RESTRICTEDWORLD TRADE
ORGANIZATIONTN/DS/M/9
1 July 2003
(03-3469)
Special Session of the Dispute Settlement Body
17 – 18 February 2003
MINUTES OF MEETING
Held in the Centre William Rappard
on 17 – 18 February 2003
Chairman:  Mr. Péter Balás (Hungary)
Prior to the adoption of the agenda, the Chairman  welcomed participants to the ninth meeting
of the Special Session and said that as he had stated in his concluding remarks at the Eighth Session,
the present meeting would continue with the consideration of draft legal texts submitted by
participants.  He drew the attention of participants to five new contributions which had been
circulated since the previous meeting: a proposal  by Jamaica circulated as TN/DS/W/44/Rev.1; a
proposal by Brazil circulated as TN/DS/W/45; a proposal by the United States circulated as
TN/DS/W/46; a proposal by Cuba, Dominican Re public, Egypt, Honduras, India, Jamaica and
Malaysia circulated as TN/DS/W/47 and a proposal by Australia circulated as TN/DS/W/49.  He also
drew their attention to the revised compilation of draft legal texts, which had been circulated as
Job(03)10/Rev.1.  This compilation included all the proposals that had just been referred to, exceptthat of Australia which was available at the back of meeting room.  He then proceeded to outline how
he intended to conduct the meeting.  He proposed that like the previous meeting, the discussion of the
draft legal texts on the basis of the compilation should take place, whenever possible, in an informal
mode.  He said that the compilation now included references to the specific provisions of the DSU.
Having completed an examination of texts covering Article 1 through to Article 9 of the DSU at the
previous session, it was his expectation that there would at least be an examination of texts covering
Article 10 through to Article 19 of the DSU at t oday's meeting.  Depending on the progress that was
made, there could be an examination of articles covering the implementation phase of the dispute
settlement mechanism.  It was imperative for progress to be made at this meeting if the objective was
to complete an examination of all draft legal texts at the next scheduled meeting of the Special
Session.  He said that if delegations wished to ma ke formal statements with respect to any of these
textual proposals, they could do so at the end of this agenda item.
1. Discussion of draft legal texts submitted by participants on the basis of the compilation
of draft legal texts (Job (03)10 and Add.1)
1. The representative of Canada said that his c ountry had long been an advocate of enhanced
transparency in the WTO dispute settlement system.  The strength of the WTO owed much to the
support of the constituencies it served.  These constituencies did not consist solely of governments,
but included members of the public.  Precluding the public from observing the dispute settlement
process run the risk of arousing suspicion and courting public resistance where none was warranted.
It was Canada's belief that increased transparency would foster a better understanding of the WTO
and, in particular, the role played by the dispute settlement system in guaranteeing security andpredictability in the multilateral trading system.  Given these considerations, Canada wished to
enhance transparency of the WTO dispute settlement system in two main ways:  first, by facilitating
public access to written submissions;  and secon d, by allowing for public observation of panel and
Appellate Body hearings.  The details of the propos ed textual amendments to the DSU were outlined
in the proposal.  Regarding the first proposal, it was Canada's suggestion that the written submissionsof parties and third parties should be made available to the public at the time of filing, subject toTN/DS/M/9
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appropriate protection for confidential information.  In that context, a registry could be established in
the Secretariat to facilitate access to these submissions by the public.  Regarding the second proposal,
it was the suggestion of Canada that panel and Appellate Body hearings be opened to the public.  In
recognition of the resource and space constraints of the Secretariat, the proceedings could be
telecasted to reach a wider audience.  Portions of the hearings where confidential information wasdiscussed would not be transmitted.  He said that Canada had reviewed with interest the recent
contribution by the United States on transparency.  Given the similarities between these two
proposals, Canada looked forward to working with th e United States and other interested participants
to see whether they could submit a joint draft text.
