WORLD TRADE
ORGANIZATIONTN/DS/W/41
24 January 2003
(03-0442)
Dispute Settlement Body
Special SessionOriginal:  English/
French
CONTRIBUTION OF CANADA TO THE IMPROVEMENT OF THE
WTO DISPUTE SETTLEMENT UNDERSTANDING
Communication from Canada
The following communication, dated 22 January 2003, has been received from the Permanent
Mission of Canada.
_______________
Canada considers that, in general, the WTO Understanding on Rules and Procedures
Governing the Settlement of Disputes (DSU) provides effective rules and procedures for the
preservation of the rights and obligations of Members under the covered agreements.  However,experience with the DSU has identified certain deficiencies in the rules and procedures that may
impede this objective.
In addition to the sequencing proposals tabled by Canada and other Members for
consideration by Ministers both in Seattle [WT/MIN(99)/8] and Doha [WT/MIN(01)/W/6]  that have
clearly contributed to subsequent proposals in respect of sequencing, and without prejudice to the
positions that Canada may take on issues raised and proposals tabled in these negotiations, Canadaproposes in this document certain improvements to the DSU to address the following concerns:
- the treatment of business confidential information;- the panel selection process;  and- transparency.
1. Procedure to Protect Business Confidential Information (BCI)
Background
Effective dispute settlement pursuant to the DSU is premised on an objective assessment by a
dispute settlement panel of the matters in dispute, in cluding an objective assessment of the facts of the
case.  The receipt and provision of factual information is a central feature of the process.  Members
must be able to disclose and receive the evidence necessary to defend or challenge the measure atissue.  This evidence may include proprietary or commercially sensitive information of private parties
(known as “business confidential information” or “BCI”).  Private parties will not consent to their
BCI being disclosed by Members unless they have sufficient assurance that the confidentiality of the
information will be maintained.TN/DS/W/41
Page 2
Current DSU rules acknowledge the need to provide protection for confidential information in
the context of dispute settlement.  Article 18.2 of the DSU provides, among other things, that
Members “shall treat as confidential” information submitted by another Member to the panel or the
Appellate Body which that Member has designated as confidential.  Similar provisions are found in
the panel Working Procedures (Appendix 3, paragraph 3) and the Rules of Conduct for the
Understanding on Rules and Procedures Go verning the Settlement of Disputes (Article VII:1).
However, these rules offer insufficient procedural guidance for the treatment of BCI.
This is not a theoretical problem.  In United States - Definitive Safeguard Measures on
Imports of Wheat Gluten from the European Communities [WT/DS166/AB/R], the Appellate Body
noted its “strong agreement with the Panel that a 'serious systemic issue' is raised by the question of
the procedures which should govern the protection of information requested by a panel under
Article 13.1 of the DSU and which is alleged by a Member to be confidential'.”1  The absence of clear
and predictable rules in the DSU to protect BCI can be detrimental to a Member's ability to advance
or defend a challenge and thereby to the effectiveness of the dispute settlement system.
The ad hoc  procedures adopted by panels, in the absence of specific procedures to protect
BCI, have on occasion failed to satisfy disputing parties.  In some cases, disputing parties (including
Canada) have refused panel requests for BCI where they have considered the procedures adopted bythe panel inadequate to ensure appropriate protection of the BCI.  Moreover, in Canada- Measures
Affecting the Export of Civilian Aircraft  [WT/DS70/AB/R], the Appellat e Body refused a joint request
from the disputing parties to adopt additional procedures to protect BCI in the appellate proceedings.
Proposal: Procedures Governing Business Confidential Information
Canada therefore proposes an effective procedure to protect BCI, which would be included as
a new Appendix to the DSU.  The procedure would apply to all panel proceedings, and mutatis
mutandis,  to all arbitral proceedings, commenced under the DSU.  With respect to appellate review,
Canada proposes that pursuant to DSU Article 17.9, the Chairperson of the DSB and the Director-
General refer this procedure to the Appellate Body with a recommendation that it be incorporatedmutatis mutandis into the Working Procedures for Appellate Review.
In Canada's view, an effective procedure to  protect BCI would build upon Article 18.2 of the
DSU, the Working Procedures  and the Rules of Conduct , and would include the following elements
2:
Scope
The procedures will protect all BCI submitted in the course of the panel process but will not
apply to a party’s treatment of its own BCI.
Designation of Information as BCI
When a party introduces as evidence information that is proprietary or commercially sensitive
and not in the public domain, it will be permitted to designate that information as BCI, provided that it
acts in good faith and exercises restraint.  If another party considers that a party has unreasonably
designated information as BCI, the panel may ask the party to justify the designation.  If the party
fails to provide an adequate justification in accordance with the established criteria, the panel will bepermitted to decline to consider the information unless the party agrees to remove the designation.
