RESTRICTED  
  
GPA/TN1994/3/Rev.4  
15 April 2004 
(24-2749) Page: 1/23 
Committee on Government Procurement  
Negotiations under Article XXIV:7 of the GPA 1994  
Comité des marchés publics  
Négociations au titre de l'article XXIV:7 de l'AMP 1994  
Comité de Contratación Pública  
Negociaciones en el marco del párrafo 7 del artículo XXIV  
del ACP 1994   
 
  
DISPUTE SETTLEMENT PROVISIONS IN THE REVISED DRAFT TEXT:  
IDENTIFICATION OF RELATED DSU PROVISIONS AND PROPOSALS  
PRESENTED IN THE SPECIAL SESSION OF THE DSB*,** 
NOTE BY THE SECRETARIAT1 
Revision  
As agreed at the end of the informal meeting in February and foreshadowed in the Secretariat's fax , 
dated 1 2 March , this note attempts to identif y issues in the revised draft text of the GPA 
(Job No. 1350) that are related to the ongoing DSU review.  
 
________ _______  
 
 
 
 
* In English only . 
** Pursuant to the releva nt Decision of the Committee on Government Procurement ( GPA/CD/5  
(16/11/2023)), this document (informal document symbol: negs140) was derestricted on 8 November 2023.  
1 This document has been prepared by the Secretariat under its own responsibility, at the request of the 
Chairman of t he Committee on Government Procurement. It is without prejudice to the views of any delegation 
on the issues addressed therein and is not intended to affect the rights and obligations of WTO Members in any 
way.   
  GPA/TN1994/3/Rev.4  
- 2 - 
 
OVERVIEW  
This table presents a general overview of  relevant DSU provisions an d issues in relation to which proposals have been under discussion in the 
Special Session of the DSB, that are related to similar issues under consideration in the GPA revision . The text of the corresponding proposals 
and of the Chairman's text2, where relevant, is contained in an Annex. 
 
Note: A large number of proposals has been put forward in the context of the Special Session of the DSB, on virtually all aspects of dispute 
settlement under the DSU . Only those proposals which appeared to relate most closely to the issues under consideration in the context of the  GPA 
revision are reflected hereafter, although others may also have a bearing on the issues addressed  (for example, proposals concerning the form 
of compensation are not reflected in this document, while proposals on procedures  for compe nsation have been reflected, because that appears 
to be the issue specifically under discussion also in the context of the GPA revision).  
 
Revisions to the  GPA 
(Article  XVIII) , as contained 
in Job No. 1350  Relevant DSU provisions  Related proposals presented  
to the DSB Special Session  
Paragraph 1  
Reference to DSU/  
Articles  XXII -XXIII 
GATT 1994  No direct equivalent in the DSU . See however, in the covered 
agreements, the following comparable provisions , as listed in footnote  4 
of the DSU:  
 
"Agreement on Agriculture, Article 19 ; Agreement on the Application of 
Sanitary and Phytosanitary Measures, paragraph 1 of Article 11 ; 
Agreement on Textiles and Clothing, paragraph 4 of Article 8 ; 
Agreement on Technical Barriers to Trade, paragraph 1 of Article 14 ; 
Agreement on Trade -Related Investment Measures, Article 8 ; 
Agreement on Implementation of Article VI of G ATT 1994, paragraph 2 
of Article 17 ; Agreement on Implementation of Article VII of G ATT 1994, 
paragraph 2 of Article 19 ; Agreement on Preshipment Inspection, 
Article  7; Agreement on Rules of Origin, Article 7 ; Agreement on Import 
Licensing Procedures, Article 6 ; Agreement on Subsidies and 
Countervailing Measures, Article 30 ; Agreement on Safeguards,  
Article  14; Agreement on Trade -Related Aspects of Intellectual Property 
Rights, Article 64.1 ; and any corresponding consultation provisions in 
Plurilateral Trade Agreements as determined by the competent bodies 
of each Agreement and as notified to the DSB ."  
Nature of claims  Article 26 of the DSU relates to non -violation complaints of the type 
described in paragraph 1(b) of Article XXIII G ATT 1994 and complaints 
of the type described in paragraph 1(c) of Article XXIII of G ATT 1994.  
 
2 Where reference is made to the Chairman's t ext, this is the text presented by the Chairman as of 28 May 2003 (contained in TN/DS/9 ). That text was not agreed upon, but 
the General Council, in deciding to extend the timeframe for conclusion of the negotiations, agreed that continued work "buil d on the work done to date, and take into account 
proposals put forward by Members as well as the text put forward by the Chairman of the Special Session of the DSB" (see WT/GC/M/81 , p. 18).    
  GPA/TN1994/3/Rev.4  
- 3 - 
 
Revisions to the  GPA 
(Article  XVIII) , as contained 
in Job No. 1350  Relevant DSU provisions  Related proposals presented  
to the DSB Special Session  
Paragraph 2  
Consultations  Article 4 of the DSU sets out the procedures for consultations . 
Paragraph 2 of that Article provides:  
 
"Each Member undertakes to accord sympathetic consideration to and 
afford adequate opportunity for consultation regarding any 
representations made by another Member concerning measures 
affecting the operation of any covered agreement taken within the 
territory of the former. "  
Requ ests to be joined in 
consultations  Article 4 , paragraph 11 of the DSU addresses requests to be joined 
in consultations . It foresees the possibility for a Member that considers 
that it has a substantial trade interest  in consultations being held 
pursuant to paragraph 1 of Article  XXII of GATT  1994, paragraph 1 of 
Article XXII of the GATS , or the corresponding provisions  in other 
covered agreements, to request to be joined in the consultations . 
In such case, "such Membe r shall be joined in the consultations, 
provided that the Member to which the request was addressed agrees 
that the claim of substantial interest is well -founded. " 
 
See also Article 2, paragraph 1 , cited hereafter under paragraph 3.  Several proposals in the DSU negotiations aim to clarify or improve the 
conditions for joining in consultations:  
 
– Costa Rica, TN/DS/W/12/Rev.1  (amendment of Article 4.11 – 
replacement of "substantial trade interest" by "substantial interest" and 
deletion of the conditions for acceptance)  
 
– Jamaica, TN/DS/W/44  (amendment of Article 4.11 – Deletion of 
the conditions for acceptance)  
 
– Chinese Taipe i, TN/DS/W/36  (introduction of an appendix 5 to 
clarify the notion of "substantial trade interest")  
 
 
The Chairman's text ( TN/DS/9 ) proposes an amendment of 
Article  4.11 relating to the conditions for acceptance or refusal of the 
request.    
  GPA/TN1994/3/Rev.4  
- 4 - 
 
Revisions to the  GPA 
(Article  XVIII) , as contained 
in Job No. 1350  Relevant DSU provisions  Related proposals presented  
to the DSB Special Session  
Paragraph 2 bis (proposed)  
Cases of urgency  Paragraphs 8 and 9 o f Article 4 of the DSU address  cases of urgency . 
They provide as follows:  
 
"8. In cases of urgency, including those which concern perishable 
goods, Members shall enter into consultations within a period of no more 
than 10 days after the date of receipt of the request . If the consultations 
have failed to settle the dispute within a period of 20 days after the date 
of receipt of the request, the complaining party may request the 
establishment of a panel.  
 