2. The representative of Jordan said that his country was conscious of the sensitivity of the issue
relating to unsolicited amicus curiae  briefs.  While it was the view of some participants that this issue
could not be addressed in the current negotiations, Jordan was of the view, however, that this issue
should not be left drifting.  It was still unclear whether or not panels and the Appellate Body had the
authority to accept such briefs.  There was nothing in paragraph 30 of the mandate given by Ministers
at Doha which suggested that this issue could not be  discussed with a view to clarifying the status of
such submissions.  The Appellate Body had in a number of instances adopted principles which it
considered to be of assistance to the dispute settlement process, although no provision was made inthe DSU for their adoption.  One such example had been the recourse by the Appellate Body in a
number of disputes to the principle of "objective assessment", which was not mentioned in Article 17
of the DSU.  According to Article 11 of the DSU, it was only panels which were required to make an
"objective assessment of the matter before it …".  The mandate of the Appellate Body was strictly
limited to issues of law, but in pursuance of this principle, it had from time to time been able toobjectively assess the facts of the claims before it.  Leaving this issue unresolved was not in the
interests of developing countries, as it would undermine their rights and obligations.  It might be
necessary to have clear guidelines and procedures aimed at curbing the discretionary power of the
Appellate Body.  For the purposes of the current nego tiations, there were two distinct set of proposals:
the first was the proposals from the African Group, India and others which seek to prevent panels andAppellate Body from accepting unsolicited briefs.  The second was the proposals by the US and the
EC, which want clear procedures and guidelines to be enacted to regulate the admission of unsolicited
information.  The challenge was to select the option which would ensure efficacy of the dispute
settlement system while protecting the rights of Members, particularly developing countries.
3. The representative of Brazil said that his country's proposal focussed on the issue of whether
it was necessary for a Member to litigate a case de novo  through all the established phases and
time-frames, even if the same measure nullifying or impairing the benefits of this Member hadalready been found to be WTO-inconsistent in previous proceedings initiated by a different Member.
It would be appropriate in such cases to have an expedited procedure which would ensure that a well-
reasoned decision was given as quickly as possible.  Such a procedure would be cost-efficient from
the perspective of the parties and also the WTO Secretariat.  The idea of a fast track or expedited
procedure was not new and had already been proposed in other contexts by countries such asAustralia in cases involving safeguard measures and recourse to compensation under Article 25 of the
DSU and by Japan in cases involving a Member taking inconsistent measures under a discretionary
law.  The underlying reason behind Brazil's proposal  was that whenever a Member considered that it
was being affected by a measure that had already been declared inconsistent by an adopted Report,
this Member would have the right to request the establishment of a "fast track panel", that wouldcomplete its work within 90 days.  Should the report be appealed, the Appellate Body has to complete
its work within 45 days.  The basis for requesting a fast-track panel would be an adopted report.  This
could either be a panel report, an Appellate Body report or a compliance panel report.  The panel
request would be granted by the DSB at the meeting at which the matter was put on its agenda by the
complaining member.  Thus, it would not be necessary to have two meetings before a panel wasestablished.  He pointed out that this proposal was not novel, as it had been proposed by a number of
Members including Australia and the EC.  Regarding the composition of the panel, he suggested that
it should be the members of the original panel, if they were available.  The time-frames at each stageTN/DS/M/9
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of the procedure were merely indicative and Brazil was prepared to consider any suggestions in that
regard.  It was, however, of the firm view that the whole the process should not take more than 90
days.  After the composition of the panel, the co mplaining Member would be expected to submit its
written submission within a stipulated time-frame and the responding Member would also have to
submit its written response with a specified time-frame.  These submissions could be convenientlydivided into two parts.  In the first section, the complaining Member would need to demonstrate that
that the measures in questions were the same as those measures which had been found to be WTO-
inconsistent.  The responding Member would then have to prove that the measures in question were
different from the earlier measures.  The second section would cover other relevant issues specific to
the case under consideration.  On the basis of th ese two submissions, the fast-track panel would
within a maximum  period of 15 days give its preliminary decision as to whether or not the contested
measures were different from those found to be inconsistent by the DSB.  It might not be necessaryfor the panel to hold a hearing before giving this decision.  If the panel were to find that the contested
measures were different, the fast-track procedure would be terminated.  Should the complaining
Member not be satisfied with the decision of the fast-track panel, nothing would stop it from having
recourse to the regular procedures in the WTO to challenge the consistency of these new measures.
If, on the other hand, the fast-track panel should conclude within a maximum  period of 15 days that
the measures were the same, there would be a hearing within a specified time-frame and the process
from that time would be like the regular procedure under the DSU – the parties would meet with the
panel and argue their respective cases.  The final report would have to be issued within 90 days and
where an appeal was lodged, the Appellate Body w ould have to give its decision within a maximum
period of 45 days.  The panel or Appellate Body was more likely to take into account its previousdecision in the earlier case, particularly as regards possible time-periods proposed in the original
report.  He said that Brazil would welcome any comments on its proposal and was prepared to work
with other participants in order to further refine its elements.
4. The Chairman commended Brazil for its proposal and the explanations it had just provided.
The use of the chart indicating the time-frames being suggested was very helpful.  He also noted that
Brazil had already provided a draft legal text covering the elements outlined in its proposal.