                                                     
1 United States - Definitive Safeguard Measures on Imports of Wheat Gluten from the European
Communities, Appellate Body Report, WT/DS166/AB/R, adopted 19 January 2001, at para. 170.
2 These elements are further addressed as draft legal text in Annex 1 of this proposal.TN/DS/W/41
Page 3
Effects of Designating Information as BCI
Access to BCI will be limited to persons who have signed a declaration of non-disclosure and
who fall into the following categories:  (i) repr esentatives of the disputing parties, including
employees, legal counsel or other advisors, but excluding employees, officers or agents of privateentities that could reasonably be expected to benefit commercially from the receipt of the BCI;  (ii)
members of the panel;  (iii) staff of the Secretariat;  and (iv) experts appointed by the panel.
In the event that the party submitting BCI objects to any person being designated an approved
person, the panel will decide on the objection as a preliminary matter.
An approved person will be permitted to communicate BCI only to other approved persons
and  to use the BCI only for the purposes of the dispute settlement proceedings.
A party referring to BCI in a document or other re cording will be required to indicate that it
contains BCI and to identify the BCI where it appears.  In the case of text documents, the party
submitting the BCI will be required within two business days, to submit a version of the documentwith the BCI redacted.  Documents or other recordings containing BCI will have to be securely
stored.
A party intending to refer to BCI at an oral he aring will be required to inform the panel prior
to the hearing.  Only approved persons will be permitted to be present when the BCI is discussedbefore the panel.
The panel will not be permitted to disclose BCI in its report, but will be permitted to make
statements of conclusion drawn from the BCI.
Destruction or Return of BCI
Within a fixed period after the conclusion of the proceeding, including any appeal, the
Secretariat and the parties will be required to destroy or return all documents or recordings in their
possession that contain BCI.
Additional or Alternative Procedures
The panel will be permitted, at its own discretion, to impose additional procedures to protect
BCI.  It will also be permitted to modify or waive any of the procedures if the parties so request or
agree.
2. Enhanced Panel Professionalism through the Creation of a Panel Roster
Background
Panelists play a key role in fulfilling the objectives of the DSU.  They are charged to make an
objective assessment of the matters raised in a dispute, including as finders of fact.  They also mustassess the applicability of and conformity with the agreements relevant to the dispute and make the
findings that will enable the Members, acting as the Dispute Settlement Body, to make the appropriate
recommendations or rulings.
Canada agrees with many of the observations made by the European Communities in its
communication TN/DS/W/1 addressed to the shortcomings of the current ad hoc  system of panel
selection, including the quantitative discrepancy between supply and demand, insufficient number of
qualified panelists and costs in the timeliness of panel composition.  Like the EC, Canada considersTN/DS/W/41
Page 4
that adjustments to the current panel selection system could be made to improve the timeliness of
panel proceedings, ensure availability of qualified panelists and encourage better and more consistent
panel findings.  However, in lieu of establishing a system of permanent panelists, Canada suggests
that Members transform the current indicative list in to a streamlined panel roster.  In Canada’s view,
this roster would provide an effective alternative to the current ad hoc  approach of panel selection and
composition.
Article 8.4 of the Dispute Settlement Understanding  provides that “to assist in the selection of
panelists, the Secretariat shall maintain an in dicative list of governmental and non-governmental
individuals possessing the qualifications of a panelist outlined in paragraph 1, from which panelists
may be drawn as appropriate”.  Panelists are to be selected with a view to ensuring the independence
of those serving on a panel, a sufficiently diverse background and wide spectrum of experience.
Canada believes that the selection criteria need greater rigour.  The more demanding selection
criteria for members of the Appellate Body stand in stark contrast to that for panelists.  The Appellate
Body selection criteria are appropriate to the tr ust discharged by Appellate Body members and are
instructive as to criteria suited to panelist selection.  In Canada's view, the qualifications for panelistsshould be no less stringent than those for Appellate Body Members.
The current indicative list is not performing its intended function as a source of potential
panelists.  Despite an extensive number of candidates, panelists are drawn infrequently from the list.
The relative inutility of the current indicative list may be a reflection of the absence of appropriatecriteria for candidates as well as a failure by Members to recognize its function in respect of panel
selection.  Transformation of the indicative list into  a roster composed of individuals selected on the
basis of strict criteria and agreement by Members as to the function of the roster would make panel
selection more efficient and contribute to panels that are qualified and representative.