9. In cases of urgency, including those which concern perishable 
goods, the parties to the dispute, panels and the Appellate Body shall 
make every effort to accelerate the proceedings to the greatest extent 
possible."   
Paragraph 3  
Decisions concerning disputes 
relat ing exclusively  to the 
GPA Article 2, paragraph 1 of the DSU provides the following : 
 
"(…) With respect to disputes arising under a covered agreement which 
is a Plurilateral Trade Agreement, the term "Member" as used herein 
shall refer only to those Members that are parties to the releva nt 
Plurilateral Trade Agreement . Where the DSB administers the dispute 
settlement provisions of a Plurilateral Trade Agreement, only those 
Members that are parties to that Agreement may participate in decisions 
or actions taken by the DSB with respect to that dispute."  
 
Appendix  1 of the DSU , which ide ntifies the agreements covered by 
the Understanding,  lists the Plurilateral Trade A greements under 
Annex  4 with the following indication : 
 
"The applicability of this Understanding to the Plurilateral Trade 
Agreements shall be subject to the adoption of a d ecision by the parties 
to each agreement setting out the terms for the application of the 
Understanding to the individual agreement, including any special or 
additional rules or procedures for inclusion in Appendix 2, as notified to 
the DSB".     
  GPA/TN1994/3/Rev.4  
- 5 - 
 
Revisions to the  GPA 
(Article  XVIII) , as contained 
in Job No. 1350  Relevant DSU provisions  Related proposals presented  
to the DSB Special Session  
Paragraph 4  
Disputes concerning the GPA 
and other covered 
agreement (s) 
 Article 16 of the DSU  addresses the adoption of panel reports . See 
also Article 17, paragraph 14 in relation to the adoption of Appellate 
Body reports.  
 
See also above the section concerning participation in decisions relating 
to the GPA (under paragraph 3).  No directly related proposal . One proposal , however, suggests  more 
generally a possibility of partial adoption of panel reports . See 
Chile/US, TN/DS/W/523 (amendment of Article  16, paragraph  4). 
Request s to be joined in 
consultations  See above the section concerning the same issue, under paragraph  2, 
and Article  2.1 of the DSU  cited above under paragraph  3.  
Paragraph 5  
Expertise of panelists  Article 8 of the DSU  addresses the composition of panels . It provides 
in particular:  
 
"1. Panels shall be composed of well -qualified governmental and/or 
governmental individuals, including persons who have served on or 
presented a case to a panel, served a s a representative of a Member or 
of a contracting party to G ATT 1947 or as a representative to the Council 
or Committee of any covered agreement or its predecessor agreement, 
or in the Secretariat, taught or published on international trade law or 
policy,  or served as a senior trade policy official of a Member.  
 
2. Panel members should be selected with a view to ensuring the 
independence of the members, a sufficiently diverse background and a 
wide spectrum of experience."  A number of proposals have been ma de to clarify or improve the 
procedures for panel selection . Among these, one proposal relates 
specifically to expertise in the subject -matter of the case : Chile/US, 
TN/DS/W/52  (amendment of Article 8.2 – Reference to expertise in 
relation to the subject -matter of the case ). 
 
Other proposals on panel composition relate more generally to the 
selection pro cess and "rosters" of panellists . Only one of these proposals 
(by the E uropean Communities), specifically refers to expertise in the 
subject -matter in relation to the selection  process  for the particular 
case: 
 
– Canada, TN/DS/W/414 (Amendment of Article 8 of the DSU – 
Roster selection process)  
 
– European Communities, TN/DS/W/38  (Amendment of Article 8 
of the DSU – Roster of panelists)  
 
– Thailand, TN/DS/W/31 * (Proposed decision by the DSB – Roster 
of Panel Chairs)  
 
 
 
3 This proposal is not reproduced in the Annex below.  
4 The text of this proposal is not reproduced in the Annex below.    
  GPA/TN1994/3/Rev.4  
- 6 - 
 
Revisions to the  GPA 
(Article  XVIII) , as contained 
in Job No. 1350  Relevant DSU provisions  Related proposals presented  
to the DSB Special Session  
Paragraph 5 bis (proposed)  
Protection of confidential 
information  Article 18 , paragraph 2 , of the DSU  provides that written submissions 
to the panel or Appellate Body shall be treated as  confidential . It also 
provides that "Members shall treat as confidential information submitted 
by another Member to the panel or the Appellate Body  which that 
Member has designated as confidential. " 
 
The DSU does not otherwise expressly provide for additional protection 
for sp ecific categories of information  (but some panels have adopted 
procedures for the protection of Busines s Confidential 
Informat ion - BCI). One proposal suggests the introduction  of additional protection for 
business confidential information submitted to panels : Canada, 
TN/DS/W/41  (Amendment of Article 18.2 of the DSU and creation of 
an Appendix 5 for the protection of business confi dential information)  
 
The Chairman's text ( TN/DS/9 ) proposes an amendment of Article 
18.2 introducing the possibility of procedures for the protection of 
"privileged information".  
Paragraph 6  
Timeframes for completion of 
panel proceedings  Article s 12.8 and 12.9  of the DSU determine the timefra mes within 
which a panel  should conduct its examination and issue its report . Under 
these provisions, as a general rule, the period from the date that the 
composition and terms of reference have been agreed up on until the 
date of issuance of the final report to the parties shall not exceed six 
months, and "in no case should the period from the establishment of 
the panel to the circulation of the report to the Members exceed nine 
months".  
 
Article 20 and Article  21.4 foresee the timeframes from the date of 
establishment of the panel to (i) the date at the which DSB considers 
the report for adoption (as a general rule, not to exceed nine months – 
Article 20) and (ii) the determination of the reasonable period of t ime 
for implementation (normally not to exceed 15 month, unless the 
parties agree otherwise – Article  21.4).  
 
Article 21.5  foresees the circulation of compliance panel reports within 
90 days after the date of referral of the matter to the panel.  No directl y related proposal . See, however, on accelerated procedures  
in certain types o f cases : 
 
Australia, TN/DS/W/495 (Introduction of an Article 8bis – 
accelerated procedures in safeguards cases).  
 
China, TN/DS/W/51 * (Introduction of a new Article – accelerated 
procedures in saf eguards and anti -dumping cases).  
 
Paragraph 6 bis (proposed)  
Communication under 
Article  21.3 Article 21.3  of the DSU requires the Member concerned, after the 
adoption of the panel or that Appellate Body report, to "inform the DSB 
of its intentions in respect of implementation of the recommendations 
and rulings of the DSB".   
 
5 The text of this proposal is not reproduced in the Annex below.    
  GPA/TN1994/3/Rev.4  
- 7 - 
 
Revisions to the  GPA 
(Article  XVIII) , as contained 
in Job No. 1350  Relevant DSU provisions  Related proposals presented  
to the DSB Special Session  
Compensat ion With regard to compensation, Article 22, paragraph 1 , of the DSU 
foresees that "[c]ompensation is voluntary and, if granted, shall be 
consistent with the covered agreements".  
 
