agreements.
51 
3.25.  The Dominican Republic summarizes that the structure and content of the panel request, 
considered as a whole, indicate that the "related measures, including measures that … complement or add to" referred to therein cannot extend to non-plain-packaging tobacco-control 
measures.
52 
3.26.  The Dominican Republic argues that prior case law indicates that the terms used in its panel 
request "are not objectionable". Regarding the term "including", the Dominican Republic submits 
that Australia's reliance on China – Raw Materials is "inapt" because, in that dispute, the panel 
considered the use of the words "among others" served to suggest that the measures identified in the bullet points were not the only measures alleged to be inconsistent with China's WTO obligations. The formulation made the list of measures "open-ended", thus holding out the 
possibility of some unidentified bullet point yet to be specified.
53 The Dominican Republic submits 
that it does not, in the equivalent part of its panel request, purport to identify an open-ended 
group of measures, but instead that "[t]he meas ures at issue, which the Dominican Republic 
collectively refers to as the 'plain packaging measures', are the following…".54 Thus, the Dominican 
Republic emphasizes that the four bullet points of measures listed in its panel request constitute a 
closed list.55 
3.27.  The Dominican Republic also submits that Australia's general objection to its panel request 
is inconsistent with how the Appellate Body and prior panels have addressed "related measures" in the context of Article 6.2. Endorsing the panel in India – Agricultural Products , the Dominican 
Republic argues that the sufficiency of a reference in a panel request to "related" and other 
secondary measures depends, in part, on the specificity of the primary measures in the panel 
request. If the primary measures are defined in  broad or vague terms, the nexus between those 
measures and the related secondary measures ne cessarily suffers from the same difficulties.
56 The 
Dominican Republic argues that in its panel re quest the "primary" plain packaging measures are 
very clearly specified as three named laws and regulations: Tobacco Plain Packaging Act 2011; Tobacco Plain Packaging Regulations 2011; and the Trade Marks Amendment (Tobacco Plain 
Packaging) Act 2011. The Dominican Republic argues that this is similar to the clear specification 
of the primary measures in India – Agricultural Products . Consequently, the "secondary" measures 
                                               
49 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's pa nel request, para. 27. 
50 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's pa nel request, para. 28. 
51 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's pa nel request, para. 29. 
52 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's pa nel request, para. 30. 
53 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's pa nel request, para. 33 (c iting Panel Reports, China – Raw Materials , Annex F-1, 
para. 11). 
54 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's panel re quest, para. 34 (citing the Dominican Republic's request for the establishment of 
a panel, p. 1 (emphasis added)). 
55 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's pa nel request, para. 35. 
56 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's panel request, paras. 37-40 (c iting Preliminary Ruling, India – Agricultural Products , 
para. 3.43 and paras. 3.48-3.49). WT/DS441/19 
 
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  – that is, "any related measures" – are "narrowly tailored" as they are measures "related" in the 
stated manners to the named primary measures.57  
3.28.  Regarding the terms "complement" and "add to", the Dominican Republic argues that 
Australia provides no specific argument in support of its objection to these terms, beyond its 
speculation that these words could encompass non-plain-packaging tobacco-control measures. The 
Dominican Republic notes that in Chile – Price Band System , the Appellate Body analysed, without 
objection, whether a measure fell within the scope of a panel request that referenced a primary 
measure (the price band system under a named law) "as well as the regulations and 
complementary provisions and/or amendments".58 The Dominican Republic also notes that the 
Appellate Body in EC – Bananas III  considered measures "which implement[ed], supplement[ed] 
and amend[ed]" the Framework Agreement on Ba nanas "adequately identified" the relevant 
measures for the purposes of Article 6.2.59 The Dominican Republic argues that because such 
words have a similar meaning to both "complement"  and "add to", the use of these terms is not 
objectionable.60 
3.29.  The Dominican Republic also argues that attendant circumstances confirm that the 
Dominican Republic is challenging only Australia's plain packaging measures. Noting that the Appellate Body has stated that the adequacy of a panel request must be discerned "in light of 
attendant circumstances"
61, the Dominican Republic argues that the attendant circumstances 
confirm what is evident on the face of the panel request. Specifically, the Dominican Republic refers to its statements at the DSB, the Council for TRIPS, and the TBT Committee, in which the Dominican Republic has "consistently represented its concerns as being focused solely on 
Australia's plain packaging requirements applicable to retail packaging of tobacco products or to 
the tobacco products themselves". The Dominican Republic argues that it has never provided a 
plausible basis for Australia to believe that it was concerned with other non-plain-packaging 
measures.
62 
3.30.  The Dominican Republic also notes that Australia has never previously raised concerns 
regarding the scope of its challenge, for example in the DSB, nor has it sought clarification from 
the Dominican Republic. The Dominican Republic no tes that, when responding in the DSB to the 
request by the Dominican Republic for a panel, the representative of Australia appeared to understand perfectly well the nature and gist of th e measures at issue, as opposed to its minimum 
legal purchase age requirements, smoking cessation programs, or other tobacco control measures. 
Nor did the representative of Australia suggest that Australia was unable to begin preparation of 
its defence. The Dominican Republic states that it is, therefore, "surprised that Australia has filed 
this Preliminary Ruling Request".
63 
3.31.  The Dominican Republic also submits that the terms challenged by Australia are necessary 
to preserve its due process rights in these proceedings, because it is important to prevent Australia from adopting future measures cl osely connected to the named plain packaging 
measures, or from changing the legal form of its existing plain packaging measures, in a way that 
would exclude them from scrutiny by the Panel.
64 The Dominican Republic notes that "[t]his was 
                                               
57 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's pa nel request, para. 40. 
58 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's pane l request, para. 42 (citin g Appellate Body Report, Chile – Price Band System , 
para. 135 (emphasis added)). 
59 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's panel reques t, para. 43 (citing Panel Report, EC – Bananas III , para. 7.27 and Appellate 
Body Report, EC – Bananas III , para. 140). 
60 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's panel reques t, para. 43 (referring to the de finition of "supplement" in Merriam-Webster's 
Collegiate Dictionary  (11th ed., 2011), p. 1256). 
61 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's pane l request, para. 44 (citin g Appellate Body Report, US – Carbon Steel , para. 127). 
62 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's pa nel request, para. 45. 
63 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's pa nel request, para. 46. 
64 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's panel reques t, para. 47 (citing Panel Report, Australia – Salmon (Article 21.5 – Canada) , 
para. 7.10 (sub-paras. 16-28)). WT/DS441/19 
 
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  the exact case in EC – Chicken Cuts , where the panel considered that new regulations did not fall 
within its terms of reference precisely because the complainants' panel requests did not 'appear to anticipate inclusion of any measures in addition to those specifically identified'".
65 Had the 
complainants' panel requests been similar to the fourth bullet of Section A of the Dominican 
Republic's panel request, it "would have been apt to encompass properly specified secondary  
measures".66 In this regard, the Dominican Republic notes that new measures have "regularly 
been found to fall within a panel's terms of refe rence, provided that the language of the panel 
request was 'broad enough' to encompass such measures, while also being specific enough to 
satisfy Article 6.2 of the DSU".67  
3.32.  The Dominican Republic points out that "Australia itself appears to consider this a legitimate 
reason to reference implementing measures, amendments, and replacement measures in a panel 
request". Australia accepts that Article 6.2 does not require that each challenged measure be 
named explicitly, as it does not object to the inclusion of "related measures that implement … amend, or replace" the specified laws and regulations.
68 The Dominican Republic also points out 
that Australia also uses similar language in its own panel requests in other WTO disputes69, and 
that Australia recognizes in its Preliminary Ruling Request the legitimacy of listing measures by category in a panel request.
70 
3.33.  The Dominican Republic notes that "Australia's entire argument with respect to prejudice is 
premised on (i) its incorrect assertion that the [Dominican Republic's] panel request fails to identify the specific measures at issue and (ii) unwarranted speculation 'that the Dominican Republic intends to challenge every current or future tobacco control measure implemented in 
Australia'".
71 The Dominican Republic reiterates that the panel request meets the specificity 
requirement of Article 6.2, and hence that th ere is no prejudice to Australia's interests.72 The due 
process function of a panel request "is not constitutive of, but rather follows from, the proper 
establishment of a panel's jurisdiction".73 
3.34.  Nevertheless, the Dominican Republic argues that Australia has not suffered prejudice. In 
support of this contention, the Dominican Republic argues first that Australia's objections are 
premature. The Dominican Republic observes that Australia has not pointed to any measure not 
identified in the panel request but that the Dominican Republic alleges is part of the Panel's terms of reference by virtue of the three contested term s. The Dominican Republic submits that Australia 
cannot do so, because the Dominican Republic has not made any substantive submissions to date 
                                               
