RESTRICTEDWORLD TRADE
ORGANIZATIONTN/DS/M/5
27 February 2003
(03-1167)
Special Session of the Dispute Settlement Body
14 October 2002
MINUTES OF MEETING
Held in the Centre William Rappard
on 14 October 2002
Chairman:  Mr. Péter Balás (Hungary)
Subjects discussed: Page
1. Discussion of proposals submitted by participants................................................................1
(a) Proposal by Cuba, Honduras, India, Jamaic a, Pakistan, Malaysia, Sri Lanka, Tanzania
and Zimbabwe................................................................................................................... ..........1
(b) Proposal by Cuba, Honduras, India, Pakistan, Malaysia, Sri Lanka, Tanzania and
Zimbabwe ....................................................................................................................... ............3
(c) Proposal by  Jamaica......................................................................................................... ...........5
(d) Proposal by Japan ........................................................................................................... ............5
(e) General comment s on proposals ............................................................................................... ..6
2. Other Business............................................................................................................... ..........19
The Chairman welcomed participants to the fifth meeting of the Special Session of the DSB
and referred to the proposed agenda of the meeting which comprised three items, namely (i)
discussion of proposals submitted by delegations;  (ii) discussion of specific issues raised in the
proposals (in the order listed in the checklist of issues – Job(02)86/Rev.3); and (iii) "Other Business".
He said that under the first item, he intended to invite participants which had submitted proposals topresent them formally and give other participants th e opportunity to react to them formally if so they
wished.  He advised participants against making lengthy comments on the proposals at this stage, as
they would have the opportunity to discuss inform ally all the elements of the proposals when the
second agenda item was taken up.  It was agreed that the second item would be discussed in an
informal mode.  He said that under the third agenda item, he would informally raise two issues,namely the tentative schedule of meetings for next year and whether participants would like to invite
the Appellate Body members to share their experiences on the operation of the DSU thus far.
1. Discussion of proposals submitted by participants
(a) Proposal by Cuba, Honduras, India, Jamaica, Pakistan, Malaysia, Sri Lanka, Tanzania and
Zimbabwe (TN/DS/W/18 and Add1.)
1. The representative of India, on behalf of Cu ba, Honduras, Jamaica, Pakistan, Malaysia, Sri
Lanka, Tanzania and Zimbabwe recalled that, at the last meeting, his delegation had the opportunity
to introduce informally this proposal on behalf of a number of developing countries and said that it
covered a number of issues that were important for the proper functioning of the dispute settlementmechanism.  On mutually agreed solutions, he said that Article 3.6 of the DSU required Members to
notify the DSB and other relevant WTO bodies of any mutually agreed solutions in respect of matters
formally raised under the WTO dispute settlement procedures.  It did not, however, prescribe anyTN/DS/M/5
Page 2
time-period by which such solutions should be notified nor the details which such notifications should
contain.  The co-sponsors would like to propose the amendment of this Article in order to oblige
Members to notify mutually agreed solutions within 60 days of their conclusion and in sufficient
detail to the DSB and the relevant Councils and Committees, where any Member would have the right
to raise any point relating thereto.  The discussion of the terms of the agreement reached between theparties would provide an opportunity to other Members to assess the impact of such an agreement on
their rights.  With respect to a micus curiae  briefs, he said that the overwhelming majority of WTO
membership were opposed to the acceptance and consideration of unsolicited amicus curiae  briefs by
panels and the Appellate Body.  It was unfortunate that the Appellate Body had not been sensitive to
the views of the majority of the membership on this issue; its continued acceptance of such briefs had
resulted in an imbalance in the rights of third parties and those of non-parties' allowed to submit such
briefs.  It was the considered view of the co-spons ors that neither the Appellate Body nor panels have
the authority under the DSU to accept and consider amicus curiae  briefs.  To put this issue to rest
permanently, the co-sponsors had proposed the insertion of two footnotes to Article 13 of the DSU
with a view to clarifying the meaning of the word "seek".  This would make it clear that panels should
not accept unsolicited amicus curiae  briefs, while affirming their existing right to seek experts'
opinions and views, in consultation with the parties to the dispute.  The footnotes would also make itclear that the Appellate Body did not have the right to seek information or accept unsolicited
information or briefs submitted by persons other than the parties and third parties to the dispute, given
the nature of its functions, viz., the clarification of issues of law and legal interpretations developed by
the panels.  As regards the term of appointment of Appellate Body members, he recalled that the DSU
provided that they should be appointed for a four-y ear term with the possibility of being re-appointed
for another four years on the basis of a decision by Members.  The co-sponsors were proposing that
effective 1 January 2004, when the current terms of the present Appellate Body Members would
expire, they should be appointed for a non-renewable term of six years.  The objective of this proposal
was to maintain and enhance the dignity of the high office held by Appellate Body members and to
ensure that they did not have to depend on Members to secure a second term.  The independence ofthe Appellate Body members was essential for the proper functioning of the dispute settlement
system.
2. With respect to inputs provided by the Secretariat to panels, he said that it was imperative that
in servicing panels the Secretariat be neutral and transparent in its actions.  It was common knowledge
that the Secretariat had in the past provided negotiating history which had not been approved by
Members to panels which had relied on them in their rulings.  In the interest of transparency and due
process of law, it was necessary to ensure that all relevant notes, documents and other informationprovided by the Secretariat to the panels were promptly made available to the parties to the dispute.
This would enable their views to be also taken into account by the Panel.  Consequently, the co-
sponsors were proposing an amendment to paragraph 10 of Appendix 3 of the DSU which would
oblige the Secretariat to furnish to the parties notes, commentaries or any other information it gave to
panels.  Regarding the sufficiency of notices of appeal, he recalled the time-bound nature ofAppellate Body proceedings and gave as examples the obligation on an appellee to respond to a notice
of appeal within 25 days of its filing and the obligation on the Appellate Body to circulate its report
between 60 to 90 days from the date of the filing of a notice of appeal.  Given these strict deadlines, it
was imperative for the notices of appeal to contain enough detail in order to allow appellees to
respond adequately to the claims of appellants.  However, in a number of instances, the notices weretoo brief making it difficult for the appellee to determine definitively the claims raised by the
appellant.  The recent Sardines case highlighted the crucial nature and importance of this issue.  There
the appellant withdrew its notice of appeal in response to a query from the appellee regarding its
adequacy and resubmitted a revised notice of appeal.  To prevent this from occurring again, it was
imperative for notices of appeal to be sufficiently detailed and clear on the issues of law beingappealed, so as to enable appellees and third parties to prepare their submissions and respond
adequately to the claims of the appellant.  The co-sponsors had proposed that the Appellate Body
should be requested to lay down guidelines on the content of Notices of Appeals in its Working
Procedures.TN/DS/M/5
Page 3
3. Regarding third party rights during the Appellate Body stage of the proceedings, he said that a
number of Members were concerned about the distinction between "third parties" and "third
participants" that had been made by the Appellate Body pursuant to its Working Procedures.  The
situation had been exacerbated by the further distinction by the Appellate Body in a number of cases
between third participants with full participatory rights and third participants with "passive observer"status.  If a third party did not make a written submission, it could be allowed to participate in the
proceedings as a "passive observer" with the consent of other parties, although it would be prevented
from making an oral presentation.  These distinctions were not foreseen in the DSU.  The co-sponsors
had taken note of the recent amendments by the Appellate Body to its Working Procedures.  It was the
view of the co-sponsors that the recent amendments had been made to address the situation arising out
of Sardines case, where the Appellate Body accepted amicus curiae  briefs from non-parties, but
granted only "passive observer" status to third part ies, resulting in an imbalance between their rights.
The recent  amendments made by the Appellate Body to its Working Procedures only addressed some
of the concerns of Members.  Under the current Working Procedures of the Appellate Body, it was
still possible for a distinction to be made between third parties.  The Appellate Body had deliberately
retained its wide discretionary power to decide who to allow to participate in proceedings before it.
For the sake of greater internal transparency and to facilitate the greater participation of Members inthe dispute settlement process, the co-sponsors had proposed an amendment to the DSU which would
result in an alignment in the language of Articles 10.2 and 17.4 of the DSU.  He concluded by saying
that the co-sponsors were ready to work with other participants in developing further their proposals
and also to answer any questions that they might have.