Proposal: A New Panel Roster
To replace the current indicative list, each WTO Member will be invited to nominate one
individual, who may or may not be a national, for placement on a Panel Roster.  In nominating an
individual, each Member will be required to provide a statement of qualifications that identifies the
nominee’s capabilities and capacity to serve as a panelist in reference to a set of qualifications
outlined in an amended DSU Article 8.1, closely tr acking those currently applicable to Appellate
Body members.
The nominations and accompanying qualification statements will be transmitted to a
committee which will verify that the nominees meet the requisite level of expertise to serve as a
panelist.  The Committee will be the same as the selection committee for appointments to theAppellate Body – i.e. the Chairs of the five main  Councils of the WTO: Goods, Services, TRIPS, the
DSB and the General Council.  Once confirmed by the Committee, this Panel Roster will be
submitted to the General Council for approval.  Approved individuals will remain on the Roster for a
period of five years, with the possibility of one more five-year term on approval by the General
Council.  In the event of an individual's resignati on or inability otherwise to serve, the nominating
Member would be at liberty to submit a replacement nominee for consideration, through the same
process.  With assistance from the WTO Secretariat, the DSB will maintain the Roster and
qualification statements and will ensure access to this information by the Membership.
A New Panel Roster – Function
Following the establishment of a panel by the DSB, the disputing parties will endeavour to
agree on the composition of the panel.  As under the current system, the Secretariat will propose
potential panelists to the disputing parties.  The Secretariat will draw its candidates from the PanelTN/DS/W/41
Page 5
Roster.  The disputing parties will be able to propose “off roster” candidates.  Absent agreement on
the composition of the panel within 15 days after the date of the establishment of the panel, at the
request of any of the disputing parties, the Director-General will compose the panel from the Panel
Roster on the understanding that his/her selection will be made with due consideration to the issues in
dispute.  If, however, the Director-General determines that insufficient expertise is available from theroster for a particular dispute, the Director-General  will be able to appoint an individual other than
from the roster to serve as a panelist in that dispute.  As under the current system, citizens of Members
whose governments are parties or third parties to the dispute shall not serve on a panel concerned with
that dispute, unless the parties to the dispute agree otherwise.
A streamlined and effective Panel Roster would be advantageous to the WTO dispute
settlement system for a number of reasons.  In addition to ensuring that adequate information isavailable regarding the qualifications of potential panelists, the Roster would help to reduce the time
and resources currently devoted to the process of panel composition by parties and the Secretariat,
thereby allowing for a quicker resolution of disputes and better allocation of scarce Secretariat
resources.  Compared to a permanent panel arrangement, moreover, this system would allow for
greater flexibility in terms of both resources and representation.
Remuneration of Panelists
In addition, providing an adequate level of compensation to panelists will help to ensure that
sufficient numbers of qualified individuals are willing to advance their candidacy to the Panel Rosterand that those selected to serve on a panel will not be penalized financially for the time they dedicate
to this task.
Canada appreciates the resource constraints faced by the WTO.  However, an adjustment to
the per diem  remuneration of panelists is warranted.  Compared against other international tribunals,
the per diem  offered to WTO panelists is very low (see Annex 2).  Remuneration accorded to WTO
panelists must reflect more closely the value of panelist service not only to the individual parties to a
dispute but also to ensuring the ongoing capacity of the DSU to provide security and predictability to
the multilateral trading system to the benefit of all WTO Members.
3. Transparency
Background
Members recognize that the strength of the WTO owes much to the support of the
constituency it serves.  That constituency has greatly expanded.  Panels and the Appellate Body
frequently adjudicate disputes involving matters of broad public interest that can affect large sectors
of civil society.  The implementation of DS B recommendations and rulings normally requires
adjustments to a Member’s trade measures and may prompt the enactment of new laws by national
legislatures.  Denying public observation to a process that results in government measures being
repealed or amended runs the risk of arousing suspicion and courting public resistance where none is
warranted.
Making the dispute settlement process more transparent could have significant benefits for the
institution and the Membership.  Granting the public access to Members’ written submissions and the
opportunity to observe panel and Appellate Body proceedings would reinforce the legitimacy of WTO
dispute settlement procedures.  Representatives of WTO Members with less experience in dispute
settlement also could benefit from the opportunity to observe panel and Appellate Body proceedings.At the same time, greater transparency will require suitable protection for confidential information,
including business confidential information submitted by parties to disputes.TN/DS/W/41
Page 6
More transparency need have no adverse effect on Members’ ability to reach negotiated
solutions to disputes.  Consultations (and good offices, conciliation and mediation) are appropriately
confidential because they involve negotiations conducted on a “without prejudice” basis between the
disputing parties.  Opening consultations to public scrutiny could undermine Members’ ability to
reach negotiated solutions to disputes.  However, the rationale for keeping consultations confidentialdoes not apply to panel or Appellate Body proceedings.  Members do not engage in negotiations at
panel and Appellate Body meetings.  Likewise, Members do not negotiate with one another through
their written submissions to panels and the Appellate Body.
