RESTRICTEDWORLD TRADE
ORGANIZATIONWT/GC/M/60
23 January 2001
(01-0346)
General Council
22 November 2000
MINUTES OF MEETING
Held in the Centre William Rappard
on 22 November 2000
Chairman:  Mr. Kåre Bryn (Norway)
1. Communication from the Appellate Body to the Chairman of the Dispute Settlement
Body on "European Communities – Measures affecting asbestos and asbestos-containing products"
1. The Chairman said that the present meeting had been convened at the request of Egypt, on
behalf of the Informal Group of Developing Countries in order to discuss the communication from the
Appellate Body to the Chairman of the Dispute Settlement Body on "European Communities –
Measures affecting asbestos and asbestos-contai ning products" (WT/DS135/9).  He then drew
attention to the following points contained in his statement circulated to delegations in Job(00)/7343:
In order to facilitate the discussion I decided to request the Secretariat to prepare a
factual note on what has transpired.1  The note contains three parts:  (i) considerations taken
into account by the Appellate Body in the adoption of the additional procedure;  (ii) the more
general systemic experience in the WTO with amicus  briefs;  and  (iii) The nature of the
WTO Secretariat's contacts wi th the NGO community in connection with this additional
procedures.
While I think it is important to have the relevant facts clearly established, I hope we
can concentrate our discussion on the question of principle and the systemic issue involved,
rather than the specific case.  I will, therefore,  fully associate myself with the Chairman of the
Dispute Settlement Body who stated in the DSB meeting on 17 November that "I am
absolutely sure that no delegation wants to do any harm to the standing of this Organization,or to the Dispute Settlement System or to the Appellate Body.  And all are interlinked –
anything which affects an integral part of the system affects the system as a whole."
If we bring this observation with us into the debate and focus our comments on how
to deal with an area of the DSU now subject to  differing interpretations, I am convinced that
the Organization and the Dispute Settlement System will benefit from addressing the systemicissue we are confronted with.
2. The Chairman said that since the representative of Egypt was not present he would first offer
the floor to the representative of Uruguay.
3. All representatives who spoke thanked the Chairman for convening the present meeting.
                                                     
1 Circulated in Job(00)/7343.WT/GC/M/60
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4. The representative of Uruguay thanked the Chairman and the Secretariat for the factual
background note submitted to Members, which had proved useful for his delegation's analysis,
although it had not essentially changed it.  In fact the note had given rise to additional concerns and
had identified the moment in the process when, in his delegations's opinion, a different procedure
should have been followed.  He also thanked the Ambassador of Egypt who, in her capacity ascoordinator of the Informal Group of Developing Countries, had requested this meeting.  Uruguay had
supported the calling of this special meeting of th e General Council, since it believed that the matter
at hand was of fundamental systemic importance for the WTO.  The General Council was the proper
forum to discuss this issue, since it was the highest WTO body when the Ministerial Conference was
not in session, and the only body authorized to interpret the agreements.  The WTO dispute settlement
system had been described as the "jewel" of the results of the Uruguay Round and Members should
not allow this jewel to lose its brilliance or value.  If Members ceased to have confidence in thedispute settlement system, which was unique at the international level, they would lose a fundamental
tool for the defence of their interests and would find themselves worse off than before.  It was for this
reason that he viewed this debate not as a means of  questioning the DSU, nor as an attempt to weaken
the institutions that governed this process, but as way of clarifying and reaffirming the powers or
terms of reference of each of the parts that allowed the multilateral trading system to operate. Inconcrete terms, Members were initiating a process which he hoped would help them carry out the task
of interpreting the agreements and consequently strengthen the WTO.
5. The WTO was an agreement of a contractual nature that was qualitatively different from other
international agreements in the sense that the obligations that stemmed from this contract included the
strict fulfilment of the decisions of the DSB to the extent of diminishing the decision-making capacityof Members.  Insofar as Members were mainly states, the political effect of this situation was of no
little consequence.  It was for this reason that any decision taken by the bodies that made up the
system could not be taken lightly, but had to be firmly based on the provisions of the agreements, duly
signed and ratified by the respective governments a nd parliaments.  In this context, Uruguay viewed
with great concern the appearance and mass circulation outside the WTO of the Appellate Bodycommunication establishing the additional procedure for the submission of written briefs from
persons or institutions that were neither parties nor third parties in a particular dispute at the appeal
stage.  Uruguay's concern was based on the fact that notwithstanding the positive intention that
inspired this document, its form, its substance and the way it had been handled affected the rights and
obligations of WTO Members and altered the relationship between the bodies within the system.
6. Uruguay considered the following points:  (1) Article V.2 of the Agreement Establishing the
WTO stated that "The General Council may make appropriate arrangements for consultation andcooperation with non-governmental organizations concerned with matters related to those of the
WTO".  This meant that it was the General Council which had the statutory right to decide the forms
that relations with NGOs would take, including those concerning the settlement of disputes.
(2) Article IX.2 of the same Agreement provided that the General Council shall have "the exclusive
authority to adopt interpretations of this Agr eement and of the Multilateral Trade Agreements".
(3) Article 17.3 of the DSU stated that the Members shall elect to the Appellate Body "persons of
recognized authority, with demonstrated expertise in  law, international trade and the subject matter of
the covered Agreements generally".  Uruguay had no doubt whatsoever as to the suitability and
expertise of those persons presently serving on the Appellate Body.  (4) Article 17.6 of the DSU also
stated that an appeal shall be limited to "issu es of law covered in the panel report and legal
interpretations developed by the panel".  The concrete and specific function of the Appellate Body
was thus clearly determined.  (5) Article 17.9 of th e DSU stated that the working procedures of the
Appellate Body shall be drawn up in consultation with the Chairman of the DSB and the Director-
General.  The application of this provision was a matter of great importance.  Looking at the situation
with these provisions in mind, he said that although this document was presented to Members as anexplanatory note under Article 16(1) of the working procedures, its practical effect was that the
Appellate Body was adopting decisions on relations with NGOs while such decisions statutorilyWT/GC/M/60
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belonged to the General Council.  Consequently, this was not a matter of clarifying procedures, but of
upsetting the balance of the functions of each body involved.  In view of this practical outcome, it was
not a matter of procedure but rather a matter of substance which affected the working procedures, and
which should at least be subject to consultation with the Chairman of the DSB and the Director-
General in accordance with Article 17.9.
7. As for substance, Uruguay believed that the practical effect had been to grant individuals and
institutions outside of the WTO a right that Memb ers themselves did not possess.  This procedure
allowed such individuals or institutions to present their point of view and possibly even influence a
purely legal and interpretative decision on the rules in a specific case, while that right was reserved
solely to the parties and third parties to a dispute, and was even refused to other WTO Members.  This
was highly inappropriate, as it altered an agreement negotiated and adopted multilaterally, and in
particular since this subject was discussed during the negotiations of the Uruguay Round but was notincorporated in the DSU.  Furthermore, this procedure limited the rights of parties and third parties.
The last paragraph of section 1 of the factual background note stated that the decision gave the parties
and third parties a full and adequate opportunity to comment on and respond to submissions.
However, this was not possible within the short and mandatory time-limits which the Appellate Body
had to meet in its work.  Moreover, the members of the Appellate Body had the capacity, knowledge
and experience necessary to take the legal decisions incumbent upon them without any outside help.
8. With regard to the way the Appellate Body's communication had been handled, the
Secretariat in its factual background note drew atte ntion to its own procedures for increasing the
knowledge and understanding of interested individua ls and institutions.  Uruguay was not questioning
these procedures per se , but believed that the Secretariat could not act on "automatic pilot" in relation
to sensitive issues, especially in the case of procedures for the settlement of disputes.  Secretariat
officials needed to have a fine sense of how to adapt their communications to needs, and should know
when to be proactive, exercise self-control, or show moderation.  The different divisions could not act
in ignorance of what was happening in the areas of competence of other divisions and even less in
ignorance of the atmosphere prevailing in the WTO and the feelings of its Members.
9. The preceding analysis, although extensive, was necessary to justify the following
conclusions.  First, despite its praise-worthy intentions, the decision of the Appellate Body Division in
this case, together with premature action on the part of the Secretariat, had had the practical effect of
altering the agreements, something which was not in its terms of reference.  Second, the Appellate
Body had to restrict itself in establishing whether a panel had correctly applied or interpreted the rules
in a specific case.  However, insofar as it knew that its decisions would set precedent, the Appellate
Body should inform the General Council when it identified difficulties that arose from the widerinterpretation of the agreements, so that the Gene ral Council could take the decisions incumbent upon
it.  Thus, in the US shrimps case referred to in the Secretariat factual background note, when the
Appellate Body decided to reject the Panel's interpretation of its powers under Article 13 of the DSU,
it should have informed the General Council of this situation, so as to obtain an interpretation that
could have been applied in other cases.  Thirdly, the General Council had just begun, at the presentmeeting, its consideration of the amicus curiae  submissions to panels and the Appellate Body.  This
was a matter of interpretation with systemic effects and was the responsibility of the General Council.
Consequently, Uruguay requested that this matter be placed on the regular agenda of the General
Council and that the Chairman take the appropriate measures in this case so that the General Council
could adopt an interpretation of general application.  Fourthly, panels and the Appellate Body shouldrefrain from acting in this matter until the General Council had given its interpretation.  Uruguay
requested that its statement be published as an official document of the General Council andWT/GC/M/60
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circulated as a background document when this matter was discussed at forthcoming General Council
meetings2.
10. The representative of Egypt, on behalf of the Informal Group of Developing Countries
(IGDC), said that this meeting had provided an opportunity to address and discuss the recent
communication from the Appellate Body to the Chai rman of the Dispute Settlement Body, which set
out an additional procedure for filing of amicus curiae  briefs by NGOs in the dispute on "Measures
affecting asbestos and asbestos-containing products."
11. During the meeting of the IGDC on 10 November 2000, it was strongly felt that the actions of
the WTO Appellate Body and the Secretariat needed serious consideration by the whole WTO
membership and at the level of the General Council, as the highest legislative and policy authority in
the organization in the intervals between Ministerial Conferences, in order that such actions be
rectified.  The issue under consideration was of a systemic nature and of serious concern, not only tothe IGDC, but also to a very large number of developed countries, practically to almost the totality of
the WTO membership.  The Group could easily associate itself with the Chairmen of the General
Council and the DSB in stating that no delegation wanted to do any harm to the standing of the
organization, the Dispute Settlement System, or to the Appellate Body itself.
12. The Group believed that the decision that had been taken by the Division of the Appellate
Body hearing the appeal in the asbestos case to a dopt an additional procedure to deal with written
briefs received from persons other than a party or a third party to the dispute, went far beyond the
Appellate Body's mandate and powers for the follow ing reasons.  First, although the Appellate Body
was entitled to adopt its own working procedures, its recent decision went beyond those procedures,
to an outreach activity that sought information from individuals without any basis in the DSU for suchan action.  The question was therefore a substantive rather than a procedural one, as it related to the
substantive functioning of the Appellate Body.  Hen ce, the Appellate Body might have acted in a way
that de facto  amended the DSU.
13. Second, Article 13 of the DSU gave a panel the right to seek information and technical advice
from any individual or body it deemed appropriate, with  respect to factual issues or scientific matters
within the jurisdiction of a Member and after informing that Member.  This was the kind of
information or facts that might be needed to allo w a panel to reach a fair finding.  However, the
situation was different with regard to the Appellate Body, since its consideration of a case was limited
to issues of law covered in the panel report and legal interpretations developed by the panel, as
stipulated in Article 17.6 of the DSU.  Moreover, the Appellate Body members were of a recognized
authority with demonstrated expertise in law, international trade and WTO agreements.  It was
therefore difficult to contemplate the need for the Appellate Body to receive briefs concerning issuesof law.
14. Third, it was ironic that the decision under consideration had been conveyed to Members one
day before the overall relationship with the NGOs was to be considered in the informal consultations
on external transparency in the General Council.  However, the matter was not a transparency issue
but was about the Appellate Body crossing its limits.
15. Fourth, the Appellate Body was part of the WTO and was therefore governed by the rules
agreed to and delicately negotiated by Members.  Those were the same rules that had given the
Appellate Body its mandate.  The Appellate Body was not a supra  body within the organization.
Furthermore, it was for the General Council to make appropriate arrangements for consultation and
cooperation with NGOs, as stipulated in Article V of the Agreement Establishing the WTO.