(b) Proposal by Cuba, Honduras, India, Pakistan, Malaysia, Sri Lanka, Tanzania and Zimbabwe
(TN/DS/W/19)
4. The representative of Pakistan, on behalf of Cuba, Honduras, India, Indonesia, Malaysia, Sri
Lanka, Tanzania and Zimbabwe referred to the statement made by India on behalf of a group of
developing countries  to the Special Session on 10 September 2002 and said that the proposal that he
was about to present focussed on three main issues, namely (i) suspension of concessions and otherobligations;  (ii) litigation costs;  and (iii) special and differential treatment provisions, in particular
Articles 4.10, 12.10 and 21.2 of the DSU.  Regarding suspension of concessions and other obligations,
he said that it was increasingly becoming diff icult to secure compliance with the recommendations
and rulings of the DSB by responding Members.  It was likely that in the future, developing countries
would have no alternative, other than to seek recourse to suspension of concessions and other
obligations under the provisions of Article 22.  However the tremendous imbalance in the trade
relations between developed and developing countries placed severe constraints on the ability ofdeveloping countries to exercise their rights under Article 22.  The economic cost of withdrawal of
concessions in the goods sector was likely to have a greater adverse impact on the prevailing
developing-country Member than on the defaulti ng developed-country Member.  This could
exacerbate the imbalance in the trade relations betw een the parties and hurt deeper the complaining
Member considering the earlier nullification and impairment of its benefits.  The experience in thisregard of some developing-country Members was well documented and need not be repeated.  To
address this problem, the co-sponsors had proposed that in disputes with developed-country Members
complaining developing-country Members should be allowed to seek authorization for suspending
concessions and other obligations in sectors of their choice.  They should not be made to go through
the onerous process of proving:  (i) that it was not "practicable or effective" to suspend concession inthe same sector or agreement where the violation was found;  and (ii) that the "circumstances…[were]
serious enough" to entitle the complaining Member to seek suspension of concessions under the
agreements other than those in which violation was found, exist.
5. With respect to litigation costs, he said that it was well-known that that they were
prohibitively expensive for countries which lacked the necessary expertise and had to rely on outsidecounsel to represent them in panel and Appellate Body proceedings.  He said that Pakistan had been a
party in only two disputes, but the costs of participating were prohibitively high, while the benefits
had been insignificant.  As had been stated in the proposals of Jamaica, the LDC and African Groups,TN/DS/M/5
Page 4
the high cost of litigation was partly responsible for the lack of active participation of developing
countries, particularly least-developed countries in the dispute settlement system.  To ameliorate this
situation, the co-sponsors had proposed that und er certain circumstances, developing-country
Members should be allowed to recover part of their legal and related costs from developed-country
Members.  He gave us examples where a developed-country Member was found to be in violation ofits obligations in a dispute brought by a developing-country Member or if it failed to prove its claims
against the latter in a dispute brought by it.  He noted that the Jamaican proposal on legal costs was
complimentary to theirs.
6. Regarding special and differential treatment for de veloping countries, he said that pursuant to
the Doha Work Programme, some of the co-sponsors had submitted certain proposals on special and
differential treatment including those relating to the DSU to the Committee on Trade and
Development (CTD).  These had been circulated  as TN/CTD/W/2, sponsored by Cuba, Dominican
Republic, Egypt, Honduras, India, Indonesia, Kenya, Mauritius, Pakistan, Sri Lanka, Tanzania and
Zimbabwe and TN/CTD/W/6, submitted by India.  These proposals were aimed at strengthening
Articles 4.10, 12.10 and 12.2 of the DSU.  While the co-sponsors were expecting the adoption of
these proposals by the CTD by the end of 2002 in line with the mandate of the General Council, they
were also submitting these proposals to the DSB Special Session for consideration.
7. With regard to Article 4.10 of the DSU, he said that this Article provided that Members
should give "special attention" to the particular problems and interests of developing-country
Members during the consultations phase of the dispute settlement mechanism.  To make this provision
mandatory, the co-sponsors were proposing that the word "should" must be replaced by the word
"shall".  The co-sponsors were mindful that the EC had made a similar proposal.  He further statedthat to make this provision effective and operational, it was necessary to give content to the phrase
"special attention".  The co-sponsors had therefore proposed that a complaining developed-country
Member should demonstrate how it had given "special attention" to the particular problems and
interests of the defending developing-country Member in its request for the establishment of panel, as
well as in its submissions to the panel.  In actions instituted by a developing-country Member, thedeveloped-country Member should provide an explanation in its submissions to the Panel and the
Appellate Body, assuming the case was appealed.  Panels and the Appellate Body would be required
to make a ruling on this issue.  If the proposal of the co-sponsors were to be accepted and
implemented, it would make Article 4.10 of the DSU mandatory as well as effective, operational and
of some value to the developing-country Members.
8. In respect of Article 12.10 of the DSU, he said that this was yet another provision that sought
to give special and differential treatment in terms of extending time-periods for defending developing-country Members in the dispute settlement process.  Allowance of such additional time was possible
only if the DSB Chairman and panels chose to exercise their discretion in favour of developing-
country Members.  Moreover, this was subject to the cap of overall time-frames under the DSU.  The
proposal of the co-sponsors was intended to give specific guidance to the DSB chairperson and
panels.  Whenever requested by the defending developing-country Member, the DSB chairpersonshall extend the consultations period by 15 to 30 days and the Panel shall grant two additional weeks
for the preparation of the first written submission and an additional one week each at all the other
stages of the panel proceedings.  The overall time-frames under the DSU would as such not be
applicable to disputes in which the respondents were developing-country Members.
9. Regarding Article 21.2 of the DSU, he said that this Article required Members to give
"particular attention" to matters affecting the interests of developing-country Members during the
compliance stage of the dispute settlement process.  The co-sponsors had proposed that the word
"should" be replaced by the word "shall" to make this provision mandatory.  He said that the EC had
also made a similar proposal.  To make this provision operational, effective and of practical value to
developing-country Members, the co-sponsors had proposed that the reasonable period of timeavailable to the developing-country Members to comp ly with the DSB's rulings should be extended up
to two-three years.  In case the prevailing develope d-country Member sought to resort to complianceTN/DS/M/5
Page 5
panel proceedings against the defending developed-country Member, prior consultations should be
made mandatory and panel proceedings should be extended up to 120 days to enable the developing-
country Member to prepare adequately to defend itself before the compliance panel.  Furthermore, the
developing-country Member should be required to submit status reports under Article 21.6 of the
DSU at alternative meetings of the DSB.  These suggestions, if implemented would make special anddifferential treatment provisions contained in Articles 4.10, 12.10 and 21.2 of the DSU not only
mandatory but also effective, operational and of some practical value to developing-country
Members.  He said that the co-sponsors were ready to answer queries and work with other participants
in developing further their proposals.
(c) Proposal by Jamaica (TN/DS/W/21)
10. The representative of Jamaica said that while Jamaica had not been a party in any dispute, it
had participated as a third party in a number of cases.  This proposal, which had been influenced by
Jamaica's experiences with the dispute settlement system, was aimed at improving the current
operation of the dispute settlement process and enhancing the participation of developing countries in
the dispute settlement process.  It, for exampl e, called for the confirmation of the right to
representation by private lawyers, the strengthening of the consultative process and the elaboration of
the role of the DSB in giving effect to Article 21.8  of the DSU, which called for an assessment of the
economic and social impact of dispute settlement measures on developing countries.  It also made
suggestions regarding the sequencing issue and the development of an agreed negotiating history on
the future revisions of the DSU.  The proposed amendments, clarifications and elaborations which had
been put forward were intended to improve the functioning of the dispute settlement system and to
enhance its accessibility to all WTO Members, large and small.  He said that Jamaica was preparedwith other participants in developing further their proposals.
(d) Proposal by Japan (TN/DS/W/22)
11. The representative of Japan said that her country's proposal was based on the joint proposal
(WT/MIN(01)/W/6) that was submitted by a group of countries including Japan to the Doha
Ministerial Conference.  Like the previous proposal, this present proposal addressed the "sequencing"issue, to which Japan attached great priority as evidenced by the sponsorship of a number of
documents on this issue, including most recently the concept paper (JOB(02)/45), which was
submitted in May 2002.  She said that while Japan's proposal was very similar to the one tabled by the
EC on this issue, there were differences in the approaches adopted by them on a number of issues,
including: (i) whether consultations should be held before a request for the establishment of a
compliance panel was made, (ii) whether the Member concerned should be obliged to submit a
compensation proposal and (iii) when should arbitration take place to decide the level of thenullification and impairment.
