In respect of Article 7 of the SPS Agreement, the United States claimed that Japan was in error in stating that no consultation was held on Article 7 of the SPS Agreement. In fact, Article 7 had been specifically mentioned in the US statement at those consultations. In the course of the US discussions with Japan concerning Japan s measures at issue, and also considering Japan s answers to questions before the consultations, it became clear to the United States that these measures were not transparent and were not clearly set forth anywhere. It was only in the consultations, where Japan provided an oral explanation of the way in which some of its measures operated, that the United States had been able to begin to understand the legal basis and scope of Japan s measures. However, nothing in the DSU required that a Member had to ascertain all of the possible legal claims and relevant provisions of the WTO agreements before the Member could even request consultations.
Consultations are the first step in the dispute settlement process.
While one function of the consultations may be to clarify what the case is about, there is nothing in the DSU that provides that a complainant cannot request a panel unless its case is adequately explained in the consultations. Ultimately, the function of providing notice to a respondent of a complainant s claims and arguments is served by the request for establishment of a panel and by the complainant s submissions to that panel. The United States stated that one of the purposes of consultations was to foster a better understanding of the relevant measures and concerns of the various Members in order to promote a satisfactory adjustment of the matter. Consultations were often the first time that the Member maintaining the measure provided a detailed description of the measure and relevant facts and legal documents. The United States noted that the DSU reflected the difference between requests for panels and requests for consultations by using different terms for each.