                                                     
2 The statement by Uruguay was subsequently circulated as document WT/GC/38 and Corr.1.WT/GC/M/60
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16. Fifth, it was clear that there was no agreement among Members on the issue of amicus curiae
briefs.  This had been demonstrated in a number of occasions, including during the DSU review
process before Seattle and, in particular, when the reports on the shrimp/turtle and the US-British steel
cases were considered by the DSB.  A wide range of Members had then criticized the Appellate Body
for encroaching and infringing upon the rights of Members to decide on these questions.  The WTOwas a Member-driven, as well as an intergovernmental organization and this basic fundamental nature
of the organization had to, and would, remain as such.  If in the future the Appellate Body could not to
find a positive provision of this nature in the current rules, then the matter should be referred to the
Members.
17. Sixth, the Appellate Body Division had based its decision on "the interest of fairness".
However, nothing in the current rules seemed contrary to achieving this goal through the work
methods agreed upon.  Moreover, the Division had no t brought to the attention and consideration of
Members any prevailing circumstances that warranted modification.
18. Seventh, if the implementation of this decision was permitted, a severe harm and a grave
imbalance would be done to the rights of Members vis-à-vis  external parties or individuals who were
not even contractually committed to the obligations  of the system.  Indi viduals, NGOs, the business
community and other interest groups would have the right, under this decision, to communicate theirviews in a case known at the appeal stage, while that very particular right was not even available to
WTO Members who were not a third party at the panel stage.  In addition, it was not expected, nor
accepted, that Members would do so as a legal person through the new procedure adopted by the
Division.  This would result in an extremely serious situation where Members would be at a
disadvantage and such a situation was flagrantly inconsistent with Article 10.2 of the DSU.
19. Eighth, the Group could not digest the argument that the additional procedure would limit the
number of briefs filed, since its point of departure was to invite and solicit such briefs, as well as to
pave a legal basis for them.
20. Ninth, while the Division pledged that the decision was for the purpose of the asbestos appeal
only, it introduced an additional procedure which, if allowed to apply, would certainly create pressure
for future cases and might in fact set a precedent or jurisprudence.
21. Tenth, the likely beneficiaries of such a decision were those individuals and NGOs who had
the capacity in terms of resources and time.  Those were entities which had more access to WTO work
and documents, and were operating mainly in the developed world with few in developing countries.
Electronic means did not help the disadvantaged in remote areas, who were increasing in number with
the further widening of the digital divide.  Finally, and in view of the above, the Group believed that
this action by the Appellate Body had to be resented and reversed.
22. The representative of Hong Kong, China said that the convening of this formal meeting
urgently underlined the seriousness of the matter and the grave concerns that many Members had
expressed in the last two weeks.  Hong Kong, China fully agreed with the Chairman that Members
should concentrate their discussion on the question of principle and the systemic issues involved,
rather than on the specific case.  The views of his delegation should be interpreted as constructivecriticism over this unfortunate situation, rather than as attacking the standing and integrity of the
Appellate Body, both as an institution and as indi vidual members.  The issue before the General
Council was systemic and probably constitutional.  The heart of the issue was that an important and
substantive matter such as the submission of amicus  briefs should only be decided by Members
themselves.  The Appellate Body's decision to solicit amicus  briefs affected the existing rights and
obligations of WTO Members, which the dispute settlement system precisely served to preserve, as
stated in Article 3.2 of the DSU.WT/GC/M/60
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23. The issue of submission of amicus  briefs was an old issue and dated its history to the Uruguay
Round, when relevant proposals were raised, negotiated and rejected.  Similar proposals were again
raised by a few Members during the DSU review, which did not produce any consensus results.
When the relevant reports on the shrimp/turtle and th e US-British steel cases were considered by the
DSB, a significant number of delegations had also expressed dissenting views against the AppellateBody's own creative interpretation of the issue and thes e views were fully recorded.  All of this led to
one question, namely whether the submission of amicus  briefs was a procedural issue only, or rather a
substantive  one.  In his opinion, the answer was obvious.  While Members were invited not to
concentrate on the specific case itself, Hong Kong, China felt that it was not possible to appreciate the
systemic problems created by the Appellate Body without touching upon certain aspects of the case.
24. He recalled that in adopting the additional procedure, the Appellate Body relied on Rule 16(1)
of the Working Procedures for Appellate Review and that the first condition for invoking thisprovision was that a procedural question had aris en.  The Appellate Body had not provided any
explanation in its communication as to when, how and from whom a procedural question had arisen.
Although the Secretariat provided the answer later in the factual note, it occurred to his delegation that
none of the parties to the dispute, nor the third parties, had raised this procedural question with the
Appellate Body and therefore the Appellate Body itse lf had drawn this conclusion.  In fact, according
to his information both parties to the dispute had been against the Appellate Body's decision.
25. The key condition for invoking Rule 16(1) was whether soliciting amicus curiae  briefs was in
fact a procedural question.  The background of the issue and the political overtone certainly argued
that it was not, but the Appellate Body had had a different view.  Hong Kong, China could not find
any relevant provision in the DSU that explicitly provided for the Appellate Body to solicit, receive orconsider amicus curiae  briefs.  Article 13 of DSU explicitly referred to panels only, and not to the
Appellate Body.  Moreover, this provision referred  to "seeking information", not "soliciting legal
arguments".  The reliance on Rule 16(1) to make new rules of substantive or systemic significance, as
and when it pleased the Appellate Body, without go ing through the proper legislative process, would
certainly undermine the fundamental objectives of the DSU, namely "to provide security andpredictability to the multilateral trading system".
26. The consideration for invoking Rule 16(1) was based on "the interests of fairness and orderly
procedure in the conduct of an appeal" and this was indeed the only reason given by the Appellate
Body in their current decision.  However, the Appell ate Body failed to explain why fair and orderly
conduct of the current appeal would not have been possible without making the current decision to
adopt a new procedure under Rule 16(1).  Indeed the Appellate Body could have decided not to accept
nor solicit any amicus  briefs.  While the Appellate Body pledged that the additional procedure was
"for the purpose of this appeal only", the Appellate Body's decision would create pressure for future
appeal cases and may in fact set a precedent. It was difficult to envisage how the Appellate Body
could decide not to establish the same procedure in any future appeal cases, given that their
consideration of the interests of fairness and orderl y conduct of an appeal should prevail in each and
every case and that they should be acting in a consistent manner.
27. The Appellate Body's invitation was extended to "any person, whether natural or legal, other
than a party or a third party to this dispute".  It was unclear whether WTO Members who were not
parties or third parties to the case could make use of this procedure.  If they could not, then WTO
Members were being put at a disadvantage compared to  outside persons.  If they could, then it was
inconsistent with Articles 10.2 and 17.4 of the DSU.  For Hong Kong, China, it was problematiceither way.  The Appellate Body decision could create an impossible burden on developing country
Members, and indeed any Member, who may wish to comment on and respond to any briefs
submitted but would be limited by time and resources constraints.  He noted that if only 20 amicus
curiae  briefs were submitted this would represent more than 400 pages of legal arguments, which
would require a response within a few days.  He also noted that the invitation was intended to beWT/GC/M/60
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open-ended, because of the reference to "any persons, natural or legal".  However, from the factual
background note it resulted that the invitation was only drawn to the attention of a restricted group of
NGOs, which happened to be subscribers of the Se cretariat's NGO bulletin. This was prejudicial to
those who did not have effective electronic access to the WTO website or were not subscribers to the
Secretariat's NGO bulletin.
28. Hong Kong, China strongly believed that Members should send the strongest signal to the
Appellate Body, and for that matter to any panel, that submission of amicus  briefs was a substantive
matter.  It was a matter for Members, and Members only and the Appellate Body and panels should
not do anything that may prejudice the outcome of deliberations by WTO Members on this
substantive issue.  He believed that a lesson had been learned, and that history should not repeat itself.
29. The representative of India said that the disquiet and anxiety generated among the
Membership by the Appellate Body's communication was so great that convening this special meeting
of the General Council on short notice was more than justified.  He also thanked the Chairman for
arranging to make available to Members a factual background note prepared by the Secretariat.  He
also associated his delegation with the statement of the Chairman of the Dispute Settlement Body at
its meeting of 17 November and said that he definite ly did not want to harm the standing of the WTO,
the dispute settlement system or the Appellate Body.  However, at the same time, he hoped that thepresent debate would make sure that no harm would be caused to the rights of Members.  In his
statement, the Chairman had mentioned that Members should focus their comments on how to deal
with an area of the DSU now subject to differing interpretations.  In his opinion, as far as the
Membership was concerned, there were not many differing views on the interpretation of the DSU, as
it stood now, on this subject.
30. India said that the debate at the present meeting was not about the specifics of the EC-
Asbestos dispute.  Nor was it about the desirability or otherwise of providing for amicus curiae  briefs
in the WTO dispute  settlement system, or about the so-called transparency issues, which were both
matters for Members to deal with if they so desired.  His delegation perceived the debate as one
essentially dealing with the competence of the Appellate Body to accept unsolicited amicus curiae
briefs and to solicit such briefs.
31. Tracing the evolution of the Appellate Body's approach to the subject of amicus curiae  briefs,
he recalled that the issue of amicus curiae  briefs first came into sharp focus in the shrimp-turtle case.
In that case, the panel considered that it was not entitled to accept amicus curiae  briefs under
Article 13 of the DSU and observed that accepting non-requested information from non-governmental
sources would be, in their opinion, incompatible with the provisions of the DSU as currently applied.
The Appellate Body overruled the panel by saying that the panel's reading of the word "seek" wasunnecessarily formal and technical in nature and that a panel had discretionary authority, either to
accept and consider, or to reject information and advice submitted to it whether requested by a panel
or not.  When the relevant report had come up for adoption, a large number of Members pointed out
that by giving a new interpretation to certain DSU provisions, the Appellate Body had overstepped the
bounds of its authority, thereby undermining the balance of rights and obligations of Members.  Herecalled that subsequently,  in the bismuth carbon steel case, the Appellate Body stated  that neither the
DSU nor the working procedures explicitly prohibite d acceptance or consideration of such briefs.  On
the basis of this curious logic, the Appellate Body said that it considered it had the legal authority
under the DSU to accept and consider amicus curiae  briefs in an appeal in which it found it pertinent
and useful to do so.  Again, when this report had come up for adoption, a number of delegations hadexpressed serious concern regarding the Appell ate Body's interpretation of the treatment of amicus
curiae  briefs.  Many delegations had also pointed out that acceptance by the Appellate Body of
amicus curiae  briefs was not a procedural but a substantive matter, which therefore could not be dealt
with under Rule 16(1) of the Working Procedures.  The Appellate Body had unfortunately ignored the
overwhelming sentiment of Members against acceptance of unsolicited amicus curiae  briefs.  ByWT/GC/M/60
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introducing this additional procedure, which amounted to soliciting amicus curiae  briefs from NGOs,
the Appellate Body had indicated that it wanted to go one step further in total disregard of the views
of the overwhelming majority of the WTO Membership.
32. Turning to certain aspects of the communication under consideration, he recalled that
Rule 16(1) of the Working Procedures for Appellate Review, pursuant to which the Appellate Bodywas acting, was basically a residuary rule enabling a division to adopt an appropriate procedure for
the purposes of that appeal only, provided that it was not inconsistent with the DSU, other covered
agreements and the rules of the working procedures.  A large number of delegations had pointed out,
at the time of adoption of the bismuth carbon steel reports, that acceptance of amicus curiae  briefs by
the Appellate Body changed the intergovernmental nature of the organization, as well as Members'
rights and obligations and therefore Article 17.9 of the DSU, and by extension the Working
Procedures for Appellate Review, were not applicable to substantive issues.  The Appellate Body hadchosen to ignore this powerful argument and was having recourse to Rule 16(1) to justify its latest
communication.  When an overwhelming number of  Members were clearly of the view that even
accepting unsolicited amicus curiae  briefs was a substantive issue that could not be dealt with under
Rule 16(1), it was totally unjustified for the Appellate Body to proceed on the basis that soliciting
amicus curiae  briefs was not a substantive matter and that they could deal with it under Rule 16(1).
33. The communication from the Appellate Body indicated that they had adopted the additional
procedure under Rule 16(1) "after consultation with the parties and third parties to the dispute."  As
pointed out by other delegations, there was a misleading impression given here.
