It is a great honor and pleasure to participate in this volume of the *Quebec Journal of International Law* celebrating the notable career of Gabrielle Marceau at the World Trade Organization (WTO) and in academia, and her role in the development of international economic law and the WTO’s dispute settlement system. Although there are many facets of her long career that are worthy of discussion, I will focus on dispute settlement because that was the central focus of her career in her early days at the WTO when I interacted with her on a daily basis. I will focus on one area in particular where she helped fashion innovative rules relating to the WTO’s *Dispute Settlement Understanding*<fnref n="1" /> (the *DSU*).

When the World Trade Organization and its constituent agreements came into force on January 1, 1995, a panoply of new and more detailed rules were imposed on the multilateral trading system. More importantly, a revised and, and compared to its GATT predecessor, much more robust dispute settlement system was put in place. The most far-reaching changes implemented by the new rules were (i) the creation of the system’s exclusive jurisdiction over WTO-related disputes; (ii) the establishment of an appellate tribunal; and (iii) the provision of automaticity, whereby by panels were established, Panel and Appellate Body reports were adopted and retaliation authorized absent a consensus to the contrary in the Dispute Settlement Body (DSB).<fnref n="2" /> But there were a number of other important changes that were decided upon in the early days of the dispute settlement system’s operation. In this paper I will focus on the adoption in 1996 of ethics rules for participants in the dispute settlement system. As we will see, Gabrielle was very involved in the negotiation of these rules.

<footnote n="1">*Understanding on Rules and Procedures Governing the Settlement of Disputes*, 15 April 1994, 1869 UNTS 401, Annex 2 of *Marrakech Agreement Establishing the World Trade Organization*, 15 April 1994, 1867 UNTS 154 [*Dispute Settlement Understanding*] [*DSU*].</footnote>

<footnote n="2">See generally William J Davey, “The World Trade Organization: A Survey of Its Rules and Current Crises” (July 30, 2020) at 17, online: <ssrn.com> [perma.cc/W9S2-QB7H].</footnote>
# I. The *DSU Rules on Conduct* of Dispute
        Settlement Participants

The advent of a more powerful dispute settlement system gave rise to concerns about the impartiality of those involved in its administration and operation. These concerns were not completely new. There had been occasional rumors in the General Agreement on Tariffs and Trade (GATT) system that dispute settlement panelists had been inappropriately pressured to reach a certain result. In fact, the *DSU* addressed some of these concerns. For example, the *DSU* provides that nationals of parties and third parties shall not serve on panels unless the parties agree,<fnref n="3" /> and that panelists should be selected with a view to ensuring their independence.<fnref n="4" /> More specifically, the *DSU* requires panelists to serve in their individual capacities and not as government representatives. In particular, WTO members agree that they will not give them instructions or seek to influence them with regard to matters before a panel.<fnref n="5" /> In respect of members of the Appellate Body, the *DSU* provides that they shall not be affiliated with any government and that they shall not participate in the consideration of any dispute that would create a direct or indirect conflict of interest.<fnref n="6" /> In the case of both panels and the Appellate Body, the *DSU* prohibits ex parte communications<fnref n="7" /> and imposes confidentiality obligations.<fnref n="8" />

While the provisions on panelists and the Appellate Body are both aimed at ensuring impartiality, they differ in significant ways and do not overlap in some significant respects. For example, nationality is not regulated in the case of Appellate Body members. As to panelists, there is no explicit provision on conflicts of interest. As such, one might anticipate that there would be some interest in harmonizing the provisions where possible.<fnref n="9" /> Moreover, the United States was particularly insistent that rules on impartiality and avoidance of conflicts of interest had to be elaborated in more detail. Thus, the subject of rules of conduct was one of those addressed in the preparations for the coming into force of the WTO Agreement. And Gabrielle, as Secretary to the Negotiating Group for Rules of Conduct, was in the midst of the discussions.<fnref n="10" />

This paper will describe the provisions of the *Rules of Conduct* and note several areas of controversy that arose during the negotiations. It will then consider the operation of the Rules in light of the limited information that is publicly available. It concludes by looking at an issue that some might have expected to be dealt with in the *Rules of Conduct* and that is the ethical behavior of lawyers representing governments in WTO dispute settlement.