Proposal: Public Access to Submissions and Meetings
Canada proposes that the DSU be amended to provide as follows
3:
Written Submissions
The written submissions of parties and third parties to the panel and the Appellate Body
would generally be made available to the public at the time of filing.  The Secretariat would establishand administer a dispute settlement registry at the WTO to facilitate public access to these
submissions.  It is expected that the Secretariat would make the submissions available to the public on
the WTO website.
If a party or third party has designated information contained in its written submissions as
confidential, as soon as is reasonably possible, it would provide the Secretariat with a redacted version
of its written submissions that could be made available to the public.
Panel and Appellate Body Meetings
Panel and Appellate Body meetings would be open to the public.  In accordance with
Canada’s proposed Procedures Governing Business Confidential Information , the public would be
excluded from portions of panel and Appellate Body meetings where confidential information is
discussed.
To address resource limitations, the Secretariat could facilitate public access to panel and
Appellate Body meetings by transmitting a live telecast of such meetings to a public viewing locationdesignated by the Secretariat.  Portions of meetin gs where confidential information is discussed would
not be transmitted to the public viewing location.
                                                     
3 Proposed textual amendments are included in Annex 4 of this proposal.TN/DS/W/41
Page 7
ANNEX 1
BUSINESS CONFIDENTIAL INFORMATION (BCI):
PROPOSED AMENDMENTS OF THE DSU
Please note that changes to the existing languag e of the DSU are marked with underline for
added text and strike-out for deleted text.
1. Addition to Article 18.2, following the third sentence:
“Written submissions to the panel or the Appellate Body shall be treated as confidential, but
shall be made available to the parties to the dispute. Nothing in this Understanding shall
preclude a party to a dispute from disclosing statements of its own positions to the public.
Members shall treat as confidential information submitted by another Member to the panel or
the Appellate Body which that Member has designated as confidential.  Where such
information has been designated “business confidential” it shall be treated in accordance with
the procedures in Appendix 5.  Those procedures apply mutatis mutandis to business
confidential information submitted to the arbitrator in arbitrations pursuant to paragraph 6 of
Article 22.  A party to a dispute shall also, upon request of a Member, provide a non-
confidential summary of the information contained in its written submissions that could be
disclosed to the public.”
2. Addition to Appendix 3 (Working Procedures), paragraph 3, following the third sentence:
“The deliberations of the panel and the documents submitted to it shall be kept confidential.
Nothing in this Understanding shall preclude a party to a dispute from disclosing statements
of its own positions to the public. Members shall treat as confidential information submittedby another Member to the panel which that Member has designated as confidential.
Information designated by a Member as “business confidential” shall be treated in accordance
with the procedures in Appendix 5.Where a part y to a dispute submits a confidential version
of its written submissions to the panel, it shall also, upon request of a Member, provide a non-
confidential summary of the information contained in its submissions that could be disclosed
to the public.”TN/DS/W/41
Page 8
APPENDIX 5 [New]
PROCEDURES GOVERNING BUSINESS CONFIDENTIAL INFORMATION
I. SCOPE
1. These procedures apply to all business confidential information submitted during the Panel
process, but do not apply to a party with respect to business confidential information first submitted
by that party.
II. OBLIGATION ON PARTIES
1. Each party shall ensure that its representatives comply with these procedures.
2. The treatment of information as business confidential under these procedures imposes a
substantial burden on the panel and the parties.  The indiscriminate designation of information asbusiness confidential could limit the ability of a party to fully include in its litigation team individuals
who have particular knowledge and expertise relevant to presenting the party’s case, impede the work
of the panel and complicate the panel’s task in formulating credible public findings and conclusions.
Accordingly, each party shall act in good faith a nd exercise the utmost restraint in designating
information as business confidential.
III. SUBMISSION BY A PARTY
1. When submitting information, a party may designate all or any part or parts of that
information as business confidential information.
2. Where a submission by a party incorporates business confidential information first submitted
by another party, the submission shall identify that information as business confidential.
3. A party submitting an exhibit containing business confidential information shall submit one
copy of the exhibit to the Secretariat, and two copies of the exhibit to each other party.