Paragraph 2  further foresees that if the Member conce rned has failed 
to comp ly with the recommendations and rulings of the DSB within the 
reasonable period of time for implementation,  "such Member shall, if so 
requested, and no later than the expiry of the reasonable period of time, 
enter into negotiations with  any party having in voked the dispute 
settlement procedures, with a view to developing mutu ally acceptable 
compensation", and that if no satisfactory compensation has been 
agreed within 20  days of the expiry of the RPT, any such party may 
request authorization an authorization from the DSB to suspend 
concessions or other obligations . A number of proposals address various aspects of compensation under 
Article 22 . In particular, some proposals aim to introduce a procedure 
for the presentation of "offers" of compensation:  
 
Ecuador, TN/DS/W/33  (Amendment of Article 22.2 – procedures on 
compensation)  
 
 
European Communities, TN/DS/W/1  (Amendment of Article 22.2 – 
procedures on compensation)  
 
The Chairman's text, TN/DS/9  proposes an am endment of 
Article  22.2 and the creation of a paragraph 2 bis (Procedures on 
compensation).  
Determination of level of 
nullification or impairment  Article 22, paragraphs 6 and 7 , provide for an arbitration  to 
determine whether the level of proposed suspension is equivalent to the 
level of nullification or impairment, in cases where the Member 
concerned objects to the level of suspension proposed.  
 
In one instance, the level of nullification or impairment wa s determined 
through an arbitration under Article 25 of the DSU  
(WT/DS160/ARB25/1 ). A number of proposals su ggest amendments to introduce an  arbitration 
to determine the level of nullification or impairment , independently from 
a challenge to a pr oposed suspension of concessions or other 
obligations : 
 
Ecuador, TN/DS/W/33  (Introduction of a paragraph 3 bis in Article 21 
concerning arbitration on the level of nullification or impairment)  
 
European Communities, TN/DS/W/1  (Amendment of Article  22.1 – 
procedure for arbitration on the level of nullification or impairment prior 
to a request for authorization to suspend concessions or other 
obligations)  
 
Japan, TN/DS/W/32  (Amendment of Article 22.1 – procedure for 
arbitration  on the level of nullification or impairment prior to a request 
for authorization to suspend concessions or other obligations)  
 
The Chairman's text , TN/DS/9  proposes the i ntroduction of  such an 
arbitration procedure through a paragraph 1 bis in Article 22.  
 
Other  proposals suggest such determination to be carried out at earlier 
stages : see Mexico, TN/DS/W/406 (Amendment of Articles 15 and  17 
– determination of the level of nullification or impairme nt in the initial 
panel report)  and Korea, TN/DS/W/35 *, (Amendment  of Article 21.5 
– determination of the level of nullification or impa irment by the 
compliance panel).  
 
6 The text of this proposal is not reproduced in the Annex below.    
  GPA/TN1994/3/Rev.4  
- 8 - 
 
Revisions to the  GPA 
(Article  XVIII) , as contained 
in Job No. 1350  Relevant DSU provisions  Related proposals presented  
to the DSB Special Session  
Level of suspension of 
concessions or other 
obligations  Article 22 paragraph 4 of the DSU provides that "[t]he level of the 
suspension of concessions or other obligations authorized by the DSB 
shall be equivalent to the level of the nullification or impairment".   
Paragraph 7 (proposed)  
Cross-retaliation  
 
(On this issue, see also 
paragraph  6bis in  fine) Article 22, paragraph 3  of the DSU provides principles and procedures 
for the suspension of concessions or other obligations . Specifically, it 
determines the conditions under which a party may seek to suspend 
concessions or other obligations in other sectors or agreements than 
that in which the panel or Appellate Body has found a violation or 
nullification or impairment.  Two proposals aim to facilitate cross-retaliation , either for all Members, 
or for developing country Members : 
 
India et al, TN/DS/W/47  (Introduction of a paragraph  3bis in 
Article  22 – facilitation of cross -retaliation for developing country 
Members) ; 
 
Mexico, TN/DS/W/40  (Deletion of Article 22.3).  
 GPA/TN1994/3/Rev.4  
- 10 - 
  ANNEX : DETAIL OF RELEVANT TEXTUAL PROPOSALS  
PRESENTED IN THE DSB S PECIAL SESSION  
The text of proposals which appear to be of most direct relevance to the discussions in the GPA 
revision process is reproduced hereafter . Participants are invited to refer to the full text of the 
proposals in order to have a complete understanding of their details.  
 
Participants may also wish to refer to Job(03)/10/Rev.3, which contains the text of all textual 
proposals submitted to the Special Session of the DSB as of 14  March  2003. 
 
Table of Contents  
 
I. REQUESTS TO BE JOINED IN CONSULTATIONS  ................................ ........................  11 
1. Costa Rica, TN/DS/W/12/Rev.1  (Amendment of Article 4.11 of the DSU)  ...........................  11 
2. Jamaica, TN/DS/W/44  (Amendment of Article 4.11 of the DSU)  ................................ ........  11 
3. Chinese  Taipei, TN/DS/W/36  (New appendix 5 – third party participation in consultations)  ... 11 
4. Chairman's  Text of 28  May 2003, TN/DS/9  (Amendment of Article 4.11 ) ............................  12 
II. COMPOSITION OF PANELS  ................................ ................................ ......................  12 
1. Chile/US, TN/DS/W/52  (Amendment of Article 8 of the DSU)  ................................ ...........  12 
2. European Communities, TN/DS/W/38  (Amendment of Article 8 of the DSU)  .......................  12 
III. PROTECTION OF CONFIDENTIAL INFORMATION  ................................ ...................  13 
1. Canada, TN/DS/W/41  (Amendment of Article 18.2 of the DSU  
and creation of an Appendix  5) ................................ ................................ ..........................  13 
2. Chairman's Text of 28  May 2003, TN/DS/9  (Amendment of Article 18.2)  ............................  17 
IV. COMPENSATION AND THE SUSPENSION OF CONCESSIONS  ................................ ... 17 
A. Arbitration on level of nullification or impairment  ................................ ............................  17 
1. Ecuador, TN/DS/W/33  (creation of a paragraph 3 bis in Article 21)  ................................ .... 17 
2. EC, TN/DS/W/1  (amendment of Article 22.1)  ................................ ................................ . 18 
3. Japan , TN/DS/W/32  (amendment of Article 22.1)  ................................ ...........................  18 
4. Chairman's Text of 28  May 2003, TN/DS/9  (creation of a paragraph 1 bis in Article  22) ........  19 
B. Compensation  ................................ ................................ ................................ ...........  20 
1. Ecuador, TN/DS/W/33  (amendment of Article 22.2)  ................................ ........................  20 
2. European Communities, TN/DS/W/1  (amendment of Article 22.2)  ................................ ..... 21 
3. Chairman's text of 28  May 2003, TN/DS/9  (amendment of Article 22.2 and creation of a 
paragraph 2 bis) ................................ ................................ ................................ ...............  21 
C. "Cross -retaliation"  ................................ ................................ ................................ ..... 22 
1. India et al, TN/DS/W/47  (introduction of a paragraph 3 bis in Article 22)  ............................  22 
2. Mexico, TN/DS/W/ 40 (amendment of Article 22.3)  ................................ ..........................  23 
 GPA/TN1994/3/Rev.4  
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  I. REQUESTS TO BE JOINED IN CONSULTATIONS  
1. Costa Rica, TN/DS/W/12/Rev.1  (Amendment of Article 4.11 of the DSU)  
… 
11.  Whenever a Member other than the consulting Members considers that it has a substantial 
trade interest in consultations being held pursuant to paragraph 1 of Article XXII of G ATT 1994, 
paragraph 1 of Article XXII of GATS, or the corresponding provisions in other covered agreements4, 
such Member may notify the consulting Members and the DSB, within 10 days after the date of the 
circulation of the request for consultations under said Articl e, of its desire to be joined in the 
consultations . Such Member shall be joined in the consultations , provided that the Member to which 
the request for consultations was addressed agrees that the claim of substantial interest is 
well-founded . In that event  they shall so inform the DSB . If the request to be joined in the 
consultations is not accepted, the applicant Member shall be free to request consultations under 
paragraph 1 of Article  XXII or paragraph 1 of Article XXIII of G ATT 1994, paragraph 1 of Arti cle XXII 
or paragraph 1 of Article XXIII of GATS, or the corresponding provisions in other covered 
agreements . 
… 
 