34. The argument was made in the factual background note that the additional procedure adopted
in this particular appeal was designed to "discipline the process and allow the division hearing thisappeal to manage in a fair, legal and orderly manner a difficult practical situation which the members
of the Appellate Body anticipated would arise in th is appeal."  However, the Appellate Body was not
acting exactly within the confines of the law, namely the DSU, when it decided that the panels and the
Appellate Body could accept unsolicited amicus curiae  briefs, nor when it decided to adopt the
additional procedure, whose real effect was to virtually seek or invite amicus curiae  briefs.  The
difficult practical situation alluded to by the Appe llate Body had been created by the Appellate Body
through its own rulings in the shrimp and bismuth carbon steel cases.  A large number of Members
had expressed strong reservations about the systemic implications of these rulings and today, a more
difficult situation was being created for the Membership by the Appellate Body virtually inviting
amicus curiae  briefs in the name of managing in a fair, legal and orderly manner, a difficult practical
situation.  In the light of the Appellate Body's approach to the issue of amicus curiae  briefs in shrimp
turtle and bismuth carbon steel cases, and against the backdrop of systemic concerns expressed by alarge number of Members, the argument that the additional procedure adopted in this appeal was
designed to discipline the process was far from convincing.
35. The next important point of the Appellate Body's communication related to certain procedural
aspects.  The Secretariat's factual background note stated that the Appellate Body's letter had been
circulated on 8 November 2000 as a communication to WTO Members.  It further stated that in the
evening of that day and  only after the communication from  the Chairman of the Appellate Body had
been circulated to Members, the additional proce dure adopted by the Appellate Body division in this
appeal had been posted on the WTO website.  It was not clear from the Secretariat's note what reasons
had led the Appellate Body to post the additional pr ocedure on the WTO website, especially when the
stated intention of this procedure was to discipline the process though a procedure that was relevantonly for this particular case.  The Secretariat note  said that the "announcement" by the Appellate Body
of the additional procedure appeared on the WTO website and an e-mail was sent to the subscribers of
the NGO bulletin as per the established procedure.  It  was unlikely that the Appellate Body Secretariat
was not aware of the steps that would automatically be taken by the External Relations Division once
the additional procedure was put on the website, obviously at the insistence of the Appellate BodyWT/GC/M/60
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itself.  Therefore, it was not unfair to conclude th at the Appellate Body knew, or at least should have
known, that putting the additional procedure on the WTO website, which was said to have been
designed to discipline the process and was supposed to have been adopted for the particular appeal
only, would virtually amount to an invitation to hundreds of NGOs to file amicus curiae  briefs.
36. India noted that there were clear provisions in the DSU about the rights of third parties in
Appellate Body proceedings.  For example, a Memb er which was not a third party before the panel
could not become a third party before the Appellate Body.  There were also prescribed time-limits for
third party submissions before the Appellate Body.  However, those who wanted to file a written brief
under the new additional procedure did not need to have previously filed any brief before the panel.
Moreover, as paragraph 2 of the additional procedure referred to legal persons, it had been suggested
that a WTO Member could also file briefs before the Appellate Body, describing itself as a legal or
juridical person for the purpose of the additional procedure.  India did not think that any WTOMember would be particularly pleased at the prospect of having to characterize itself as something
other than a Member, just for the sake of getting privileges which non-Members were being given by
the Appellate Body.  Furthermore, paragraph 3(e) of the additional procedure called upon those who
applied for "leave to file", to identity specific issues of law covered in the panel report and legal
interpretation developed by the panel that were subject to the appeal.  In his view, it was ratherironical that the Appellate Body, which comprised pe rsons of recognized authority, should be looking
for legal guidance in the form of amicus  curiae  briefs.  Also, paragraph 3(f) of the additional
procedure required any applicant for leave to file to state why it would be desirable for the Appellate
Body to grant such leave in the interests of achiev ing a satisfactory settlement of the matter at issue,
"in accordance with the rights and obligations of WTO Members …".  In his view, if there was anyintention to respect the rights and obligations of WTO Members under the DSU, the additional
procedure should not have been adopted.  In the second half of paragraph 3(f), the applicants were
asked to indicate how they would make submissions that would not be repetitive of what had been
submitted by a party or a third party.  India did not understand how any applicant for leave to file
could respond to this requirement, unless the applicant had access to submissions of parties or thirdparties.  On the basis of what it had said so far, India reiterated that it was extremely concerned with
the way the Appellate Body was approaching the issue of amicus curiae  briefs.
37. In summarizing, the reasons why India felt that the approach of the Appellate Body was
inconsistent with the DSU provisions were the follow ing:  First, that according to Article 17 of the
DSU, the role of the Appellate Body was to deal with appeals which had to be limited to issues of
law.  Again, it was difficult to see why the Appellate Body, comprising persons of recognized
authority, should seek inputs from any person, natural or legal, other than parties and third parties,when its task was simply to rule on issues of law.  Second, Article 17.4 clearly laid down that, apart
from the parties to a dispute, only third parties co uld make submissions to the Appellate Body.  The
Appellate Body would appear to be violating both paragraphs 4 and 6 by accepting or inviting briefs
from those who were not parties or third parties to a dispute.  Third, any procedure that the Appellate
Body may prescribe, could not and should not affect the integrity of the dispute settlementmechanism.  In fact, the residuary Rule 16(1) said itself that such a rule should not be inconsistent
with the DSU.  However, by accepting and inviting amicus curiae  briefs, the Appellate Body violated
Article 3.2 of the DSU, which provided that the DSU served to preserve the rights and obligations of
Members under covered agreements, a phrase which included the DSU itself.
38. Fourth, the question of providing for the possibility of amicus curiae  briefs in the dispute
settlement system of the WTO had been actively co nsidered in the Informal Group on Institutional
Issues established during the Uruguay Round.  In November 1993, one major participant had made a
negotiating proposal to the effect that the panel ma y invite interested persons, other than parties or
third parties to the dispute, to present their view in writing.  This proposal had not been accepted
because of overwhelming opposition.  What the Appellate Body had done through its communicationwas to introduce into the dispute settlement system of the WTO an element which had beenWT/GC/M/60
Page 10
considered and rejected by Members during the negotiations.  Fifth, the DSU consisted of both
procedural and substantive aspects.  During the Uruguay Round negotiations, it was consciously
decided that a Member could take recourse to dispute settlement rules and procedures even if there
was only a violation of the procedural aspect, as came out of the relevant provisions of the DSU.
Since the procedures of the DSU themselves were subject to dispute settlement, Members negotiatedthese procedures with great care and after much deliberation.  By changing these procedures, the
Appellate Body changed the rights and obligations of WTO Members while the stated objective of the
DSU was to preserve the rights and obligations of Members.  Sixth, if one Member violated the DSU
procedures, the aggrieved Member could initiate panel procedures and if necessary, go to the
Appellate Body.  The question now raised was what the Members should do if the Appellate Body
itself chose to go beyond its mandate and virtually amend the DSU.  Seventh, the effect of the
Appellate Body's approach to amicus curiae  briefs was to strike at the intergovernmental nature of the
WTO.  The approach of the Appellate Body to accept unsolicited briefs, as well as to invite
submissions from any non-governmental source on the most sensitive of all issues in the WTO,
namely disputes, certainly amounted to changing the intergovernmental character of the WTO.  For
one thing, ultimate compliance was to be done by governments, not by others.  Furthermore,
governmental positions in disputes were arrived at after consultations with all domestic stake holders.If governments knew that their non-governmental agencies had a further chance to influence the
dispute settlement mechanism, then they would pa y less attention to finalizing their positions and
there could even be implications for compliance by governments themselves.  Eighth, the Appellate
Body's approach would also have the implication of putting the developing countries at an even
greater disadvantage in view of the relative unpreparedness of their NGOs who had much lessresources and wherewithal either to send briefs with out being solicited or to respond to invitations for
sending such briefs.
39. In conclusion, India was of the view that the Appellate Body had no competence or mandate
under the DSU to deal with unsolicited amicus curiae  briefs or to seek such briefs.  It was rather
surprising that in spite of an overwhelming number of delegations expressing strong reservations onthe approach of the Appellate Body to amicus curiae  briefs at the time of the adoption of the shrimp
turtle and the bismuth carbon steel reports, the A ppellate Body had totally ignored these sentiments,
thus raising doubts about the very utility of Arti cles 16.3, 16.4 and 17.14 of the DSU, which enabled
Members to express their views on the panel and the Appellate Body reports.  These provisions
provided for communication channels between the membership and the judicial organs of the WTO
and were meant to serve a purpose.
40. The present meeting was a difficult one for his delegation.  Although he was conscious of the
good work done by the Appellate Body, he could no t remain a silent spectator when the Appellate
Body was acting without a mandate.  On the amicus curiae  briefs issue, India had spoken on a number
of occasions in the DSB.  It was most disconcerti ng that the Appellate Body, which was always very
rigorous and intense in the analysis of the provisions of various agreements and which took into
account various elements, such as the ordinary meaning of the words, the Vienna Convention on theLaw of Treaties, the object, purpose and context of the agreement as well as the negotiating history,
should be arguing that it had the authority to deal with unsolicited amicus  curiae  briefs, as well as to
seek amicus curiae  briefs, in the absence of a prohibition in the DSU.  A rule-based system meant that
everybody in the system, including the judicial organs, functioned within the framework of the
existing rules.  In his view, the Appellate Body was at its best when it confined itself to its mandate,
namely to deal with issues of law and legal interpretation.  When it went beyond its mandate and
started making or amending rules, thus encroaching into what was admittedly Members' territory, it
created a problem for itself and the entire Membership.  What the Appellate Body decided had
commercial, economic and social implications for 139 countries in the world.  The Membership had
created this powerful institution in good faith, in the expectation of common good for all Members,and had always shown well-merited deference to the Appellate Body.  India asked whether it was too
much to expect from the powerful Appellate Body to  show deference to the conviction of almost theWT/GC/M/60
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entire Membership that in accepting unsolicited amicus  curiae  briefs and seeking amicus curiae
briefs, the Appellate Body was acting without a mandate and it was necessary to take appropriate
measures to remedy this situation.
41. The representative of Brazil associated his delegation with the words of the Chairman
concerning the objectives of the meeting.  He also supported the statement made by Egypt on behalf
of the Informal Group of Developing Countries.  He did not see the present discussion as having
anything to do with transparency or the participation of NGOs or civil society in WTO procedures,
nor did he see it as a North-South issue, al though the issue could have some North-South
reverberations.  The General Council was really face d with an essentially legal issue, with potential
constitutional implications.
42. The crux of the issue lay in the way the Appellate Body had interpreted what constituted
"working procedures" within the meaning of Ar ticles 12.1 and 17.9 of the DSU.  The Appellate
Body's findings regarding amicus curiae briefs relied heavily on the authority Members granted to
panels and the Appellate Body to draw up their ow n working procedures.  However, Brazil said that
the Appellate Body had read in this  mandate more than what was actually in it.  To the negotiators of
the DSU during the Uruguay Round, "working proce dures" meant precisely what the words denoted.
The dictionary entry for the word "procedure", in its legal usage, was defined as "the formal steps tobe taken in a legal action" or "the mode of conducting judicial proceedings".  The introduction of the
word "working" before the word "procedures" in Ar ticles 12.1 and 17.9 of the DSU further limited the
already narrow scope of the word "procedures".  Therefore, when Members gave panels and the
Appellate Body the authority to draw up their "working procedures", such authority was
circumscribed to the "formal steps" or the "mode of conducting" the proceedings of the dispute.  Thiswas a very limited mandate.  The scope Members intended for the term "working procedures" was
further clarified by the contents of Appendix 3.  Nowhere in the "working procedures" outlined by the
Members in the Appendix was there a hint that a panel could accept documents other than those
submitted by parties or third parties, or that Members had left to the panels the discretion to set out
procedures such as the "leave to file written briefs" adopted by the Division hearing EC – asbestoscase.  Nevertheless, it was on the basis of the author ity granted to panels to set out their own "working
procedures" that the Appellate Body, in US – shrimp  case, found that panels must not read the word
"seek" in Article 13 of the DSU in "too literal a manner".  This, in his view, was a noteworthy
departure from the principles of treaty interpretation established in the Vienna Convention on the Law
of Treaties.  There was no reason to believe that negotiators intended to give the word "seek" any
sense other than the precise meaning it had in dictionaries and in ordinary usage.  Nonetheless, given
its broad interpretation of the term "working proc edures", the Appellate Body had actually changed
the meaning of the word "seek" as Brazil understood it in the DSU.  In US – shrimp  case, the
Appellate Body report pointed out that, given the am ple authority of panels to define their "working
procedures", under certain circumstances, "for all practical and pertinent purposes, the distinction
between 'requested' and 'non-requested' informatio n vanishes".  This distinction was, however,
essential.
