./.WORLD TRADE
ORGANIZATIONTN/DS/W/45
11 February 2003
(03-0881)
Dispute Settlement Body
Special SessionOriginal:  English
CONTRIBUTION OF BRAZIL TO THE IMPROVEMENT OF THE
WTO DISPUTE SETTLEMENT UNDERSTANDING
Communication from Brazil
The following communication, dated 7 February 2003, has been received from the Permanent
Mission of Brazil.
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I. INTRODUCTION
1. Brazil understands that one of the drawbacks of the current dispute settlement mechanism is
the necessity for a Member to litigate a case de novo  through all the established phases even if the
same measure nullifying or impairing benefits of this Member has already been found WTO
inconsistent in previous panel or appeal proceedings initiated by another Member.  Brazil believes
that a “fast track” or an “expedited procedure” in such cases would streamline the system and render it
more efficient.  It would be a positive way of strengthening the institutional and legal framework of
the DSU.  Developing countries, moreover, have a special and clear interest in a rational and faster
use of the system.
2. The idea of a fast track or expedited procedure has been presented, in other contexts, by
Australia (safeguard measures, access to compensation through article 25 DSU) and Japan (“hit and
run” situations in case of discretionary measures).
3. In the present instance, Brazil seeks to provide an adequate manner to prevent the need of
complete, long and costly litigation about measures already ruled as inconsistent by adopted reports.
This proceeding would have the effect of providin g an incentive for full implementation of reports,
since no longer there would be the possibility of “playing with the time periods” of the complete panel
proceedings as they stand today for regular cases.  Furthermore, several cases that today only “stress
the system” could be channelled to the new fast track and less resources would be spent with cases
already clearly decided by a panel or by the Appellate Body.
II. THE PROPOSAL
4. The basic concept is that whenever a Member considers it is being affected by a measure that
has already been declared inconsistent by an adopted panel or Appellate Body Report, it would have
the right to request the establishment of a “fast track panel” that would be composed, if possible, of
the same panelists that served in the original panel that considered the matter.  The requesting
Member would have first to demonstrate, in its submission, that the measure at issue is the same asthe one already subject of a panel or appeal proceeding.  The other party, then, could object this
allegation by showing differences between the measure at issue and the measure previously declaredTN/DS/W/45
Page 2
inconsistent.  To ascertain this question, the first element to be taken into consideration by the panel
would certainly be the request for the establishment of a panel and its terms of reference.
5. When requested, the panel would announce its decision on the basic question of “same
measure or not” in a limited period of [10-15] days after receipt of the rebuttal submission of the party
complained against.  If the panel confirms that the measure is the same, the fast track panel would
continue its work to the maximum time period of 90 days.  The panel findings could, as with any
other panel procedure, still be subject to an appeal, which would be performed within 45 days.  In
case the panel does not find that the measure is the same, it would finalize its work and the requesting
party, if it so wishes, could start regular panel procedures.
III. THE TEXT
6. Accordingly, Brazil suggests the inclusion of a new article, after Article 20, as follows:
Article [21]
Procedures Related to Measures Already Held Inconsistent with a Covered Agreement
1. A Member may request the establishment of a panel by the DSB under an expedited
procedure whenever its rights are being nullified or impaired by a measure that has
already been found to be inconsistent with a covered agreement by an adopted report.The panel shall be established at the same DSB meeting where it first appears on the
agenda, unless the parties agree otherwise.  Prior consultations are not required.
2. This panel shall be composed whenever possible by the same panelists having served
in the panel that has already ruled on the measure at issue.  In any case, the panel
shall be composed within [10] days of the establishment of the panel.
3. Within [15] days after receipt of the rebuttal submission, the panel shall issue, when
so requested, a decision to the parties declaring whether the measure at issue is the
same as the measure previously declared WTO inconsistent.
4. If the panel finds that the measure at issue is different from the measure previously
declared WTO inconsistent, the expedited procedure is terminated, and the
complaining party may start panel procedures provided in Article 4 et seq  of this
Understanding.
5. If the panel finds that the measure at issue is the same as the measure previously
declared WTO inconsistent, the panel shall continue its work and shall circulate its
report within [90] days after the date of referral of the matter to it.
6. Within [15] days after the date of circulat ion of the final report to the Members, the
report shall be considered for adoption by the DSB meeting unless a party to thedispute formally notifies the DSB of its intention to appeal.
7. The Appellate Body proceedings in this case shall be conducted in accordance with
Article 17 of this Understanding but shall not exceed 45 days from the date a party to
the dispute formally notifies its decision to appeal to the date the Appellate Body
circulates its report.
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