12. She said that Japan's proposal also addressed the so-called "mandatory law" issue, under
which a Member was obliged by domestic legislation to adopt certain measures that were inconsistent
with its WTO obligations.  The implementation of such measures meant that the Member would have
violated its obligations towards other Members.  The practice under Article 22.4 of the DSU was thatthe level of the suspension of concessions should be equivalent to the level of the nullification and
impairment resulting from the specific WTO-inconsistent measure in question.  In cases where a
"mandatory law" was involved, it might be difficult to establish "equivalence" between the impact of
the law and the level of retaliation.  Given that only the actual impact of the law in the case in
question was taken into account for purposes of determining the level of nullification and impairment,the level of retaliation could not be equivalent to the total trade-distorting effects that the mandatory
law might have when additional measures were pursuant to it in the future.  Given this imbalance,
there was no incentive for Members to comply, as retaliation in the event of non-compliance was
likely not to be effective.  To address this situation, Japan had proposed that the scope of Article 22.4
should be broadened to encompass not only the trade effects created by the measure in question undera "mandatory law", but also those that would be created in the future by subsequent measures thatTN/DS/M/5
Page 6
might be adopted pursuant to the law.  She further stated that Japan's proposal also covered the
so-called "discretionary law" theory, under which the legislation of a Member entitled it to choose
between WTO-consistent and WTO-inconsistent measures.  It had been held by Panels and the
Appellate Body that such laws, per se , did not violate WTO rules and that only measures taken
pursuant to them could be found to be in breach of WTO rules.  In Japan's view, such a situation was
not satisfactory as it did not deal with the underlying problem, which was the enabling "discretionary
law".  If trade remedy measures were abused pursuant to a "discretionary law", trade with third
countries would be affected when an investigation was initiated.  Reversing the provision of subsidies
or a government procurement after tendering would be practically difficult.  It was conceivable that a
Member might decide to protect a domestic industry under a "discretionary law", even after it had
been found to be in breach of WTO rules in an earl ier case involving the same law.  It might adopt the
position that it had a right to maintain the new measure, until such time that a decision was made by apanel or the Appellate Body.  It might even be encouraged by the fact it could not be required to
amend or repeal the "discretionary" law.  The possibility for abuse was real and it was necessary to
address this issue.  Accordingly, Japan had pro posed that an exception to the application of the
"discretionary law" theory, when repetition of the same violation was highly probable.  For instance,
when it was evident that a Member had deliberately ignored the recommendation of the DSB not toapply a particular measure enacted pursuant to the law and applied similar measures subsequently.
Regarding modalities, Japan was of the view that the changes that it had proposed could be achieved
through an amendment of the relevant WTO provisions or through an authoritative interpretation of
Article XVI:4 of the Marrakesh Agreement Establishing the WTO in accordance with Article IX:2
thereof.  She said that Japan had also suggested  that the burden of proof in cases involving
"discretionary" laws should be shifted to the Me mber imposing the measure, if there was evidence
that repeated violation had taken place.  In such situations, the measure would be presumed to be
inconsistent with WTO rules, unless proven otherwise.  Japan had also proposed that such cases
should be referred to the original panel or division of the Appellate Body, whenever possible with a
shorter deadline for recommendations and rulings.
13. She further said that Japan's proposal also called for an increase in the number of the
Appellate Body members, given the increase in the number of cases being appealed and the difficult
nature of the legal issues that had to be resolved.  She said that if Members expected the Appellate
Body to maintain its high standards and avoid any delay in the issuance of reports, it was necessary to
increase the number of Appellate Body members.  In that context, Japan had proposed an amendment
of Article 17.1 of the DSU, so that the number of  the Appellate Body members could be adjusted as
and when required, by a decision of the DSB or the General Council.  Flexibility was required andJapan's proposal would obviate the need to amend Article 17.1, each time it was decided to adjust the
number of Appellate Body members.  In the mean time, it would be helpful to commission a report on
which number would be adequate, taking into account all related factors such as workload and the
financial implications of any increase in the membership of the Appellate Body.  Regarding
transparency, she said that Japan had proposed improved access to submissions by Members and thegeneral public.  Arguments and rebuttals in a dispute were of interest not only to the parties and third
parties, but also to other Members, especially those that might be contemplating having recourse to
the DSU in the same or a similar matter.  With the exception of confidential business information, it
was Japan's view that the submissions of parties and third parties should be made accessible to all
WTO  Members as well as to the general public within two weeks from the date of each relevantmeeting of a panel or oral hearing of the Appell ate late Body.  She said that Japan was ready to
respond to any queries that participants might have  and looked forward to receiving their support for
its proposal.
(e) General comments on proposals
14. The representative of Bulgaria referred to the proposals that had advocated special and
differential treatment for developing countries in the area of dispute settlement and said that his
country could not agree to such proposals, unless it was known in advance which countries would be
beneficiaries.  There was the need for legal certainty, especially in the area of dispute settlement.TN/DS/M/5
Page 7
Making all special and differential treatment provisions mandatory without specifying the
beneficiaries would compromise the rules-based system.  It was imperative that agreement was
reached on an objective criteria including economic indictors to determine eligible countries.
15. The representative of China welcomed the proposal by India and the co-sponsors and said that
his country could support most of the proposals, particularly those relating to special and differential
treatment.  Regarding amicus curiae  briefs, he said that his delegation shared the concerns expressed
by a number of participants at the present meeting and previous formal and informal meetings.  In
China's view, the participation of private entities in the dispute settlement proceedings would
undermine the intergovernmental character of the WTO.  Furthermore, the acceptance of amicus
curiae  briefs would impose an extra burden on Members, particularly developing-country Members
and prevent them from using the dispute settlement system to seek redress of their grievances.  Given
the controversy surrounding the issue of amicus curiae  briefs, China was of the view that it should be
settled during the current round of negotiations by clarifying the meaning of the word "seek" in
Article 13 of the DSU along the lines suggested by India and the co-sponsors.
16. The representative of Cuba thanked participants which had submitted proposals and said that
her statement would focus on the proposals by the African Group (TN/DS/W/15) and Jamaica
(TN/DS/W/21).  She said that her delegation would comment on the other proposals at a later date.Starting with the African proposal, she said that it contained a number of interesting elements which
should be considered thoroughly by the Special Session.  She said that Cuba concurred with the points
made in paragraph 2 of the proposal, as they fully reflected the problems that developing countries
including African countries faced in the multilateral trading system.  Cuba was of the view that the
following statement was particularly apposite: "In its operation, the dispute settlement system shouldnot abstract itself from the development fundam entals.  Experience has shown that the dispute
settlement system has not satisfactorily and clearly aimed in its operation to contribute towards the
tangible attainment of the development objectives of the WTO Agreement".  Cuba was also
supportive of the proposal to establish a trust fund from which developing countries could draw funds
to facilitate their participation in the dispute settlement process of the WTO.  The lack of resources inmost developing countries hampered efforts to build and strengthen human and institutional capacities
necessary for adequate participation in the dispute settlement system and the  multilateral trading
system as a whole.  Cuba was also supportive of  the proposal requiring compensation to be provided
for injury suffered by a Member as a result of a measure that was withdrawn before the
commencement or finalization of proceedings under the DSU.  She noted in that connection that Cuba
and other developing countries had proposed an amendment of Article 3.6 of the DSU to require he
notification of any mutually agreed solution within a given time-limit and with sufficient detailsconcerning the scope of such settlement.  The two proposals were, therefore, complementary and
could be addressed jointly discussions.  Regarding the proposal for collective retaliation, she said that
it was interesting, but it needed to be developed further.  With respect to third party rights, she said
that Cuba was in agreement that better and clearer rules were needed.  She said in that connection that
the Costa Rican proposal contained some very interesting ideas regarding how third party rights couldbe improved.  She endorsed the following statement by the African Group:  "It should be recognized
that the interests of developing-country Members in the case may include, gaining legal expertise in
procedural, substantive, systemic or other issues;  gaining insight into the workings of the WTO;  and
protecting long-term development interests and prospects that any findings and recommendations
could adversely affect."
17. With respect to the proposal by Jamaica, she said that Cuba was supportive of the proposal
relating to the right to legal representation by private lawyers in dispute settlement proceedings.  She
further said that Cuba was in agreement with the proposal relating to the need to clarify the scope of
Article 4.11 of the DSU, particularly the phrases "substantial interest" and "substantial trade interest"
as they related to third party rights.TN/DS/M/5
Page 8
18. The Chairman invited comments from participan ts regarding whether it was within the
mandate the Special Session to discuss and recommend the setting up of a fund to assist developing
countries wishing to have recourse to the dispute settlement system.