<footnote n="3">*Dispute Settlement Understanding*, *supra* note 1, art 8.3.</footnote>

<footnote n="4">*Ibid*, art 8.2.</footnote>

<footnote n="5">*Ibid*, art 8.9.</footnote>

<footnote n="6">*Ibid*, art 17.3.</footnote>

<footnote n="7">*Ibid*, art 18.1.</footnote>

<footnote n="8">*Ibid*, art 18.2.</footnote>

<footnote n="9">Harmonization would not always be possible, of course. For example, excluding nationals of parties and third parties from participation in Appellate Body divisions could cripple the Appellate Body as some of the most frequent users of the dispute settlement system would expect to have a national on the Appellate Body.</footnote>

<footnote n="10">See generally Gabrielle Marceau, “Rules on Ethics for the New World Trade Organization Dispute Settlement Mechanism” (1998) 32:1 J World Trade 57—97 [Marceau].</footnote>
# II. The *Rules of Conduct*

The *Rules of Conduct* for the *DSU* were adopted by the DSB on 11 December 1996.<fnref n="11" /> The Appellate Body incorporated the *Rules of Conduct* into its *Working Procedures*.<fnref n="12" /> They were also incorporated to the extent applicable into the WTO Staff Regulations. By their terms,<fnref n="13" /> they were reviewed within two years and the DSB decided to continue to apply them.<fnref n="14" /> In this section, I will set out the so-called governing principle of the *Rules of Conduct*, consider the persons covered thereby, specify the precise disclosure obligations and outline the procedures for challenging material violations of the Rules. I will refer to the negotiations as appropriate to explain how certain rules came to be worded as they are.

## A. Governing Principle

The governing principle of the Rules is that the persons covered by the Rules “shall be independent and impartial, shall avoid direct or indirect conflicts of interest, and shall respect the principle of confidentiality of proceedings applicable to dispute settlement proceedings”, all so as to preserve the integrity and impartiality of the dispute settlement system.<fnref n="15" />

In order to ensure the observance of the governing principle, each covered person is required to (i) “adhere strictly” to *DSU* rules; (ii) “disclose the existence or development of any interest, relationship or matter” that would “likely affect, or give rise to justifiable doubts as to, the person’s independence or impartiality”; and (iii) avoid “any direct or indirect conflicts of interest in respect of the subject matter of the proceeding”.<fnref n="16" /> In addition, each covered person is explicitly required to be independent and impartial and to maintain confidentiality.<fnref n="17" />

The initial US proposal focused in part on the need to avoid of any “impropriety or appearance of impropriety”.<fnref n="18" /> That formulation was viewed by some delegations as problematic because it was too subjective and would vary by culture.<fnref n="19" /> However, the obligation to disclose matters likely to give rise to justifiable doubts about independence or impartiality covers much the same ground.

## B. Covered Persons

Covered persons include (i) panelists, (ii) Appellate Body members, (iii) arbitrators, (iv) experts; and (v) staff of the Secretariat and the Appellate Body Secretariat.<fnref n="20" /> While mainly focused on formal dispute settlement proceedings, the rules also apply to certain arbitrators under General Agreement on Trade in Services and the Agreement on Subsidies and Countervailing Measures (SCM) and certain experts under the SCM, Sanitary and Phytosanitary (SPS) and Technical Barriers to Trade Agreements.<fnref n="21" /> They also applied to a more limited degree to proceedings involving the Textiles Monitoring Body (TMB), which ceased to function as of January 1, 2005, when the Agreement on Clothing and Textiles expired.<fnref n="22" />