2. Jamaica, TN/DS/W/44  (Amendment of Article 4.11 of the DSU)  
… 
11. Whenever a Member other than the consulting Members considers that it has a substantial 
trade interest in consultations being held pursuant to paragraph 1 of Article XXII of G ATT 1994, 
paragraph 1 of Artic le XXII of GATS, or the corresponding provisions in other covered agreements 
(4), such Member may notify the consulting Members and the DSB, within 10 days after the date of 
the circulation of the request for consultations under said Article, of its desire  to be joined in the 
consultations . Such Member shall be  deemed to have a substantial trade interest and shall be 
joined in the consultations ., provided that the Member to which the request for consultations was 
addressed agrees that the claim of substanti al interest is well -founded . In that event they shall so 
inform the DSB . If the request to be joined in the consultations is not accepted, the applicant Member 
shall be free to request consultations under paragraph 1 of Article XII or paragraph 1 of Articl e XXIII 
of GATT 1994, paragraph 1 of Article XXII or paragraph 1 of Article XXIII of GATS, or th e 
corresponding provisions in other covered agreements.  
… 
 
3. Chinese  Taipei, TN/DS/W/36  (New appendix 5 – third party participation in 
consultations)  
1. Any Membe r having a substantial trade interest in consultations being held pursuant to 
paragraph 1 of Article XXII of G ATT 1994, paragraph 1 of Article XXII of GATS, or the corresponding 
provisions in other covered agreements, shall be permitted to take part in the consultation as a third 
party after notifying the consulting Members and the DSB of its desire to be joined in the 
consultations as a third party within 10 days after the date of the circulation of the request for 
consultations.  
 
2. A Member shall be c onsidered as having a substantial trade interest if it has a principal 
supplying interest to one of the consulting Members or if the trade in dispute affects a major part of 
its total imports or exports.  
 
3. A Member who has claimed a substantial trade int erest shall be joined in the consultations as 
a third party unless the Member to which the request for consultations was addressed disagrees with 
the claim of substantial trade interest and provides the applicant Member and the DSB with reasons 
for the dis agreement within 10 days after notification of the claim.  
 
4. In the event that no response to the applicant Member's claim was conveyed by the Member 
to which the request for consultations was addressed, the applicant Member shall be entitled to be 
joined in the consultations as a third party until a rejection of the claim was conveyed to the applicant 
Member and the DSB pursuant to the preceding paragraph.  
 
5. If the request to be joined in the consultations as a third party is not accepted, the app licant 
Member shall be free to request consultations under paragraph 1 of Article XXII or paragraph 1 of GPA/TN1994/3/Rev.4  
- 12 - 
  Article XXIII of G ATT 1994, paragraph 1 of Article XXII or paragraph 1 of Article XXIII of GATS, or 
the corresponding provisions in other covered agree ments.  
 
4. Chairman's  Text of 2 8 May 2003, TN/DS/9  (Amendment of Article 4.11)  
11. Whenever a Member other than the consulting Members considers that it has a substantial trade 
interest in consultations being held pursuant to paragraph 1 of Article XXII of G ATT 1994, paragraph  1 
of Article XXII of GATS, or the corresponding provisions in other covered agreements7, such Member 
may notify the consulting Members and the DSB, within 10 days after the date of the circulation of the 
request for consultations under said A rticle, of its desire to be joined in the consultations, indicating 
the reasons for its claim of substantial trade interest.  
 
Such Member shall be joined in the consultations , provided that the Member to which the request for 
consultations was addressed ag rees that the claim of substantial interest is well -founded . In that 
event they shall so inform the DSB.  unless the Member to which the request for consultations 
was addressed  disagrees with the claim of substantial trade interest and notifies the DSB 
of the reasons for the disagreement within 10 days after the date o f receipt of the request 
to be joined in the consultations . If the Member to which the request for consultations is 
addressed agrees that the request to be joined in these consultations is wel l-founded, it 
shall so inform the DSB.  
 
If the request to be joined in the consultations is not accepted, the applicant Member shall be free to 
request consultations under paragraph 1 of Article XXII or paragraph  1 of Article XXIII of G ATT 1994, 
paragraph 1 of Article XXII or paragraph 1 of Article XXIII of GATS, or the corresponding provisions in 
other covered agreements.  
 
II. COMPOSITION OF PANELS  
1. Chile/US, TN/DS/W/52  (Amendment of Article 8 of the DSU)  
… 
 
2. Panel members should be selected with a view t o ensuring the independence of the members, 
expertise to examine the matter at issue in the dispute, a sufficiently diverse background and 
a wide spectrum of experience.  
 
… 
 
2. European Communities, TN/DS/W/38  (Amendment of Article 8 of the DSU)  
1.  Panels shall be composed of individuals included on the roster of panelists established 
by the DSB . The panellists shall be appointed by the DG on a random basis within 5 days 
from the establishment of the panel.  well-qualified governmental and/or non -governmental 
individuals, including persons who have served on or presented a case to a panel, served as a 
representative of a Member or of a contracting party to G ATT 1947 or as a representative to the 
Council or Committee of any covered agreement or its pred ecessor agreement, or in the Secretariat, 
taught or published on international trade law or policy, or served as a senior trade policy official of 
a Member . 
 
2.  Panel members should be selected with a view to ensuring the independence of the members, 
a su fficiently diverse background and a wide spectrum of experience. Notwithstanding 
 
7 The corresponding consultation provisions in the covered agreements are lis ted hereunder:  Agreement 
on Agriculture, Article 19;  Agreement on the Application of Sanitary and Phytosanitary Measures, paragraph 1 
of Article 11;  Agreement on Textiles and Clothing, paragraph 4 of Article 8;  Agreement on Technical Barriers to 
Trade, par agraph 1 of Article 14;  Agreement on Trade -Related Investment Measures, Article 8;  Agreement on 
Implementation of Article VI of GATT 1994, paragraph 2 of Article 17;  Agreement on Implementation of 
Article  VII of GATT 1994, paragraph 2 of Article 19;  Agreem ent on Preshipment Inspection, Article 7;  
Agreement on Rules of Origin, Article 7;  Agreement on Import Licensing Procedures, Article 6;  Agreement on 
Subsidies and Countervailing Measures, Article 30;  Agreement on Safeguards, Article  14; Agreement on 
Trade -Related Aspects of Intellectual Property Rights, Article 64.1; and any corresponding consultation 
provisions in Plurilateral Trade Agreements as determined by the competent bodies of each Agreement and as 
notified to the  DSB. GPA/TN1994/3/Rev.4  
- 13 - 
  paragraph  1, the parties may agree at the time of the establishment of the panel that 
panels may include up to two individuals from outside the roster with particular expertise  
on the subject matter of the dispute . The Chairman of the panel shall always be an 
individual included on the roster of panelists and will be appointed by the DG on a random 
basis within 5 days from the establishment of the panel . The parties may agree on  the 
individuals outside the roster to serve on the panel or request the Director -General, in 
consultation with the parties and the Chairman of the panel to nominate these individuals . 
If no agreement has been reached on the panellists from outside the ros ter or no request 
for their nomination to the DG has been made within 10 days from the establishment of 
the panel, at the request of a party, those members of the panel shall be drawn from the 
roster by the DG on a random basis.  
 
