WT/DS583/10  
 
25 March 2022  
(22-2528) Page: 1/5 
  Original: English  
 
TURKEY – CERTAIN MEASURES CONCERNING THE PRODUCTION,  
IMPORTATION AND MARKETING OF PHARMACEUTICAL PRODUCTS  
AGREED PROCEDURES FOR ARBITRATION UNDER ARTICLE 25 OF THE DSU  
 The following communication, dated 22 March 2022 , from the delegation of Turkey  and the 
delegation of the European Union  to the Chairperson of the Dispute Settlement Body, is circulated 
at the request of these delegations.  
 
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The parties t o the dispute DS 583 "Turkey — Certain Measures Concerning the Production, 
Importation and Marketing of Pharmaceutical Products " have agreed the attached Procedures for 
Arbitration under Article 25 of the DSU (the "Arbitration Agreement ").  Pursuant to Art icle 25.2 of 
the DSU, the parties request you to notify the Arbitration Agreement to all Members as soon as 
possible.  
 
 
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  WT/DS583/10  
 
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Turkey  –Certain Measures concerning the Production, Importation and Marketing of 
Pharmaceutical Products (DS5 83) 
 
AGREED PROCEDURES FOR ARBITRATION UNDER ARTICLE 25 OF THE DSU  
 
 
1.  Taking into account that the Appellate Body is not presently able to hear an appeal1 in this dispute 
the European Union and Turkey (hereafter the "parties") mutually agree pursuant to Article 25.2 of 
the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) to enter 
into arbitration under Article 25 of the DSU to  decide any appeal from any final panel report2 as 
issued to the parties in dispute DS583. Any party to the dispute may initiate arbitration in accordance 
with these agreed procedures.  
2.  The arbitration may only be initiated if the Appellate Body is not ab le to hear an appeal in this 
dispute under Article 16.4 and 17 of the DSU. For the purposes of these agreed procedures, such 
situation is deemed to arise where, on the date of issuance of the final panel report to the parties, 
there are fewer than three Ap pellate Body members.  
For greater certainty, if the Appellate Body is able to hear appeals at the date on which the final 
panel report is issued to the parties, a party may not initiate an arbitration, and the parties shall be 
free to consider an appeal u nder Articles 16.4 and 17 of the DSU.  
 
3.  In order to facilitate the proper administration of arbitration under these agreed procedures, the 
parties hereby jointly request the panel to notify the parties of the anticipated date of circulation of 
the final panel report within the meaning of Article  16 of the DSU, no later than 45 days in advance 
of that date.  
The parties note that, with regard to the present panel proceedings, the panel has already notified 
the parties of the anticipated date of circulation of the final report within the meaning of  Article 16 
of the DSU.  
4.  Following the issuance of the final panel report to the parties, but no later than 10 days prior to 
the anticipated date of circulation of the final panel report to the rest of the Membership, any party 
may request that the panel su spend the panel proceedings with a view to initiating the arbitration 
under these agreed procedures. Such request by any party is deemed to constitute a joint request 
by the parties for suspension of the panel proceedings for 12 months pursuant to Article 12.12 of 
the DSU.  
The parties note that the present panel proceedings were already suspended on 20 December 2021 
(until 21 January 2022), which suspension was extended on 20 January 2022 (until 11 February 
2022), on 9 February 2022 (until 25 February 2022 ) and on 23 February 2022 (until 25 March 2022). 
The notification of the present agreement to the panel shall be deemed to constitute a joint request 
by the parties for further indefinite suspension pursuant to Article 12.12 of the DSU.  
The parties hereby jointly request the panel to provide for the following, before the suspension takes 
effect:  
 
i. the immediate transmission of the final panel report, on a provisional basis, to the 
arbitrators and the lifting of confidentiality for that sole purpose;  
ii. the transmission of the panel record to the arbitrators upon the filing of the Notice of 
Appeal : Rule 25 of the Working Procedures for Appellate Review shall apply mutatis 
mutandis ; 
 
1 The parties recall that, in concluding this agreement, they aim to maintain their rights and obligations 
under the WTO dispute settlement system, including its mandatory and binding character and two levels of 
adjudication through an independent and impartial review of panel reports, until such time as the Appellate 
Body may again be able to hear appeals pursuant to Articles 16.4 and 17 of the DSU.  
2 For greater certainty, this includes any final panel report issued in compliance proceedings pursuant to 
Article 21.5 of the DSU.  WT/DS583/10  
 