65 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's panel reques t, para. 48 (citing Panel Report, EC – Chicken Cuts , paras. 7.28-7.29). 
66 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's pa nel request, para. 48. 
67 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's panel request, para. 49 (citing Appellate Body Reports, Chile – Price Band System , 
para. 144; US – Zeroing (Japan) (Article 21.5 – Japan) , paras. 101-102, 130; and Panel Reports, Australia – 
Salmon (Article 21.5 – Canada) , para. 7.10; EC – IT Products , para. 7.141; EC – Fasteners (China) , paras. 
7.34, 7.39; Argentina – Footwear (EC) , para. 8.46). 
68 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's panel re quest, para. 50 (citing Australia's request for a preliminary ruling in relation to 
the Dominican Republic's panel request, para. 30 and footnote 2).   
69 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's panel request, para. 50 (citing Australia's requ est for the establishment of a panel in 
EC – Export Subsidies on Sugar  and EC – Trademarks and Ge ographical Indications ). 
70 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's panel re quest, para. 50 (citing Australia's request for a preliminary ruling in relation to 
the Dominican Republic's panel request, para. 19). 
71 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's panel re quest, para. 52 (citing Australia's request for a preliminary ruling in relation to 
the Dominican Republic's panel request, para. 18). 
72 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's pa nel request, para. 53. 
73 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's pane l request, para. 53 (citin g Appellate Body Report, EC and certain member States – 
Large Civil Aircraft , para. 640). WT/DS441/19 
 
- 12 - 
 
  nor provided any indication that it intends to contest measures other than ones relating to plain 
packaging.74 
3.35.  The Dominican Republic also notes that, given the terms of the panel request and the 
attendant circumstances, Australia has no plausible reason to "speculate" that the Dominican 
Republic might challenge any of the non-plain-packaging measures Australia mentions. For these 
reasons, the Dominican Republic argues that  it is "premature and indeed unnecessary"  for the 
Panel to determine, in the abstract, precisely which measures may or may not be encompassed by 
the three contested terms75, and asks the Panel to reject Australia's speculative Preliminary Ruling 
Request as "unripe".76 
3.36.  According to the Dominican Republic, the second reason why Australia has not been 
prejudiced is that Australia has a full opportunity to prepare its defence. The Dominican Republic 
submits that its panel request identifies the specific plain packaging measures at issue and 
complies fully with the requirements of Article 6.2,  such that Australia is not being prevented from 
beginning the preparation of its defence, nor has it suffered any prejudice in so preparing.77 
3.37.  The Dominican Republic submits that Australia's rebuttal submission fails to address, let 
alone rebut, the vast majority of the arguments made by the Dominican Republic, the other co-complainants and the third parties supporting the Dominican Republic.
78 The Dominican Republic 
points out that Australia fails to respond to its arguments regarding Australia's reliance on the 
dictionary definition of "specific"; that the measures at issue can be discerned on the face of the Dominican Republic's panel request as a whole; that the Dominican Republic's panel request does not contain an "open-ended" list of measures; that the attendant circumstances, including the 
Dominican Republic's statements at the DSB, Council for TRIPS, and TBT Committee, confirm that 
the Dominican Republic is challenging only Australia's plain packaging measures; that Australia understands the nature and gist of the plain packaging measures at issue; that the Appellate Body 
has upheld the use of terms similar to "complement" and "add to" to identify secondary measures 
in a panel request; that it is premature and unnecessary for the Panel to address the contested terms in the abstract; and that Australia has a full opportunity to begin to prepare its defence.
79 
The Dominican Republic notes that "[m]ost aspects of Australia's Comments are simply repetitive 
of points that the Dominican Republic has prev iously addressed", and argues that Australia's 
preliminary ruling request must fail on the basis that Australia persists in ignoring the Appellate Body's directive to scrutinize carefully the panel re quest, read as a whole, and on the basis of the 
language used.
80 
3.38.  In relation to the specific measures at issue, the Dominican Republic notes that Australia, in 
its comments, fails to respond to the Dominican Republic's demonstration of the adequacy of the 
contested terms in its panel request, read in light of the panel request as a whole. The Dominican 
Republic adds that Australia does not make any arguments with respect to any portion of the Dominican Republic's panel request besides the contested terms, which it considers only in 
                                               
74 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's panel re quest, paras. 55-58 (referri ng to Preliminary Ruling, India – Agricultural 
Products , paras. 3.49-3.50). 
75 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's panel request, paras. 59-60 (cit ing Appellate Body Report, US – Continued Zeroing , 
paras. 168-69.) 
76 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's pa nel request, para. 61. 
77 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's pa nel request, para. 62. 
78 The Dominican Republic identifies these third part ies as Cuba, Indonesia, Honduras, Guatemala, the 
European Union, Mexico, and Argentina. The Dominican Re public's further co mments on Australia's request for 
a preliminary ruling in relation to the Do minican Republic's panel request, para. 3. 
79 The Dominican Republic's further co mments on Australia's request for a preliminary ruling in relation 
to the Dominican Republic's panel request, para. 3. 
80 The Dominican Republic's further co mments on Australia's request for a preliminary ruling in relation 
to the Dominican Republic's panel request,  para. 4 (citing Appe llate Body Report, EC – Fasteners (China) , para. 
562). WT/DS441/19 
 