## C. Disclosure Obligations

The basic procedural obligation imposed on covered persons under the Rules is one of self-disclosure. Except for secretariat staff, covered persons are required to sign a document affirming that (i) they have read the rules; (ii) they understand that they have a duty until the dispute is over to disclose at the outset and during their participation in the dispute proceedings any information likely to affect their independence or impartiality, or which could give rise to justifiable doubts as to the integrity and impartiality of the dispute settlement system; and (iii) they will respect the confidentiality rules.<fnref n="23" /> In the case of the panelists, arbitrators and experts, the disclosure is submitted to the DSB Chair for consideration by the parties to the dispute.<fnref n="24" /> In the case of Appellate Body members and its staff, the disclosure is made to the Appellate Body.<fnref n="25" /> In the case of the secretariat staff, the disclosure is to the Director-General.<fnref n="26" />

## D. Illustrative List

In order to facilitate compliance with the Rules, they contain an illustrative list of the sort of information that should be disclosed.<fnref n="27" /> In particular, five categories are highlighted. First, financial, business or property interests relevant to the dispute in question, such as investments. Second, professional interests, such as an ongoing or past relationship with a client or involvement with issues similar to those involved in the dispute. Third, active interests, such participation in groups that have a declared agenda relevant to the dispute. Fourth, considered statements of opinion on issues relevant to the dispute. Fifth, employment or family-related interests.

## E. Confidentiality

The Rules explicitly require covered persons to “maintain confidentiality of the dispute settlement deliberations and proceedings,” as well as “any information identified by a party as confidential.”<fnref n="28" /> They are prohibited from using any information acquired in a proceeding “to gain personal advantage or advantage for others.”<fnref n="29" /> Furthermore, no covered person shall “engage in ex parte contacts concerning matters under consideration” and shall make no “statements on [the] proceedings or the issues in dispute” until the panel or Appellate Body report is made public.<fnref n="30" />

## F. Challenge Procedures

The Rules provide for the possibility of a party to a dispute to challenge the participation of a covered person if said party has “evidence of a material violation of the obligations of independence, impartiality, or confidentiality, or the avoidance of direct or indirect conflicts of interest by covered persons which may impair the independence, impartiality or confidentiality” of the dispute settlement system.<fnref n="31" /> Thus, both a violation of the obligations and impairment of the system are required to initiate a challenge.<fnref n="32" />

The challenge is made to and decided by the DSB chair in the case of panelists, arbitrators or experts, to the Appellate Body in cases involving it, and to the Director-General in cases involving the WTO Secretariat.<fnref n="33" /> Initially, the United States had proposed that the Director-General decide all challenges.<fnref n="34" /> This raised difficult issues for some WTO members. Some were concerned about the systemic importance of such challenges and thought that the WTO membership should be involved; some were concerned about the independence of the Appellate Body. The compromise addressed these issues by giving a key role to the chair of the DSB in the case of panelists and letting the Appellate Body regulate itself under the standards specified in the Rules.<fnref n="35" />

The initial US proposal provided that a challenged person would be disqualified unless the Director-General decided otherwise, that the parties could agree to disqualify a challenged person and the challenged person was given no right of reply or defense.<fnref n="36" /> Under the rules as adopted, as described above, there are different decision makers depending on the type of covered person who is challenged, and the challenged person must be consulted and heard on the issue.<fnref n="37" /> If the parties agree that the person should be disqualified, that person shall normally be disqualified, consistent with maintaining the integrity of the dispute settlement system.<fnref n="38" />

<footnote n="11">WTO, *Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes*(1996), WTO Doc WT/DSB/RC/1 [*Rules of Conduct*].</footnote>

<footnote n="12">WTO, *Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes*, (1997), WTO Doc WT/DSB/RC/2 (Communication from the Appellate Body), online: <worldtradelaw.net> [perma.cc/H4QC-XQEE].</footnote>

<footnote n="13">*Rules of Conduct*, *supra* note 11, sec IX.</footnote>

<footnote n="14">WTO, *Minutes of Meeting*, WTO Doc WT/DSB/M54 (25, 28 & 29 January & 1 February 1999), item 9 (meeting of 25, 28 & 29 January & 1 February 1999), online: <docs.wto.org> [perma.cc/R33Z-SXZN].</footnote>

