WORLD TRADE
ORGANIZATIONTN/DS/W/45/Rev.1
4 March 2003
(03-1265)
Dispute Settlement Body
Special SessionOriginal:  English
CONTRIBUTION OF BRAZIL TO THE IMPROVEMENT OF THE
WTO DISPUTE SETTLEMENT UNDERSTANDING
Communication from Brazil
Revision
The following communication, dated 28 February 2003, has been received from the
Permanent Mission of Brazil.
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I. INTRODUCTION
1. Brazil understands that one of the drawbacks of the current dispute settlement mechanism is
the necessity for a Member to litigate a case de novo  through all the established phases and
time-frames even if the same measure nullifying or impairing benefits of this Member has already
been found WTO inconsistent in previous panel or appeal proceedings initiated by another Member.Brazil believes that a “fast track” or an “expedited procedure” in such cases would streamline the
system and render it more efficient.  It would be a positive way of strengthening the institutional and
legal framework of the DSU.  Developing countries, moreover, have a special and clear interest in a
rational and faster use of the system.
2. The idea of a fast track or expedited procedure has been presented, in other contexts, by
Australia (safeguard measures, access to compensa tion through Article 25 DSU) and Japan (“hit and
run” situations in case of discretionary measures).
3. In the present instance, Brazil seeks to provide an adequate manner to prevent the need of
complete, long and costly litigation about measures already ruled as inconsistent by adopted reports.
This proceeding would have the effect of providin g an incentive for full implementation of reports,
since no longer there would be the possibility of “playing with the time periods” of the complete panel
proceedings as they stand today for regular cases.  Furthermore, several cases that today only “stressthe system” could be channelled to the new fast track and less resources would be spent with cases
already clearly decided by a panel or by the Appellate Body.
II. THE PROPOSAL
4. The basic concept is that whenever a Member considers it is being affected by a measure that
has already been declared inconsistent by an adopted panel or Appellate Body Report, it would havethe right to request the establishment of a “fast track panel” that would be composed, if possible, of
the same panelists that served in the original panel that considered the matter.  The requesting
Member would have first to demonstrate, in its submission, that the measure at issue is the same as
the one already subject of a panel or appeal proceeding.  The other party, then, could object this
allegation by showing differences between the measure at issue and the measure previously declaredinconsistent.  To ascertain this question, the first element to be taken into consideration by the panel
would certainly be the request for the establishment of a panel and its terms of reference.TN/DS/W/45/Rev.1
Page 2
5. When requested, the panel would announce its decision on the basic question of “same
measure or not” in a limited period of [10-15] days after receipt of the rebuttal submission of the party
complained against.  If the panel confirms that the measure is the same, the fast track panel would
continue its work to the maximum time period of 90 days.  The panel findings could, as with any
other panel procedure, still be subject to an appeal, which would be performed within 45 days.  Incase the panel does not find that the measure is the same, it would finalize its work and the requesting
party, if it so wishes, could start regular panel procedures.
III. THE TEXT
6. Accordingly, Brazil suggests the inclusion of a new article, after Article 20, as follows:
Article [21]
Procedures Related to Measures Already Held Inconsistent with a Covered Agreement
1. A Member may request the establishment of a panel by the DSB under an expedited
procedure whenever its rights are being nullified or impaired by the same Member
taking a measure
1 that has already been found to be inconsistent with a covered
agreement by an adopted report.  The panel shall be established at the same DSB
meeting where it first appears on the agenda, unless the parties agree otherwise.  Priorconsultations are not required.
2. This panel shall be composed, whenever possible, by the same panelists having
served in the panel that has already ruled on the measure at issue.  In any case, the
panel shall be composed within [10] days of the establishment of the panel.
3. The complaining party shall deposit its written submission within [x] days from the
composition of the panel. The responding party shall submit its rebuttal within [x]
days from the receipt of the complaining party’s submission.
4. Within [15] days after receipt of the rebuttal submission, the panel shall issue a
decision to the parties declaring whether the measure at issue is the same as themeasure previously declared WTO inconsistent.
4.1 In special circumstances and if the panel considers it necessary in order to
reach this decision, it may convene a hearing in order to clarify  aspects of
the measure at issue.
5. If the panel finds that the measure at issue is different from the measure previously
declared WTO inconsistent, the expedited procedure is terminated, and the
complaining party may start panel procedures provided in Article 4 et seq  of this
Understanding.
6. If the panel finds that the measure at issue is the same as the measure previously
declared WTO inconsistent, a hearing shall be held within [x] days in order for the
parties to present their oral arguments related to the facts concerning the measure at
issue.
                                                     
1 For the purpose of this Article, “measure” shall mean any law, rule, regulation, policy, administrative
guidance, methodology, practice or action carried out by a government or on behalf of a government.TN/DS/W/45/Rev.1
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7. The panel shall issue its report within [90] days after the date of the establishment of
the panel.
8. Within [15] days after the date of circulat ion of the final report to the Members, the
report shall be considered for adoption by the DSB meeting unless a party to thedispute formally notifies the DSB of its intention to appeal.
9. The Appellate Body proceedings in this case shall be conducted in accordance with
Article 17 of this Understanding but shall not exceed 45 days from the date a party to
the dispute formally notifies its decision to appeal to the date the Appellate Body
circulates its report.
10. Where the panel or the Appellate Body concludes that the measure at issue is
nullifying or impairing a Member’s rights, it shall take into account, in its report, the
recommendations made by any report of the original case and, when appropriate, the
time period determined for the implementation of the measure previously declared
WTO inconsistent.
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