43. In its US - hot-rolled steel  report, the Appellate Body concluded it had the authority to "adopt
procedural rules that do not conflict with the rules and procedures in the DSU or the covered
agreements."  This could be a very broad self-ascribed mandate indeed, depending on how one
interpreted the words "procedural rules".  Brazil noted that the question of who could be heard by
panels and the Appellate Body was not a "procedural rule", but rather a very substantive componentof the DSU rules, which affected the way the system operated and significantly altered the rights and
obligations Members negotiated under the Uruguay Round.  A Member's obligation, for example,
would now include the need to read and respond to written briefs of "any person, whether natural or
legal" that had been accepted by a panel or the Appellate Body in a given dispute.  Moreover,
Members would now likely be obliged to make sure that their own natural or legal persons who filed
briefs had their rights fully observed by panels an d the Appellate Body and that the system would notWT/GC/M/60
Page 12
operate in a way that tilted the field in favour of Members whose natural or legal persons were better
funded and more influential in the international community, not necessarily for legitimate reasons.
44. In sum, Brazil stressed its understanding that, wh en exercising the authority to draw up their
own working procedures, the Appellate Body and pa nels should proceed with special circumspection,
bearing in mind the distinction between procedural and substantive matters.  He found that the WTOjurisprudence should not consolidate the notion that in the process of drawing up working procedures,
panels and the Appellate Body may add or subtract to Members' rights and obligations.
45. Brazil was also concerned that the evolution of the jurisprudence on this issue would bring
Members into grey and problematic areas.  After the US - shrimp case, only panels, not the Appellate
Body, were authorized to accept non-requested docume nts.  It could be argued, though Brazil did not
share this view, that this could be justified in ligh t of the fact that panels may need assistance and
further technical expertise to deal with complex aspects of a particular case.  Then, in US - hot-rolledsteel case, the Appellate Body decided that it also had such authority.  Given the fact that the
Appellate Body could only look into issues of law, not facts, he did not see how, given the prominent
credentials of the Appellate Body members, the introduction of amicus  briefs would contribute to the
interpretation of WTO or international law.  Now, in the EC - asbestos  case, he found that for all
practical purposes an invitation was extended, by means of e-mail and posting of the Appellate Bodycommunication to the DSB on the WTO website, for all natural and legal persons to file briefs.  The
system was now, not only accepting amicus curiae  briefs, it was also actively inviting them.  From his
perspective, these events were objectionable.
46. Apart from the reality that the number of applications to file briefs would multiply
exponentially, Brazil was also concerned with the notion that panels and the Appellate Body would bedeciding who had a right to file written briefs on the basis of the applicant's membership, legal status,
objectives, interests, nature of activities, sources of financing, or relationship with parties or
third-parties to the dispute.  If jurisprudence advanced in this direction, the dispute settlement
mechanism could soon be contaminated by political i ssues that did not belong to the WTO, much less
to its dispute settlement mechanism.
47. Finally, the health of the system also hinged on the ability of the Appellate Body to act in an
impartial way uninfluenced by Members.  The Appellate Body may have felt it had enough guidance
in the DSU on how to deal with the amicus curiae  briefs that were submitted and that its interpretation
of the DSU was correct.  Although Brazil did not agree with this position, it could not blame the
Appellate Body for thinking in such a way.  However, Brazil expected that when exercising the
discretionary authority granted in Article 17.9 of the DSU, the Appellate Body would use the
consultation provision of that same Article whenever it faced an issue that could be either substantivein nature, or otherwise had systemic implications, particularly those that were reputedly controversial
among Members.  Brazil may have disagreed in the past with the way the Appellate Body had
interpreted particular provisions of the WTO Agreements, but it had always valued the high quality of
the reports issued by the Appellate Body and respec ted the efforts of its Members to dispose of their
duties in an impartial and fair manner.  Yet, Me mbers were dealing with a matter that had to be
decided by themselves.  Brazil, on its part, was ready to engage in any process that ultimately pointed
in this direction.
48. The representative of Mexico said that the c onvening of this special meeting of the General
Council clearly reflected the importance of the matter for WTO Members.  His delegation agreed with
the Chairman's remark in the introduction of his statement that Members should concentrate theirdiscussion on the question of principle and the systemic issue involved rather than on the specific
case.  However, it would be logical to believe that  the discussion would also have implications for the
specific case before the Members.WT/GC/M/60
Page 13
49. According to Mexico, the decision of the A ppellate Body Division in the asbestos case to
adopt an additional procedure to deal with any written briefs received from natural or legal persons
other than parties and third parties to the dispute, not only lacked any legal basis, but also created
serious problems that should not arise.  It app eared from the communication by the Appellate Body
Division that their decision was based on Rule 16(1) of the Working Procedures for AppellateReview, which could only be invoked where a procedural question not covered by the working
procedures arose, provided that such a procedure was not inconsistent with the DSU, the covered
agreements and the working procedures themselves.  Neither the communication from the Division
nor the Secretariat's factual note circulated before the meeting had clearly explained how this
procedural issue had arisen.  As far as he knew, the parties directly involved in the dispute and one
third party had not raised the issue and, when consulted in this respect, had not agreed with the
procedure finally adopted by the Appellate Body.  If this information was correct, it would mean thatthe said procedural question had not been raised by the participants in the appeal and therefore,
Members could not know on what grounds the Appellate Body Division had decided to resort to
Rule 16(1).  Mexico raised the question as to whether it should be understood from this that the
Division decided that the said procedural issue had been raised by those natural or legal persons
which had filed written submissions with the panel.
50. The dispute settlement mechanism only created rights and obligations for the WTO Members
who were entitled to take part in it.  Among the many provisions that supported this concept were
Articles 1.1, 3.2, 3.4 and 19.2 and, in particular, 17.4.  In the British steel case, the Appellate Body
itself had acknowledged that individuals and organizations which were not Members of the WTO had
no legal right to make submissions or be heard by the Appellate Body.  Mexico did not see whatcircumstances had changed so as to justify a different view in the present case.  According to
Article 17.4 of the DSU, only the parties to the dispute, with the exclusion of third parties, could
appeal a panel report.  Third parties which had notified the DSB of a substantial interest in the matter
pursuant to Article 10.2 of the DSU could make written submissions and be given the opportunity to
be heard by the Appellate Body.  This provision wa s very clear as to who could appeal and who could
make written submissions in the appeal.  There was no provision which provided at any point, even
implicitly, for submissions from any person or entity other than the parties or third parties to the
appeal.  To issue an open invitation to any natural or legal person to make written submissions to the
Appellate Body was not a mere procedural question.  It was tantamount to amending Article 17.4 of
the DSU.  Consequently, this issue could not and should not be solved through the Working
Procedures for Appellate Review but by WTO Members themselves, in accordance with the
provisions of the WTO Agreement for the adoption of amendments to the agreements.  It was difficultto understand why the Appellate Body Division had decided to proceed in this way, as it was not a
new issue, which had taken them by surprise or to which WTO Members had shown themselves to be
indifferent.  Any person interested in WTO matters, and especially the Appell ate Body, knew that the
question of amicus curiae  briefs was a highly sensitive one for WTO Members.  To act as if it was a
mere procedural matter did not take into account either the background to this issue, or theexpressions of concern or open rejection that many Members had voiced in this connection.  When the
DSU provisions were being negotiated in the Uruguay Round, there were already proposals that
panels should be able to receive amicus curiae  briefs.  If such a possibility had not been included in
the DSU provisions, it was because WTO Members had decided that it was not appropriate.  In other
words, Members were not faced with a situation where they had accidentally created a legal lacuna asa result of not having foreseen that this kind of problem might arise in the future.  Members had
deliberately decided not to include that possibility in the DSU.  Therefore, any interpretation of the
terms or the preparatory work of the DSU under the Vienna Convention on the Law of Treaties would
necessarily lead to a different conclusion.  The Appellate Body Division should not have decided in
the way it did.  Apart from the fact that it did not have the power to do so, by issuing an openinvitation to any natural or legal person to make written submissions to the Appellate Body, it
arrogated to itself a right that belonged solely to WTO Members acting collectively.  And it did so,
despite the many expressions of concern and even the open opposition to this course of action voicedWT/GC/M/60
Page 14
by many WTO Members, as reflected in minutes of DSB meetings.  It was a cause of great concern
that the Appellate Body had given precedence to the submissions from interests outside of the WTO
over the concerns expressed by many WTO Members.  In fact, by imposing such conditions, the
Appellate Body had taken a decision that Members themselves had not adopted, thereby clearly
contravening Article IX of the WTO Agreement and diminishing the rights and obligations ofMembers, in contravention of Article 19.2 of the DSU.
51. The only justification for the Appellate Body Division to have acted in the way it did would
have been the impossibility to give its ruling without the relevant additional procedural rules.  It was
clearly not the case here, as the Appellate Body Division was not obliged to act as it did in order to be
able to give its ruling on the points of law and interpretation that were submitted to it by the parties to
the appeal.  In fact, in all the appeals it had hear d so far, the Appellate Body had ruled without the
need to receive amicus curiae  briefs from non-WTO Members.  The only reason given by the
Division for invoking Rule 16(1) of the working procedures was that the additional procedure was
adopted "in the interest of fairness and the orderly procedure in the conduct of this appeal".  Apart
from the fact that it was insufficient to fulfil all the requirements laid down in Rule 16(1), this reason
established a treatment for non-WTO Members to which they were not entitled.  The "fairness"
referred to in Rule 16(1) only applied to WTO Members that were parties in the appeal or to thirdparties entitled to participate.  Mexico raised the question as to how one could still speak of "fairness"
when it had become possible for non- WTO Members to make written submissions to the Appellate
Body, while Members that were not parties or third parties in the appeal could not do so themselves
under the DSU provisions.  Far from being fair, the additional procedure adopted by the Appellate
Body Division put WTO Members that were not parties to an appeal at a disadvantage vis-à-vis  any
natural or legal person authorized to make a written submission to the Appellate Body.  With regard
to the question of orderly procedure, Mexico coul d not see how the additional procedure adopted by
the Division could be of benefit to the examination of the appeal.  An open invitation to any natural or
legal person in any part of the world could lead to the reception of an unmanageable number of
requests for leave to file written briefs to the Appellate Body, which might only delay its work.  Forsuch requests to be treated fairly, they would all have to be translated so that the Appellate Body
could examine them and decide whether to auth orize the submission.  Conversely, the dispute
settlement system was already experiencing serious problems in translating the communications from
WTO Members, as well as reports of the panels and the Appellate Body itself.  Moreover, it was not
clear what would happen in the case of natural or legal persons that did not have the electronic means
to receive this invitation, and especially to reply in time.  He asked whether the date when such a
submission was posted would be counted as the delivery date, or whether this procedure would onlybe available to those natural or legal persons that had sufficient economic resources to be able to
communicate by electronic means.  Besides the fact that it would be unfair, it would also have the
effect of discriminating against the natural or legal persons that did not have the economic resources
necessary to be able to communicate electronically.  Furthermore, it would be logical to believe that
the parties and third parties in the appeal would have the opportunity to respond to the arguments putforward in the written submissions which would finally be accepted by the Appellate Body Division,
and this could also involve the need to translate su ch submissions and to give sufficient time to the
parties and third parties to the dispute to study th em and prepare their own response.  All this would
have to be done within the 60 days laid down by  the DSU for the Appellate Body to circulate its
report to WTO Members.
52. In conclusion, Mexico highlighted first that the rights and obligations of the DSU applied
solely to WTO Members.  The omission of any right or obligation for natural or legal persons under
the DSU was not an oversight by Members in drawing up the DSU provisions.  It was clear from the
background that the Members deliberately decided not to include such a possibility in the DSU.
Second, to issue an open invitation to any natural or legal person to make a written submission to theAppellate Body was not a mere procedural issue that  could or should be solved through the Working
Procedures for Appellate Review.  The working procedures could only resolve procedural questions,WT/GC/M/60
Page 15
if and when their own rules in this respect were followed.  Even though, in the case in question, the
requirements of these rules had not been met, what was really important was that the submission of
amicus curiae  briefs was not a question of procedure, but of substance.  Third, to allow the
submission of amicus curiae  briefs to the Appellate Body in order to obtain information on points of
law or legal interpretations was something that had to be decided by WTO Members in accordancewith the relevant decision-making procedures on such matters.  The Appellate Body should not
arrogate to itself a right that belonged solely to Members.  Finally, even if Members decided to allow
amicus curiae  submissions, the panels and Appellate Body would still have to act in conformity with
Article 19.2 of the DSU, which stated that in accordance with Article 3.2, in their findings and
recommendations, the panels and the Appellate Body could not add to or diminish the rights and
obligations provided in the covered agreements.
53. The representative of Colombia, on behalf of the ANDEAN Members
, said that the current
debate should be directed to answering the question of whether, from a strictly legal standpoint, it was
possible for the Appellate Body to make room for c ontributions to be received from natural or legal
persons other than parties or third parties to a dispute.  According to the communication from the
Appellate Body to the Chairman of the DSB, the decision adopted by the Appellate Body Division
was based on two factors.  First, fairness and second, consultation with the parties and third parties tothe dispute with regard to the special procedure.