<footnote n="15">*Rules of Conduct*, *supra* note 11, sec II.</footnote>

<footnote n="16">*Ibid*, sec III.1.</footnote>

<footnote n="17">*Ibid*, sec III.2.</footnote>

<footnote n="18">Marceau, *supra* note 10 at 61.</footnote>

<footnote n="19">*Ibid* at 62.</footnote>

<footnote n="20">*Rules of Conduct*, *supra* note 11, sec IV.1.</footnote>

<footnote n="21">*Ibid*, sec IV.1, Annexes 1a—1b.</footnote>

<footnote n="22">*Ibid*, sec V. The question of how to treat the TMB delayed agreement on the Rules. The TMB represented an unusual case in that its members, appointed for multiple-year terms, were generally textile trade experts affiliated with textile-trading countries, although they were pledged to act on an *ad personam* basis. Ultimately, the TMB’s staff were covered by the Rules, but the members of the TMB itself were not. See generally Marceau, *supra* note 9 at 89—90.</footnote>

<footnote n="23">*Rules of Conduct*, *supra* note 11, sec VI.4, Annex 3. The Rules specify that they do not extend to insignificant matters. They also indicate that the Rules “shall take into account the need to respect” “personal privacy” and “shall not be so administratively burdensome as to make it impracticable for otherwise qualified persons to serve”. *Ibid*, sec VI.3.</footnote>

<footnote n="24">*Ibid*, sec VI 4(a).</footnote>

<footnote n="25">*Ibid*, sec VI 4(b).</footnote>

<footnote n="26">*Ibid*, sec VI 4(c).</footnote>

<footnote n="27">*Ibid*, Annex 2.</footnote>

<footnote n="28">*Rules of Conduct*, *supra* note 11, sec VII.1.</footnote>

<footnote n="29">*Ibid*, sec VII.1.</footnote>

<footnote n="30">*Ibid*, sec VII.2.</footnote>

<footnote n="31">*Ibid*, sec VIII.1.</footnote>

<footnote n="32">Marceau, *supra* note 10 at 85. If the alleged violation concerns a failure of disclosure, it must also be shown that there was a both a violation of obligations and impairment of the system. Thus, failure to disclose a matter is not in itself grounds for a challenge. *Ibid*.</footnote>

<footnote n="33">*Rules of Conduct*, *supra* note 11, sec VIII.5, arts 11—14.</footnote>

<footnote n="34">Marceau, *supra* note 10 at 62.</footnote>

<footnote n="35">*Ibid* at 65, 88.</footnote>

<footnote n="36">*Ibid* at 86—88.</footnote>

<footnote n="37">*Rules of Conduct*, *supra* note 11, sec VIII, arts 6—7, 9, 11, 15—16.</footnote>

<footnote n="38">*Ibid*, sec VIII.8.</footnote>
# III. Experience under the *Rules of
        Conduct*

The general record of the WTO dispute settlement system was generally perceived to be quite positive in its initial years. As time went on, there were complaints about the results in some cases, particularly by the United States in trade remedy cases, but there have not been many cases where the rules of conduct have arisen in any way.<fnref n="39" /> Of course, given the sensitive nature of making a complaint of unethical conduct, it may be the case that there have been instances that have been dealt with confidentially, as is required by the *Rules*.<fnref n="40" /> Nonetheless, the general sense of those participants in disputes that I have spoken to is that there have not been serious.

One reason for the lack of problems likely has to do with the fact that the Rules of Conduct exist. By that, I mean that when a potential panelist is asked to fill out the disclosure statement, it inevitably causes that person to think about conflicts of interest. Generally, I think it can be said that potential panelists don’t want ethical questions raised about them, so they are likely to be thoughtful before affirming they have no conflicts.

In this section, I will look separately at the four categories of covered persons: Appellate Body members, panelists, Secretariat staff and experts.