… 
 
(This proposal includes other elements not reproduced here).  
 
III. PROTECTION OF CONFIDENTIAL INFORMATION  
1. Canada, TN/DS/W/41  (Amendment of Article 18.2 of the DSU and creation of an 
Appendix  5) 
Article 18  
 
… 
2. Written submissions to the panel or the Appellate Body shall be treated as confidential, but 
shall be made available to the parties to the dispute . Nothing in this Understanding shall preclude a 
party to a dispute from disclosing statements of its own positions to the public . Members shall treat 
as confidential information submitted by another Member to the panel or the Appellate Body which 
that Member has designated  as confidential . Where such information has been designated 
"business confidential" it shall be treated in accordance with the procedures in 
Appendix  5. Those procedures apply mutatis mutandis to business confidential 
information submitted to the arbitrat or in arbitrations pursuant to paragraph 6 of 
Article  22. A party to a dispute shall also, upon request of a Member, provide a non -confidential 
summary of the information contained in its written submissions that could be disclosed to the public.  
… 
 
Append ix 5 (proposed) – Procedures governing business confidential information  
 
 I. SCOPE  
 
1. These procedures apply to all business confidential information submitted during the Panel 
process, but do not apply to a party with respect to business confidential in formation first submitted 
by that party.  
 
II. OBLIGATION ON PARTIES  
 
1. Each party shall ensure that its representatives comply with these procedures.  
 
2. The treatment of information as business confidential under these procedures imposes a 
substantial bu rden on the panel and the parties . The indiscriminate designation of information as 
business confidential could limit the ability of a party to fully include in its litigation team individuals 
who have particular knowledge and expertise relevant to present ing the party's case, impede the 
work of the panel and complicate the panel's task in formulating credible public findings and 
conclusions . Accordingly, each party shall act in good faith and exercise the utmost restraint in 
designating information as busi ness confidential.  
 
III. SUBMISSION BY A PARTY  
 
1. When submitting information, a party may designate all or any part or parts of that information 
as business confidential information.  
 GPA/TN1994/3/Rev.4  
- 14 - 
  2. Where a submission by a party incorporates business confidential information first submitted 
by another party, the submission shall identify that information as business confidential.  
 
3. A party submitting an exhibit containing business confidential information shall submit one 
copy of the exhibit to the S ecretariat, and two copies of the exhibit to each other party.  
 
4. If, taking into the account the obligation on parties, the panel considers that a party has 
designated as business confidential information that is not reasonably entitled to such treatment , 
the panel may ask the party to justify the designation . If, in the opinion of the panel, the party fails 
to justify the designation, the panel may decline to consider that information . In such a case, the 
party submitting the information may, at its disc retion:  
 
(i) withdraw the information, in which case the panel and the other parties shall promptly 
return any document or other recording containing the information to the party 
submitting it ; or 
 
(ii) withdraw the designation of the information as busine ss confidential.  
 
5. A party submitting a text document containing business confidential information shall also 
provide, within two business days of that submission:  
 
(i) an edited version of the document, redacted in such a manner as to convey a reasonabl e 
understanding of the substance of the business confidential information ; or 
 
(ii) in exceptional circumstances, a written statement that:  
 
(a) an edited version cannot be made, or  
 
(b) an edited version would disclose facts that the party has a proper re ason for 
wishing to keep confidential.  
 
6. If the panel considers that an edited version does not fulfill the requirements of paragraph  5(i) 
or that exceptional circumstances do not exist to justify a statement pursuant to paragraph  5(ii), 
the panel may de cline to consider the business confidential information in question . In such a case, 
the party submitting the information may, at its discretion:  
 
(i)  withdraw the information, in which case the Secretariat and the other parties shall 
promptly return the document containing the information to the party submitting it ; or 
 
(ii)  comply with the provisions of paragraph 5  to the satisfaction of the panel.  
 
IV. STORAGE  
 
1. The Secretariat shall store all documents or other recordings containing business confidential 
information in a secure location when not in use by an approved person.  
 
2. Each party shall store all documents or other recordings containing business confidential 
information submitted to it by another party in a locked storage receptacle, to which only approved 
persons have access, when not in use by an approved person.  
 
3. An approved person shall take all necessary precautions to safeguard business confidential 
information when documents or other recordings containing the information are in use or being 
stored.  
 
V. DISCLOSURE  
 
1. Only approved persons may view or hear business confidential information that has been 
submitted pursuant to these procedures . No approved person who views or hears business 
confidential inform ation shall disclose it, or allow it to be disclosed, to any person other than another 
approved person, except in accordance with these procedures.  
 GPA/TN1994/3/Rev.4  
- 15 - 
  2. Approved persons who view or hear business confidential information shall use that 
information only for the purposes of the panel proceedings and for no other purposes.  
 
3. The panel shall not disclose business confidential information in its report, but may make 
statements of conclusion drawn from that information.  
 
4. In the event that a party submitting b usiness confidential information objects to any person 
being designated an approved person, the panel shall decide on the objection as a preliminary 
matter . If the panel allows the designation, the information may not be disclosed to the approved 
person un til the party submitting the information has a reasonable opportunity to:  
 
(i) withdraw the information, in which case the panel and the other parties shall promptly 
return any document or other recording containing the information to the party 
submitting it; or 
 
(ii) withdraw the designation of the information as business confidential.  
 
5. An approved person viewing or hearing business confidential information may take written 
summary notes of that information for the sole purpose of the panel process . Those notes are subject 
to the requirements of Articles IV and VII.  
 
6. Documents or other recordings containing business confidential information shall not be 
copied, distributed or removed from a locked storage receptacle, except as specifically  provided in 
these procedures.  
 
7. A party may bring with it to a panel meeting, for the sole purpose of that meeting, the 
documents or other recordings containing business confidential information that it has received from 
another party under these proced ures, and shall immediately thereafter return those documents or 
other recordings to their locked storage receptacle.  
 
8. A panel member may make and remove from the secure location a copy of any document or 
other recording containing business confidential  information . The copy shall be used exclusively by 
that panel member for the purpose of the dispute, and shall be returned to the Secretariat upon 
conclusion of the panel . The copy shall be stored in a locked receptacle and subject to the obligation 
to safeguard provided in Article  IV.3. 
 
VI. DISCLOSURE AT A PANEL MEETING  
 
1. A party that wishes to submit business confidential information during a panel meeting shall 
so inform the panel prior to doing so . The panel shall exclude persons who are not approve d persons 
from the meeting for the duration of the submission of that information.  
 