4. If, taking into the account the obligation on parties, the panel considers that a party has
designated as business confidential information that is not reasonably entitled to such treatment, the
panel may ask the party to justify the designation.  If, in the opinion of the panel, the party fails to
justify the designation, the panel may decline to cons ider that information.  In such a case, the party
submitting the information may, at its discretion:
(i) withdraw the information, in which case the panel and the other parties shall
promptly return any document or other recording containing the information to the party
submitting it; or
(ii) withdraw the designation of the in formation as business confidential.
5. A party submitting a text document containing business confidential information shall also
provide, within two business days of that submission:
(i) an edited version of the document, redacted in such a manner as to convey a
reasonable understanding of the substance of the business confidential information; or
(ii) in exceptional circumstances, a written statement that:TN/DS/W/41
Page 9
(a) an edited version cannot be made, or
(b) an edited version would disclose facts that the party has a proper reason for
wishing to keep confidential.
6. If the panel considers that an edited version does not fulfill the requirements of paragraph  5(i)
or that exceptional circumstances do not exist to justify a statement pursuant to paragraph 5(ii), the
panel may decline to consider the business confidenti al information in question.  In such a case, the
party submitting the information may, at its discretion:
(i) withdraw the information, in which case the Secretariat and the other parties shall
promptly return the document containing the information to the party submitting it; or
(ii) comply with the provisions of paragraph 5  to the satisfaction of the panel.
IV. STORAGE
1. The Secretariat shall store all documents or other recordings containing business confidential
information in a secure location when not in use by an approved person.
2. Each party shall store all documents or other recordings containing business confidential
information submitted to it by another party in a locked storage receptacle, to which only approved
persons have access, when not in use by an approved person.
3. An approved person shall take all necessary precautions to safeguard business confidential
information when documents or other recordings containing the information are in use or beingstored.
V. DISCLOSURE
1. Only approved persons may view or hear business confidential information that has been
submitted pursuant to these procedures.  No approved person who views or hears business
confidential information shall disclose it, or allow it to be disclosed, to any person other than another
approved person, except in accordance with these procedures.
2. Approved persons who view or hear busin ess confidential information shall use that
information only for the purposes of the panel proceedings and for no other purposes.
3. The panel shall not disclose business confidential information in its report, but may make
statements of conclusion drawn from that information.
4. In the event that a party submitting business confidential information objects to any person
being designated an approved person, the panel shall decide on the objection as a preliminary matter.If the panel allows the designation, the information may not be disclosed to the approved person until
the party submitting the information has a reasonable opportunity to:
(i) withdraw the information, in which case the panel and the other parties shall
promptly return any document or other recording containing the information to the partysubmitting it; or
(ii) withdraw the designation of the in formation as business confidential.TN/DS/W/41
Page 10
5. An approved person viewing or hearing business confidential information may take written
summary notes of that information for the sole purpose of the panel process.  Those notes are subject
to the requirements of Articles IV and VII.
6. Documents or other recordings containing business confidential information shall not be
copied, distributed or removed from a locked storage receptacle, except as specifically provided in
these procedures.
7. A party may bring with it to a panel meeting, for the sole purpose of that meeting, the
documents or other recordings containing business confidential information that it has received from
another party under these procedures, and shall immediately thereafter return those documents or
other recordings to their locked storage receptacle.
8. A panel member may make and remove from the secure location a copy of any document or
other recording containing business confidential information.  The copy shall be used exclusively by
that panel member for the purpose of the dispute, and shall be returned to the Secretariat upon
conclusion of the panel.  The copy shall be stored in a locked receptacle and subject to the obligationto safeguard provided in Article  IV.3.
VI. DISCLOSURE AT A PANEL MEETING
1. A party that wishes to submit business confidential information during a panel meeting shall
so inform the panel prior to doing so.  The panel shall exclude persons who are not approved persons
from the meeting for the duration of the submission of that information.
VII. RETURN OR DESTRUCTION
1. After the conclusion of the panel process, within a period fixed by the panel, the Secretariat
and the parties shall return any documents or other recordings containing business confidential
information, or certify in writing to the parties that the documents or other recordings have been
destroyed, unless the party that first submitted the business confidential information agrees otherwise.
2. If the report of the panel is appealed, the Secretariat shall transmit any documents or other
recordings submitted to it by a party containing business confidential information, and any otherrecordings that contain business confidential inform ation, to the Appellate Body as part of the record
of the panel proceedings.  The Secretariat shall tr ansmit such documents or other recordings to the
Appellate Body separately from the rest of the record.
X. ADDITIONAL OR ALTERNATIVE PROCEDURES
1. The panel may apply any additional procedures that it considers necessary to protect the
confidentiality of business confidential information.