## A. Appellate Body

In the case of the Appellate Body, as noted earlier, it is accepted that a national of a party may serve on the division of the Appellate Body hearing an appeal involving that party. That is different than in the case of panelists, where nationals are not to be panelists, absent the agreement of parties. There have been no Rule of Conduct issues relating to the Appellate Body that have become public. In the author’s memory, since some Appellate Body members have had significant connections with their national governments, there have been occasional concerns voiced about whether those ties have been terminated. But I know of no case where such ties were found to exist or gave rise to questions about an Appellate Body member’s independence or a conflict of interest.<fnref n="41" />

## B. Panelists

There have been a number of instances where *Rule of Conduct* issues have arisen in respect of panelists, although none of them was particularly controversial. Some of these were detailed in the panel reports. Others were not. In some cases, a panel resignation may be explained by the discovery of a potential conflict, but in others, that is not the case. Among the situations that have arisen include:

(i) a panelist had served as a panelist in a prior related case (*Guatemala—Cement I* and *Guatemala—Cement II*).<fnref n="42" /> The Appellate Body reversed the panel’s finding in *Cement I* that the matter was properly before it because in the view of the Appellate Body the complainant Mexico had failed to specify the measure at issue as required by *DSU* article 6.2. The Appellate Body did not discuss the substantive issues dealt with by the panel. Mexico recommenced the case and the Director-General was subsequently requested to compose the panel in *Cement II*. In doing so, the Director-General appointed one individual who had served on the *Cement I* panel. Guatemala argued that said panelist could not be viewed as independent or impartial because the same parties and some of the same issues were involved in the two cases. The panel declined to rule that it had been improperly composed and therefore had no jurisdiction. In its view, matters of panel composition were not matters for panel review. Rather, the panel indicated that Guatemala should raise its concerns pursuant to the *Rules of Conduct*. Guatemala apparently did not do so, and the panelist in question remained on the panel.<fnref n="43" />

(ii) panelists have changed employment. In one case, the panelist joined the Secretariat as Director of the Legal Affairs Division, a position that involved oversight of the WTO’s dispute settlement work. He resigned.<fnref n="44" /> In another case known to the author, a panelist accepted a position at an academic institution located in an important third party in the case. The parties did not object, and the panelist continued to serve. In yet another case, a panel chairperson was nominated to serve on the Multi-Party Interim Appeal Arrangement (MPIA). He disclosed this to the parties, who ultimately indicated that they did not object to his continued service on the panel.<fnref n="45" />

(iii) the author recalls one early case where a panelist, a month or so after his appointment, disclosed to the parties that he had written an article many years prior to this appointment that might be considered to express a view on issues in the case. Following his disclosure, one of the parties indicated that it thought the article was problematic and the panelist resigned.

## C. Secretariat

Given the Secretariat’s fundamental interest in ensuring the good functioning of the WTO and its dispute settlement system, it is not surprising that the Secretariat takes care to avoid the appearance of any violation of the rules of conduct. Two sorts of problems have arisen for the Secretariat. First, because some secretariat staff have served in Member governments in positions dealing with cases that may come before the WTO, the Secretariat ensures that such staff members do not work on those cases. Over time, of course, this becomes less of an issue for the individual staff members. The same considerations apply to individuals who have otherwise been connected to a case before their employment, such as working on a WTO matter at a law firm. Second, there are situations where a Secretariat staff member may be in a relationship with someone outside the WTO who works for a WTO member or a private entity that advises on WTO issues. In such a case, the individuals involved are counseled to be super careful about not talking about such matters with their partners.

Similar issues arise when an individual leaves the Secretariat. The staff regulations are clear that they apply after an employee leaves. Thus, the confidentiality obligations continue to apply. As to the question of the extent to which an employee may work on WTO matters after leaving, the Appellate Body adopted detailed rules.<fnref n="46" /> They provide that in the case of an Appellate Body member, he or she shall not be involved in any matter the same as one before the Appellate Body during his or her term. More generally, a former member may not attend any Appellate Body hearings as a member of a delegation of a participant or third participant for a period of three years. In the case of Appellate Body staff members who leave, they are subject to the same requirements noted above, except that there is a one-year period of non-participation in Appellate Body hearings.

## D. Experts

Some of the most controversial issues in respect of the *Rules of Conduct*have involved cases in which a panel has consulted individual experts in cases arising under the *SPS Agreement*. Several issues have arisen. First, what is considered to be proper disclosure? Second, what constitutes a conflict? Third, what discretion does a panel have to appoint experts with potential or actual conflicts, given the common difficulty of finding experts in some SPS areas.

