. /.RESTRICTEDWORLD TRADE
ORGANIZATIONWT/DSB/W/100
19 April 1999
(99-1539)
Dispute Settlement Body
19 April 1999Original:  English
EUROPEAN COMMUNITIES - REGIME FOR THE IMPORTATION,
SALE AND DISTRIBUTION OF BANANAS:  RECOURSE TO
ARTICLE 22.7 OF THE DSU BY THE UNITED STATES
Communication from Jamaica
The following letter addressed to the Chairman of the Dispute Settlement Body dated
14 April 1999 has been received from Jamaica with the request that it be circulated to Members.
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In light of the meeting scheduled for 19 April 1999, reference Airgram WTO/AIR/1058 dated
9 April 1999, with the single agenda item - Recourse to Article 22.7 of the DSU by the US -
WT/DS27/46, WT/DS27/ARB , I recall the sequence of events.  We may in fact be establishing, if not
precedent, then certainly guidelines to be follow ed by our successors.  We are all committed to the
rule of law, in which due process is paramount, and I believe this to be worth the effort.
Our recollection of the steps in the process, though by no means complete, is outlined below,
against the background of the discussions in the DSB and the General Council.
Chronology of events
1. On 25 January 1999 the DSB did not give authorization for the US to suspend concessions, in
accordance with its request as contained in WT/DS27/43 dated 14 January 1999.  This request by the
US was pursuant to Article 22.2 of the DSU.
2. At the meeting of the DSB on 29 January 1999 the EC requested arbitration.  This was
submitted subsequently in writing in document WT/DS27/46 pursuant to Article 22.6 of the DSU.
3. On 2 March 1999 the Initial Decision of the Arbitrators on the EC request under Article 22.6
of the DSU was issued in document WT/DS27/48.
4. On 3 March 1999 the meeting of the DSB (WTO/AIR/1030 dated 19 February 1999), which
was convened at the request of the US, was cancelled.
5. On 6 April 1999 the Arbitrators Report pursuant to the EC request under Article 22.6 of the
DSU, was circulated.
6. The DSB is scheduled to meet on 19 April at the request of the US, pursuant to Article 22.7 of
the DSU.WT/DSB/W/100
Page 2
At the meeting of the DSB on 19 April, I believe that many delegations would find it
informative and useful if you were to set out in a clear and comprehensive manner, the procedures
that were used and the issues surrounding the Article 21.5 Panel Reports, and their tie-in with the
Arbitrators Report.  This will certainly help Me mbers to understand the role and function of the DSB,
in particular Articles 2 and 23 of the DSU.
In this respect, I draw attention to footnote ten (10) on page nine (9) of the Arbitrators Report
"This by implication suggests that issues of violation and nullification or impairment can be
determined by arbitration" (emphasis added).  It would appear that the Arbitrators erred in selectively
quoting Article 23.2(a), and out of context with the preceding part of the Article, which specifically
requires " the rules and procedures of this Understanding " to be observed.  I believe that Article 23,
which is entitled "Strengthening of the Multilateral System", reflects the practice in Article XXIII ofthe GATT 1947 and 1994 - "Nullification or Impairment".  This is descriptive of CONTRACTING
PARTIES acting jointly.  The authority to determ ine violation is never delegated in the GATT and
WTO.  Also, the DSB's function cannot be described as  "supervisory" in the exercise of its Article 22
function as proposed by the Arbitrators in their Report.
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