19. The representative of Chile said that the negotiations had picked up momentum following the
holding of informal meetings to discuss the proposals on the table.  It had promoted a frank exchange
of views and opinions and a greater understanding of some of the proposals.  There were others which
still had to be clarified in terms of their potential implications.  The current process had also revealed
the deep differences between participants on the major issues.  It would be fair to say that consensus
existed only on a few minor subjects.  The import of this was twofold: firstly, greater efforts should be
exerted to understand correctly the proposals on the table, and secondly, participants should begin to
give some thought to the final package which had to be agreed in May 2003.  From Chile's point of
view,  there were some issues which were not ripe for inclusion in the package.  It was possible,however, for a balance to be struck if further studies and analyses were carried out, and if participants
displayed flexibility and lowered their ambitions.  It was Chile's view that participants should avoid
insisting on issues which were merely of interest to their domestic constituencies and did not have any
bearing on the subject-matter of the negotiations.  He further said that two areas required detailed
consideration, even though no related proposals had been tabled.  The first was the tendency of theAppellate Body to exceed its authority.  He said that this issue was of interest not only to Chile, but
also to other Members, who were rightly concerned about the increasing tendency of the Appellate
Body to fill in the gaps in the texts of existing ag reements and to establish rights and obligations for
Members where the negotiators did not intend to.  Of concern was also the Appellate Body practice of
taking decisions, in particular on procedural issue, on the premise that "if it is not prohibited, then it ispermitted".  Under legal systems such as the Chilean  one, all actions had to be expressly permitted.
This particular approach by the Appellate Body could have dangerous implications.  Of further
concern was the Appellate Body's use of the rules of interpretation of international law.  On this
matter, Chile was of the view that the proposal put forward by Jamaica relating to the need to keep an
accurate record of these negotiations was very interesting.  The other broad area which needed furtherconsideration was Members' compliance with the DSB's recommendations and rulings.  More than the
prompt settlement of disputes, the main objective of the DSU was to provide security and
predictability to the multilateral trading system.  This would be difficult to achieve if Members did not
implement the DSB's recommendations and rulings.  This matter was of particular concern to Chile
given its repercussions on the system.  Non-compliance with the DSB recommendations and rulings
should not be accepted.  The proposals tabled by the African Group and the Least-Developed
Countries (LDCs) highlighted the difficulties that almost all Members faced in achieving prompt and
effective compliance with the DSB's recommendations and rulings.  The proposals by Ecuador and
Jamaica attest to this general view among the membership.
20. Referring to the proposals by the African Group, Paraguay, the LDC group and Jamaica, he
said that they all contained interesting proposals which needed further reflection.  He said that at this
stage, however, he only wanted to comment on a few aspects of the proposals.  As Chile's views onamicus curiae  briefs were well-known, he would not comment on this issue.  Chile shared the basic
position taken by India on this issue.  Regarding special and differential treatment, he noted that there
were differences in the Spanish and the English texts of the provisions referred to by India and the co-
sponsors.  Whereas they were expressed in mandatory language in the Spanish text, they were
couched in non-binding language in the English text.  Thus, should the proposal of India and the co-sponsors be accepted and the provisions made mandatory, it would not be necessary to touch the
Spanish text.  With regard to operationalizing provisions such as Articles 4.10 and 21.2 of the DSU, it
was Chile's view that the suggested time-frames were extremely long and might not work in favour of
developing countries, especially in disputes where both parties are developing-country Members.
With respect to the provision of inputs provided by the Secretariat to the Panel, he said that Chile was
in agreement that these should be made available to the parties, who should also be given the
opportunity to comment on them.  It would be useful if the co-sponsors could specify a deadline when
these inputs should be provided and the period when  the parties should furnish their comments to the
Panel.TN/DS/M/5
Page 9
21. Turning to the Paraguayan proposal, he said that it contained some useful ideas which would
strengthen mediation and make it a viable alternative under Article 5 of the DSU.  He said that Chile
attached great importance to mediation, as it could fa cilitate the prompt settlement of disputes in an
amicable manner.  It was, however, necessary to undertake a detailed analysis of the implications of
such a proposal in the light of subsequent compliance.  What would, for example, happen if one of theparties did not comply with the mediator's ruling?  Could the other party seek authorization to suspend
concessions under the DSU?  It would also be interesting to analyse this proposal in the light of the
ideas put forward sometime ago by the Director-General.  One way of reconciling Paraguay's
proposal with the need to maintain shorter time-frames for the settlement of disputes was to make
mediation within the 60-day period envisaged by the DSU for consultations mandatory.  Jamaica
seemed to suggest something similar in its proposal.  Once this 60-day period had expired, the
complaining party could request the establishment of a panel, unless both parties were in agreement toextend this period – as often happened – in order to continue with the mediation.  From a practical
point of view, it was doubtful if mediation and the panel process could run concurrently.  Apart from
the logistical and other related problems that the parties had to face being involved concurrently in
two sets of procedures, the objectives of the these two procedures were very different, with each
having its own implications and requiring different rules of procedure.  It was quite uncertain, forexample, the level of deference that the Panel should give to discussions held by the parties during the
mediation process.
22. With respect to the proposals tabled by the African Group and the LDCs, he said that while
they both highlighted the difficulties that developing countries generally faced in making use of the
dispute settlement mechanism including inadequate human and financial resources, it was Chile'sview that most of the proposals advanced by them to deal with these shortcomings fell outside the
scope of the mandate of the Special Session, which was to improve and clarify the DSU.  The
proposals were not intended to accomplish this objective, but to fundamentally alter the system, which
had generally operated satisfactorily since its inception.  Chile was, however, in agreement with the
view that technical assistance had to be improved to build and strengthen the institutional and human
capacities of developing countries.  There should  be proper and effective coordination between the
relevant actors.  The beneficiary countries should make their needs and interests known and there had
to be effective coordination between the Legal Affairs Division, the Technical Assistance Division
and Members with a view to designing and tailoring programmes to meet the needs of the recipient
countries.  He concluded by saying that Chile would continue to participate actively and
constructively in the negotiations and was expecting that the mandate given by Ministers would be
fulfilled by May 2003.
23. The Chairman said that the statement made by the representative of Chile raised two issues of
general interest.  The first was what sort of agreement could be reached by May 2003.  It would be
necessary in the near future to make a judgment as to which issues commanded broad support among
participants.  To facilitate this process, it would be necessary to have all the proposals on the table so
as to have an informed discussion.  He asked participants to submit their proposals as soon as possiblein view of the May 2003 deadline.  The other issue related to the concerns that had been expressed by
Members about Working Procedures for Appellate Review .  He said that this issue had been discussed
extensively in the regular DSB and that it was up to  participants to decide how far they want to
address this issue in the negotiations.
24. The representative of India said that he agreed with the representative of Chile that the
primary objective of the negotiations was to address systemic issues and not to respond to domestic
political problems or pressures.  He said that the negotiations on dispute settlement were excluded
from the single undertaking precisely because of that reason.  It was thought that a strengthened
dispute settlement system was in the interest of all Members and that it would not be appropriate to
make acceptance of the results of the negotiations on dispute settlement subject to the results of thenegotiations in other areas.  Turning to the proposal by the LDC group, he said that it could be
usefully divided into two groups, namely the section highlighting the problems that had prevented
LDCs from making use of the dispute settlement system, and the section addressing systemic issuesTN/DS/M/5
Page 10
that were of interest to all Members.  In relation to the proposal that consultations should take place in
the capitals of LDCs if they were involved in the dispute, he said that India could support it given the
fact that LDCs did not have enough resources at their disposal.  He said that the proposal that where a
developing-country Member or an LDC was involved in a dispute, one of the panelists should come
from that developing country or the LDC, as the case might be, with the possibility of anotherpanellist coming from that country, if a request to that effect was made, required further reflection.
With regard to the proposal concerning Article 12.11 of the DSU, he said that India was in support of
strengthening this article and it had, in fact, alluded to this in its own proposal.  He further said that
the proposal concerning Article 21.7 of the DSU also merited further consideration and elaboration.
25. With respect to the proposal on Article 22 of the DSU concerning the ineffectiveness of
current remedies under the DSU and how they could be  improved, he said that India was of the view
that the LDCs had raised an important issue which needed to be addressed.  He noted that the Africanproposal had also identified this problem and suggested collective retaliation as a way of addressing
it.  Regarding the proposal that panels should be given the authority to determine at the outset of a
case whether a party bringing a case against a LDC had a prima facie  case and whether it exercised
due restraint before bringing the action, he said that India could support such a proposal given the
special circumstances of LDCs.  He further said th at India could also support the proposal that where
a LDC was the responding Member, it would be allowed a reasonable period of time to withdraw the
offending measure, rather than requiring it to offe r compensation or subjected to retaliatory measures.