As to the question of what constitutes adequate or complete disclosure, the Appellate Body concluded in *Hormones II* that one expert had failed to report certain conflicts, but that the failure was essentially corrected by the distribution of a detailed curriculum vitae that disclosed the underlying facts that the Appellate Body had concluded gave rise to a conflict.<fnref n="47" /> One can image cases where disclosures turn out to be incomplete because of subsequent events. For example, panelists and secretariat staff typically do not know the identity of the parties’ attorneys until briefs are filed. That might give rise to the appearance of a conflict if a person in question had some connection to the law firm involved.

In *Australia Apples*, Australia objected to an expert because he had participated in a joint research project that also involved scientists employed by New Zealand. Australia suggested that this connection to the New Zealand government was problematic. In the view of the panel, Australia failed to point to any “indication of a real or perceived conflict of interest or any other situation that would have affected the expert’s independence and impartiality.”<fnref n="48" /> In doing so, the panel also noted that there was a limited number of appropriate experts available.

Two cases have raised the issue of the extent to which a panel may appoint an expert with a potential or actual conflict. In *US—Shrimp*, the panel noted that three of the five experts it consulted had “what might be considered potential conflicts of interest.” The panel appointed those three anyway, noting that (i) it needed the best experts available and there was only a small group to consider and (ii) that it took “into account the disclosed information when evaluating the answers provided [by those individuals].”<fnref n="49" />

The most controversial case involved the EU ban on certain hormones for growth promotion in beef cattle. At issue were two individuals who had been connected with JECFA (the Joint FAO/WHO Expert Committee on Food Additives), an advisory group established by the World Health Organization and the Food and Agricultural Organization, to advise them and Codex Alimentarius (a related food standards body). JECFA had issued opinions that the hormones in question were safe if used as directed. The basic issue in the case was the conflict between the JECFA view and the EU view.

In the view of the Appellate Body, the use of the two individuals as experts denied the EU due process. It held that fundamental due process—fairness and impartiality—was not respected if the panel consulted experts who were not independent and impartial. Doing so would compromise a panel’s ability to perform its function to make an objective assessment of the matter under *DSU* article 11.<fnref n="50" /> The limited number of available experts was no excuse in the Appellate Body’s view.<fnref n="51" />

I am not sure that I agree with the Appellate Body. The fact that the two individuals had taken a position that was not in accord with the EU defense does not mean that they were not impartial and independent. It means only that they disagreed with the EU. There were two sides in the dispute and the panel was obviously going to have to consider the views represented by JECFA and those of the EU on the issue. It seems that to make an objective assessment, the panel needed to understand the JEFCA view and who better to explain it than the two individuals in question. Of course, their affiliation with JEFCA would be a factor in deciding how to weight their views, but it does not seem to me that their involvement as experts should have vitiated the proceedings.

<footnote n="39">Davey, *supra* note 2 at 29—32.</footnote>

<footnote n="40">*Rules of Conduct*, *supra* note 11, sec VIII.20.</footnote>

<footnote n="41">*Dispute Settlement Understanding*, *supra* note 1, art 17.3 explicitly requires that Appellate Body members not be “affiliated” with any government.</footnote>

<footnote n="42">*Guatemala—Anti-Dumping Investigation Regarding Portland Cement from Mexico (Complaint by Mexico)* (1998), WTO Doc WT/DS60/AB/R [*Cement I*]; *Guatemala—Definitive Anti-Dumping Measure on Grey Portland Cement from Mexico (Complaint by Mexico)* (2000), WTO Doc WT/DS156/R [*Cement II*].</footnote>

<footnote n="43">*Ibid* at paras 8.10—8.12.</footnote>

<footnote n="44">*United States—Anti-Dumping Measures on Certain Oil Country Tubular Goods from Korea (Complaint by Korea)* (2017), WTO Doc WT/DS488/R (Panel Report) at para 1.6, online: <docs.wto.org> [perma.cc/8K3U-YGEG].</footnote>

<footnote n="45">*India—Measures Concerning Sugar and Sugar Cane (Complaint by Brazil)* (2021), WTO Doc WT/DS579/R (Panel Report) at para 1.15, online: <docs.wto.org> [perma.cc/JC5R-G4WF].</footnote>