5. The representative of Australia recalled that during the Special Session in January, some
participants raised concerns about the legal certain ty of DSB decisions for the type of changes that
might be made to DSU.  In light of those comments, Australia had resubmitted its proposal in the
form of textual amendments.  In each case, maxi mum effort had been made to ensure that the
proposed amendments were as simple as possible and did not alter the current text of the DSU more
than was necessary.  Notwithstanding the submission of this text, Australia still believed that DSBdecisions offered a simple way of achieving improvements and clarifications to the DSU without
having to go through the usually cumbersome treaty ratification process or to undertake complex legal
drafting.  Turning to the specifics of the proposal, she said that Australia wanted the creation of a new
Article 8bis which would provide for accelerated procedures for disputes on safeguard actions.  The
language of this new Article 8bis was based on the language of the previous proposal but addressedMembers' concerns raised at the January Special  Session concerning developing-country Members'
rights for the application of standard DSU time-frames.   With respect to the rights of non-parties to a
dispute, she said that Australia had proposed an am endment to Article 22.2 of the DSU with a view to
ensuring that the rights of third parties to a dispute whose rights and obligations had also been
nullified and impaired by a WTO-inconsistent measure were respected, particularly as regardscompensation.  The amendment gave third parties the right to seek expedited arbitration under
Article 25 to determine their right to compensation.  If the arbitrator under Article 25 decided that the
third party had a right to compensation, the third party could enforce this right through Articles 21 and
22, considering that Article 25(4) provided that Articles 21 and 22 applied "mutatis mutandis" to
arbitration awards.
6. With respect to the level of retaliation imposed, she said that Australia had proposed an
amendment to Article 22.7 of the DSU to ensure that once the concessions or other obligations hadTN/DS/M/9
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been determined as equivalent to the level of null ification or impairment, parties shall not vary such
concessions or other obligations.  An exception to this general obligation was provided where the
variation was to correct a technical error or where the concessions or other obligations were made
inutile by subsequent developments.  Where concessions or other obligations were varied after a
determination had been made that the concessions or other obligations were equal to the level ofnullification and impairment, the parties could have recourse to a second arbitration.  With respect to
possible time savings, she said that Australia had proposed an amendment to Article 6 which allowed
for panel establishment at the meeting at which th e complaining party's first request appeared as an
item on the DSB's agenda.  She said that as there was some similarity between the Australian proposal
and those of the EC and Japan, Australia was willing to work closely with them and other participants
on this particular issue.  She further said that Australia had also proposed an amendment to item 12 of
Appendix 3 which provided that the complaining party should submit its first written submissionwithin five days of the composition of the Panel.  Unlike the original proposal, this new proposal
allowed the complaining party to know the panel composition before lodging the first written
submission.  It also ensured that usefulness of the consultation phase of dispute settlement was not
affected by the complaining party's lodgement of first written submissions.  The amendment therefore
sought to take into account comments made by other delegations on the initial proposal on this issue.
7. Regarding the "sequencing issue" which referred to the order in which Articles 21.5 and 22
apply, she said that Australia had proposed the addition of a new Article 21.5bis so that it was clear
that the procedures in Article 21.5 must be completed before the procedures in Article 22.  Australia
had also proposed an amendment to Article 22.6 so that there was time to complete the procedures in
Article 21.5 before commencing the procedures in  Article 22.6.  The present proposal was based on
current practice on the sequencing  issue.  In other words, the proposed amendments reflect how
members currently deal with this is issue in bilateral arrangements.  Unlike other proposals, these
proposed amendments were very simple and required minimal amendments to the current text of the
DSU.  They would obviate the need for complex legal drafting and substantial amendments to the
current text of the DSU.
8. The representative of the United States said that his country had long advocated greater
transparency in the WTO dispute settlement system as a way of improving the system.  He underlined
that greater transparency could improve public confidence in the fairness of the dispute settlement
system at the WTO which, in turn, could improve the operation of the system, as greater public
confidence could translate into greater support for the implementation of DSB recommendations and
rulings.  He said that the legal text in the US proposal addressed these objectives by allowing the
public to observe all substantive panel, Appellate Body and arbitration meetings, by makingsubmissions and statements public and by providing for final reports to be made available to the
Members and to the public once they had been issued to the parties.  He said that the US had taken
note with interest of the procedures proposed by the European Communities for handling amicus
curiae  submissions and looked forward to working with the EC and other Members on this issue.
9. The representative of Japan welcomed Brazil's proposal and noted the similarity between it
and its own proposal on discretionary law.  She sa id that her delegation would study the Brazilian
proposal in greater detail and provide its comments later.  She also said that her delegation was
willing to work closely with Brazil on this issue.
10. The representative of India welcomed Brazil's paper and said that India understood the
rationale and the problem which it sought to address.  He said that his delegation would provide its
comments when the meeting switched to an informal mode.
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