Petros asked me to post the following for him:
I had one big concern when I read the panel report: the manner in which the panel understood Art. 23.2 DSU. For the rest I appreciated the manner that they went about precaution reversing (implicitly so) prior case law which saw a firewall between 5.1 and 5.7 SPS. There should be no firewall.
The AB, in my view, did a decent job undoing a lot of the harm the panel had done. It simply does not suffice to say I complied for the burden of proof to shift, and how on earth could the EC ever be deemd to be in compliance when the same panel some pages later was holding that no substantive compliance had occurred. If the panel wanted to privilege a 21.5 panel, then it should be for the EC to request it and not for the US. It is the EC that claims now that the US is acting illegality and, playing by the panel's rules, in dubio mitius should favour the US this time.
There is another issue however that continues to be overlooked in case law: how could it ever be that a 21.5 panel is requested to address such an issue (instead of a new original panel, as I believe should be the case)? Indeed we have seen on occasion a number of times second recourse to 21.5 but I believe it is contra legem. The law says that a 21.5 panel is instituted to see if compliance occurred during the RPT. Since there is only one RPT available (21.3) there should be just one compliance panel, end of the story.