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  isolation. Australia thus completely neglects to engage with the text of the panel request as a 
whole or on the basis of the language us ed as directed by the Appellate Body.81 
3.39.  The Dominican Republic argues that Austra lia recognizes that this dispute is about plain 
packaging of tobacco products, and that it appe ars to understand what the concept of "plain 
packaging" encompasses. The Dominican Republic points out that Australia does not explain how 
its own views of the overarching regulatory context of the plain packaging measures, coupled with 
"baseless speculation" about the Dominican Republic's intentions to challenge other tobacco 
control measures, alter the plain meaning of the terms used in the Dominican Republic's panel 
request. The Dominican Republic states that this is clearly insufficient for purposes of identifying a violation of Article 6.2 of the DSU.
82 
3.40.  The Dominican Republic also argues that Australia misinterprets the case law on "related 
measures". The Dominican Republic reiterates that the panel in  India – Agricultural Products  
examined previous challenges to the identificati on of "related measures", and noted that the 
distinguishing feature of the panel requests in EC – Selected Customs Matters and China – Raw 
Materials was the identification of "very broad [primary] measures" or "lengthy lists of [primary] 
measures", such that the secondary "related measures" and "implementing measures" lacked sufficient specificity.
83 The Dominican Republic notes that Australia argues that the decisions in EC 
– Selected Customs Matters and China – Raw Materials  were based on the "inherent ambiguity" of 
the terms "implementing measures and other related measures" in the former case and "related measures" in the latter, and had nothing at all to do with the nature of the primary measures referenced in the panel requests at issue. The Dominican Republic argues that this understanding 
is erroneous, and that the Appellate Body in EC – Selected Customs Matters and the panel in China 
– Raw Materials  properly considered the specificity of the secondary measures in light of the 
primary measures to which they related.
84 The Dominican Republic adds that the terms 
"implementing measures" and "related measures" are inherently ambiguous is belied by Australia's 
view that references to implementing measures in a panel request are proper; Australia's use of terms such as "related … instruments" and "related implementing … measures" in its own panel 
requests; and the "repeated approval"  of references to "related" an d "implementing" measures in 
previous cases.
85 
3.41.  The Dominican Republic adds that Australia has at no point attempted to provide a basis in 
Article 6.2 of the DSU for its distinction betw een, on the one hand, related measures that 
"implement", "amend", or "replace", which it concedes are proper to include, and, on the other 
hand, the allegedly improper "related measures that complement or add to".86 The Dominican 
Republic also notes that whether future measures fall within a panel's terms of reference depends 
on whether a panel request is "broad enough" to encompass such measures.87 Thus, the 
Dominican Republic submits that complainants in any dispute face a risk that the respondent will adopt related secondary measures "in addition to" the primary measures and that it is proper for a 
complainant to mitigate this risk in its panel request, provided that it does so consistently with the 
requirements of Article 6.2 of the DSU. The Dominican Republic argues that in this dispute, it mitigates the risk for a category of measures related to the named plain packaging measures, including complementary and additional measures. The Dominican Republic adds that the 
                                               
81 The Dominican Republic's further co mments on Australia's request for a preliminary ruling in relation 
to the Dominican Republic's panel request,  para. 7 (citing Appe llate Body Report, EC – Fasteners (China) , para. 
562). 
82 The Dominican Republic's further co mments on Australia's request for a preliminary ruling in relation 
to the Dominican Republic's panel request, paras. 8-9. 
83 The Dominican Republic's further co mments on Australia's request for a preliminary ruling in relation 
to the Dominican Republic's panel request, para. 11 (citing Preliminary Ruling, India – Agricultural Products , 
para. 3.48). 
84 The Dominican Republic's further co mments on Australia's request for a preliminary ruling in relation 
to the Dominican Republic's panel request, paras. 12-13. 
85 The Dominican Republic's further co mments on Australia's request for a preliminary ruling in relation 
to the Dominican Republic's panel request,  para. 14 (referring to Panel Reports, US – Shrimp (Thailand) , para. 
7.48; US – Customs Bond Directive , para. 7.22; EC – IT Products , para. 7.140; and EC – Bananas III , para. 
7.27; and Appellat e Body Reports, EC – Bananas III , para. 140; and US – Zeroing (Japan) (Article 21.5 – 
Japan) , para. 112). 
86 The Dominican Republic's further co mments on Australia's request for a preliminary ruling in relation 
to the Dominican Republic's panel request, para. 16. 
87 The Dominican Republic's further co mments on Australia's request for a preliminary ruling in relation 
to the Dominican Republic's panel request, para. 17. WT/DS441/19 
 
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  contested terms are almost exactly the terms that the panel in EC – Chicken Cuts  said were 
missing from the complainants' panel requests.88 
3.42.  The Dominican Republic argues that it is, at this stage, neither necessary nor appropriate 
for the Panel to examine the precise boundary between measures that "implement", "amend", and 
"replace", on the one hand, and measures that "complement" or "add to", on the other hand, on 
the basis of hypotheticals and Australia's baseless speculation that the Dominican Republic may be challenging non-plain-packaging measures. For the Dominican Republic, this is highlighted by the 
fact that Australia is demanding clarification on the basis of hypotheticals and speculation.
89 The 
Dominican Republic offers as an example a scenario in which Australia adopts further plain packaging requirements through a new law or regula tion that did not implement, amend or replace 
the existing plain packaging measures. Such a law or regulation would be a measure that 
"complements" or "adds to" Australia's existing plain packaging measures. The Dominican Republic 
argues that there is no reason why the Dominican Republic should not be able to identify such plain packaging measures in its panel request
90, and that the fourth bullet point of plain packaging 
measures in its panel request intends to cover the entire universe of plain packaging measures of 
which the Dominican Republic is not aware or which Australia may enact in the future.91 
4  MAIN ARGUMENTS OF THE THIRD PARTIES 
4.1.  Argentina  considers that, reading the panel request as a whole and taking into account the 
context of the paragraph in question, it is clear from the text of the challenged paragraph that the complementary or additional measures concerned are directly related to Australia's plain packaging legislation. Argentina submits that among those related measures are the measures 
that are included, be they measures that complement or add to these laws and regulations. 
Argentina submits that the text of the request from the Dominican Republic refers to the measures that constitute the plain packaging legislation, and not to any other type of measure with no 
connecting link other than a reference to tobacco or health.
92 Argentina considers that the terms at 
issue "are included in claims, and that those claims in turn are presented collectively and under the same heading: tobacco plain packaging measures, for which reason Argentina believes that 
the measures are presented in a clear and distinct manner and that the scope of the complaint is, 
therefore, precise".
93 Argentina therefore argues that it is unnecessary to make the changes 
requested by Australia.94 
4.2.  The European Union  submits that Australia's concerns regarding the specific measure at 
issue "have all been expressly and specifically allayed by the Dominican Republic". The European 
Union suggests, "without endorsing" the Domini can Republic's speculation or reasoning about 
possible future measures, that the Panel consider deferring a ruling on this matter to a later stage 
of the proceedings, following a similar approach to that of the Panel in India – Agricultural 
Products .95 
4.3.  Guatemala  observes that the "co-complainants" consistently refer to the challenged 
measures as "plain packaging measures" and that the words "including", "complement" and "add 
to" appear to be limited to the reference to plain packaging measures.96 Guatemala adds that 
nothing in the text of the panel requests appears to support the view that there "is uncertainty regarding the identity, number and content of the laws and regulations under challenge." 
Guatemala states that "[t]he fundamental problem with Australia's objections seems to be 
requesting the Panel to make a determination in the abstract", and that the circumstances in India 
                                               
88 The Dominican Republic's further co mments on Australia's request for a preliminary ruling in relation 
to the Dominican Republic's panel request,  paras. 18-19 (referring to Panel Report, EC – Chicken Cuts , 
paras. 7.28-7.29). 
89 The Dominican Republic's further co mments on Australia's request for a preliminary ruling in relation 
to the Dominican Republic's panel request, para. 20. 
90 The Dominican Republic's further co mments on Australia's request for a preliminary ruling in relation 
to the Dominican Republic's panel request, para. 21. 
91 The Dominican Republic's further co mments on Australia's request for a preliminary ruling in relation 
to the Dominican Republic's panel request, para. 22. 
92 Argentina's third-party comments on Australia's requests for preliminary rulings, paras. 9-15. 
93 Argentina's third-party comments on Australia' s requests for preliminary rulings, para. 22. 
94 Argentina's third-party comments on Australia' s requests for preliminary rulings, para. 24. 
95 The European Union's third-party comments on Australia' s requests for preliminary rulings, para. 33. 
96 Guatemala's third-party comments on Australia's  requests for preliminar y rulings, para. 2.8. WT/DS441/19 
 