Finally, he said that India could support the proposal that inputs provided by the Secretariat to panels
should be made available to the parties.  He recalled that India and the co-sponsors had made a similar
suggestion in their proposal.
26. Turning to the Jamaican proposal, he said that it was an important contribution to the work of
the Special Session.  With respect to the proposal on legal costs, he said that India was supportive of it
and actually saw it as complementary to the proposal made by India and the other co-sponsors.  In
relation to the proposal on strengthening the consultative process so as to encourage the settlement of
disputes, he said that India could support the propos al given the prohibitive cost of litigation and the
excessive delays associated with the panel process.  He also said that India could support the proposal
aimed at expanding the rights of third parties during the consultations stage under Article 4.11 of the
DSU.  This proposal could be discussed together with the Costa Rican proposal on third party rights.
With respect to the proposal relating to Article 21.8 of the DSU, he said that India shared the view
that it was necessary to clarify the scope of the Article and also to consider how best it could be
effectively implemented.  India was further in agr eement with the proposal aimed at clarifying the
sequencing issue and also the proposal relating to compensation.  He concluded by saying that Indiawas of the view that the other proposals tabled by Jamaica deserved serious consideration, particularly
those relating to the development of an agreed negotiating history of the current DSU negotiations,
the clarification and improvement of the procedural issues related to the panel process and the
provision of effective technical and legal assistance to developing countries in order to facilitate their
greater use of the dispute settlement system.
27. With respect to the proposal by the African Group, he welcomed it as an important
contribution to the work of the Special Session and said that it would contribute to the clarifications
and improvements of the DSU, especially in the areas of interest to LDCs and developing countries.
Like the LDC proposal, the African proposal highlighted the problems that had prevented them from
making use of the dispute settlement system and also some systemic issues including the issue ofsome panels and the Appellate Body exceeding their authority and creating new rights and obligations
for members, thereby upsetting the careful balance which was struck during the Uruguay Round.  The
problems faced by African countries were real and had also been experienced by other developing-
country Members.  With regard to the proposal on collective retaliation, he said that while India was
sympathetic to the proposal, it was of the opinion that it needed further consideration in terms of howit would work in practice.  In relation to the proposal that the terms of reference of panels should
require an analysis of the development implications  to be undertaken in the findings and rulings and
that the DSB should also take into account reports of relevant international bodies on the developmentTN/DS/M/5
Page 11
implications of the implementation of their recommendations and rulings, he said that India was of the
view that it merited further consideration.  The details of how it would work in practice needed to be
elaborated.  He welcomed the proposal that pa nels and the Appellate Body should not accept
unsolicited amicus curiae  briefs in the dispute settlement process as well as those relating to the
broadening and deepening of the rights of third parties and transparency, and said that there was adegree of similarity between these proposals and those tabled earlier by India and the co-sponsors.
Regarding the proposal on legal costs, he said that his delegation was prepared to support it and
looked forward to the discussion on it.  He said that  India was sympathetic to the proposal relating to
the need for special procedures as well as the provision of effective legal and technical assistance to
developing countries in order to build and strengthen their human and institutional capacities to make
greater use of the dispute settlement system.  The cost of engaging private lawyers was prohibitively
expensive and outreach of most developing countries.  While the Advisory Centre on WTO Lawcharged reasonable rates, these were still unaffordable to some Members, particularly LDCs.  India
was convinced that a compilation by the WTO Secretariat of all the applicable laws including past
decisions of panels and the Appellate Body would be a useful document for Members, particularly
developing countries.  He said that his delegation was not in a position at this meeting to offer
comments on the Japanese proposal, although it hoped to do so in due course.
28. The representative of Colombia welcomed the proposals under discussion and said that they
would make a positive contribution to the work of the Special Session.  She said that while the
proposals had made varying demands including the operationalisation of special and differential
treatment provisions, making conciliation and mediation mandatory, strengthening the remedies
provided under the DSU to allow collective retaliation and the provision of financial compensation,they had one thing in common and that was minimizing the cost of participation of developing
countries in the dispute settlement system.  With respect to technical cooperation, he said that
Colombia was of the view that progress had been made in recent years.  The setting up of the
Advisory Centre on WTO Law was a good indication of the efforts being made to facilitate the greater
participation of developing countries in the dispute settlement system.  The proposal concerning theestablishment of a fund had, to some extent, been accomplished as the Centre was established with
funds donated by some developed-country Members.  However, it would be helpful if further
resources could be made available to help developing-country Members to make greater use of the
dispute settlement system.  Another area where de veloping-country Members needed assistance was
in the area of adaptation of domestic laws to conf orm to relevant multilateral trade rules.  The
assistance provided by the Advisory Centre in this area was therefore very welcome.  With regard to
remedies available under the DSU, she said that Colombia was sympathetic to the proposal relating toretaliation, as it would address some of the stru ctural problems that developing-country Members
faced when they attempted to impose retaliatory measures.
29. With respect to greater transparency, she said that Colombia was supportive of the proposal
that would require the notification of mutually agreed solutions within a certain period of time.  She
further said that Colombia was also supportive of the proposal calling for an evaluation of therelationship between the various WTO bodies, particularly the quasi-judicial bodies (panels and the
Appellate Body) on the one hand and the Secretariat and the General Council on the other hand.  With
respect to the proposal requiring inputs provided by the Secretariat to panels to be made available to
the parties to the dispute, who should also be gi ven the opportunity to comment on them, he said that
this would promote transparency and be in accord with the due process of law.  Regarding theproposal to enhance the role of the General Council in the dispute settlement process, he said that
Colombia had some doubts about how it would work in practice.  The current process had worked
well and it was not necessary to upset the delicate balance that had been struck.  Regarding third-party
rights, she said that Colombia was supported of the proposal by Jamaica.  Colombia did not share the
view that strengthening third-party rights would invariably delay the dispute settlement process.  Therights of third parties should be not e decided by the parties to the dispute.
30. The representative of Egypt welcomed the proposal by India and the co-sponsors and said that
Egypt could support many of the suggestions put forward, especially the one relating to amicus curiaeTN/DS/M/5
Page 12
briefs.  Regarding the proposal tabled by Pakistan and the co-sponsors, he said that Egypt was fully
supportive of it.  Regarding the African proposal for a fund to be set up, he said that Egypt believed
such a fund would help alleviate the problems faced by African countries in making use of the dispute
settlement system.  He said that his country would comment on the Jamaican proposal at a future
meeting of the Special Session.
31. The representative of Uruguay welcomed the proposals that had so far been tabled by
participants and said that given the deadline within which the negotiations had to be completed, it
might be necessary at this stage to give thought to concentrating on the proposals which were likely to
command broad support among participants.  There was the risk of missing the deadline if priorities
were not set.  He welcomed the summary record of the informal meetings of the Special Session and
said that it would assist participants in their consid eration of the issues.  With respect to the proposals
on special and differential treatment tabled by India, Pakistan and the co-sponsors, he said thatUruguay was supportive of them and would urge other participants to consider them very seriously.
He referred to the statement made by Bulgaria concerning special and differential treatment and said
that his delegation disagreed with it on the following grounds: First, there were provisions on special
and differential treatment that had been adopted by all Members including Bulgaria.  Thus, it was not
open to Bulgaria at this stage to question the validity of these provisions.  Second, it had never beenthought necessary to list which Members were entitled to avail themselves of special and differential
treatment.  At Doha, Ministers gave a mandate for all special and differential treatment provisions to
be reviewed and strengthened, but did not give any instructions on this issue implying that they did
not consider it to be a problem.  Third,  the Special Session of the Dispute Settlement Body was not
the appropriate forum to raise or discuss this issue.
32. With respect to the proposal from Jamaica, he said that Uruguay was supported of the
proposal relating to the strengthening of the procedures for good offices, mediation and conciliation.
He recalled in that connection the proposal by Paraguay and said that a number of participants
supported of this proposal.  Regarding the proposal that would require developed-country Members to
pay the legal costs of successful developing-country Members, he said that Uruguay was supportiveof it and was of the view that it merited further consideration by the Special Session.  With respect to
the sequencing issue, he said that Uruguay was one of the co-sponsors and was strongly of the view
that the relationship between Articles 21 and 22 of the DSU should be clarified as soon as possible in
order to ensure security and predictability.  He welcomed the Japanese proposal on sequencing which
built on the proposal by the co-sponsors and said that his delegation would comment on it at a later
date.  With respect to negotiating history, he said that the minutes of the meetings of the Special
Session could be regarded as a record of the negotiations.