54. As far as fairness was concerned, he believed that if this concept could be applied within the
multilateral system, it should operate between WTO Members, principally to maintain a balance
between their rights and obligations.  Fairness was a concept that had so far been absent from the
interpretation of the legal texts.  Therefore, it would be strange if fairness was supposed to serve asthe basis for making room for natural or legal persons to be able to make suggestions to the Appellate
Body concerning satisfactory solutions to a dispute.  According to the DSU, the parties themselves
determined the scope of a dispute and therefore, they alone could bring forward arguments into the
debate.  As for the extent to which parties and third parties to a dispute could give their approval to
the special procedure, Colombia was of the view that they did not have the power to create this kindof arrangement, which belonged to WTO Members.  The parties should act in accordance with the
DSU provisions and the establishment of this new arrangement exceeded the powers granted to the
Appellate Body by virtue of Article 17.6 of the DS U.  The fact that the rules of the Appellate Body
allowed for the establishment of special procedures did not mean that this function could override the
specific powers assigned to the different bodies by the agreements.  Otherwise, there would be a
danger, as was the case here, that non-Members would have more rights than WTO Members.  This
was even more serious, considering the fact that until very recently amicus curiae  briefs had been
considered in a dispute insofar as there was a clear relationship between the arguments set forth in the
briefs and those presented by the parties.  However, in this case, it was precisely on the basis of their
difference from the arguments presented by the parties that  amicus curiae  submissions were invited
by the Appellate Body Division.
55. In light of the above, and echoing the Chairmen of the General Council and the Dispute
Settlement Body, all Members had a responsibility towards their country and should work to preserve
the WTO.  In order to protect the system, Members had to make sure that each body acted in
accordance with its powers.  Therefore, the procedure adopted by the Appellate Body had to be
abolished and the case settled in accordance with the powers granted under the DSU.  The power to
create a procedure such as the one proposed rested exclusively with Members.  If in the future, and asa result of a thorough debate on its advisability, it were decided to make a place for third parties, co-
defendants or for amicus curiae  briefs, it would then become essential to take steps to amend the
existing Agreements.
56. The representative of Zimbabwe associated himself with the statement made by Egypt on
behalf of the Informal Group of Developing Countri es and said that the case in question was one ofWT/GC/M/60
Page 16
eight in the history of the WTO, where the issue of amicus briefs  had featured.  Members would
therefore have to focus not only on this case but also on the issue of development of WTO
jurisprudence, as well as to address the issue of interpretation of WTO agreements by panels and the
Appellate Body.
57. In his delegation's view, Rule16(1) of the Working Procedures for Appellate Review was
fundamentally flawed and usurped Members' au thority by taking a decision on the issue of
participation in the dispute settlement process.  Under that rule, decisions could be taken without
consulting the membership, even if these affected the overall balance of Members' rights and
obligations in the WTO. As the situation stood, NGOs and other non-Members enjoyed greater rights
in making submissions to panels and the Appellate Body than Members who were not parties to a
dispute.  NGOs were not even obliged to meet the strict deadlines that Members, participating in a
dispute, had to meet in making their submissions.
58. A permanent negotiated procedure for the submission and acceptance of amicus  briefs  within
the WTO dispute settlement process should be put in place, as amicus briefs  appeared to be emerging
as an important feature of WTO jurisprudence.  His delegation was concerned at the ad hoc approach
adopted so far and at the disturbing manner in which panels and the Appellate Body, with the
assistance of the Secretariat had taken it upon themselves to undertake the task of substantiveinterpretation of WTO agreements, which in certain cases had resulted in altering Members' rights and
obligations.  Any such interpretation should be subjected to scrutiny by the General Council as it was
the Ministerial Conference and the General Council that had the exclusive authority to adopt
interpretations of the WTO agreements.  In this regard Members should put in place a procedure to
guide panels and the Appellate Body in seeking an authoritative interpretation from the GeneralCouncil.  Members had to reassert their rights.  The dispute settlement system appeared to be running
away from Members, increasing their obligations and reducing their rights in the process.  Members
should not continue to watch bad jurisprudence being created.
59. The representative of Singapore, on behalf of the ASEAN Members
, said that this issue had
systemic implications and involved all Members, thereby warranting discussion in an open forum.
The procedures adopted by the Appellate Body allowed non-parties to the dispute, including
non-Members, to participate in it by inviting them to submit written briefs.  This procedure had been
adopted after the Appellate Body had consulted with the parties to the dispute and despite their
objections as well as the objection of a third party. At the outset, ASEAN wished to state that it
recognized the important role of the Appellate Body in resolving disputes in the WTO and was not
detracting from it.  However, its statement was to safeguard the integrity of the WTO as an
intergovernmental organization.
60. The issue of amicus  briefs and the participation of non-Members in dispute settlement cases
was not new.  It had been discussed in the Uruguay Round negotiations on the Dispute Settlement
Understanding and in the DSU review.  In both in stances, the overwhelming sentiment of Members,
as reflected in the rules, was that only parties and third parties had the right to participate in disputes.
On repeated occasions, however, briefs from non-parties to the dispute had been accepted by eitherpanels or the Appellate Body.  In all such instances, Members had registered their strong disapproval.
It was thus with great disquiet that ASEAN  noted that, notwithstanding the strong negative sentiment
on this issue from the majority of Members, the Appellate Body had chosen to proceed with the
adoption of the procedure in document WT/DS135/9.  Since this procedure was contrary to the
prevailing sentiment of the majority of Memb ers, the Appellate Body should withdraw it.
61. There was no consensus on the issue of amicus  briefs.  The WTO was a Member-driven
organization and only Members could decide on the merits of proposals in order to determine what
was acceptable to the membership.  If there was any ambiguity in the DSU or in the working
procedures governing panels and appeals, Article IX.2 of the WTO Agreement clearly stated thatWT/GC/M/60
Page 17
Members had the exclusive authority to adopt interpretations of the WTO agreements.  Moreover, in
cases where there was no expressed prohibition and where, in the perception of panels or the
Appellate Body, they were authorized to adopt a particular procedure, they should be sensitive to the
sentiments of the majority of Members. As the rules stood, only parties and third parties had the right
to participate in disputes and only Members could clarify and formulate rules.
62. The representative of Switzerland said that his delegation set a high value on the dispute
settlement system and its integrity, which was one of the corner stones of the WTO.  The dispute
settlement system had functioned well on the whole and it would be a mistake to question these
procedures and its principles, which were fundamental, on the basis of this incident.  The present
discussion should be limited to the specific issues raised by the Appellate Body decision of
7 November 2000.
63. The issue of amicus curiae briefs was not a new one.  Panels had already had to deal with
them.  Some parties to disputes had used different means to include them in the dispute settlement
procedures.  Panels had handled such submissions in various ways, accepting them in some instances,
and rejecting them in other.  When the Appellate Body found itself confronted with such submissions,
it had considered it necessary to establish guidelines in order to deal with amicus curiae briefs  in a
coherent way.  In his delegation's view, however, the Appellate Body's decision did not relate to aprocedural issue and could not be considered under Rule 16(1) of the Working Procedures for
Appellate Review.  Article 12 of the DSU and paragraphs 4 and 6 of Appendix 3 of the DSU
expressly mentioned that only parties and third-parties to a dispute were authorized to present their
arguments.  It was true that Article 13 of the DSU authorized panels to request technical information
from groups or organizations they would deem fit to do so.  However, the content of the secondparagraph of the Appellate Body's decision could not be justified under that Article.  Leaving legal
considerations aside, what had occurred revealed Members' incapacity to fill the gaps in the system
and to solve problems as they arose.
64. The issue of amicus curiae briefs should be solved through negotiations and it was Members'
responsibility to legislate on it within the framework of the DSU review.  Failing to do this, thedivision between the legislative and the judicial functions would remain blurry and would be most
unsatisfactory to all.
65. The representative of Pakistan said that th e Appellate Body's decision had obliged Members
to deal with the issue of the amicus curiae briefs that had plagued them for some time.  Pakistan had
no intention of casting doubt on the WTO dispute settlement system and recognized its importance.
At the same time, it was important that Members retained confidence in the dispute settlement system.
Without such confidence, recourse to that system  would become questionable.  The Appellate Body
and all Members were aware of the controversial and sensitive nature of the issue of amicus curiae
briefs, especially from NGOs.  This matter had been raised in the Uruguay Round and had
subsequently been opposed by the majority of membership.  Under the provisions of Article 10 of the
DSU, only parties and third parties could participate in the dispute, including at the level of panels.
The Appellate Body had to consider legal issues only  and therefore it did not need to have recourse to
amicus curiae briefs.  Moreover, Article 17.4 of the DSU restricted appeals in the Appellate Body
only to the parties, not even to third parties.  To invite amicus curiae briefs from NGOs was giving
them a higher status than the majority of Members.  Amicus curiae briefs should be invited only if  the
parties concerned agreed thereon.  In the case in  question, the Appellate Body Division had consulted
the parties to the dispute, which had both opposed the invitation of amicus curiae briefs.
66. With regard to the manner in which this communication had been sent, i.e., to NGOs on the
WTO e-mailing list, there was clearly an inherent  discrimination since th e largest num ber of NGOs
from developing countries did not have access to the internet and were not on the WTO e-mailing list.
In addition, this was not a procedural matter, but a substantive one which should have been settled inWT/GC/M/60
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accordance with the provisions of Article V of th e Marrakesh Agreement, which stated that the
General Council had the authority to make appropriate arrangements for consultations and
cooperation with intergovernmental and non-governmental organizations, and Article IX.2 of the
Marrakesh Agreement, which stated that "the Ministerial Conference and the General Council had the
exclusive authority to adopt interpretations of this Agreement and of the Multilateral Trade
Agreements".  Even if this issue was considered as a procedural matter, it would have been governed
by Article 17.9 of the DSU which stated that "the working procedures shall be drawn up by the
Appellate Body in consultation with the Chairman of the DSB and the Director-General".  He did not
know whether the Director-General had been consulted but the Chairman of the DSB had not.
Therefore, the General Council should invite the Appellate Body to withdraw the invitation for
amicus curiae briefs in response to the wishes of the majority of the membership.  The General
Council should also further consider this issue of amicus curiae briefs at an early opportunity and take
a decision which would prevent recurrence of such problems in future.
67. The representative of Norway shared the views expressed by previous speakers on the
question of the systemic issues involved.  The question of whether or not to accept amicus curiae
briefs in panel cases had been discussed by Members on several occasions.  During the Uruguay
Round, the issue had met strong opposition from a vast majority of participants, and no conclusionhad been reached.  In the shrimp/turtle case, the concerns of Members had been clearly expressed.
Within the framework of the DSU review, proposals to include such briefs had never received any
wide support.
68. Under the provisions of Article 17.6 of the DSU, Members had granted competence to the
Appellate Body with respect to "issues of law covered in a panel report and legal interpretationsdeveloped by the panel".  In addition, the working procedures, drawn up in accordance with the
Article 17.9 of the DSU, provided for adoption of appropriate additional procedures where procedural
questions arising were not covered by the rules.  Since neither the DSU nor the Working Procedures
for Appellate Review provided for acceptance of amicus curiae  briefs or the prohibition thereof, the
Appellate Body found it necessary to develop additio nal procedures pursuant to Rule 16(1) of the
Working Procedures.
69. Judging from Members' reactions over the past week and in the present meeting, the question
of amicus  briefs was, however, considered to have relevance far beyond procedural considerations.
Like others, Norway also believed that this was a systemic issue which should be dealt with by
Members.  The present situation revealed that Members should not allow legal black holes to prevail
due to their inability to agree on certain difficult issues, thus leaving panels and the Appellate Body
without guidance from law-makers on how to proceed.  To this effect, Members should address this
systemic issue of amicus  briefs expeditiously.  Initiation of such a process would give panelists and
Appellate Body members the option of refraining from actions which might prejudice the outcome of
Members deliberations, without the risk of being accused of lack of integrity and impartiality.
Norway supported the proposals made by Uruguay and Hong Kong, China on how to proceed from
here.