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  – Agricultural Products could be "extrapolated" to the circumstances in the present cases. Finally, 
Guatemala states that Australia cannot obtain an order from the Panel which effectively modifies the panel request by striking out parts of its language, as the panel request is not subject to amendments, once a panel is established.
97 
4.4.  Honduras  argues that there is no basis in the text of the Dominican Republic's panel request 
for Australia to claim that it is unclear which, if any, of Australia's current or future tobacco control measures Australia is required to defend in a ddition to the plain packaging measure. Honduras 
adds that the additional measures listed in Australia's request would clearly not be "plain 
packaging measures" and would not be considered measures that are "related" to three specific legal instruments, all of which regulate the packaging of tobacco products.
98  
4.5.  Honduras argues that Australia's objection to the use of the term "including" lacks merit 
because the narrative description of the measure, to gether with the identification of three specific 
legal instruments and the residual sub-category of  "related" measures, identify the measures at 
issue as plain packaging measures with sufficient precision. For Honduras, the listing of particular 
examples within that residual sub-category of "related" measures (through the use of the term 
"including") logically cannot create an impermissible open-ended list of measures.99 In addition, 
Honduras argues that Australia's objection to the use of the terms "complement" and "add to" also 
lacks merit as the terms "complement" or "add to" "textually must refer to those measures that 
are related to the plain packaging measures".100 
4.6.  Honduras adds that residual clauses of the kind used by the Dominican Republic are "an 
important tool by which complainants preserve their right to maintain within a panel's terms of 
reference future measures that do not alter the essence of the existing measures".101 
4.7.  Honduras also believes that Australia's re quest is premature and that it is therefore not 
necessary for the Panel to address Australia's concerns at this point in time. Specifically, there is 
no evidence that the complainant may be planning to challenge a measure that does not fall 
"within the four corners" of its panel request, and as such Honduras submits that the current 
circumstances are the same as those in India – Agricultural Products . It would therefore be more 
prudent for the Panel to revisit this issue if the complainants do attempt to include measures 
within the Panel's terms of reference that are no t "related", "complement"  or "add to" the plain 
packaging measures.102 
4.8.  Indonesia  argues that the panel request of the Do minican Republic, when read in context, 
clearly allows the Panel to address only plain packaging measures that are not specifically listed in 
the panel requests.103 Specifically, the words "including," "complement," and "add to" are clearly 
limited so as to refer only to plain packaging measures, and are further qualified by the term 
"related measures" and the description of their function as measures that "establish 
comprehensive requirement[s] regarding the appe arance and form of the retail packaging of 
tobacco products".104 Indonesia adds that the attendant circumstances in this case confirm the 
intended scope of this dispute. Indonesia refers to its statement, and those of the "co-
complainants", at the DSB, the Council for TRIP S, and the TBT Committee, in which they focused 
on Australia's plain packaging requirements and no other facet of Australia's tobacco control regime.
105  
4.9.  Indonesia submits that the challenged langua ge does not prejudice Australia's interests, and 
that Australia's objection would be more appropriately raised in response to the identification by the parties of a specific measure it believes would fall within the scope of the challenged 
language.
106 Indonesia likens this case to the circumstances in India – Agricultural Products , such 
                                               
97 Guatemala's third-party comments on Australia's requests for prelim inary rulings, pa ras. 2.1-2.13. 
98 Honduras' third-party comments on Australia's re quests for preliminary rulings, paras. 5-13. 
99 Honduras' third-party comments on Australia's re quests for preliminary rulings, paras. 14-17. 
100 Honduras' third-party comments on Australia's requests for preliminary rulings, para. 19. 
101 Honduras' third-party comments on Australia's re quests for preliminary ru lings, paras. 20-21. 
102 Honduras' third-party comments on Australia's re quests for preliminary ru lings, paras. 22-24. 
103 Indonesia's third-party comments on Australia's  requests for preliminary rulings, para. 7. 
104 Indonesia's third-party comments on Australia's  requests for preliminary rulings, para. 10. 
105 Indonesia's third-party comments on Australia's requests for preliminary rulings, paras. 11-14. 
106 Indonesia's third-party comments on Australia's  requests for preliminary rulings, para. 15. WT/DS441/19 
 
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  that until written briefing in this case has co mmenced, it is "premature  and indeed unnecessary"  
for the Panel to opine on Australia's request.107 
4.10.  Indonesia also argues that this language is necessary to protect the parties' rights should 
Australia adopt measures closely connected to the plain packaging measures listed in the panel 
requests or change the legal nature of the existi ng plain packaging measures (e.g., by withdrawing 
and reissuing measures in a slightly different form) during the course of the Panel proceeding.108 
4.11.  In Mexico's  view, Australia's objection concerning the words "including", "complement" and 
"add to" may be resolved at a later stage in the proceedings. Mexico believes that the same 
approach could be taken in the present case as was taken by the Panel in India – Agricultural 
Products , which determined that it was premature and unnecessary to make a determination in 
the abstract at a preliminary stage as to which me asures fall within the Panel's terms of reference. 
Mexico adds that the Panel could rule as the ca se progresses and on the basis of the terms of 
reference which specific measures are included in the terms of reference.109 
5  ANALYSIS BY THE PANEL 
5.1.  The question before us is whether the Dominican Republic's panel request is consistent with 
the requirement under Article 6.2 of the DSU to identify the "specific measures at issue". In 
particular, Australia challenges the use of the words "including", and "complement or add to" in 
the Dominican Republic's panel request: 
Any related measures adopted by Australia, including  measures that implement, 
complement or add to  these laws and regulations, as well as any measures that 
amend or replace these laws and regulations. 
5.2.  Australia submits that "the use of the term 'including', which defines the 'related measures' in 
a non-exhaustive way", and "the attempt to include unspecified measures that 'complement or add to' those explicitly named in the panel request" indicate that the Dominican Republic's panel 
request does not specify the measures at issue.
110 
5.3.  The Dominican Republic, for its part, submits that "its Panel Request is fully consistent with 
the requirements of Article 6.2 of the DSU". In particular, the Dominican Republic argues that 
"considered as a whole and in light of the attendant circumstances, the Panel Request identifies 
the measures at issue with ample precision" because, inter alia , "prior Appellate Body and panel 
decisions confirm that use of the terms to which Australia objects is proper", and because "the inclusion of the challenged terms is important to protect the Dominican Republic's interests in this 
dispute and has not prejudiced Australia's ability to begin to prepare its [defence]".
111  
5.4.  The Panel will therefore begin its analysis by considering the requirements of Article 6.2 in 
respect of the identification of the measures at issue. 
5.1  The requirement to "identify the specific measures at issue" 
5.5.  Article 6.2 of the DSU provides as follows: 
The request for the establishment of a panel shall be made in writing. It shall indicate 
whether consultations were held, identify the specific measures at issue and provide a 
brief summary of the legal basis of the complaint sufficient to present the problem clearly. 
5.6.  As described by the Appellate Body, Articl e 6.2 contains two distinct requirements, namely 
(1) the identification of the specific measures at  issue and (2) the provision of a brief summary of 
                                               
107 Indonesia's third-party comments on Australia's requests for preliminary rulings, paras. 15-19. 
108 Indonesia's third-party comments on Australia's requests for preliminary rulings, paras. 20-23. 
109 Mexico's third-party co mments on Australia's re quests for preliminary rulings, paras. 27-28. 
110 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
para. 8. 
111 The Dominican Republic's response to Australia's request for a preliminary ruling in relation to the 
Dominican Republic's pa nel request, para. 4. WT/DS441/19 
 