33. Regarding the Paraguayan proposal on good offices, mediation and conciliation, he said that
Uruguay agreed with its basic thrust and saw meri t in making the procedures obligatory in disputes
involving developing countries, as they were likely to be cost-effective and also facilitate the prompt
settlement of disputes.  Given the positive contribution that could be made by the Paraguayan
proposal, it was the expectation of Uruguay that it would be considered further by participants.  Inrelation to the proposal by the African Group, he sa id that Uruguay would be grateful if the African
Group could elaborate on the reference to the Advisory Centre on WTO Law which, in the view of
Uruguay, had been working well since its inception.  In respect of the proposal on collective
retaliation, he said that it was an innovative proposal, although Uruguay agreed with India that it
needed to be developed further.  He noted that the LDC Group had also made a similar proposal.Regarding the proposal on a system of permanent panelists advocated by the EC and other
participants, he said that Uruguay was in agreement with the African Group that it was not necessary
to change the present system, which had worked quite well.  Regarding the proposal on monetary
compensation made by the LDC Group, he said that Uruguay would be grateful if further information
could be provided on how it would work in practice.
34. The representative of Pakistan welcomed the proposals by the LDC Group, Paraguay, Japan
and Jamaica and said that they would make a positive contribution to the work of the Special Session.TN/DS/M/5
Page 13
He said that while there were a lot of similarities between these proposals and that of the co-sponsors,
it was not his intention to comment on these proposals individually.  He said that his remarks would
focus on amicus curiae  briefs.  He referred to the proposals by the EC and the US, which favoured the
acceptance of such briefs, and said that the admissibility of such briefs was essentially a transparency
issue with legal ramifications.  Transparency encompassed both openness and participation.Openness referred to information flows within the WTO Membership and also from the WTO to the
public at large.  Participation referred to the ability of all Members to engage effectively in all aspects
of the work of the WTO.  It did not preclude the possibility of civil societies making a contribution to
the decision-making process.  Pakistan was, however, of the view that transparency in the area of
WTO dispute settlement should be treated with special care, given the system's unique design and
objectives.  Due process, standing and control of the matter in dispute, as well as specific rights of the
parties to the dispute needed to be handled cautiously.  It should be borne in mind that the greater thenumber of participants in a dispute, the more difficult it would be for the process to reach a decision.
The primary objective of the dispute settlement syst em was the prompt settlement of disputes between
the parties.  This objective should not be compromised by other unrelated goals.  As far as Pakistan
was concerned, the proposal tabled by India and supported by it and other co-sponsors had
demonstrated clearly why panels and Appe llate Body should not accept unsolicited  amicus curiae
briefs.  The intergovernmental character of the system should be preserved.  It was also imperative to
ensure that developing countries and panels were not over-burdened.  He urged participants to accept
the proposal of the co-sponsors.  The proposed footnote to Article 13 of the DSU would settle this
issue definitively.
35. The representative of Ecuador expressed satisfaction with the progress that had so far been
made in the negotiations.  He said that if the mandate of Ministers was to be fulfilled, it would be
necessary for participants to intensify and rationalize their work.  Flexibility and  hardwork were
likely to guarantee success in the negotiations.  The task at hand was a serious one and participants
could not afford to fail.  To some extent, the cred ibility of the multilateral trading system depended on
the dispute settlement system.  Referring to the proposal by Paraguay, he said that it was necessary forparticipants to address the question why Members had not made use of the good offices of the
Director-General, conciliation and mediation to settle disputes.  The answer was clear; Members did
not have confidence in these alternative dispute settlement mechanisms.  They had not worked in the
past and had only served to delay the process.  He said that in the Banana case, Ecuador and the some
of the other parties had sought the good offices of the Director-General to settle the dispute, but
nothing came out of these initiatives.  He expressed doubts about the current efforts to settle the
dispute between Thailand, Philippines and the EC through the good offices of the Director-General.
36. The representative of Indonesia welcomed the proposals on the table and said that they would
make a positive contribution to the work of the Special Session.  With respect to the proposal by India
and the co-sponsors, he said that it contained a number of important elements which merited further
consideration by the Special Session.  He noted that although Indonesia was not a co-sponsor of this
proposal, it was in agreement with most of its suggestions.  On mutually agreed solutions, he said thatIndonesia agreed that the scope of Article 3.6 of the DSU had to be clarified to make clear the details
of what should be notified and the time-frame within which the notifications should be made.  This
would promote transparency and increase the credibility of the system.  On amicus curiae  briefs, he
said that the approach advocated by India and the co-sponsors was one credible way of dealing with
this issue.  Regarding inputs provided by the Secretariat to panels, he noted that the LDC Group hadalso made a similar proposal and said that Indonesia was in agreement that such information should
be made available to the parties who would also be given the opportunity to comment on them.  This
was in accord with due process of law and would promote internal transparency.  On third party
rights, he said that the proposal sought to strengthen third party rights, while ensuring at the same time
these rights did not prejudice the rights of the parties to the dispute.  He further said that Indonesiawas of the view that the rights of third parties should be the same at both the panel and the Appellate
Body stage.TN/DS/M/5
Page 14
37. Regarding the proposal by the African Group, he said that Indonesia was in agreement with
the suggestion for the creation of a fund to assist developing countries wishing to have recourse to the
dispute settlement system.  This could be accomplished by increasing the resources allocated to
dispute settlement activities in the regular budget of the WTO.  On special procedures and technical
assistance to developing countries, he said that Indonesia found this proposal to be very interestingwhich could be explored further.  He said in th at connection that Indonesia would be obliged, if the
Secretariat could make a compilation of all relevant case law.  Such a compilation could be of
enormous benefit to developing countries which lacked expertise in this area.
38. Turning to the proposal on special and differential treatment tabled by Pakistan and the co-
sponsors including Indonesia, he said that the underlying reason behind it was to ameliorate the
problems that had prevented developing countries from making greater use of the dispute settlement
system.  While the objective of the negotiations was to improve the functioning of the disputesettlement system, it was also equally important to make the system accessible to the majority of its
Members.  While the negotiations on dispute settlement were independent and not part of the single
undertaking, the development dimension should not be ignored in the negotiations.  He endorsed the
statement made by Uruguay in response to the statement by Bulgaria concerning special and
differential treatment.
39. The representative of Bulgaria  said that his earlier statement did not refer to differentiation
among developing countries, but rather agreeing on an objective criteria to determine which countries
would be eligible to avail themselves of the special and differential treatment provisions.  Referring to
the arguments put forward by Uruguay, he said that the fact that all Members had, in the past,
accepted special and differential treatment of developing countries within the GATT/WTO legalframework did not necessarily mean that this issue could not be re-visited.  The proposals on the table
were far-reaching, with some advocating a new category of rights and obligations and others aiming
at strengthening existing special and differential treatment provisions.  These new facts justified a
thorough discussion of this issue.  Regarding Uruguay's second argument, he said that the Doha
agreements were adopted as a package and that Bulgaria had registered its concern before theiradoption.  In effect, the package was adopted subject to the caveats expressed by Bulgaria and other
Members.  Regarding the third argument concerning whether the Special Session was the appropriate
forum to raise and discuss this issue, he said that was up to each participant to decide.  It was not up to
other participants to decide which issue could be raised in the Special Session.
40. The representative of New Zealand welcomed the proposals tabled by India, Pakistan and the
co-sponsors, particularly those relating to special and differential treatment and said that it was
important for the Special Session to consider these proposals.  The goal should be to address in thesenegotiations the concerns of all Members.  This would ensure a strengthened dispute settlement
system which commanded the confidence of all Members.  As a small country, New Zealand was
aware of the strains that the dispute settlement process placed on limited resources.  As such, it was
interested in considering those proposals that had been tabled as a result of concrete difficulties
experienced in the past with the operation of the DSU.  New Zealand was, however, of the view thatspecial and differential treatment should not be considered as an end in itself.  It was imperative for
each proposal to be examined on its individual merits to ensure that it identified a particular problem
and that the proposed solution would effectively address it without necessarily compromising the
fundamental objectives of the DSU including the prompt settlement of disputes.  With this framework
in mind, New Zealand looked forward to discussing the proposals on special and differential treatmentat future meetings.  Regarding the proposal by the LDC Group, he said that his delegation would
carefully consider it and give its comments at a future meeting.