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  iii. the lifting of confidentiality with respect of the final panel report und er the Working 
Procedures of the panel and the transmission of the final panel report , duly adjusted 
for translation,  in the working languages of the WTO to the parties, to the third parties 
and to the arbitrators.3 
The parties note that the present panel  proceedings are already suspended but, by way of derogation 
therefrom, nevertheless affirm the limited joint requests in the preceding paragraph, to be executed, 
to the extent relevant, with effect from the date of the filing of a Notice of Appeal, and as  soon as 
the arbitrators are appointed . 
 
Except as provided in paragraphs 6 and 18, the parties shall not request the panel to resume the 
panel proceedings.  
 
5.  The arbitration shall be initiated by filing of a Notice of Appeal with the WTO Secretariat no lat er 
than 30 days after the suspension of the panel proceedings referred to in paragraph 4 has taken 
effect. The Notice of Appeal shall include the final panel report in the working languages of the WTO. 
The Notice of Appeal shall be simultaneously notified to the other party or parties and to the third 
parties in the panel proceedings. Rules 20 -23 of the Working Procedures for Appellate Review shall 
apply mutatis mutandis .  
The parties agree that, because the present panel proceedings have already been suspe nded, the 
time limit for the filing of a Notice of Appeal shall be no later than 30 days from the date on which 
this agreement is notified to the DSB.   
6.  Subject to paragraph 2, where the arbitration has not been initiated under these agreed 
procedures, the parties shall be deemed to have agreed not to appeal the panel report pursuant to 
Articles 16.4 and 17 of the DSU, with a view to its adoption by the DSB. If the panel proceedings 
have been suspended in accordance with paragraph 4, but no Notice of Appeal has been filed in 
accordance with paragraph 5, the parties hereby jointly request the panel to resume the panel 
proceedings.  
7.  The arbitrators shall be three persons randomly selected, in the physical presence of 
representatives of the parties, from a combi ned list of former Appellate Body Members and appeal 
arbitrators.4 The random selection will be conducted at the same time as the random selection in 
DS595 European Union — Safeguard Measures on Certain Steel Products , so as to ensure that one 
randomly se lected appeal is heard by two former Appellate Body Members and one MPIA appeal 
arbitrator whilst the appeal in the other dispute is heard by one former Appellate Body Member and 
two MPIA appeal arbitrators. If there is only one appeal it will be heard by one former Appellate 
Body Member, one MPIA appeal arbitrator, and the third person shall be drawn at random from the 
remaining persons on the combined list. The random selection shall be made immediately after the 
filing of any notice of appeal and the arb itrators informed immediately.  The parties and third parties 
will be informed of the results of the selection immediately, once any notice of cross -appeal has 
been filed. The arbitrators shall elect a Chairperson. Rule 3(2) of the Working Procedure for App ellate 
Review shall apply, mutatis mutandis , to the decision -making by the arbitrators. In the event of 
compliance appeal arbitration proceedings the arbitrators shall be the same persons that adjudicated 
the previous appeal arbitration proceedings, if ava ilable. If a person is not available or becomes 
unavailable in the original or any compliance proceedings, a replacement shall be drawn at random 
from the combined list of persons who are available. If no persons are available on the combined 
list, the par ties shall agree on a reasonable method for appointing a replacement, taking into account 
the approach used in the original proceedings. If no agreement can be reached within one month, 
either party may request the Director -General to appoint a replacement , taking into account the 
approach used in the original proceedings.  
8.  In order to promote consistency and coherence in decision making in this dispute and in dispute 
DS595  European Union — Safeguard Measures on Certain Steel Products , the arbitrators may, upon 
consultation of the parties, inform the arbitrators in the other dispute of the issues susceptible to be 
adjudicated, who may comment thereon, without prejudice to th e exclusive responsibility and 
freedom of the arbitrators in this dispute with respect to such decisions and their quality, and without 
 
3 The parties confirm that it is not their intention that the panel report be circulated within the meaning 
of Article 16 of the DSU.  
4 JOB/DSB/1/Add.12/Suppl.5, 3 August 2020.  WT/DS583/10  
 