2. The panel may, at the request of or with the consent of the parties, modify or waive any part
of these procedures.
XI. DEFINITIONS
“approved person”  means:
(i) a panel member;(ii) a representative of a party;TN/DS/W/41
Page 11
(iii) a Secretariat employee, or
(iv) an expert appointed by the panel
who has filed with the Secretariat a Declaration of Non-disclosure.
“conclusion of the panel process”  means when:
(i) pursuant to Article 16.4, the panel report is adopted by the DSB, or otherwise not
adopted by consensus of the DSB;
(ii) pursuant to Articles 16.4 and 17.14, the panel report is adopted (with modification, if
any) with the report of the Appellate Body; or
(iii) when the authority for establishment of the panel lapses pursuant to Article 12.12.
“business confidential information”  means any proprietary or commercially sensitive
information that is designated as business confidential by the party submitting the information, and
that is not otherwise available in the public domain.
“Declaration of Non-disclosure”  means a copy of the declaration set out in this Annex,
signed and dated by the person making the declaration.
“designated as business confidential”  means:
(i) for information recorded in printed docu ments, clearly marked where the information
appears in the document with the notation ‘BUSINESS CONFIDENTIAL INFORMATION’
and with the name of the party that first submitted the information;
(ii) for information recorded in binary-encoded files or in any other medium, clearly
marked with the notation ‘BUSINESS CONF IDENTIAL INFORMATION’ on a label on the
recording medium, and, in the case of information recorded in binary-encoded files, clearly
annotated where the information appears in the files with the notation ‘BUSINESSCONFIDENTIAL INFORMATION’, and with the na me of the party that first submitted the
information; and
(iii) for uttered information, declared by the speaker to be “Business Confidential
Information” prior to the disclosure, and identi fied with the name of the party that first
submitted the information.
“information”  includes information recorded in any medium, including printed documents
and binary-encoded files, and uttered information.
“other recordings” includes tapes and transcripts of panel meetings.
“panel meeting”  means a substantive meeting of the panel with the parties or any interim
review meeting of the panel with the parties, as described in the working procedures adopted by the
panel.
“panel member”  means a person serving on the panel.
“representative”  means:TN/DS/W/41
Page 12
(i) an employee of a party;
(ii) a legal counsel or other advisor or consultant of a party,
who has been authorized by a party to act on its behalf in the course of the dispute and whose
authorization has been notified to the Secretariat and to the other parties, but in no circumstances may
a representative be a person or an employee, officer or agent of any entity that could reasonably be
expected to benefit commercially from the receipt of the business confidential information.
“Secretariat employee”  means a person employed or appointed by the Secretariat who has
been authorized by the Secretariat to work on the dispute, and includes translators and interpreters and
transcribers present at the panel hearings.
“secure location”  means a locked storage receptacle chosen by the Secretariat to provide
secure storage for business confidential information.
“text document”  includes written submissions to the panel, whether in printed or binary-
encoded form.TN/DS/W/41
Page 13
DECLARATION OF NON-DISCLOSURE FORM
1. I acknowledge having received a copy of the Procedures Governing Business Confidential
Information (the “Procedures”) annexed to the Understanding on the Rules and Procedures Governingthe Settlement of Disputes.
2. I acknowledge having read and understood the Procedures.3. I agree to be bound by, and to adhere to, the provisions of the Procedures and, accordingly,
without limitation, to treat confidentially all busine ss confidential information that I may view or hear
from time to time in accordance with the Procedures.