70. The representative of Costa Rica also expressed concern about the Appellate Body's decision
which recognized the right of persons which were neither parties nor third parties to a dispute to
submit a brief within a dispute settlement process.  Costa Rica did not agree with that decision and
believed that the Appellate Body overstepped its competence by creating rights different from those
that had been mutually agreed upon.  Opinions of experts could be requested when necessary withinthe framework of the dispute settlement system.  However to allow a person which was neither a party
nor a third party to the process to submit briefs  would change the balance in the DSU and the
intergovernmental nature of the WTO.   Such a measure represented a risk for developing countries as
it would put them in a situation where they would be short of possibilities of defence.  This measure
would oblige parties and third parties to the case to examine all submissions and therefore wouldWT/GC/M/60
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impose an additional and unnecessary burden on them within well-known time and resource
constraints.  Like others, his delegation also believed that the Appellate Body had taken a decision
which was Members' exclusive responsibility and which affected Members' rights and obligations.
Therefore a clear message should be sent to the Appellate Body indicating Members' concerns.
71. The representative of Canada said that his delegation wished to make three comments on the
systemic issues raised by the Appellate Body procedure.  First, the present debate should aim at
searching for a resolution of this issue.  Second, one should not confuse the issues of transparency and
participation in WTO dispute settlement.  Canada fully supported greater external transparency in the
WTO, including in dispute settlement.  As stated during the General Council discussion on
transparency earlier this month, Canada made its panel and Appellate Body submissions available to
the public on request.  Canada encouraged other Members to do likewise, and was seeking other ways
to improve transparency in WTO dispute settlement proceedings.
72. The amicus  briefs were, however, not a transparency issue.  It addressed the fundamental
issue of participation in WTO dispute settlement pr oceedings, i.e., whether this participation should
be limited to WTO Member governments or would non-governmental bodies also be entitled to
participate.  Canada was sympathetic to the interests of non-Members in the outcome of WTO
disputes and recognized that civil society, including NGOs, followed closely the issues examined indisputes.  At the same time, Canada also acknowle dged the need for Members to examine the impact
this might have on what was a government-t o-government dispute settlement process.
73. The issues surrounding amicus  participation had important systemic and institutional
implications for the WTO, and could not be characterized as exclusively procedural.  Members should
examine whether the participation of non-governmental actors in the WTO dispute settlement systemwas consistent with the principal objectives of the system.  A related, and equally important issue was
whether the amicus  question should be resolved on an ad hoc basis in individual disputes, or whether
it should be addressed by the Members as a whole.  In his delegation's view, Members, and not the
dispute settlement system, should decide on how the issue of amicus  participation should be dealt
with in the future.  Members should ensure that the government-to-government nature of the dispute
settlement process was not compromised by procedural initiatives of panels or the Appellate Body.
Therefore, his delegation was concerned that the Division had chosen to adopt these new procedures.
It was clearly time and appropriate for Members to take the responsibility to deal with this issue, and
Canada would participate in any procedure that would be established to do so .
74. The representative of the United States believed that the Appellate Body had acted
appropriately in adopting its additional procedure in the asbestos appeal.  The Appellate Body had the
authority under Rule 16(1) of its Working Procedures to adopt the additional procedure regarding theacceptance and consideration of amicus  briefs in that case.  Given that the Appellate Body had the
authority to accept and consider amicus  submissions, and given that a number of persons had either
already filed, or expressed an interest in filing amicus  submissions, the Appellate Body had adopted
procedures to manage this issue in a fair, legal and orderly manner, taking into account the interests of
members of civil society in having their views considered, the interests of the parties and third partiesin being able to review and respond to any amicus submissions, and the interests of all in resolving the
dispute.
75. By adopting its additional procedure in the asbestos dispute, the Appellate Body had not
created a new issue related to potential amicus  submissions.  It had been managing a situation that
already existed in the specific context of the asbestos dispute.  The alternative approach to writtenprocedures would have been to take an ad hoc approach in the appeal as to whether to take into
account amicus  submissions, for instance, having the interested persons send in their submissions and
announcing at the end of the appeal whether or not they had been considered.  This approach would
be less fair to everyone, including parties, third parties, and those interested in filing amicusWT/GC/M/60
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submissions,  than open and transparent procedures.  Such an ad hoc approach would be especially
inappropriate in cases where the Appellate Body knew  that there would be persons other than parties
or third parties hoping to submit views to the Body.
76. In the view of the United States, there was a value in establishing amicus  procedures in the
context of an individual case, because a concrete dispute would provide a clear context for how the
procedures would work.  It would also permit refinements of the amicus  procedures based on
experience in those cases.  The issue was not whether there was the authority to accept amicus
procedures, but how the acceptance of such submissions was managed.  Panels and the Appellate
Body had the authority under the DSU to accept and consider amicus submissions. In the British steel
appeal the Appellate Body found that it had the legal authority under the DSU to accept and consider
amicus  briefs.  Article 17.9 of the DSU made it clear that the Appellate Body had broad authority to
adopt procedural  rules which did not conflict wi th any rules and procedures of the DSU or the
covered agreements, and nothing in these prohibited acceptance and consideration of amicus filings.
Rule 16(1) of the Working Procedures for the Appe llate Review established under Article 17.9 of the
DSU specifically permitted an Appellate Body Division to adopt an appropriate procedure for a
particular case. In the shrimp/turtle case, the Appellate Body had also found that the panel had
authority to accept and consider amicus  submissions.
77. The DSB had said many times that the text of the DSU was what was important.  It was a
mistake to claim that the negotiating history of the DSU showed any intent to ban amicus
submissions.  In fact, the United States had at one  point sought language to clarify the DSU and make
it explicit that such submissions would be permitted, but had become convinced that this was not
necessary.  In view of the discussion held, she believed that no additional meeting to discuss the issuewas necessary and that the General Council should take note of the statements and request its
Chairman to forward the minutes of this meeting to the Appellate Body so that its members would be
fully aware of the views expressed.
78. The representative of Bolivia associated his delegation with the statement by Colombia and
said that the issue at hand was not the whether third parties should be allowed to make submissions
but the competence of the Appellate Body to take decisions without consulting Members and without
their approval.
79. The representative of Turkey said that there we re two ways of approaching that issue.  First,
as an isolated case within a well-functioning system, where an Appellate Body had exceptionally
erred.  Second, as a case which revealed one of the shortcomings of the dispute settlement system.  In
his delegation's view, this was not an isolated case, for it was not the first time that an Appellate Body
had attempted to deal with the long-standing issue of amicus briefs.  In the present case the Appellate
Body had apparently based its action on precedents concerning other cases.  However, it had gone
further and attempted to solve this problem.  He was not sure that this meeting would have taken place
if the Appellate Body had limited its action to the examination of the briefs which had been sent to it.
The Appellate Body had tried to develop procedures for submission of amicus briefs.  In doing so, it
had taken the decision to establish an additional procedure which was also tantamount to an invitationto NGOs to send briefs to it.  This resulted in introducing non-Members in a dispute settlement system
which was clearly designed for Members.  One could question whether the Appellate Body was
entitled to make such an invitation.  Some would ar gue that in the absence of any rule to the contrary
the Appellate Body could take such a decision.  Th e Appellate Body was entitled to develop its own
working methods, however, the issue of amicus briefs lay beyond its area of competence.
80. The DSU did not empower the Appellate Body to decide on such a crucial issue.  The good
will of the Appellate Body was not in question.  However, the Appellate Body should have foreseen
to a certain extent the reactions its decision would provoke. Article 13 of the DSU did not give a
discretionary power to the Appellate B ody.  The absence of rules concerning amicus briefs did notWT/GC/M/60
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give a free hand to the Appellate Body but showed the limits of its authority as well as the limits of
the system.  The Appellate Body should have informed Members of the need for new rules instead of
elaborating on them.
81. One of the lessons that could be drawn from this case was that when Members failed to
negotiate to improve the rules, panels and the Appe llate Body had the tendency of filling the gap by
creating case laws and precedents.  The issue of amicus briefs would have to be addressed in its own
right.  To present this legal matter as an issue of external transparency would be misleading.  If
Members were to engage seriously in a discussion on amicus briefs , they should not ignore that these
were used in other international legal procedures.  The question was whether the WTO membership
was ready to take on board this concept.  Should amicus curiae briefs be felt to be necessary, the
modalities would have to be defined by Members which had the exclusive authority to determine
them.  In the meantime, amicus curiae  briefs should not be used unless the parties to a dispute agreed
thereon.
82. The representative of Hungary, also on behalf  of Bulgaria, Czech Republic, Latvia, Romania,
Slovak Republic and Slovenia said that given the sensitive nature of the issue his delegation would
have preferred to have first an exchange of views in  an informal setting.  As to the issue in question,
he expressed concern about the systemic implications of the communication issued by the AppellateBody in WT/DS135/9.  Through that communicati on the Appellate Body had again considered the
issue of the acceptance of amicus curiae  as a simple procedural question which, pursuant to
Rule 16(1) of the Working Procedures for Appellate Review, might be decided by the Appellate Body
on an ad hoc basis if both these procedures as well as the DSU did not address it.  In his delegation's
view, the question of how to treat amicus curiae  touched upon the right of participation, which was
one of the most fundamental elements of any disp ute settlement mechanism.  Any decision thereon
affected the intergovernmental nature of the WTO dispute settlement mechanism and should be
decided exclusively by Members.
83. The position taken by the Appellate Body in the case in question was a matter of particular
concern in view of the opinion of the majority of  the membership.  Indeed, Members had stated on
several occasions that the question of amicus curiae  submissions was a question of substance and not
of procedure and that the DSU in its current form did not authorize the Appellate Body to accept
unsolicited amicus curiae briefs.  Members were now facing a delicate situation.  On the one hand,
the fundamental question of the right of participation in the dispute settlement mechanism had
become a source of conflict between the legislative and judicial arms of the WTO.  On the other hand,
if there was no change in the current state of affairs, Members would be running the serious risk of
becoming observers rather than the main actors in  the setting of fundamental rules regarding dispute
settlement in the WTO.  The situation called for urgent consideration of the issue of amicus curiae
briefs by Members with a view of establishing clear rules thereon to guide panels and the Appellate
Body.
84. The representative of Korea said that th e Appellate Body's communication on the EC-
asbestos case raised many systemic issues among which one related to the possible role of NGOs in
the WTO dispute settlement system.  That issue would have to be considered in the broader context of
the relations between NGOs and the WTO because the DSU did not address the status of NGOs,
while Article V.2 of the Marrakesh Agreement, to which the DSU was annexed, stated that the
General Council had the authority to make appropriate cooperation arrangements with NGOs.
85. Another issue concerned the proper procedure to address the possible shortcomings in the
DSU.  In his delegation's view, it was the role of the General Council to deliberate if there were
deficiencies in the DSU, and if so, to determine how to address such deficiencies. Article IX.2 of the
Marrakesh Agreement provided that the General C ouncil along with the Ministerial Conference had
the exclusive right to adopt interpretations of WTO agreements, including the DSU.  Article X.8 ofWT/GC/M/60
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the Marrakesh Agreement provided that the General Council had the exclusive right to amend WTO
agreements in the interval between Ministerial Conferences.  The Appellate Body's decision on the
acceptance of amicus  briefs from NGOs was not a procedural  decision but a substantive one which
had important implications for the rights and obligations of Members.  Therefore, acceptance of
amicus briefs should be suspended pending further deliberations of the General Council on the related
systemic issues.
86. The representative of New Zealand shared the views described in the Chairman's note which
aimed at encouraging a constructive discussion focussed on problem-solving in relation to the
important aspect of dispute settlement procedures  revealed by the Appellate Body's communication in
WT/DS135/9.  Like others, his delegation also note d the recognition, which had been provided at the
time the Appellate Body Working Procedures had been adopted in 1996, of the importance of
familiarizing the Appellate Body with the climate of opinion among Members on such matters.Therefore this discussion had to be seen as providing important feedback.  His comments should not
be misinterpreted as indicating a general opposition from New Zealand to amicus  briefs as such, nor
to the efforts underway in the organization aimed at improving external transparency and outreach.
New Zealand was open-minded about further moves to greater transparency in the WTO, including in
relation to its dispute settlement procedures.  It had no problems with proposals for proceduralreforms in dispute settlement procedures as long as they were measured, considered, and capable of
gaining the broad support of the membership.  But procedural reforms that were not so were unlikely
to build, or reinforce, support for the WTO and its dispute settlement system,  support which was
fundamental to the effective functioning of the organization.