VII. RETURN OR DESTRUCTION  
 
1. After the conclusion of the panel process, within a period fixed by the panel, the Secretariat 
and the parties shall return any documents or other recordings containing business confidential 
information, or certify in writing to the parties that the documents or other recordings have been 
destroyed, unless the party that first submitted the business confidential information agrees 
otherwise.  
 
2. If the report of the panel is appealed, the Secretariat shall transmit any documents or other 
recordings submitted to it by a party containing business confidential information, and any other 
recordings that contain business confidential information, to the Appellate Body as part of the record 
of the panel proceedings . The Secretariat shall transmit such documents or other recordings to the 
Appellate Body separately from the rest of the record.  
 
VIII. ADDITIONAL OR ALTERNATIVE PROCEDURES  
 
1. The panel may  apply any additional procedures that it considers necessary to protect the 
confidentiality of business confidential information.  
 GPA/TN1994/3/Rev.4  
- 16 - 
  2. The panel may, at the request of or with the consent of the parties, modify or waive any part 
of these procedures.  
 
IX. DEFINITIONS  
 
 "approved person" means:  
 
(i) a panel member;  
 
(ii) a representative of a party;  
 
(iii) a Secretariat employee, or  
 
(iv) an expert appointed by the panel  who has filed with the Secretariat a Declaration of 
Non-disclosure.  
 
 "conclusion of the panel process" means when:  
 
(i) pursuant to Article 16.4, the panel report is adopted by the DSB, or otherwise not 
adopted by consensus of the DSB;  
 
(ii) pursuant to Articles 16.4 and 17.14, the panel report is adopted (with modification , if 
any) with the report of the Appellate Body ; or 
 
(iii) when the authority for establishment of the panel lapses pursuant to Article 12.12.  
 
 "business confidential information" means any proprietary or commercially sensitive 
information that is designa ted as business confidential by the party submitting the information, and 
that is not otherwise available in the public domain.  
 
 "Declaration of Non -disclosure" means a copy of the declaration set out in this Annex, signed 
and dated by the person making t he declaration.  
 
 "designated as business confidential" means:  
 
(i) for information recorded in printed documents, clearly marked where the information 
appears in the document with the notation 'BUSINESS CONFIDENTIAL INFORMATION' 
and with the name of the p arty that first submitted the information;  
 
(ii) for information recorded in binary -encoded files or in any other medium, clearly marked 
with the notation 'BUSINESS CONFIDENTIAL INFORMATION' on a label on the recording 
medium, and, in the case of informati on recorded in binary -encoded files, clearly 
annotated where the information appears in the files with the notation 'BUSINESS 
CONFIDENTIAL INFORMATION', and with the name of the party that first submitted the 
information ; and 
 
(iii) for uttered information , declared by the speaker to be "Business Confidential 
Information" prior to the disclosure, and identified with the name of the party that first 
submitted the information.  
 
 "information" includes information recorded in any medium, including printed documents and 
binary -encoded files, and uttered information.  
 
 "other recordings" includes tapes and transcripts of panel meetings.  
 
 "panel meeting" means a substantive meeting of the panel with the parties or any interim 
review meeting of the pan el with the parties, as described in the working procedures adopted by the 
panel.  
 
 "panel member" means a person serving on the panel.  
 
 "representative" means:  GPA/TN1994/3/Rev.4  
- 17 - 
   
(i) an employee of a party;  
(ii) a legal counsel or other advisor or consultant of a party,  
 
 who has been authorized by a party to act on its behalf in the course of the dispute and whose 
authorization has been notified to the Secretariat and to the other parties, but in no circumstances 
may a representative be a person or an employee, officer or  agent of any entity that could reasonably 
be expected to benefit commercially from the receipt of the business confidential information.  
 
 "Secretariat employee" means a person employed or appointed by the Secretariat who has 
been authorized by the Secret ariat to work on the dispute, and includes translators and interpreters 
and transcribers present at the panel hearings.  
 
 "secure location" means a locked storage receptacle chosen by the Secretariat to provide 
secure storage for business confidential info rmation.  
 
 "text document" includes written submissions to the panel, whether in printed or 
binary -encoded form.  
 
DECLARATION OF NON -DISCLOSURE FORM  
 
1. I acknowledge having received a copy of the Procedures Governing Business Confidential 
Information (the  "Procedures") annexed to the Understanding on the Rules and Procedures 
Governing the Settlement of Disputes.  
 
2. I acknowledge having read and understood the Procedures.  
 
3. I agree to be bound by, and to adhere to, the provisions of the Procedures and, accordingly, 
without limitation, to treat confidentially all business confidential information that I may view or hear 
from time to time in accordance with the Procedures.  
 
Executed on this __________ day of ____________, 200x.  
 
 
BY: _____( signature)_____________________  
Name:  
 
Title: 
(Representatives only) Affiliation or employment:  
 
 
2. Chairman's Text of 2 8 May 2003, TN/DS/9  (Amendment of Article 18.2)  
2. Written submissions to the panel, or the Appellate Body or the arbitrator  shall be treated as 
confidential, but shall be made available to the parties to the dispute, and to third parties  as 
foreseen in Article 10 . Nothing in this Understanding shall preclude a party to a dispute from 
disclosing statements of its own positions to the public . Members shall treat as confidential 
information submitted by another Member to the panel or the Appellate Body which that Member 
has designated as confidential . Members may designate certain information that they submit 
to the panel, the App ellate Body or the arbitrator as "[privileged]" . Such information shall 
be treated in accordance with procedures to be established by the DSB . … 
 
IV. COMPENSATION AND THE SUSPENSION OF CONCESSIONS  
A. Arbitration on level of nullification or impairment  
1. Ecuador, TN/DS/W/33  (creation of a paragraph 3 bis in Article 21)  
3bis. Where the Member concerned cannot comply immediately with the 
recommendations and rulings of the DSB, at any moment prior to the invocation by a 
complaining party of Article  22.2 and as from the meeting of the DSB referred to in 
paragraph 3 above in which the Member concerned informs the DSB of its intentions in GPA/TN1994/3/Rev.4  
- 18 - 
  respect of implementation of the recommendations and rulings, a complaining party may 
request arbitration to determine the annual level of nullification or impairment caused by 
the non -compliance of  the Member concerned . To that end the complaining party shall 
indicate, in its request for arbitration, the annual level of nullification or impairment 
which, in its view, results from the non -compliance with the DSB recommendations and 
rulings by the Mem ber concerned . Such arbitration shall be carried out by the original 
panel, if members are available, or by an arbitrator8 appointed by the Director -General, 
and shall be completed within 60 days after the date on which the arbitrator is summoned . 
If the complaining party has requested such arbitration before the reasonable period of 
time for compliance with the recommendations and rulings of the DSB has been set and 
the parties to the dispute have not reached an agreement on such reasonable period of 
time, the arbitration may also determine the reasonable period of time within the 90 days 
stipulated in paragraph 3(c) above . If the complaining party is a developing country and 
the Member concerned is a developed country, the complaining party may request th at 
the arbitrator, in addition to determining the level of nullification or impairment on the 
basis of the trade affected by the challenged measures, make an estimate of the impact 
of those measures on its economy . That estimate shall include the determina tion of the 
level of injury an d the recommendation that the Member concerned take account thereof 
in its prompt compliance with the recommendations and rulings adopted by the DSB – and 
in case of non -compliance, that the said estimate be taken into account  in proceeding with 
the compensation or suspension of concessions or other obligations under Article 22.  
 