Executed on this __________ day of ____________, 200x.BY: _____(signature)_____________________
Name:
Title:
(Representatives only) Affiliation or employment:TN/DS/W/41
Page 14
ANNEX 2
REMUNERATION OF WTO PANELISTS COMPARED WITH
OTHER INTERNATIONAL TRIBUNALS
ORGANIZATION REMUNERATION AVERAGE PER
DAY∗ (CHF)
International Centre for Settlement of
Investment Disputes (ICSID)US$2,000 per day CHF 2,772
London Court of International Arbitration
(LCIA)£150 - £350 per hour. CHF 2,503 – 5,842
American Arbitration Association (AAA)
International Centre for Dispute ResolutionUS$250 – US$450 per hour
CHF 2,599 – 4,678
British Columbia InternationalCommercial Arbitration Centre (BCICAC)CDN $250 - US$400 per hour for
international arbitrations.CHF 1,687 – 4,159
International Chamber of Commerce (ICC)
International Court of ArbitrationArbitrators' fees are based on the
amount in dispute.  (For example, if theamount in dispute is US$5,000,000, the
arbitrator would receive between
US$23,750 and US $108,500.)N/A
World Intellectual Property Organization
(WIPO) arbitratorsThe arbitrators' fees are based on the
amount in dispute.  (For example, if theamount in dispute is US$5,000,000, a
three-person tribunal would receive
approximately US$271,250.)N/A
Court of Arbitration for Sport (CAS) Approximately CHF 200 per hour CHF 1,500
North American Free Trade Agreement
(NAFTA) Chapter Eleven tribunal
membersApproximately US$350 – US$450 per
hourCHF 3,639 – 4,678
NAFTA Chapter Nineteen and Twenty
panelistsCDN $800 per day CHF 719
World Trade Organization panelists CHF 600 per day CHF 600
                                                     
∗ Based on a working day of 7.5 hours.  CHF 1 = 0.449627 GBP; 1.11150 CAD; and 0.721715 USD
(exchange rates 14.01.2003).TN/DS/W/41
Page 15
ANNEX 3
PERMANENT PANEL ROSTER: PROPOSED AMENDMENTS TO
ARTICLE 8 OF THE DSU
Please note that changes to the existing language of DSU Article 8 are marked with underline
for added text and strike-out for deleted text.
1. Article 8 is amended to read as follows:
“1. Panels shall be composed of well-qualified governmental and/or non-governmental
individuals with demonstrated expertise in law, international trade and the subject matter of
the covered agreements generally, including persons who have served on or presented a case
to a panel, served as a representative of a Member or of a contracting party to GATT 1947 oras a representative to the Council or Committee of any covered agreement or its predecessor
agreement, or in the Secretariat, taught or published on international trade law or policy, or
served as a senior trade policy official of a Member.
2. Panel members should be selected with a view to ensuring the independence of the
members, a sufficiently diverse background and a wide spectrum of experience.
3. Citizens of Members whose governments
6 are parties to the dispute or third parties as
defined in paragraph 2 of Article 10 shall not serve on a panel concerned with that dispute,unless the parties to the dispute agree otherwise.
4. To assist in the selection of panelists, the Secretariat shall maintain an indicative list
 a
panel roster of governmental and non-governme ntal individuals possessing the qualifications
outlined in paragraph 1, from which panelists may be drawn as appropriate.  That list
shall include the roster of non-governmental panelists established on 30 November 1984
(BISD 31S/9), and other rosters and indicative lists established under any of the covered
agreements, and shall retain the names of persons on those rosters and indicative lists at the
time of entry into force of the WTO Agreement.  Members may periodically suggest names o f
governmental and non-governmental individuals for inclusion on the indicative list, providing
relevant information on their knowledge of international trade and of the sectors or subject
matter of the covered agreements, and those names shall be added to the list upon approval by
the DSB.   For each of the individuals on the list, the Secretariat shall maintain  list shall
indicate specific areas of experience or expertise of the individuals in the sectors or subject
matter of the covered agreements.   Each Member may nominate one individual, who may or
may not be a national, for placement on the roster.  In nominating an individual, each Member
shall provide a statement of qualifications that identifies the nominee’s capabilities and
capacity to serve as a panelist in reference to the qualifications outlined in paragraph 1.  A
committee composed of the Chairs of the General Council, the DSB and the Goods, Services
and TRIPS councils, will examine the nominations and accompanying qualification statements
to verify that the nominees meet the requisite level of expertise to serve as a panelist.  On
completion of the selection process, the Committee will submit the roster to the General
Council for approval.  Approved individuals will remain on the roster for five years and may
be reappointed for one more five-year term on approval by the General Council.  In the event
of an individual’s resignation or inability otherwise to serve, the nominating Member may
submit a replacement nominee for consideration, through the above process. The WTO
Secretariat shall maintain the qualification statements of individuals on the roster and ensure
access to this information by the Membership.
                                                     
6 In the case where customs unions or common markets are parties to a dispute, this provision applies
to citizens of all member countries of the customs unions or common markets.TN/DS/W/41
Page 16
5. Panels shall be composed of three panelists unless the parties to the dispute agree,
within 10 days from the establishment of the pane l, to a panel composed of five panelists. 
Members shall be informed promptly of the composition of the panel.
6. The Secretariat shall propose nominations for the panel to the parties to the dispute
drawn from the panel roster.  The parties to the dispute shall not oppose nominations except
for compelling reasons.  Parties may also propose individuals for service on the panel.