87. In this connection, the most sensitive issue among the membership related to issues regarding
access to and participation of non-Members in both the negotiation of commitments and in dispute
settlement in relation to such commitments.  In th e US shrimp case and in the British steel case, the
Appellate Body had recognized that:  " ... access to the dispute settlement process of the WTO is
limited to Members of the WTO.  This access is not available, under the WTO Agreement and the
covered agreements as they currently exist, to individuals or international organizations, whethergovernmental or non-governmental".  The Appellate Body had also noted that non-Members had no
legal right to make submissions, or be heard by the Appellate Body.  The Appellate Body had no legal
duty or right to accept or consider unsolicited amicus curiae  briefs submitted by them.  Within these
parameters the Appellate Body had still been able to  find, in the British steel case, that they had legal
authority to accept and consider amicus curiae  briefs in an appeal in which they had found it pertinent
and useful to do so.  Thus, up until the recent Appellate Body's decision, acceptance of amicus  briefs
had been considered on an ad hoc basis.  In the absence of a consensus among the membership on anagreed procedure for the general receipt and consideration of amicus  briefs, such an approach was the
only viable basis on which to proceed in this very sensitive area, touching on Members' rights and
obligations.  However, Members had to determine whether the additional procedure, that the
Appellate Body determined as being appropriate to adopt in the most recent case, was fully in keeping
with the Appellate Body's earlier declaration that "…access to the dispute settlement process of theWTO is limited to Members of the WTO".
88. Another question related to how a standing invitation for expressions of interest to submit
amicus  briefs, an invitation that inevitably would tend to create the expectation of access to the WTO
dispute settlement, would fit with the accepted under standing that the DSU provided for the dispute
settlement mechanism to be accessed by Members;  a mechanism that related to Members' reciprocalobligations undertaken under WTO agreements.  In New Zealand's view, the additional procedure
would tend to move away from the existing balan ce, which reflected the crucial distinction between
the exclusive right accorded by Members to have access to, and to participate in the dispute settlement
process, and the possibility that in specific cases and on an ad hoc, case-by-case basis, amicus  briefs
submitted to panels or the Appellate Body might be accepted and considered.  Members would haveto think constructively about the way through some of  the issues in this area, not only to alert theWT/GC/M/60
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Appellate Body to their concerns, but also with a view to assisting that Body in dealing with future
similar procedural questions.  Obviously, to the extent that the membership was unable to offer its
own consensus solution to a systemic procedural question raised in an appeal, one could understand
the Appellate Body's concern.  It would therefore be useful to consider establishing a process under
which the Appellate Body could bring serious procedural issues, on which it would appreciateguidance, to the attention of the General Council and the Dispute Settlement Body. Such a process
would assist in ensuring in a more systemic way that the Appellate Body would be familiarized with
Members' concerns as a whole on such issues.
89. The representative of Jamaica said that the matter at hand impinged on Members' rights.  In a
Member-driven organization such an issue should be fully aired and appropriate decisions taken.  Like
others, he was concerned that with its decision the Appellate Body had expanded the access and the
rights of non-Members to the dispute settlement process and, by corollary, had diminished Members'rights in this critical area of the WTO's activities.  The Appellate Body had taken this decision without
any legislative mandate that could reasonably be construed as a basis to do so.  For a developing
country such as his, this development was viewed with grave concern.  The Uruguay Round
Agreements were a delicate balance of rights and obligations, and the Appellate Body was a part of
that balance.  In carrying out its functions the Appellate Body should act with full regard forlegislative authority and for the substantive and procedural rights of Members.
90. The dispute settlement system was described in the DSU as "… a central element in providing
security and predictability to the multilateral tradin g system" (Article 3.2 of the DSU).  In the present
case, adoption of that additional procedure and its wide communication to non-Members had the clear
effect of encouraging submission of written brie fs by non-Members to the Appellate Body, a right
which Members, who were not third parties during a panel's hearing of the dispute, did not have in
regard to the Appellate Body's hear ing of the matter.  Although it was stated that that additional
procedure had been adopted for the purposes of that appeal only and was not a new working
procedure drawn up pursuant to Article 17.9 of th e DSU, one should recall the Appellate Body's
previous interpretations of Article 13 of the DSU, and other subsequent decisions and actions that hadserved to expand access to and the participation of non-Members in the dispute settlement process.  It
was unacceptable that non-Members enjoyed superior rights to Members who, to be accorded third
party rights, should notify substantial interest in the case at hand and should indicate their interest at
the meeting where the panel was established or within a specified time-frame.  Furthermore, while
allowed to participate as a third party at both panel and Appellate Body levels, they could not appear
before the latter had they not joined as third parties at the panel stage of the hearing of the dispute.
The participation of Members, representing legitimate interests and concerns of entire countries intrade disputes, appeared to be more rigidly circumscribed than that of non-Members.  The Appellate
Body, which was the final arbitrator of disputes was not only according rights to non-Members which
as a consequence compromised Members' rights, but also deepening imbalances between Members.
91. With respect to the manner in which the Appellate Body's communication had been sent out
and although this was not the central issue, it should be noted that very few non-Members fromdeveloping countries would have become aware of this additional procedure, communicated on
8 November, and with a deadline of 16 November for leave to apply to file a written brief.
92. Members should do whatever was necessary to exercise their legislative functions to ensure
that their rights and the nature of the WTO as an intergovernmental body were preserved.  A clearer
understanding and respect for the distinct roles of the Appellate Body, the Secretariat and theMembers should be achieved.  If necessary, specific procedures should be put in place in which their
respective role and responsibility would leave no room for any misunderstanding, although in his
delegation's view, the existing rules in this area were quite clear.  Jamaica was fully cognizant of the
importance of the dispute settlement process and of the value of the Appellate Body's work andWT/GC/M/60
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believed that the message, which was being sent to it on this issue, was important and quite clear and
if heeded, the organization as a whole would emerge healthier.
93. The representative of Argentina also believed that the issue was of a systemic and
institutional nature that went beyond a particular case and also beyond a procedural question.  It was
not related to transparency issues.  The right to accept and examine amicus curiae  briefs was not
expressly covered neither by the DSU nor by the Working Procedures for Appellate Review.
Argentina did not share the Appellate Body's interp retation that that right was implicitly covered by
Rule 16(1) of the Working Procedures for Appellate Review.   That seemed even less justified in view
of Article 17.6 of the DSU which provided compet ence to the Appellate B ody only with respect to
“issues of law covered in a panel report and legal interpretations developed by the panel”.  One could
question what elements the possible submissions of non-parties to the dispute would contribute to the
process and the clarification  of litigation arising from legal interpretations stemming from WTOagreements.  On the other hand, the right to accept amicus  briefs would generate a series of doubts on
the rights of Members who were neither parties nor third parties to the dispute.  Would they be
allowed to make spontaneous submissions to panels  or the Appellate Body? If the answer was no, this
would mean that Members had less rights than non-Me mbers.  If the answer was yes, could Members
make submissions as such or would they have to find a way to present themselves as an NGO?Moreover, there would be a number of practical and fundamental problems.  The Appellate Body
would be flooded by an unmanageable number of briefs and unless there was an appropriate legal
framework, to be set up by Members, there would be the risk that the DSB would be excessively
influenced by NGOs or by large companies who would offer legal services.  This situation would be
bad for the WTO but would be even more negative for developing countries whose financial andhuman resources were limited and whose electronic communication means were not as developed.
Therefore, the potential problems arising from the acceptance of submissions that were not required
were numerous and complex.  In his delegation’s view, the Appellate Body had taken a decision
which exceeded its competence and the Chairman should be requested to transmit to the Appellate
Body in extenso the proceedings of this meeting and Members’ opinions on this issue.
94. The representative of the European Communities said that this debate addressed an important
and delicate systemic issue which could harm the standing of the organization and of the dispute
settlement system, which was one of the most important achievements of the Uruguay Round  As
stated by previous speakers, no one wished to und ermine the dispute settlement system nor put into
question the integrity of the Appellate Body.
95. In the discussion, one should make a distinction between the ruling in the asbestos dispute
and the systemic issue of who had the authority to lay down provisions enabling non-Members toparticipate in dispute settlement proceedings.  Like others, the Community believed that it was up to
the membership to legislate on such provisions.  Subs tantive changes in a negotiated text, such as the
DSU, could only be introduced through negotiations.  The present discussion was the proof that such
a renegotiation of the text was needed.
96. When concluding the DSU, Members did not explicitly provide for the intervention of non-
Members in the proceedings.  As a matter of law, only Members had the legal right to participate as
parties or third parties in a dispute.  Panels and the Appellate Body were only bound to consider
parties and third parties submissions.  It was however obvious that civil society had a clear interest in
some issues relating to the work of the WTO and in pa rticular to that of the DSB.  In this regard, the
Community had made a number of specific proposals to increase transparency in dispute settlementprocedures within the context of the DSU review.  This review exercise had clearly shown that the
eventual participation of non-Members in dispute settlement proceedings raised a number of
important complicated, systemic and practical questions which needed to be addressed.  The
Community would enter into renewed discussion on this matter with an open mind.  It was only
through serious and comprehensive negotiations that satisfactory results could be achieved, allWT/GC/M/60
Page 25
practical elements and systemic concerns adequately considered and implications evaluated.  When
the rules were not clear they had to be updated.  The Community therefore wished to emphasize the
need for rule-making now and in the future.  If the legislative arm fell short in legislating, the
judiciary arm had the tendency to fill the gap.  The Community therefore called upon Members'
willingness to engage with renewed emphasis in th e DSU review process, and noted that a number of
ideas and suggestions were already on the table.  The Community was prepared to make a
constructive contribution within this framework with  the view to agreeing on rules which would avoid
similar discussions in the future.
97. The representative of Cuba shared the view expressed by previous speakers which considered
that the Appellate Body's decision was contradictory to the provisions of the DSU.  This issue had
already been rejected during the Uruguay Round.  Such a procedure would be inequitable and
discriminatory, and would put developing countries with little resources and, more specifically NGOswhich had no access to electronic communication means,  in a position of inferiority with respect to
submissions to the Appellate Body.  Like others, Cuba believed that the Appellate Body should be
invited to reconsider its decision and refrain from applying it until the General Council reached an
agreement on this issue.
98. The representative Chile said that on other occasions his delegation had already rejected the
line of reasoning by the Appellate Body with regard to amicus curiae  briefs.  Unlimited access to non-
governmental organizations to present their points of view in a dispute could take the WTO into
uncharted waters and undermine Members' rights and obligations.  With this procedure, the Appellate
Body had taken a further step in the wrong direction.
99. As pointed out by previous speakers, in the United States – British steel case the Appellate
Body had made it clear that neither the DSU nor the working procedures specifically provided that the
Appellate Body might accept and consider submissions or briefs from sources other than the
participants and third participants in an appeal.  On the other hand, there was no explicit prohibition
therein concerning acceptance or consideration of such briefs.  However, the Appellate Body had
indicated that as long as it acted in conformity with the DSU and the covered agreements it had thelegal authority to decide whether or not to accept and consider any information that it believed
pertinent and useful in an appeal.  In no circumstances, this included the power to request such briefs
as mentioned in Article 13 of the DSU, since this Article clearly did not apply to the Appellate Body.
The recent decision of the Division in the case in question was unwise and unsound.
100. Members should discuss the issue of the scope of Article 13 of the DSU and the participation
of non-Member third parties in the WTO dispute settlement procedures.  In the recent discussion on
external transparency some of the proposals referred to amicus curiae  briefs.   In order to discuss the
participation of non-Member third parties, several points should be clarified.  To open the door to
non-Member third parties could involve giving them greater rights than the Members, whose
participation and rights were clearly determined under the DSU and it was not clear who were non-
Member third parties and who would have the "right" to submit communications.  Who was to decide
if they had an interest in a specific case?   If the door was opened to non-Members, how wouldMembers decide who would enter?  Were there categories of non-Members?  Would any natural or
legal person be allowed to express opinions,  even entities openly opposed to the WTO and to the
multilateral trading system, or whose objectives were incompatible with the WTO or the multilateral
trading system?  As pointed out, amicus  meant sharing interests, but how would one know the
interests of the NGOs or their objectives, membership or funding, even in the case of those that wereon the Secretariat's e-mail subscription list?  How would Members differentiate between the interests
of a non-Member and the interests of one of the parties?  Would there be any limit on the number of
briefs?  If not, how would  Members expect the participants in an appeal to have a full and proper
opportunity to comment on and reply to any communicati on?  Especially in view of the fact that the
time-limits for proceedings on appeal were, by their very essence, short.WT/GC/M/60
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101. In his delegation's view, the Appellate Body would have to take account, in its procedural
decisions, of the situation within the WTO, in particular the agenda of the General Council.  The
General Council would therefore have to request  the DSB to address a recommendation to the
Appellate Body pointing out to it the inadvisabil ity of adopting procedural decisions on matters in
which there would be as yet no consensus among the WTO Members and which would still be thesubject of consultations.