2. EC, TN/DS/W/1  (amendment of Article 22.1)  
1. Compensation and the suspension of concessions or other obligations are temporary measures 
available in the  event that the recommendations and rulings are not implemented within a 
reasonable period of time . However, neither compensation nor the suspension of concessions or 
other obligations is preferred to full implementation of a recommendation to bring a meas ure into 
conformity with the covered agreements . Compensation is voluntary and, if granted, shall be 
consistent with the covered agreements  
 
At any point of time before the submission of the request for authorization for suspension 
of concessions or other obligations referred to in paragraph 2 of this Article, the parties 
may agree to request an arbitration to determine the level of nullification or impairment 
caused by the measure found to be inconsistent with a covered agreement.  
 
Such arbitration shall be carried out by the original panel, if members are available . The 
Director -General shall determine whether the members of the original panel are available . 
If any members of the original panel are not available, and the parties to the a rbitration 
do not agree on a replacement, at the request of any party the Director -General shall 
appoint a replacement arbitrator9 from the roster of panelists provided for in Article 8 
within 5 days after the matter is referred to the arbitration, after consulting with the 
parties to the arbitration . 
 
The arbitration shall be completed and the decision of the arbitrator shall be circulated to 
Members within 45 days after the date of the request . The award of the arbitrator shall 
be final, and parties shal l accept it as the level of nullification and impairment for purposes 
of future proceedings under paragraph 6 of this Article related to that measure.  
 
3. Japan , TN/DS/W/32  (amendment of Article 22.1)  
1. Compensation and the suspension of concessions or other  obligations are temporary measures 
available in the event that the recommendations and rulings are not implemented within a 
reasonable period of time . However, neither compensation nor the suspension of concessions or 
other obligations is preferred to ful l implementation of a recommendation to bring a measure into 
conformity with the covered agreements . Compensation is voluntary and, if granted, shall be 
consistent with the covered agreements.  
 
 
8 The expression "arbitr ator" shall be interpreted as referring either to an individual or a group.  
9 The expression  "arbitrator " shall be interpreted as referring either to an individual or a group.  GPA/TN1994/3/Rev.4  
- 19 - 
  If, assessing the detailed status report provided under paragraph 6(b) of Article 21, the 
complaining party considers that the Member concerned is unable to implement the 
recommendations and rulings within the reasonable period of time, the complaining party 
may request negotiations with the Member concerned, w ith a view to developing mutually 
acceptable compensation . The Member concerned shall, if so requested, enter into 
negotiations with the complaining party within 20 days from the date of the request, 
unless it declares its confidence in full compliance wit hin the reasonable period of time.  
 
At any point of time before the submission of the request for authorization for suspension 
of concessions or other obligations referred to in paragraph 2 of this Article, the parties 
may agree to request an arbitration t o determine the level of nullification or impairment 
caused by the measure found to be inconsistent with a covered agreement.  
 
Such arbitration shall be carried out by the original panel, if members are available . The 
Director -General shall determine wheth er the members of the original panel are available . 
If any members of the original panel are not available, and the parties to the arbitration 
do not agree on a replacement, at the request of any party the Director -General shall 
appoint a replacement arbit rator10 from the roster of panelists provided for in Article 8 
within 5 days after the matter is referred to the arbitration, after consulting with the 
parties to the arbitration . 
 
The arbitration shall be completed and the decision of the arbitrator shall  be circulated to 
Members within 45 days after the date of the request . The award of the arbitrator shall 
be final, and parties shall accept it as the level of nullification and impairment for purposes 
of future proceedings under paragraph 6 of this Articl e related to that measure.  
 
4. Chairman's Text of 2 8 May 2003, TN/DS/9  (creation of a paragraph 1 bis in 
Article  22) 
Paragraph 1 bis 
 
At any point of time after the adoption by the DSB of its recommendations and rulings and 
before the submission of the request for authorization for suspension  of concessions or 
other obligations referred to in paragraph 2 of this Article, the parties may agree to refer 
to arbitration the determination o f the level of nullification or impairment caused by 
measures found to be inconsistent with one or more covere d agreements.  
 
[The complaining party may request such arbitration at any point of time after the expiry 
of the reasonable period of time where the parties agree that the Member concerned has 
not implemented the rulings and recommendations of the DSB . Where procedures under 
Article 21 bis have been initiated, the complaining party may request such arbitration only 
after the adoption of the compliance panel report and, as relevant, the Appellate Body 
report on compliance. ] 
 
[If a compliance panel is establish ed under Article 21 bis after an arbitration has been 
requested under this [sub]paragraph, the arbitration procedure shall be suspended until 
the adoption of the compliance panel report and, as relevant, the Appellate Body report 
on compliance].  
 
Such arbitration shall be carried out by the original panel , if members are available.11 
 
The arbitration shall be completed and the award of the arbitrator shall be circulated to 
Members within 45 days after the date of the request . The award of the arbitrator12 shall 
be final, and parties shall accept it as the level of nullification or impairment for purposes 
 
10 The expression  "arbitrator " shall be interpreted as referring either to an ind ividual or a group.  
11 If any member of the original panel is not available, and the parties to the arbitration do 
not agree on a replacement, at the request of any party the Director -General shall appoint a 
replacement within 7 days after the matter is ref erred to the arbitration, after consulting with the 
parties to the arbitration.  
12 The expression "arbitrator" shall be interpreted as referring either to an individual or a 
group . GPA/TN1994/3/Rev.4  
- 20 - 
  of any subsequent proceedings under paragraph 6 of this Article related to the same 
measures.  
 
B. Compensation  
1. Ecuador, TN/DS/W/33  (amendment  of Article 22.2)  
Deletion of existing text, to be replaced by the following:  
 
2. If: 
 
(i) the Member concerned does not inform the DSB pursuant to paragraph 3 of 
Article 21 that it intends to implement the recommendations or rulings of the 
DSB;  
 
(ii) the Member concerned does not submit within the required time -period a 
notification pursuant to paragraph 6(c) of Article 21 stating that the Member 
concerned has complied ; or 
 
(iii) the Compliance Panel or the Appellate Body report pursuant to Article 21 bis 
finds that the Member concerned has failed to bring the measures found to be 
inconsistent with a covered agreement into compliance therewith or otherwise 
comply with the recommendations or rulings of the DSB;  
 
such Member shall, if so requested by the compl aining party, enter into consultations with 
a view to agree on a mutually acceptable compensation.  
 