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  prejudice to their independence and impartiality. Where necessary, the arbitrators in both appeals 
may receive any docum ent relating to the other appeal.  
9.  An appeal shall be limited to issues of law covered by the panel report and legal interpretations 
developed by the panel. The arbitrators may uphold, modify or reverse the legal findings and 
conclusions of the panel. Wher e applicable, the arbitration award shall include recommendations, as 
envisaged in Article 19 of the DSU. The findings of the panel which have not been appealed shall be 
deemed to form an integral part of the arbitration award together with the arbitrators ' own findings.  
10.  The arbitrators shall only address those issues that are necessary for the resolution of the 
dispute. They shall address only those issues that have been raised by the parties, without prejudice 
to their obligation to rule on jurisdictional  issues.  
11.  Unless otherwise provided for in these agreed procedures, the arbitration shall be governed, 
mutatis mutandis , by the provisions of the DSU and other rules and procedures applicable to 
Appellate Review. This includes in particular the Working Proc edures for Appellate Review and the 
timetable for appeals provided for therein as well as the Rules of Conduct. The arbitrators may adapt 
the Working Procedures for Appellate Review and the timetable for appeals provided for therein, 
where justified under Rule 16 of the Working Procedures for Appellate Review, after consulting the 
parties.  
12.  The parties request the arbitrators to issue the award within 90 days following the filing of the 
Notice of Appeal. To that end, the arbitrators may take appropriate orga nizational measures to 
streamline the proceedings, without prejudice to the procedural rights and obligations of the parties 
and due process. Such measures may include decisions on page limits, time limits and deadlines as 
well as on the length and number of hearings required.  
13.  If necessary in order to issue the award within the 90 day time -period, the arbitrators may also 
propose substantive measures to the parties, such as an exclusion of claims based on the alleged 
lack of an objective assessment of the facts pursuant to Article 11 of the DSU.5 
14.  On a proposal from the arbitrators, the parties may agree to extend the 90 day time -period for 
the issuance of the award.  
15.  The parties agree to abide by the arbitration award, which shall be final. Pursuant to Art icle 25.3 
of the DSU, the award shall be notified to, but not adopted by, the DSB and to the Council or 
Committee of any relevant agreement.  
16.  Only parties to the dispute, not third parties, may initiate the arbitration. Third parties which 
have notified th e DSB of a substantial interest in the matter before the panel pursuant to Article  10.2 
of the DSU may make written submissions to, and shall be given an opportunity to be heard by, the 
arbitrators. Rule 24 of the Working Procedures for Appellate Review sh all apply mutatis mutandis .  
17.  Pursuant to Article 25.4 of the DSU, Articles 21 and 22 of the DSU shall apply mutatis mutandis 
to the arbitration award issued in this dispute.  
18.  At any time during the arbitration, the appellant, or other appellant, may withdra w its appeal, 
or other appeal, by notifying the arbitrators. This notification shall also be notified to the panel and 
third parties, at the same time as the notification to the arbitrators. If no other appeal or appeal 
remains, the notification shall be d eemed to constitute a joint request by the parties to resume panel 
proceedings under Article 12.12 of the DSU.6 If an other appeal or appeal remains at the time an 
appeal or other appeal is withdrawn, the arbitration shall continue.  
 
5 For greater certainty, the proposal of the arbitrators is not legally binding and it will be up to the party 
concerned to agree with the pr oposed substantive measures. The fact that the party concerned does not agree 
with the proposed substantive measures shall not prejudice the consideration of the case or the rights of the 
parties.  
6 If the authority of the panel has lapsed pursuant to Arti cle 12.12 of the DSU, the arbitrators shall issue 
an award that incorporates the findings and conclusions of the panel in their entirety.  WT/DS583/10  
 
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  19.  The parties shall joi ntly notify these agreed procedures to the panel in DS583 and ask the panel 
to grant, where applicable, the joint requests formulated in paragraphs 4, 6, and 18.7 
 
 
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7 For greater certainty, should any of these requests not be granted by the panel, the parties will agree 
on alternative procedural modalities to preserve the effects of the relevant provisions of these agreed 
procedures.