41. The representative of Senegal welcomed all the proposals that had been tabled, particularly
those by the African and LDC Groups.  The objective of the two proposals was to pave the way for
LDCs and African countries to participate in the dispute settlement process.  The negotiations shouldaim at addressing the problems that had prevented the greater majority of Members from making use
of the system.  The system had to be inclusive, transparent and open to all Members if its credibilityTN/DS/M/5
Page 15
was to be enhanced.  Regarding specifics, he said that for sanctions to be effective, they must be
capable of repairing the damage sustained by the developing-country Member.  The proposal by the
African Group relating to collective retaliation was particularly apposite in this regard.  He said that
Senegal was also wanted to highlight its support for the LDC proposal on compensation which, if
adopted, would make it a viable remedy within the WTO dispute settlement system.  Senegal was alsosupportive of the LDC proposal which would require consultations to be undertaken in capitals of
LDCs in disputes in which they were parties.
42. The representative of Paraguay welcomed the proposals on the table and said that they would
make a substantial contribution to the work of the Special Session.  He thanked participants for the
comments provided on Paraguay's proposal and said  that they would respond to them at a future
meeting.  Referring to the proposal by the African Group and Jamaica concerning the Advisory
Centre on WTO Law, he said that in the opinion of Paraguay, the Centre had worked quite well sinceits inception and was instrumental in increasing the participation of developing countries in the
dispute settlement system.  He expressed doubts about the views of the African Group and said that
they did not reflect the activities carried out by the Centre.  Regarding the costs for becoming a
member of the Centre, he said that they were minimal and that every developing-country Member
should aspire to join it given the potential benefits from membership.  Regarding the proposal tabledby India and the co-sponsors concerning mutually agreed solutions, he inquired about the sort of
details that should be stated by the parties in their notification to the DSB and who would decide in
the event of a disagreement whether the details provided were sufficient.  Regarding costs, he said
that the proposals by Pakistan and the co-sponsors were interesting and deserved further
consideration.  Regarding negotiating history, he said that Paraguay was in support of the proposal byJamaica.  Finally, he agreed with the representative of New Zealand that while special and differential
treatment in the area of dispute settlement was important, it should not be seen as an end in itself and
should not detract from the basic principles of the dispute settlement system.
43. The representative of Malaysia welcomed all the proposals on the table and said that they
would make an important contribution to the work of the Special Session.  Referring to the proposal
by Jamaica concerning legal technical assistance, he said that it merited serious consideration as not
all developing countries were Members of the Advisory Centre on WTO Law.  Regarding the
proposal by Japan concerning the circulation of submissions to the general public,  he said that it
should be left to each Member to decide when to circulate its submissions to the general public.
Obliging Members to circulate their reports within a specified period could create difficulties for
some Members.  Regarding special and differential treatment, he said that Malaysia would not
countenance any proposal intended to split developing countries.  He urged participants to focus onissues which were clearly within the mandate given by Ministers at Doha.  Insisting on issues which
were remotely connected to the mandate of the Special Session Issues but intended to satisfy domestic
constituencies would not help the process.
44. The representative of Singapore welcomed the proposals under discussion and said that they
would make a significant contribution to the work of the Special Session.  Referring to the statement
by Bulgaria, he said that like Uruguay, Indonesia and Malaysia, Singapore could not accept any
proposal which would differentiat e between developing countries.
45. The representative of Japan referred to the statements by Chile and Malaysia and explained
that under the Japanese proposal, submissions would have to be made available to Members and  the
general public within a certain period of time after their disclosure to panels and the Appellate Body.The objective of this proposal was to enhance transparency in the dispute settlement system.
46. The representative of Turkey welcomed the proposals under consideration and said that he
would like to make some few preliminary remarks on a number of elements contained in the proposal
by India and the co-sponsors.  Regarding amicus curiae  briefs, he said that Turkey had long expressed
the view that if non-governmental entities were allowed to influence the process and outcome ofdisputes, Members' authority and ability to participate effectively in the dispute settlement processTN/DS/M/5
Page 16
would be seriously compromised.  He further said that Turkey shared the view that if Members were
to be required to respond to amicus curiae  briefs, it would impose an additional burden which was not
anticipated by negotiators.  On special and differential treatment, he said that participants should not
allow themselves to be detracted from the main objective of the negotiations, which was to clarify and
improve the DSU.  He concurred with the statements of Malaysia and Uruguay on this issue,
47. The representative of Korea said that he shared the concerns expressed by some participants
regarding the slow progress that was being made in the negotiations.  He urged participants to be
realistic, as the deadline for completing the negotiations was May 2003.  He compared the mandates
which were given during the Uruguay Round and at Doha and said that it was obvious that the latter
was more limited.  With that in mind, he urged participants to scale down their ambitions.  The basic
principles underpinning the DSU remained valid and should not be touched in these negotiations.  He
said that whether or not Korea would lend its support to a proposal in these negotiations depended onwhether the proposal would result in an improvem ent of the DSU and whether consensus was likely
to be built around it.  On special and differential treatment, he said that while Korea was sympathetic
to a number of the proposals, including the holding of consultations in capitals of LDCs when they
were involved in a dispute, it was also of the view  that participants should not lose sight of the fact
that the DSU was a carefully constructed document which struck a careful balance between the rightsand obligations of Members.  Each proposal had to  be considered on its own merits.  The defining
values of every legal system were, inter alia , efficiency and equity.  The negotiations should not upset
this balance but should aim at strengthening it.  He ended his remarks by concurring with the
statement by Indonesia, Malaysia and Uruguay that the Special Session was not the appropriate forum
to discuss the issue of which countries should be eligible to benefit from special and differentialtreatment provisions.
48. The representative of Hungary welcomed the proposals under consideration and said that they
would make a significant contribution to the work of  the Special Session.  She said that the concerns
expressed by the developing-country proponents mirrored those faced by countries with small
administrations and limited legal and financial capacities.  It was necessary to fully consider all theproposals on their own merits.  With respect to the proposal on amicus curiae  briefs by India and the
co-sponsors, she said that Hungary was in support of  the development of guidelines on how to handle
these briefs.  A multilateral solution was preferable to the current case-by-case approach adopted by
panels and the Appellate Body.  Commenting on the submission by the African Group (TN/DS/W15),
she said that while it contained some interesting proposals such as establishing a fund to assist
developing-country Members wishing to have recourse to the dispute settlement system, a number of
its elements would cause uncertainty and undermine security and predictability.  She gave asexamples the proposal to refer certain issues to th e General Council  for authoritative interpretation
and the requirement that each panellist or Appellate Body member should produce a separate opinion,
unless that person was in agreement with the opinion delivered by another person.  Regarding special
and differential treatment, she said that while Hungary did not wish to question the underlying
rationale for such provisions, it was also clear that some of the proposals would have profound effect
on countries such as Hungary and upset the balance of rights and obligations under the DSU.  She
gave as an example that the proposal that would require developed-country Members to pay the legal
costs of developing-country Members.  She said that it was anomalous for some countries to still
claim developing-country status when their GDP per capita  was in excess of US$20,000, while there
were some transitional economies whose GDP per capita  was less than US$2000, but had not
declared themselves as developing countries so as to take advantage of the special and differential
treatment  provisions.  She inquired whether such a transitional economy would be obliged to pay the
legal costs of the richer developing-country Member.  If the answer were to be in the affirmative, she
said that would not be compatible with the objectives of Part IV of the GATT.  She reiterated her
statement that it was not the intention of Hungary to challenge the philosophical underpinnings ofspecial and differential treatment, but that its stat ement had to be understood in the context of its
reaction reaction to the far-reaching proposals on the table.TN/DS/M/5
Page 17
49. The representative of Norway welcomed the proposals and said that they would make a
significant contribution to the work of the Special Session.  He said that his comments would be
preliminary and that he would make a detailed statement after studying thoroughly all the proposals
under discussion.  He said as a general rule, Norway was of the view that special and differential
treatment provisions had to be incorporated in the agreements themselves.  Once a specificcommitment had been undertaken, it should be adhe red to strictly.  Unde rmining such commitments
through a relaxation of  procedural rules was not the optimal way to proceed.  Turning to the specific
proposals, he said that it would be misleading to characterize the proposals as being of interest to only
developing countries.  Some of the proposals were far-reaching and systemic in nature and as such
could be said to be of interest to all Members.  He gave the example of legal costs.  He said that
requiring the losing party to pay the legal costs of the successful party could be of interest to any
Member.  There was no rational explanation why this should only be limited to some Members.  Thesame thing could be said of the proposals relating to the notification of mutually agreed solutions and
third party rights.  He expressed some doubts about the usefulness of some proposals including the
one relating to dissenting opinions.  The proposals on compensation and retaliation were quite novel
and their implications had to be fully analyzed.  As they were likely to fundamentally alter the DSU, it
was doubtful if consensus could be reached on them within the limited time available.  He said thatNorway was in agreement with Korea that the Special Session had to prioritise its work if the deadline
of May 2003 were to be met.