 Within 30 days from the request, the Member concerned shall submit to the other 
Member a proposal for mutually acceptable compensation . Such compensation may be 
partly or entirely monetary . When an arbitration referred to in Article 21.3 bis has taken 
place, such proposal shall be consistent with the award of the arbitrator . If the parties 
reach a compensation agreement, they shall so inform th e DSB . If no proposal for 
compensation has been submitted within the time -period referred to in the previous 
subparagraph or if no agreement has been reached within 30 days from the submission 
of the proposal for a mutually acceptable compensation, the com plaining Party shall be 
entitled to request authorization from the DSB to suspend the application to the Member 
concerned of concessions or other obligations under the covered agreements equivalent 
to the level of nullification and impairment . A meeting o f the DSB shall be convened for 
this purpose 10 days after the request, unless the complaining party requests that the 
meeting be held at a later date.13 
 
If the complaining party is a developing country and the Member concerned is a developed 
country, dur ing the consultations held between the parties to the dispute with a view to 
reaching a compensation agreement they shall bear in mind the provisions of Article 21.8 . 
If, in the above situation, no compensation agreement is reached and the complaining 
party asks the DSB for authorization to suspend the application to the Member concerned 
of concessions or other obligations under the covered agreements, the DSB shall authorize 
such suspension, taking account of the level of nullification or impairment indica ted by 
the complaining party or established by the arbitration under Article 21.3 bis concerning 
trade affected by the challenged measures, including, in addition, the level of impact of 
the said measures on the economy of the developing country in questio n as estimated by 
the arbitrator."  
 
 
13 In the case of paragraph 2 (ii) above, such DSB meeting shall not be conve ned before the expiry of 
the reasonable period of time.  GPA/TN1994/3/Rev.4  
- 21 - 
  2. European Communities, TN/DS/W/1  (amendment of Article 22.2)  
Deletion of existing text, to be replaced by the following:  
 
2. If: 
 
(i) the Member concerned does not inform the DSB pursuant to paragraph 3 of Article 
21 that it intends to implement the recommendations or rulings of the DSB;  
 
(ii) the Member concerned does not submit within the required time period a notification 
pursuant to paragraph 6(c) of Article 21 stating that the Member concerned has 
complied ; or 
 
(iii) the compliance panel or the Appellate Body report pursuant  to Article 21bis finds 
that the Member concerned has failed to bring the measures found to be inconsistent 
with a covered agreement into compliance therewith or otherwise comply with the 
recommendations or rulings of the DSB;  
 
(iv) the compliance panel or  the Appellate Body report pursuant to Article 21bis finds 
that the Member concerned has acted inconsistently with a covered agreement by 
not complying comply with those terms and conditions of a mutually agreed solution 
notified under Article 3.6 that are  subject to the disciplines of a covered agreement ; 
then 
 
 such Member shall, if so requested by the complaining party, enter into 
consultations with a view to agree on a mutually acceptable trade compensation.  
 
 Within 30 days from the request, the Member  concerned shall submit to the other 
Member a proposal for mutually acceptable trade compensation . When an arbitration 
referred to in paragraph 1 has taken place, such proposal shall be consistent with the 
award of the arbitrator.  
 
If no proposal for compe nsation has been submitted within the time period referred 
to in the previous sub -paragraph or if no agreement has been reached within 30 days from 
the submission of the proposal for a mutually acceptable compensation, the complaining 
Party shall be entitl ed to request authorization from the DS B to suspend the application 
to the Member concerned of concessions or other obligations under the covered 
agreements . A meeting of the DSB shall be convened for this purpose 10 days after the 
request, unless the comp laining party requests that the meeting be held at a later date .14 
The parties to the dispute are encouraged to consult before the meeting to discuss a 
mutually satisfactory solution.  
 
3. Chairman's text of 2 8 May 2003, TN/DS/9  (amendment of Article 22.2 and creation 
of a paragraph 2 bis) 
Deletion of existing text , to be replaced by the following:  
 
2. (a) The complaining party may either request the Member concerned to enter into 
consultations with a view to agreeing on a mutually acceptable trade or other 
compensation, or request an authorization from the DSB to suspend the application to the 
Member concerned of concessions or other obligations under the covered agreement s in 
accordance with paragraph 6 of this Article, at  any time after:  
 
(i) the Member concerned does no t inform the DSB pursuant to paragraph 3 of 
Article 21 that it intends to implement the recommendations or rulings of the 
DSB; or 
 
 
14 In the case of paragraph 2 (ii) above, such DSB meeting shall not be convened before the expiry of 
the reasonable period of time.  GPA/TN1994/3/Rev.4  
- 22 - 
  (ii) the Member concerned does not submit within the required time period a  
notification pursuant to paragraph 6(c) of Article 21 stating that the Member 
concerned has complied ; or 
 
(iii) a compliance panel report pursuant to Article 21bis and, where that report has 
been appealed, the Appellate Body report conclude that the Membe r concerned 
has failed to bring the measures found to be inconsistent with a covered 
agreement into compliance therewith or otherwise comply with the 
recommendations or rulings of the DSB, and the DSB has adopted such report 
or reports.  
 
(b) The procedures  in paragraph 2 bis shall apply to compensation.  
 
[(c) Where there is disagreement as to the existence or consistency with a covered 
agreement of measures taken to comply with the recommendation and rulings, 
proceedings shall be undertaken under Article 21 bis before recourse may be had to this 
paragraph.]  
 
2bis (a). The Member concerned shall, if so requested by the complaining party, enter 
into consultations with a view to agreeing on a mutually acceptable trade or other 
compensation at any point in time after any of the situations referred to in sub -paragraphs 
i), ii) o r iii) of paragraph 2 occurs . Where the complaining party has requested 
consultations under this paragraph, it may not request authorization from the DSB to 
suspend the application to the Member concerned of concessions or other obligations 
under the covered agreements in the 30 day period following the request for 
consultations.  
 
(b) Within [A : 30][B : 20] days from the request, the Member concerned [shall][should] 
submit to the other M ember a proposal for mutually acceptable trade or other 
compensation, taking into account any prior request put forward by the complaining party 
during these consultations.  [B: If the Member concerned does not submit such a proposal 
within 20 days from the  request, the complaining Member may request authorization from 
the DSB to suspend the application to the Member concerned of concessions or other 
obligations under the covered agreements, notwithstanding the provisions of 
subparagraph (a).]  
 
(c) Where the  complaining party is a developing country Member, the proposal should 
take into account all relevant circumstances and considerations relating to the application 
of the measure and its impact on the trade of that developing country Member . In such 
cases, the suitable form of compensation should also be an important consideration . 
Where the complaining party is a least developed country Member, special consideration 
shall be given to the specific constraints that may be faced by such countries in finding 
effective means of action through the possible withdrawal of concessions or other 
obligations.  
 
(d) If the parties to the dispute reach an agreement on mutually acceptable trade or 
other compensation, they shall notify the text of such agreement to the DSB . The Member 
concerned shall notify to the DSB the measures it has taken in application of the 
compensation agreement.  
 
C. "Cross -retaliation"  
1. India et al, TN/DS/W/47  (introduction of a paragraph 3 bis in Article 22)  
Notwithstanding the principles and procedures contained in paragraph 3, in a dispute 
involving a developing country Member as complaining party and a developed country 
Member as a party complained against, the complaining party shall have the right to seek 
authorization for suspension of concessions or other obligations with respect to any or all 
sectors under any covered agreements, if the party complained against fails to bring its 
meas ures into compliance with the rulings and recommendations of the DSB or a covered 
agreement.  
 GPA/TN1994/3/Rev.4  
- 23 - 
  2. Mexico, TN/DS/W/40  (amendment of Article 22.3)  
Deletion of paragraph 3 of Article 22 (which contains the rules concerning the sectors in which 
retaliation may ta ke place).  
__________