7. If there is no agreement on the panelists within 15 20  days after the date of the
establishment of a panel, at the request of either party, the Director-General, in consultationwith the Chairman of the DSB and the Chairman of the relevant Council or Committee, shall
determine the composition of the panel by appointing the panelists drawn from the roster
whom the Director-General considers most appropriate in accordance with any relevantspecial or additional rules or procedures of the covered agreement or covered agreements
which are at issue in the dispute, after consulting with the parties to the dispute.  Should the
Director-General determine that insufficient expertise is available from the roster for a
particular dispute, the Director-General may a ppoint an individual other than from the roster
to serve as a panelist in that dispute.  The Chairman of the DSB shall inform the Members of
the composition of the panel thus formed no later than 10 days after the date the Chairman
receives such a request.
8. Members shall undertake, as a general rule, to permit their officials to serve as
panelists.
9. Panelists shall serve in their individual capacities and not as government
representatives, nor as representatives of any organization.  Members shall therefore not give
them instructions nor seek to influence them as  individuals with regard to matters before a
panel.
10. When a dispute is between a developing country Member and a developed country
Member the panel shall, if the developing country Member so requests, include at least onepanelist from a developing country Member.
11. Panelists’ expenses, including travel and subsistence allowance, shall be met from the
WTO budget in accordance with criteria to be adopted by the General Council, based on
recommendations of the Committee on B udget, Finance and Administration.”TN/DS/W/41
Page 17
ANNEX 4
TRANSPARENCY: PROPOSED AMENDMENTS OF THE DSU4
Please note that changes to the existing languag e of the DSU are marked with underline for
added text and strike-out for deleted text.
1. Paragraph 2 of Article 18 of the DSU is amended to read as follows:
“Written submissions to the panel or the Appellate Body shall be treated as confidential, but
shall be made available to the parties to the dispute. Nothing in this Understanding shall
preclude a party to a dispute from disclosing statements of its own positions to the public.
Members shall treat as confidential information submitted by another Member to the panel or
the Appellate Body which that Member has designated as confidential. A party to a dispute
shall also, upon request of a Member, provide a non-confidential summary of the information
contained in its written submissions that could be disclosed to the public.   The Secretariat shall
make the written submissions of parties and third parties to the panel and the Appellate Body
available to the public at the time of filing.  However, if a party designates information
contained in its written submissions as confidential, it shall as soon as is reasonably possible,
provide the Secretariat with a redacted version of its written submission that can be made
available to the public. The Secretariat shall establish and administer a dispute settlement
registry at the WTO to facilitate public access to the written submissions of parties and third
parties.  The DSB shall establish rules and procedures governing the Secretariat’s
administration of the registry.”
2. Paragraph 3 of Appendix 3 is amended to read as follows:
“The deliberations of the panel and the documents submitted to it  shall be kept confidential.
Nothing in this Understanding shall preclude a pa rty to a dispute from disclosing statements of
its own positions to the public. Members shall treat as confidential information submitted by
another Member to the panel which that Member has designated as confidential. Where a
party to a dispute submits a confidential version of its written submissions to the panel, it shall
also, upon request of a Member, provide a non-confidential summary of the information
contained in its submissions that could be disclosed to the public. ”
3. Paragraph 2 of Appendix 3 is amended to read as follows:
“The panel shall meet in closed session. The parties to the dispute, and interested parties, shall
be present at the meetings only when invited by the panel to appear before it.  Panel meetings
with the parties and third parties shall be public.  To facilitate public access to panel meetings
with the parties or third parties, electronic recordings of such meetings may be transmitted
simultaneously to a public viewing location designated by the Secretariat.  A party or third
party intending to refer to confidential informa tion at a meeting shall inform the Secretariat, if
possible prior to the meeting.  Portions of meetings in which confidential information is
discussed shall not be transmitted to the public viewing location.”
                                                     
4 Canada has not attempted to merge the proposed amendments to the DSU included in Annexes 1 and
4 of this proposal.TN/DS/W/41
Page 18
4. Paragraph 10 of Article 17 is amended to read as follows:
“The proceedings of the Appellate Body shall be confidential.  The reports of the Appellate
Body shall be drafted without the presence of the parties to the dispute and in the light of the
information provided and the statements made.”
5. In Article 17, the following paragraph shall be inserted following paragraph 13.  Paragraph 14
shall be renumbered as 15.
“14.       Appellate Body meetings with th e parties and third parties shall be public.  To
facilitate public access to Appellate Body meetings  with the parties or third parties, electronic
recordings of such meetings may be transmitted simultaneously to a public viewing location
designated by the Secretariat.  A party or third party intending to refer to confidential
information at a meeting shall inform the Secretaria t, if possible prior to the meeting.  Portions
of meetings in which confidential information is discussed shall not be transmitted to the
public viewing location.”
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