50. The representative of Hong Kong, China welcomed  all the proposals and said that they would
make a positive contribution to the work of the Special Session.  He said that Hong Kong, China was
in agreement with Korea and Norway that the Special Session had to prioritise its work if the deadlineof May 2003 was to be met.  They were too many proposals on the table and it was imperative for a
way to be found to sift through them.  On the proposal by the African Group concerning the
establishment of a fund to assist developing countries wishing to have recourse to the dispute
settlement system, he said that whereas Hong Kong, China was sympathetic to it given the prohibitive
cost of participating in the dispute settlement syst em, it was also of the view that the Special Session
was probably not the appropriate forum where this issue should be discussed.  With respect to the
proposal by India and the co-sponsors, he said that while Hong Kong, China could support many of its
elements, it had serious doubts about the proposal that would require the Secretariat to make available
to the parties to the dispute inputs it had provided to panels.  As the Secretariat's role could be likened
to that of a legal clerk, communications between it and a panel should be confidential.
51. The representative of the United States welcomed all the proposals and said that they would
make an important contribution to the work of the Special Session.  He noted that the proposals
addressed a broad range of topics.  He said that while the United States had some difficulties with
some elements in the proposals, the United States appreciated the many important issues raised.  The
United States looked forward to discussing the proposals individually in due course.
52. The representative of Thailand welcomed the proposal by Paraguay and said that Thailand
was convinced about the need to encourage Members to invoke more often the provisions of Article 5
of the DSU.  Members were not making use of the alternative dispute settlement mechanisms under
Article 5 because of the lack of incentives.  As a starting-point, Members could be furnished
periodically with a list of experts or qualified pers ons who would be available to serve as conciliators
or mediators, as the case may be.  Members should be assured that the Secretariat would be willing at
any time to provide the necessary administrative support and logistics including a room with the
necessary equipment to facilitate the conciliatory and mediation efforts of the parties.  Regarding the
proposed amendment to Article 5, he said that Thailand was of the view that the suggested additional
sentence to either paragraph 1 or new paragraph 3, of Article 5 of the proposal was too restrictive and
could be counterproductive.  Members should decide of their own accord whether to invoke Article 5.
Similarly, they should be free to decide when to terminate proceedings under this Article.  Heinquired from the representative of Paraguay in what ways would the new paragraph 4 benefit
Members more than the current paragraph 5, which Paraguay wanted to be deleted from the Article.TN/DS/M/5
Page 18
53. With respect to the submission by India and the co-sponsors, he said that Thailand was
appreciative of the concerns behind the proposal relating to notification of mutually agreed solutions
within a certain period of time.  It was, however , of the view that the parties should have the
flexibility to reach agreement at any time during the consultations or panel proceedings.  He further
said that the words "to the extent possible" should be  inserted before the words "in sufficient detail" as
suggested initially by the group.  On amicus curiae  briefs and third-party rights, he said that the views
of Thailand were well-known and that they were prepared to engage in further discussions on these
two issues with a view to reaching decisions by the May 2003 deadline.  On the term of appointment
of Appellate Body members, he said that Thailand appreciated the stance taken by the co-sponsors.
and that it was in agreement that the present term of four years should be extended.  However,
Thailand's preference would be an automatic renewal of the initial term, thus making it a total of eight
years.  Regarding inputs provided by the Secretariat to panels, he said that Thailand was sympatheticto the proposal, but doubted if that was the most optimal way to address this issue.  Thailand's
concerns stemmed from the fact that the position of the Secretariat could be likened go that of a court
clerk.  On sufficiency of notice of appeals, he said that Thailand shared the view that they should
contain some threshold information so as to enable appellees to adequately prepare their defences.
This could be accomplished by specifying clearly in the Working Procedures for Appellate Review  the
information notices of appeal should contain.  Regarding the submission by Pakistan and the co-
sponsors concerning special and differential treatment, he said that it contained a number of
interesting elements which needed to be explored further.  On suspension of concessions and other
obligations, he said that whereas the proposal of the co-sponsors had some merits, there could not be
any substitute for immediate compliance within the reasonable period of time determined pursuant to
Article 21.3 of the DSU.  He said that Thailand was ready to engage in further discussions of this
issue.  With respect to litigation costs, he inqu ired whether they would be a limit on the amount that
could be recovered.
54. The representative of India welcomed the prop osal by Paraguay (TN/DS/W/16) and said that
his delegation would provide comments on it at a future meeting of the Special Session.  He thanked
participants for their comments on the proposal of the co-sponsors and said that he would like to offer
some preliminary remarks in response.  On the differences between the English and Spanish texts of
Articles 4.10 and 21.2 of the DSU pointed out by Chile, he said the goal would be to bring the English
text in line with its Spanish counterpart, under which the provisions were expressed in mandatory
language.  He assured the representative of Chile that the co-sponsors would provide further details on
the time-frames and elaborate on the needs of developing countries.  Regarding the comments on the
proposal that would require the Secretariat to make available to the parties inputs it had provided topanels, he said that it was not the intention of the co-sponsors to require the Secretariat to pass on
each and every communication, but only the relevant ones which would be relied on by the Panel to
make its decision.  There had been instances where the Secretariat had provided negotiating history on
a particular agreement to the Panel, even though it had not been officially approved by Members.  In
such a case, it would be in accord with the due process of law for the parties to have the opportunityto read and comment on the documentation.  He welcomed the suggestion by Chile that a deadline
should be specified for making available the documentation to the parties and also for the submission
of their comments.  In response to the comments of Norway, he said that the negotiations on dispute
settlement were not made part of the single undertaking because of the perception that a strengthened
dispute settlement system was in the interest of all Members.  It was in that vein that Ministersmandated that only systemic issues which affected the operation of the DSU should be addressed in
the negotiations.  He said that India was keen on seeing positive results by the deadline of May 2003.
55. The representative of Paraguay welcomed the comments on his country's proposal and said
that he would respond to some of them.  In relation to the difference between the new paragraph 4 that
they were proposing and the current paragraph 5 of Article 5, he said that the proposed language byParaguay was stricter and could result in the frequent invocation of Article 5 when one of the parties
to the dispute was a developing country.  He said that his delegation was willing to discuss further its
proposal with the other participants so as to improve upon it.  He welcomed the proposal by ThailandTN/DS/M/5
Page 19
that incentives should be provided so as to encourage Members to make greater use of the alternative
dispute settlement mechanisms under Article 5.
56. The representative of the European Communities  welcomed the proposals under discussion
and said that they demonstrated the degree of seri ousness to which participants attached to the work
of the Special Session.  He said that the EC would endeavour to provide detailed comments on thevarious proposals later when they were considered on an issue-by-issue basis.  He further said that the
EC was committed to discussing every proposal, including those which could result in far-reaching
changes to the DSU.  Discussion of proposals should not be equated with acceptance.  It would be up
to participants in the end to determine which issues which enjoyed broad support and around which
consensus could be forged.
57. The representative of Bulgaria  concurred with the statement by the EC that all proposals
should be thoroughly discusse d by the Special Session.
58. The representative of Uruguay welcomed the proposals and said that they would like to offer
some comments on the proposals by Ecuador, Australia and the EC.  Turning to the proposal by
Ecuador, he said that Uruguay was in agreement with Ecuador that the sequencing issue had to be
settled definitively during these negotiations.  On remedies under the DSU, he said that the proposal
contained a number of interesting elements which Uruguay could support.  In respect of thesubmission by Australia, he said that Urugua y found the proposal concerning safeguards very
interesting and would like to see an alignment in the time-tables for the settlement of safeguard
disputes and those under the Agreement on Subsidie s and Countervailing Measures.  He referred to
chapter D of that proposal and inquired whether developing countries could request that the normal
time-frames under the DSU should be applied in cases in which they were involved, as seemed tohave been proposed by Australia under chapter A of its proposal.  With respect to the EC submission,
he said that Uruguay shared the concerns expressed by a number of participants regarding the
proposal for the creation of a system of permanent panelists.  Uruguay believed that the present
system had worked well and should be preserved.
2. Other Business
59. The Chairman thanked participants for their cont ributions and said that they would have other
opportunities to comment on the proposals during the issue-by-issue discussion, which would be
conducted in an informal mode.  He gave tentative dates for meetings of the Special Session next
year.  He then asked for participants' views on whether they would like members of the Appellate
Body to share their experiences in relation to the operation of the DSU thus far.  The meeting was
then switched to an informal mode.
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