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  the legal basis of the complaint (or the claims).112 Together, these elements comprise the "matter 
referred to the DSB", which forms the basis for a panel's terms of reference under Article 7.1 of 
the DSU.113  
5.7.  Article 6.2 serves the function of esta blishing and delimiting the panel's jurisdiction.114 It 
serves a "pivotal function" in WTO dispute settlement115 in that, to the extent that a panel request 
fails to identify "the specific measures at issue" and/or "to provide a brief summary of the legal basis of the complaint", such measures and/or claims do not fall within a panel's terms of 
reference and that panel would not have jurisdiction to make findings in respect of them.
116 
5.8.  In addition, by establishing and defining the jurisdiction of the panel, the panel request fulfils 
the due process objective of providing the responde nt and third parties notice regarding the nature 
of the complainant's case117 to enable them to respond accordingly.118 
5.9.  The Appellate Body recently summarized the manner in which a panel must determine 
whether a panel request fulfils the requirements of  Article 6.2. Specifically, the Appellate Body 
stated that: 
[A] panel must determine compliance with Article 6.2 "'on the face' of the panel 
request"119 as it existed at the time of filing. Thus, parties' submissions and 
statements during the panel proceedings cannot "cure" any defects in the panel 
request.120 Nevertheless, these subsequent submissions and statements may be 
consulted to the extent that they may confirm or clarify the meaning of the words used in the panel request.
121 In any event, the determination of the conformity with 
Article 6.2 should be done on a case-by-case  basis, considering the particular context 
in which the measures exist and operate.122 This determination must be done on an 
objective basis, such that any circumstances taken into account may not contemplate those that are relevant only to a party to the panel proceedings.
123 
5.10.  The requirement to identify the specific me asures at issue serves to define the "object of 
the challenge", or, more precisely, "the measure that is alleged to be causing the violation of an obligation contained in a covered agreement".
124 The Appellate Body has observed that "the clear 
identification of the specific measures at the outset  is central to define the scope of the dispute to 
                                               
112 Appellate Body Reports, China – Raw Materials , para. 219; and EC and certain member States – 
Large Civil Aircraft , para. 639. 
113 Appellate Body Report, US – Countervailing and Anti-Dumping Measures (China) , para. 4.6 (citing 
Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 639 (referring to Appellate 
Body Reports, Guatemala – Cement I , paras. 72 and 73; US – Carbon Steel , para. 125; US – Continued 
Zeroing , para. 160; US – Zeroing (Japan) (Article 21.5 – Japan) , para. 107; and Australia – Apples , para. 416). 
114 Appellate Body Report, US – Countervailing and Anti-Dumping Measures (China) , para. 4.6 (citing 
Appellate Body Reports, Brazil – Desiccated Coconut , p. 22, DSR 1997:I, p. 186; US – Continued Zeroing , 
para. 161; and EC and certain member States – Large Civil Aircraft , para. 640). 
115 Appellate Body Reports, China – Raw Materials , para. 219.  
116 See, for example, Appellate Body Report, US – Continued Zeroing , para. 161 ("[A]s a panel's terms 
of reference are established by the claims raised in pane l requests, the conditions of Article 6.2 serve to define 
the jurisdiction of a panel".) 
117 Appellate Body Report, US – Countervailing and Anti-Dumping Measures (China) , para. 4.7 (citing 
Appellate Body Reports, Brazil – Desiccated Coconut , p. 22, DSR 1997:I, p. 186; US – Carbon Steel , 
para. 126; and EC and certain member States – Large Civil Aircraft , para. 640). 
118 Appellate Body Report, US – Countervailing and Anti-Dumping Measures (China) , para. 4.7 (citing 
Appellate Body Reports, Brazil – Desiccated Coconut , p. 22, DSR 1997:I, p. 186; Chile – Price Band System , 
para. 164; and US – Continued Zeroing , para. 161). 
119 (footnote original) A ppellate Body Report, US – Continued Zeroing , para. 161 (quoting Appellate 
Body Report, US –Carbon Steel , para. 127). 
120 (footnote original)  Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 
787 (referring to Appellate Body Reports, EC – Bananas III , para. 143; and US – Carbon Steel , para. 127). 
121 (footnote original)  See e.g. Appellate Body Report, US – Carbon Steel , para. 127. 
122 (footnote original)  Appellate Body Report, EC and certain member States – Large Civil Aircraft , 
para. 641. 
123 Appellate Body Report, US – Countervailing and Anti-Dumping Measures (China) , para. 4.9. 
124 Appellate Body Report, US – Countervailing and Anti-Dumping Measures (China) , para. 4.12 (citing 
Appellate Body Report, EC – Selected Customs Matters , para. 130). WT/DS441/19 
 
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  be addressed by a panel".125 It also serves to ensure that the respondent is in a position to defend 
itself: 
The word "specific" in Article 6.2 establishes a specificity requirement regarding the 
identification of the measures that serves  the due process objective of notifying the 
parties and the third parties of the measure(s) that constitute the object of the 
complaint.126 
5.11.  Whether or not a panel request satisfies this requirement must be assessed "on the merits 
of each case, having considered the panel requ est as a whole, and in the light of attendant 
circumstances".127 The Panel must therefore "scrutinize carefully the panel request, read as a 
whole, and on the basis of the language used".128 In addition, "whether a panel request identifies 
the 'specific measures at issue' may depend on the particular context in which those measures 
operate and may require examining the extent to  which they are capable of being precisely 
identified".129 
5.12.  In light of the nature of Australia's request,  we will consider how this requirement applies in 
relation to panel requests that define the measures at issue in part without naming them (that is, 
in a manner other than by specifically enumeratin g the measures at issue, such as, for example, 
by referring to "related" measures, "implementing"  measures, or "amending" measures). We note 
that such references are not uncommon in panel re quests, and have been challenged in previous 
disputes.  
5.13.  For example, the panel request in EC – Bananas III  referred to EC Regulation 404/93 and 
"subsequent EC legislation, regulations and administrative measures, including those reflecting the 
provisions of the Framework Agreement on bananas, which implement, supplement and amend  
that regime".130 The panel considered that the "banana regime" challenged by the complainants 
was "adequately identified", even if the "subsequen t EC legislation, regulations and administrative 
measures that further refine and implement the basic regulation" were not identified. The 
Appellate Body agreed that the request contained "sufficient identification of the specific measures at issue to satisfy the requirements of Article 6.2 of the DSU".
131 We understand this to indicate 
that general references to unnamed measures, such  as, in that case, measures that "implement, 
supplement and amend" a primary measure explicitly identified in the panel request, may be capable of satisfying the specificity re quirement in Article 6.2 of the DSU. 
5.14.  We also note that in some cases, by co ntrast, similar general references have been found 
insufficient to meet the specificity requirement in Article 6.2. Thus, in EC – Selected Customs 
Matters , the Appellate Body found that the phrase "implementing measures and other related 
measures" was "vague and does not allow the identification of the specific instruments that the 
reference aims to cover", such that it did not "identify the specific measures at issue", as required 
by Article 6.2 of the DSU.
132 In China – Raw Materials , the panel similarly held that the term 
"related measures" was too broad and did not allow China to know clearly what specific measures 
were being challenged.133 A s  o b s e r v e d  b y  t h e  p a n e l  i n  India – Agricultural Products, the broad 
scope of the enumerated measures in these two disputes appears to have contributed to the 
                                               