<footnote n="46">WTO, *Post Employment Guidelines* (2014), WTO Doc WT/AB/22, online: <docs.wto.org> [perma.cc/PXM3-2Q8A].</footnote>

<footnote n="47">*Canada—Continued Suspension of Obligations in the EC—Hormones Dispute (Complaint by the European Communities)* (2008), WTO Doc WT/DS321/AB/R (Appellate Body Report) at paras 450—51, online: <docs.wto.org> [perma.cc/SZF4-ASRB] [*Hormones II*].</footnote>

<footnote n="48">*Australia—Measures Affecting the Importation of Apples from New Zealand (Complaint by New Zealand)* (2010), WTO Doc WT/DS367/R (Panel Report) at para 7.36, online: <docs.wto.org> [perma.cc/A6WF-B3FK].</footnote>

<footnote n="49">*United* *States—Import Prohibition of Certain Shrimp and Shrimp Products (Complaint by India, Malaysia, Pakistan & Thailand)* (1998), WTO Doc WT/DS58/R (Panel Report) at para 5.7, online: <docs.wto.org> [perma.cc/CRK6-DQCS].</footnote>

<footnote n="50">*Hormones II*, *supra*note 47 at paras 435—36.</footnote>

<footnote n="51">*Ibid* at para 480.</footnote>
# IV. Rules for Lawyers—Ethics and Confidentiality

In GATT dispute settlement, the contending countries were typically represented by government officials. Early on, it became the practice of some WTO members to rely on private attorneys to prepare their legal positions. This practice became somewhat controversial when the countries wanted their lawyers to appear and argue the countries’ positions in WTO dispute settlement. The controversy was short-lived, as the issue was definitively settled early on when the Appellate Body ruled in *EC—Bananas* that WTO members had the right to choose the members of their delegations to dispute settlement proceedings.<fnref n="52" />

The participation of private attorneys raised several issues. Probably the most serious concern was how to enforce the confidentiality requirements on such individuals. Essentially, it has come to be understood that parties are responsible for ensuring that those persons they involve in a dispute respect the confidentiality obligations.<fnref n="53" /> There is effectively no enforcement mechanism, and concerns remain over whether there may be breaches of the obligation, particularly in respect of business confidential information. Such concerns have led in some cases to special rules governing access to highly sensitive business information.<fnref n="54" />

One interesting case involving private lawyers and confidentiality concerned an amicus brief that was filed by a trade association in a case involving a Polish challenge to certain Thai measures on steel. There was a reference in the amicus brief, which supported Poland, that seemed to have been taken from the Thai brief. The Thai brief should have received confidential treatment from Poland, and Thailand raised the issue before the panel, suggesting that either Poland or its law firm, which had represented trade association in some unrelated matters, had leaked the Thai brief to the trade association. Poland and the law firm asserted that they had not done so. The law firm, however, chose to withdraw from the case.<fnref n="55" /> The panel did not consider the amicus brief.

It is interesting to note, however, that at least one panel has been confronted with an issue involving the ethical behavior of lawyers in a case before it. In the *EC—Tariff Preferences* case, the Advisory Center on WTO Law (ACWL) represented both India (the complaining party) and Paraguay (a third party). Such a situation would normally have been more problematic than it was in this case since third parties in the case had been afforded extended third-party rights such that they received submissions to and attended the second substantive meeting of the panel and the parties. Otherwise, in the normal case, where third parties have no access to the second meeting or documents related thereto, there would seem to be a potential conflict given WTO panel proceeding confidentiality rules. Moreover, lawyers representing two clients in the same matter always need to be concerned with whether the clients’ interests are necessarily the same. In any event, it is noteworthy that the panel considered that it had the authority and the duty to manage the proceedings so as to ensure due process for all parties involved and the integrity of the dispute settlement system. Given that India and Paraguay had consented to the dual representation and the enhanced third-party rights obviated confidentiality concerns, the panel took no action.<fnref n="56" /> Nonetheless, the principle that this sort of ethical issue was potentially a matter for panel consideration and oversight was established.