102. The representative of Panama agreed with previous speakers in particular with the fact that
the setting up of work of panels and the Appellate Body were different and that the rules on amicus
applicable to panels did not apply to the Appellate Body.  The issue in question was not to determine
if the interpretation in the shrimps/turtle case was correct or not.  The Appellate Body's decision had
created a right to non-Members which Members did not have.  Had the Members that right, it would
be contrary to the agreements.  Despite the good intention of the Appellate Body in establishingprocedures to deal with amicus briefs, the decision, instead of reaching the objectives announced by
the Appellate Body, would have more negative effects than positive ones.  Therefore, the General
Council should urge the Appellate Body to reconsider its decision in the light of Member's concerns
expressed at this meeting.
103. The representative of Australia said that his country shared the reservations of many other
speakers.  This was an important issue which needed careful consideration and on which Members
should provide guidance.  Australia recognized that there were differences of view about this issue
and how Members should respond.  It also recognized  that the issue required early action.  He noted
that the statements made at the present meeting suggested that there were three key questions that
needed to be addressed:  (i) whether Members should provide guidance to the Appellate Body andpanels concerning the treatment of amicus  briefs;  (ii) if Members were to agree that guidance should
be provided, what should be the content of that guidance;  and (iii) how should Members provide this
guidance to the Appellate Body and Panels.
104. Australia considered that a pragmatic approach was required on this issue.  The General
Council had the authority to adopt guidelines prov iding guidance to the Appellate Body and panels on
how amicus  briefs should be handled.  He noted that the General Council, in July 1996, had adopted
Guidelines for Arrangements on Relations with NGOs under Article V:2 of the Marrakesh Agreement
(WT/L/162), and suggested that the approach taken could also be an appropriate avenue or model for
guidelines on  amicus  briefs.
105. Australia proposed that the Chairman of General Council, in cooperation with the Chairman
of the DSB, consult with Members on these key questions with the aim of finding the most
appropriate way forward.  In light of the statements made at the present meeting, his country hopedthat Members would be willing to participate fully in this process in a cooperative spirit based on the
following principles:  (i) the need to fully respect and preserve the rights of WTO Members;  (ii) the
need to preserve the special character of the WTO as an intergovernmental body with binding treaty
rights and obligations;  and (iii) the need to be responsive to public interest in the WTO's work.
Australia considered that there was no necessary conflict between these principles and believed thatMembers should be able to find a reasonable compromise based on them.
106. The representative of Tanzania said that, as many delegations had stated, the purpose of the
present meeting was to discuss a matter of serious systemic implications not to question the intentions
of the Appellate Body or the WTO Secretariat with regard to the action that had been taken.  Tanzania
shared the concerns and views expressed by, inter alia , Brazil, Egypt, India, Mexico, Pakistan and
Zimbabwe.  Although Tanzania had not yet been a party to any dispute in the WTO, it did not wish to
remain silent on a matter that was at the very core of the multilateral trading system.  From the
arguments already put on the table, the law and the facts clearly showed that the action and practice ofWT/GC/M/60
Page 27
the Appellate Body to solicit  amicus briefs  from NGOs was improper, unwarranted, ultra vires  and
might bring an element of subjectivity into decisions of the Appellate Body on questions of law.
107. The General Council had the authority to interpret the WTO Agreements. It was clear from
the discussion at the present meeting, that the will of Members should prevail and that no other body,
even the Appellate Body could claim what Members had not intended to give it.
108. There was a need to preserve the intergovernmental character of the WTO and any practice
that would give non-WTO Members some advantages over WTO Members should be opposed.  In
particular, if such a practice exacerbated the imbalance between developed and developing countries,
especially LDCs whose NGOs might not have access to the available information.
109. The Appellate Body was an epitome of the rule-based system that characterized the WTO.  It
should be the first to uphold the law that had created the WTO and the Appellate Body itself and it
should be the first to restrict the boundary between  legislative and judicial bodies within the WTO.
Tanzania supported the views expressed by prev ious speakers that the Appellate Body should
withdraw its action and that the General Council s hould make clear and specific guidelines on this
question and reassert its supremacy in interpreting the WTO Agreements so as to ensure the
predictability of the rule-based multilateral trading system.
110. The representative of Japan said that two issues were involved in the matter under
consideration:  (i) whether it was appropriate for the Appellate Body to solicit amicus briefs ;  and (ii)
whether it was appropriate for the Appellate Body to make an independent decision to request amicus
briefs  without prior consultations with Members.
111. With regard to the first issue, a number of delegations had stated that it was inappropriate for
the Appellate Body to solicit amicus briefs .  Japan had some reservations thereon.  In the past, his
country had expressed the view that under certain conditions it would be appropriate to allow the
Appellate Body to deal with the question of amicus briefs.   However, at the present meeting he did
not wish to go into detail on this argument.  He stressed that this was a very important issue which
required further consultations.
112. With regard to the second issue, the action taken by the Appellate Body was not appropriate.
He wondered what should be the most practical approach in this case.  Japan, like the United States,
believed that the most practical approach would be to convey to the Appellate Body the views
expressed at the present meeting and to ask the Appellate Body to move more cautiously in making its
future decisions, in particular since there were differences of view on this matter.
113. The Chairman said that he would sum-up in a few points his impression from the discussion
at the present meeting.  First, he welcomed the fact  that that there seemed to be unanimous agreement
with regard to the remark in his statement at the opening of the meeting on the importance of the
dispute settlement system and the need to safeguard its integrity.
114. Second, almost all delegations had made comments on the question of whether the Appellate
Body or panels should receive or solicit amicus  briefs.  There was a broad agreement that the rights
and obligations under the DSU belonged to WTO Members.  It had been repeatedly stated that the
WTO was a Member-driven organization.  Therefore, most delegations had concluded that since there
was no specific provision regarding amicus briefs such briefs  should not be accepted.  Some
delegations were of the view that amicus briefs could be used in some cases and there was at least one
delegation who believed that there was both a legal and a substantive reason to use amicus briefs.
There was no agreement on this point.WT/GC/M/60
Page 28
115. Third, many Members had made reference to the shrimp case3 and the decision to interpret
Article 13 of the DSU in such a way so as to accept amicus briefs.  The majority of delegations had
stated that they did not agree with that decision which served as a basis for subsequent decisions on
amicus briefs by panels and the Appellate Body.  At the same time, at least one delegation had stated
that there was nothing wrong with that kind of procedure.
116. Fourth, there was the question of whether the de cision of the Appellate Body in the present
case, was of a procedural or a substantive nature.  The majority of delegations were of the view that it
was a substantive decision, while some delegations believed that this was a procedural one.
117. Fifth, many Members had also made comments on the Secretariat's action to put on the WTO
website the communication from the Appellate Body to  the Chairman of the DSB.  It had been stated
that the Secretariat's action amounted to an invitation, although he was not sure whether it had been
meant to be that in the first place.  The poin t had also been made that there was an inherent
discrimination in as much as the communication from the Secretariat had gone out only to those
NGOs who subscribed to the WTO system.
118. Finally, many Members had made the point that the issue under discussion was not a
transparency issue, but rather a legal issue and concerned the question of who should participate in the
legal system.
119. He believed that most of the points that he had just outlined had been raised by practically all
delegations who had spoken at the present meetin g.  On this basis, he wished to draw some
conclusions.  First, he believed that there had been a large sentiment expressed by almost all
delegations that there was a need to consider whether it would be possible to put in place clear rules
for amicus briefs.  There might not be absolute unanimity on that point, but the majority of
delegations had stated that the Appellate Body and the system would benefit from clearer rules.
Further consultations would be required on both the substantive content of the rules and what
procedure should be used for putting them in place.
120. Second, in light of the views expressed and in th e absence of clear rules, he believed that the
Appellate Body should exercise extreme caution in future cases until Members had considered whatrules were needed.
121. He added that the press had expressed its interest in the present meeting and some delegations
might also wish to make comments.  He had agreed with the Secretariat that, if so required, he would
meet with the press after the meeting.
122. The representative of Egypt said that her delegation could agree with most of the points put
forward by the Chairman.  She wished to comment on one point made by the Chairman, namely, that
the majority of Members believed that there was a need to consider clearer rules with regard to thesubmission of amicus briefs.  She recalled that the purpose of the Informal Group of Developing
Countries in requesting the meeting was two-fold:  (i) to discuss and address the serious situation as a
result of the communication from the Appellate Body to the DSB Chairman;  and (ii) more
importantly, to request the General Council to exercise its legislative authority and, as stated by
Tanzania, to reassert its supremacy and to take a decision to request the Appellate Body to reverse itsdecision.  It was her understanding that this was the feeling of the majority of Members.
123. The Chairman said that he thought that, as he had stated at the outset of the meeting and as all
delegations had stated, the objective of the discussion was not to comment on individual cases but on
matters of principle.  He had stated that it should be communicated to the Appellate Body that it
                                                     
3 WT/DS58.WT/GC/M/60
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should exercise extreme caution.  On this basis, th e Appellate Body would draw its conclusions.  He
did not think that it was appropriate to press further the point raised by Egypt as the end result would
not be much different.
124. The representative of Mexico said that with re gard to his earlier statement he wished to add
that his country supported the statement made by Egypt on behalf of the Informal Group of
Developing Countries of which Mexico was a me mber.  His country also supported the second
statement made by Egypt and wished to be dissociated from the conclusion that the majority of
Members wished to consider whether to draw-up procedures for the submission of amicus briefs. The
reason was that, on the one hand, the views had been expressed on this matter by the Informal Group
of Developing Countries and, on the other hand, many statements had been made referring to possible
subjects for discussion if one were to accept that such submissions could be made.  These were very
different matters.  Before proceeding with regard to treatment of amicus briefs it would be necessary
for the General Council to decide whether it was appropriate to accept such submissions in view of
different arguments.  His delegation wished to be dissociated from the fact that the majority of
Members considered that there was a need to elaborate provisions in order to accept amicus briefs.
125. The Chairman said that he had stated that there was a need to develop rules with regard to
amicus briefs.  This might imply both that there should be no amicus briefs or that, under certain
conditions, they should be accepted.  This issue was entirely open.  He believed that there was no
disagreement on this matter.  He was aware of what had been stated by many Members and wished to
keep the outcome of the consultations open.  He had put forward those ideas because some Members
had stated that under certain circumstances amicus briefs could be accepted.  Further consultations
were required on this matter.  The main point was that there was a need to develop some rules for theAppellate Body without prejudice to the outcome.
126. The representative of the European Communities said that the point made by Egypt should
not be pressed further because this would be in contradiction with the Chairman's statement which
was supported practically by all delegations.  The intention was not to give injunctions to the
Appellate Body, at least this was not the intentio n of the Community.  He did not understand the point
made by the representative of Mexico.  One could not state that it was not up to the Appellate Body to
enter into the competence of the legislative arm and, at the same time, to state that the legislative arm
should not do anything.  This created a situation in which there was a vacuum and the judiciary arm
was forced to make interpretations.  The conclusion from the discussion was clear, namely, that
something should be done in the review of the DSU.
127. The representative of Colombia associated his delegation with the statement made by Egypt.
Colombia recognized the systemic problems involved  in this matter.  He considered that in a
communication to the Appellate Body it should be made clear that many delegations did not wish that
the procedure under consideration be applied at this stage.  Otherwise a precedent would be created.
Such a precedent would be used in the future and, in  this sense, it should be made sufficiently clear
that the majority of delegations did not agree that the procedure at hand should be applied due to its
future consequences.
128. The Chairman said that he believed that the views were very close and that the discussion was
more about the language than the actual content.
129. The representative of Mexico said that the Chairman had clarified the first point referred to by
his delegation.  As long as Members decided to discuss this issue without prejudging the content and
the outcome, his country would not have any problem.  Initially he had understood that it had alreadybeen agreed that amicus briefs should be accepted and that one would only need to decide on how to
proceed;  i.e. via Internet or not.  With regard to his second point, Mexico fully supported the
statement made by Egypt on behalf of the Informal Group of Developing Countries, but he did notWT/GC/M/60
Page 30
think that the General Council had reached consensus to request the Appellate Body to reverse its
decision.  However, it was important that the view s of the Informal Group of Developing Countries be
conveyed to the Appellate Body without distortions.
130. The representative of Egypt said that, as stated by Colombia and Mexico, it was essential to
ensure the clarity of the content and the language.  She believed that the letter and the spirit of the
present discussion would be conveyed to the Appella te Body by the Chairman.  She recognized that
there was no consensus on the matter at hand beca use one or two delegations had different views.
However, there was no difficulty in drawing out some conclusions which should then be
communicated to the Appellate Body.  The objective was to avoid a recurrence of similar situations.
131. The Chairman thanked delegations for their cooperation and said that he would communicate
to the Appellate Body the main points which had been raised at the meeting as well as the conclusions
he had drawn with the above clarifications.
132. The General Council took note of the statements.
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