125 Appellate Body Report, EC – Chicken Cuts , para. 155. 
126 Appellate Body Report, EC – Selected Customs Matters , para. 152. 
127 Appellate Body Report, US – Carbon Steel , para. 127. See also  Appellate Body Report, Korea – Dairy , 
paras. 124-127; Panel Report, Canada – Wheat Exports  and Grain Imports , para. 6.10, sub-para. 14. 
128 Appellate Body Report, EC – Fasteners (China) , para. 562 (citing Appellate Body Reports, US – 
Carbon Steel , para. 127; US – Oil Country Tubular Goods , paras. 164 and 169; US – Continued Zeroing , 
para. 161; and US – Zeroing (Japan) (Article 21.5 – Japan) , para. 108). 
129 Appellate Body Reports, China – Raw Materials , para. 220 (citing Appellate Body Report, EC and 
certain member States – Large Civil Aircraft , para. 641). 
130 WT/DS27/6 (emphasis added). 
131 Panel Report, EC – Bananas III , para. 7.27; Appellate Body Report, EC – Bananas III , para. 140.  
132 In that dispute, the United States had challenged the EC's Community Customs Code, the regulation 
implementing the Customs Code, the regulation on the tariff and statistical nomenclature and on the Common Customs Tariff, and the Integrated Tariff of the Europe an Communities, as well as "implementing measures 
and other related measures".   Appellate Body Report, EC – Selected Customs Matters , paras. 2 and 152, 
footnote 369. 
133 Panel Reports, China – Raw Materials , Annex F-1, para. 17. WT/DS441/19 
 
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  conclusion that the terms at issue were insufficient ly precise, in the context of those disputes, to 
meet the specificity requirement of Article 6.2 of the DSU.134 
5.15.  Overall, these rulings suggest to us that  a reference to unnamed measures such as those 
discussed above is not per se  inconsistent with the specificity requirement in Article 6.2. In 
particular, as noted by Australia, such an approach may allow the complainant to preserve its due 
process rights135 and thereby assist in ensuring that a positive solution to the dispute can be 
secured.136 Such language may in particular serve to protect the interests of the complainant in 
respect of relevant measures not yet in existe nce at the time of filing the panel request.137 
However, whether such a reference meets the specificity requirements of Article 6.2 will depend importantly on the circumstances of the case. Just  as with any assessment under this element of 
Article 6.2, a finding of whether such language is consistent with the specificity requirement under 
this provision must be based, as described above, on a consideration of the panel request as a 
whole and of any attendant circumstances, on a case-by-case basis.
138 
5.16.  In this respect, we note the following observations of the panel in Japan – Film :  
To fall within the terms of Article 6.2, it seems clear that a 'measure' not explicitly 
described in a panel request must have a clear relationship to a 'measure' that is specifically described therein, so that it ca n be said to be 'included' in the specified 
measure. In our view, the requirements of Article 6.2 would be met in the case of a 
'measure' that is subsidiary or so closely related to a "measure" specifically identified, that the responding party can reasonably be found to have received adequate notice of the scope of the claims asserted by the complaining party.
139 
5.17.  That panel also stressed that the two elem ents – close relationship and notice – are inter-
related, so that "only if a 'measure' not explicitly identified is subsidiary or closely related to an identified 'measure' will notice be adequate".
140 
5.18.  Like that panel, we are mindful of the role of the panel request in fulfilling due process 
objectives, for both parties. Due process is a fundamental principle of WTO dispute settlement,141 
                                               
134 Preliminary Ruling, India—Agricultural Products , paras. 3.45-3.47. 
135 Australia's comments on responses to Australia 's requests for prelimin ary rulings, para. 28. 
136 In this regard we note the determination of the panel in EC – Chicken Cuts  that two subsequent 
measures cited by the complainants in the course of the proceedings did not fall with in its terms of reference, 
based on its determination that Brazi l's and Thailand's respective panel requests were "much more narrowly 
drafted" than the "broadly worded" panel requests at is sue in previous cases where panels had found measures 
not identified specifically in the panel requests to be ne vertheless within their terms of reference.  (see Panel 
Reports, EC – Chicken Cuts (Brazil) , paras. 7.20-7.32 and EC – Chicken Cuts (Thailand) , paras. 7.20-7.32).  
On appeal, the Appellate Body was not persuaded that  the subsequent measures in question could be 
considered as amendments to the two original measures as argued or that the two sets of measures were, in 
essence, the same. It also noted that the objective of se curing a positive and effective resolution of a dispute 
"cannot be pursued at the expense of complying with the specific requirements and obligations of Article 6.2" (Appellate Body Report, EC – Chicken Cuts , paras. 157-158 and 161).  
137 See for example Appellate Body Report, Chile – Price Band System , paras. 137 and 138. 
138 Appellate Body Report, US – Carbon Steel , para. 127. See also  Appellate Body Report, Korea – Dairy , 
paras. 124-127; Panel Report, Canada – Wheat Exports  and Grain Imports , para. 6.10, sub-para. 14. 
139 Panel Report, Japan – Film , para. 10.8. We note that this test  has been referred to by subsequent 
panels in assessing whether certain measures not expressly identified in the panel request nonetheless fell within the scope of their terms of re ference. For instance, the panel in US – Carbon Steel  referred to the Japan 
– Film  panel and concluded that a measure not identified  in the panel request was not a measure that was 
subsidiary, or so closely related to, any of the measures specifically identified that the responding party could reasonably be found to have received adequate notice of the scope of the claims asserted by the complaining 
party (see Panel Report, US – Carbon Steel, para. 8.11). The panel in Australia – Salmon (Article 21.5 – 
Canada)  also considered whether measures not expressly named in the panel request were "so closely related" 
to the measures named in the panel request that the re spondent "can reasonably be  found to have received 
adequate notice" of the scope of the complainant's claims (see Panel Report, Australia – Salmon (Article 21.5 – 
Canada) , para. 7.10, subpara. 27). 
140 Panel Report, Japan – Film , para. 10.8. 
141 The Appellate Body has held that "the protection of due process is an esse ntial feature of a rules-
based system of adjudication, such as that establishe d under the DSU", and that "due process is fundamental 
to ensuring a fair and orderly conduct of dispute settlement procee dings". (Appellate Body Reports, Canada – 
Continued Suspension / US  – Continued Suspension , para. 433; and Thailand – H-Beams , para. 88, 
respectively. See also Appellate Body Report, Chile – Price Band System , para. 176). WT/DS441/19 
 
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  which informs various provisions of the DSU.142 As we understand it, the requirements of due 
process imply, in this context, both that the complainant is able to define the scope of its 
complaint so as to secure a positive solution to the dispute143 and that the panel request identifies 
the measure(s) at issue with such specificity that all parties and third parties receive adequate 
notice regarding the nature of the complainant's case.144 
5.19.  We further note that these requirements of due process continue to manifest themselves in 
the course of panel proceedings. We note, in this  respect, the observations of the Appellate Body 
in Chile – Price Band System : 
[G]enerally speaking, the demands of due process are such that a complaining party 
should not have to adjust its pleadings throughout dispute settlement proceedings in order to deal with a disputed measure as a "moving target". If the terms of reference 
in a dispute are broad enough to include amendments to a measure … and if it is 
necessary to consider an amendment in order to secure a positive solution to the dispute … then it is appropriate to consider the measure as amended in coming to a 
decision in a dispute.
145 (emphasis added) 
5.20.  In determining whether a specific amen dment identified in the course of the panel 
proceedings could be considered to be properly before the panel in that case, the Appellate Body 
considered not only the terms of the panel request, which included a general reference inter alia  to 
"complementary provisions and/or amendments",  but also the fact that the amendment in 
question did not change the "essence" of the original measure at issue.146 We note that the panel 
in China – Raw materials  considered that the same approach applied in respect of "replacement 
measures".147 
5.21.  Thus, even where the language of a panel request is, on its face, broad enough to 
encompass certain additional instruments not identified by name in the request, this would not 
provide a basis for the complainant to expand th e scope of the dispute or modify its essence 
through the invocation of such instruments in the course of the panel proceedings. This is 
consistent, in our view, with the fact that it is the panel request that determines the scope of the 
dispute before the Panel, and with the due process objectives served by the panel request in this 
respect.  
5.22.  Bearing in mind these elements, we now tu rn to the Dominican Republic's panel request to 
determine whether it sufficiently identifies the "specific measures at issue" consistently with 
Article 6.2 of the DSU.  
                                               