There might be two mechanisms for dealing with the above issues. First, panels or the WTO could establish rules to apply to non-governmental participants in dispute settlement. The United States suggested this course early on in *Korea—Alcoholic Beverages*. The panel declined to undertake such a task, noting that it could not be considered part of its terms of reference, and that if such a task were to be undertaken by the WTO, it should be done by the Dispute Settlement Body.<fnref n="57" /> As a practical matter, it seems unlikely that WTO would reach consensus on such rules.

A second mechanism proposed to deal with this issue was that some form of WTO Bar Association should be established, with membership required of those private attorneys appearing in WTO dispute settlement proceedings. Such an association could ensure that ethical and confidentiality rules were followed since loss of membership would mean loss of the right to participate in WTO dispute settlement cases. Needless to say, the proposal raised several difficult issues. Who would organize such a group? Certainly not the WTO. Would such a system infringe on WTO members’ right to choose the members of their own delegations to dispute settlement proceedings? It would seem to if the member wanted to use a lawyer who was not a member of the WTO Bar. Would such a body be viewed as a cartel? The proposal was never seriously considered, even though it did address a potential need. In the end, the fact that other international tribunals do not have such a system was important.<fnref n="58" /> In the event, most lawyers appearing before the WTO would be members of a bar in their home jurisdictions and theoretically subject to ethics rules and disciplinary actions.

<footnote n="52">*European Communities—Regime for the Importation, Sale and Distribution of Bananas (Complaint by Ecuador, Guatemala, Honduras, Mexico and the United States)* (1997), WTO Doc WT/DS27/AB/R (Appellate Body Report) at paras 10—12, online: <docs.wto.org> [perma.cc/KZ8W-WHK6].</footnote>

<footnote n="53">*Canada—Measures Affecting the Export of Civilian Aircraft (Complaint by Brazil)* (1999), WTO Doc WT/DS70/AB/R (Appellate Body Report) at para 145, online: <docs.wto.org> [perma.cc/M2JG-Y8G5].</footnote>

<footnote n="54">See, e.g., *United States—Measures Affecting Trade in Large Civil Aircraft (Second Complaint by the European Communities)* (2011), WTO Doc WT/DS353/R (Panel Report) at para 1.11, online: <docs.wto.org> [perma.cc/7MB3-KQLH].</footnote>

<footnote n="55">*Thailand—Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H Beams from Poland (Complaint by Poland)* (2000), WTO Doc WT/DS122/R (Panel Report) at paras 62—78, online: <docs.wto.org> [perma.cc/A333-UHS8].</footnote>

<footnote n="56">*European Communities—Conditions for the Granting of Tariff Preferences to Developing Countries (Complaint by India)* (2003) WTO Doc WT/DS246/R (Panel Report) at paras 7.3—7.18, online: <docs.wto.org> [perma.cc/36UX-AGYD].</footnote>

<footnote n="57">*Korea—Taxes on Alcoholic Beverages (Complaint by the European Communities)*(1998) WTO Doc WT/DS75/R (Panel Report) at para 10.33, online: <docs.wto.org> [perma.cc/VE9W-QY49].</footnote>

<footnote n="58">This issue has been considered more generally. See, e.g., Arman Sarvarian, *Professional Ethics at the International Bar* (Oxford: Oxford University Press,2013); Jeffrey L Dunoff & Chiara Giorgetti, “Introduction to the Symposium: A Focus on Ethics in International Courts and Tribunals” (2019) 113 AJIL Unbound 279. The International Bar Association has published principles to be followed generally by the legal profession. International Bar Association, *IBA Principles on Conduct for the Legal Profession* (28 May 2011), online (pdf): <icj.org> [perma.cc/FS4P-CQRC].</footnote>
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The WTO’s *Rules of Conduct* seem to have weathered the test of time. They require participants in dispute settlement proceedings to consider ethical issues and have meant for the most part that issues of independence and impartiality and respect of confidentiality have not troubled the WTO dispute settlement system. Thus, they are fitting tribute to those involved in their creation, including Gabrielle Marceau.