142 See Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US) , para. 107. See also Appellate 
Body Reports, India – Patents (US) , para. 94; and Chile – Price Band System , para. 176. 
143 As the Appellate Body has said, "due process may … require a panel to take appropriate account of 
the need to safeguard … an aggrieved party's right to have  recourse to an adjudicative process in which it can 
seek redress in a timely manner, and the need for pr oceedings to be brought to a close" (Appellate Body 
Report, Thailand – Cigarettes (Philippines) , para. 150). 
144 Appellate Body Report,  US – Countervailing and Anti-Dumping Measures (China) , para. 4.7 (citing 
Appellate Body Reports, Brazil – Desiccated Coconut , p. 22, DSR 1997:I, p. 186; US – Carbon Steel , para. 
126; and EC and certain member States – Large Civil Aircraft , para. 640). 
145 Appellate Body Report, Chile – Price Band System , para. 144. 
146 See Appellate Body Report, Chile – Price Band System , paras. 139-144. In that case, the panel 
request identified a primary law an d existing amendments, "as well as the regulations and complementary 
provisions and/or amendments".  In the course of th e proceedings, an amendment was discussed, that added 
a paragraph to the primary law, and set out the maximum ad valorem  tariff that could be applied (which was in 
any case evident from Chile's tariff bi ndings). The Appellate Body considered that the measure was not, in 
essence, different as a re sult of the amendment (see Appellate Body Report, Chile – Price Band System , paras. 
137 to 139).  
147 The panel in China – Raw Materials  considered that this approach should also apply to "replacement 
measures that are of the same essence as original meas ures specifically identified in the [p]anel [r]equest", 
because the Appellate Body's "rationa le for including amendments of the same essence applies equally to 
replacement measures so that replacement measures of the same essence should also be assessed by a panel 
in order to secure a positive solution to a dispute". Panel Reports, China – Raw Materials , para. 7.16. Similarly, 
the panel in China – Publications and Audiovisual Products  analysed whether China could be considered to have 
received adequate notice of a partic ular measure, based on the language of the panel request as a whole, 
notwithstanding the fact that it included a general reference to "amendments, related measures, or 
implementing measures" (Panel Report, China –  Publications and Au diovisual Products , para. 7.60 
footnote 105). WT/DS441/19 
 
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  5.2  Whether the Dominican Republic's panel re quest identifies the specific measures at 
issue 
5.23.  As described above, Australia challenges so me of the terms used by the Dominican Republic 
in its panel request to identify the measures at issue in its complaint.  
5.24.  In order to determine whether these terms meet the requirements of Article 6.2, we must 
"scrutinize carefully the panel request, read as a whole, and on the basis of the language used"148. 
We therefore start our analysis with a consideration of the terms of the Dominican Republic's 
panel request. 
5.25.  Section A of the Dominican Republic's panel request is entitled "Measures at issue". That 
section provides as follows: 
The measures at issue, which the Dominican Republic collectively refers to as the 
"plain packaging measures", are the following: 
 Tobacco Plain Packaging Act 2011, Act No. 148 of 2011, "An Act to discourage 
the use of tobacco products, and for related purposes"; 
 Tobacco Plain Packaging Regulations 2011 (Select Legislative Instrument 2011, 
No. 263), as amended by the Tobacco Pl ain Packaging Amendment Regulation 
2012 (No. 1) (Select Legislative Instrument 2012, No. 29); 
 Trade Marks Amendment (Tobacco Plain Packaging) Act 2011, Act No. 149 of 
2011, "An Act to amend the Trade Marks Act 1995, and for related purposes"; and 
 Any related measures adopted by Australia, including measures that implement, 
complement or add to these laws and regulations, as well as any measures 
that amend or replace these laws and regulations.
149 
5.26.  The panel request then states "[t]hese plain packaging measures apply to the retail sale of 
cigarettes, cigars, and other tobacco products. The plain packaging measures establish 
comprehensive regulation of the appearance and fo rm of the retail packaging of tobacco products, 
as well as of the tobacco products themselves".150 The panel request then proceeds to elaborate 
on the manner in which the cited measures regulate the enumerated products.151 
5.27.  Australia's challenge focuses on the fourth "dot point" of the Dominican Republic's 
enumeration of the measures at issue. Specific ally, Australia challenges the use of the terms 
"including", and "complement or add to" in that context, on the basis that they are 
"indeterminate"152 and may potentially cover a broad range of measures relating to tobacco 
control, such as public education campaigns or the listing of nicotine replacement therapies. Australia explains that "the uncertainty regard ing the scope of the related measures arises 
because of the particular context in which Australia's tobacco plain packaging measure exists and 
operates, namely as part of a comprehens ive range of complementary tobacco control 
measures".
153 
5.28.  We first observe that each of the terms chal lenged by Australia is used to describe instances 
of "related" measures. The term "related measures" itself is to be read against the context of the enumeration that precedes it in the first three "dot points" under which the measures at issue are listed. In order to properly understand the terms at issue as part of the panel request "as a 
whole", we must therefore consider them as they are used in this particular context. 
                                               
148 Appellate Body Report, EC – Fasteners (China) , para. 562. 
149 The Dominican Republic's request for th e establishment of a panel, pp. 1-2. 
150 The Dominican Republic's request for the establishment of a panel, p. 2. 
151 The Dominican Republic's request for the establishment of a panel, p. 2. 
152 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
para. 27. 
153 Australia’s comments on responses to Australia 's requests for prelimin ary rulings, para. 29. WT/DS441/19 
 
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  5.29.  As described above, the Dominican Republic's panel request identifies the measures at issue 
collectively as the "plain packaging measures". It then elaborates on this category of measures in three separate ways. First, it enumerates three specific acts and regulations (namely, the Tobacco 
Plain Packaging Act 2011 , the Tobacco Plain Packaging Regulations 2011 , and the Trade Marks 
Amendment (Tobacco Plain Packaging) Act 2011 ). These may be described as the "primary" 
measures identified in this dispute. Second, immediately following this enumeration, it provides that the plain packaging measures are also "[a]ny related measures (…) including measures that 
implement, complement or add to these laws and regulations, as well as any measures that amend 
or replace these laws and regulations". Finally, the panel request provides a narrative that further defines the "plain packaging measures" as measures that "establish comprehensive regulation of the appearance and form of the retail packaging of tobacco products, as well as of the tobacco 
products themselves". 
5.30.  A plain reading of this language on its face suggests that the term "related" measures, as 
used here, necessarily refers to the three primary measures enumerated above, i.e. the three 
listed measures specifically addressing "tobacco plain packaging". Only measures related to these 
three specifically listed instruments could theref ore fall within the scope of the term "related" 
measures. The final narrative element of the definition of "plain packaging measures" further 
clarifies that the measures at issue are defined only as measures that regulate "the appearance 
and form of the retail packaging of tobacco products, as well as of the tobacco products themselves". We consider that this narrative element further clarifies and delimits the scope of measures within the Panel's terms of reference, insofar as measures falling within the scope of the 
three primary measures, or of "related measures, including measures … that … complement or add 
to" the primary measures, would also need to regulate the appearance and form of the "retail packaging of tobacco products, as well as of th e tobacco products themselves" in order to fall 
within our terms of reference. 
5.31.  In view of these limitations on the scope of measures covered, we do not consider that the 
language of the panel request in relation to "related measures", and in particular with respect to 
related measures that "add to" or "complement" the primary listed measures, is as open as 
Australia has suggested. Australia has argued th at the Dominican Republic, through the language 
of its panel request, "attempts to include a non- exhaustive and therefore indeterminate list" of 
"related measures" within the Panel's terms of reference.
154 Specifically, Australia has identified a 
range of "tobacco control" measures that it argues could fall within the scope of the language of 
the Dominican Republic's panel request, including (for example) public education campaigns, the 
listing of nicotine replacement therapies and other smoking cessation supports on Australia's 
Pharmaceutical Benefits Scheme, or Quitlines and other smoking cessation support services.155 In 
the light of our understanding of the terms of th e panel request, and the parameters created by 
the language therein, it is not apparent to us how such measures could fall within the scope of the 
panel request and thus within our terms of referenc e. Specifically, we are not persuaded that such 
indeterminacy exists when the terms "including" and "complement or add to" are read in the context of the remainder of the panel request. We are therefore of the view that the terms 
"including" and "complement or add to" do not un duly broaden the scope of the dispute in the 
manner that Australia argues. 
5.32.  Recalling our discussion in Section 5.1   above, we further observe that the language used 
by the Dominican Republic is similar to that used by the complainants in EC – Bananas III . We 
recall that the panel request in that case referred to a specific EC Regulation and "subsequent EC 
legislation, regulations and administrative measures, including those reflecting the provisions of the Framework Agreement on bananas, which implement , supplement  and amend  that regime".
156 
Notwithstanding such similarities, we are mindful of the requirement that we must "scrutinize 
carefully the panel request, read as a whole, and on the basis of the language used".157 With this 
in mind, we note the broader context in which these words appeared in the complainants' panel request in EC – Bananas III . In particular, we observe that the panel request in that dispute 
explicitly identified an impugned measure and then identified, by way of a narrative description, 
                                               
154 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
para. 9. 
155 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
para. 17. 
156 WT/DS27/6. (emphasis added) 
157 Appellate Body Report, EC – Fasteners (China) , para. 562. WT/DS441/19 
 
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  related unnamed measures that the complainants also sought to challenge (that is, "subsequent 
EC legislation, regulations and administrative measures, including those reflecting the provisions of the Framework Agreement on bananas, whic h implement, supplement and amend that 
regime").
158 
5.33.  As discussed, the Dominican Republic has defined the measures at issue as the "plain 
packaging measures", which it defines with explicit reference to three measures (the Tobacco Plain 
Packaging Act 2011 , the Tobacco Plain Packaging Regulations 2011 , and the Trade Marks 
Amendment (Tobacco Plain Packaging) Act 2011 ). Moreover, the Dominican Republic has further 
identified the measures at issue by reference to their application ("[t]hese plain packaging 
measures apply to the retail sale of cigarettes, cigars, and other tobacco products") and their effect ("[t]he plain packaging measures establish comprehensive regulation of the appearance and 
form of the retail packaging of tobacco products, as well as of the tobacco products 
themselves").
159 We consider that this approach is also similar to that taken by the complainants 
in EC – Bananas III . In particular, we consider that the scope of the primary measures is well 
delineated, such that the qualifying role played by the terms "complement" and "add to" is similar 
to that of the term "supplement" in the context of EC – Bananas III . Bearing this similarity in 
mind, as well as the similarity between the words "implement, supplement and amend" and 
"complement or add to" themselves, we do not consider that there is any material difference 
between the language used by the Dominican Republic in its panel request, and that endorsed by the panel and Appellate Body in EC – Bananas III .
160 This confirms us in our view that this 
language is sufficiently specific to satisfy Article 6.2 of the DSU. 
5.34.  We note Australia's argument that the circumstances in this dispute are analogous to those 
in China – Raw Materials , in which the complainants referred in their panel requests to a series of 
measures, preceded by the phrase "among others".161 In its preliminary ruling, the panel in that 
case found that the complainants could not include additional measures other than those 
enumerated in the panel requests, because "[s]uch an 'open ended' list would not contribute to the 
'security and predictability' of the WTO dispute sett lement system as required by Article 3.2 of the 
DSU".162 Australia submits that the language used by the Dominican Republic is similarly open-
ended and "does not provide Australia with notice  of the measures under challenge and creates 
considerable uncertainty as to the identity, number and content of the measures at issue".163 
5.35.  As discussed above, the language in the Dominican Republic's panel request establishes 
parameters that circumscribe the measures at issue through reference to (i) the narrative 
description of "plain packaging measures", (ii) the three primary measures, and (iii) the reference to measures "related to" such measures, which includes measures that "complement" and "add to" 
those measures, which do not change the essence of the dispute, and of which Australia has 
notice. In contrast, the panel request in China – Raw Materials did not contain such parameters. 
We are not persuaded that the Dominican Republic's panel request, and the parameters therein, 
give rise to a similarly "open-ended" list. In particular, as discussed above, we do not consider that 
these terms, read in context, imply that the broad range of "general tobacco control measures" not directly related to tobacco plain packaging that are the basis for Australia's concern would be covered.  
5.36.  In light of the above, we consider that the terms "including", "complement" and "add to", as 
used in the Dominican Republic's panel request, are not, on their face, inconsistent with the requirement under Article 6.2 of the DSU to identify the specific measures at issue.   
5.37.  In making this determination, we make no assessment, at this stage of our proceedings, as 
to whether any particular measure that may be invoked by the Dominican Republic in the course of these proceedings as "related" to the plain packaging measures as described above, including 
                                               
158 WT/DS27/6. 
159 The Dominican Republic's request for the establishment of a panel, p. 2. 
160 Panel Report, EC – Bananas III , para. 7.27; Appellate Body Report, EC – Bananas III , para. 140. We 
also note the comparable language in Chile – Price Band System  to “complementary provisions and/or 
amendments” (See Appe llate Body Report, Chile – Price Band System , para. 135). 
161 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
paras. 10-11. 
162 Panel Reports, China – Raw Materials , Annex F-1, para. 12. 
163 Australia's request for a prelimin ary ruling in relation to the Do minican Republic's  panel request, 
para. 10. WT/DS441/19 
 
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  measures that may "add to or complement" the listed measures, is or is not within our terms of 
reference.  
5.38.  We are mindful in this regard that "a clear identification of the specific measures at the 
outset is central to define the scope of the dispute to be addressed by a panel".164 We also recall 
the important due process role played by the pa nel request in this respect, as discussed in 
paragraphs 5.18.  to 5.21.   above. We note the observation of the panel in EC – IT Products  that 
it did not consider "that the mere incantation of  the phrase 'any amendments, or extensions and 
any related or implementing measures' in a panel request will permit Members to bring in 
measures that were clearly not contemplated in the panel request".165 Similarly, in the present 
proceedings, these terms would not provide a legiti mate basis for seeking to expand or modify the 
scope of the dispute in the course of the proceedin gs. In addition, we would expect any invocation 
in the course of the proceedings of a measure not identified by name in the panel request to take 
place in a timely manner. 
5.39.  Finally, we take note of the Dominican Re public's confirmation that it has consistently 
represented its concerns as being focused solely on Australia's plain packaging requirements 
applicable to retail packaging of tobacco products or to the tobacco products themselves.166   
5.40.  This preliminary ruling will become an integral part of the Panel's report, subject to any 
modifications or elaboration of the reasoning, either in a subsequent ruling or in the Panel's report, 
in the light of comments received from the parties in the course of the proceedings. 
 
__________  
                                               
164 See para. 5.10.  above. 
165 Panel Report, EC – IT Products , para. 7.140. 
166 The Dominican Republic’s response to Australia ’s request for a preliminary ruling, para. 45.