WORLD TRADE
ORGANIZATIONTN/DS/W/37
22 January 2003
(03-0363)
Dispute Settlement Body
Special SessionOriginal:  English
TEXT FOR LDC PROPOSAL ON DISPUTE SETTLEMENT
UNDERSTANDING NEGOTIATIONS
Communication from Haiti
The following communication, dated 17 January 2003, has been received from the Permanent
Mission of Haiti on behalf of the LDC Group.
_______________
I. CONSULTATIONS
Article 4.10 should be amended as follows:
10. During consultations Members shall take into account the particular problems and
interests of developing-country Members especially those of least-developed country
Members.  Possibilities of holding consultations in the capitals of least-developed country
Members shall always be explored and a joint note to this effect made, which shall be
considered in the event of the request for a panel and any proceedings.
II. THE PANELS' TERMS OF REFERENCE
Article 7 should be amended by adding the following paragraph:
4. Where a least-developed country Member is party or a third party to any dispute
under this Understanding, the panels shall consider and make specific findings on the
development implications of th e issues raised in the dispute and shall specifically consider
any adverse impact that findings may have on the social economic welfare of the least
developed country Member.  The DSB shall fully take those findings into account in making
its recommendations and rulings.
III. COMPOSITION OF PANELS
Article 8.10 should be amended as follows:
10. When a dispute is between a developing-country Member and a developed-country
Member the panel shall include one panelist from a developing-country Member, and if the
developing-country Member so requests, there shall be a second panelist from a developing-country Member.
Article 8.10 should be further amended by renaming the current provision as paragraph (a) –
as amended – and adding the following paragraph (b):TN/DS/W/37
Page 2
10. (b) When a dispute is between a least-developed country Member and a
developing or developed country Member, the panel shall include at least one panelist from a
least-developed country Member and if the least-developed country Member so requests,
there shall be a second panellist from a least-developed country Member.
IV. TAKING ACCOUNT OF DIFFERENTIAL AND MORE FAVOURABLE
TREATMENT
The panel should be under a clear obligation to take into account all relevant provisions for
differential and more favourable treatment particularly for least-developed country Members, whether
or not the parties have raised those provisions.  Therefore, Article 12.11 should be amended as
follows:
11. Where one or more of the parties is a developing or least-developed country Member,
the panel's report shall explicitly take into account the provisions on differential and more
favourable treatment for developing- or least-developed country Members that form part of
the covered agreements.
V. COVERED AGREEMENTS
To specifically take into account the Decision on Measures in Favour of Least-Developed
Countries, Appendix 1 should be amended by adding the following:
(D) Decision on Measures in Favour of Least-Developed Countries
VI. DISSENTING OPINIONS
Article 14.3 should be amended by replacing it with the following:
3. In the report, each panelist shall deliver a separate written opinion on the issues and
make findings, provided that panelists that are in agreement may provide joint opinions.  The
majority finding shall be the decision of the panel.
Article 17.11 should be amended by replacing it with the following:11. In the report, individuals serving as Appellate Body members shall each deliver a
separate written opinion on the issues and make findings, provided that Appellate Bodymembers that are in agreement may provide joint opinions.  The majority finding shall be the
decision of the Appellate Body.
VII. SPECIAL CONSIDERATION FOR LEAST DEVELOPED MEMBERS IN
IMPLEMENTATION
Article 21.2 should be amended by adding the following footnote:
This provision qualifies paragraph 1 regarding promptly complying with the
recommendations and rulings of the DSB.
Article 21.2 should be further amended as follows:
2. Matters affecting the interests of least-developed countries and developing countries
shall be taken into account in particular with respect to measures which have been subject to
dispute settlement.TN/DS/W/37
Page 3
Article 21.7 should be amended as follows:
7. If a matter is one that has been raised by a developing- or least-developed country
Member, the DSB shall take any further action as appropriate in the circumstances.
Article 21.8 should be amended as follows:
8. If the case is one brought by a developing- or least-developed country Member, in
considering what appropriate action to take, the DSB shall take into account not only the
trade coverage of measures complained of, but also their impact on the economy and the
development prospects of developing country or least-developed country Members concerned.
Further, if the case is one brought by a least-developed country Member against a developedcountry member, the DSB shall recommend monetary and other appropriate compensation
taking into account the injury suffered.  The quantification of injury and compensation shall
be computed as from the date of the adoption of the measure found to be inconsistent with a
covered Agreement to the date of the withdrawal of the measure.
VIII.  COLLECTIVE ENFORCEMENT OF RECOMMENDATIONS AND RULINGS
Article 22.6 should be amended by renaming the current provision as paragraph (a) and
adding the following paragraphs (b) and (c):
(b) Where the case is one brought by a least-developed country Member against a
developed-country Member and the situation described in paragraph 2 occurs, and in order
to promote the timely and effe ctive implementation of recommendations and rulings made in
favour of least developed country Members, the DSB, upon request, shall grant authorization
to all Members to suspend concessions or other obligations within 30 days unless the DSB
decides by consensus to reject the request.  The following principles and procedures shallapply to such a request.
(i) Before making such a request, the least-developed country Member shall
refer the matter to arbitration for determination of the level of nullification and
impairment, which shall be done taking into account the legitimate expectations of
the least-developed country Member.  The arbitration shall further take into account
any impediment TO the attainment of the development objectives of the WTOAgreement and as further elaborated upon by the least-developed country Member
concerned.
(ii) The arbitration shall consider whether suspension of concessions or other
obligations in other sectors by the le ast-developed country Member would be
appropriate to effectively encourage the withdrawal of the measure found to be
inconsistent with a covered Agreement, taking into account possible adverse effects
on that least developed country Member.
(iii) Where the DSB grants authorization to all Members to suspend concessions
or other obligations, the level of suspension for each Member shall be an appropriate
percentage of the nullification and impairm ent determined under arbitration.  In a
case brought by a least-developed country Member, the level of suspension for each
Member shall be the level determined under arbitration to have been suffered by the
least-developed country Member.
(c) The DSB shall review the operation of paragraph (b) after a period of five years.TN/DS/W/37
Page 4
IX. SPECIAL PROCEDURES INVOLVING LEAST-DEVELOPED MEMBERS
In order to make the involvement of the Director-General or the Chairman of the DSB
mandatory and automatic, Article 24.2 should be amended by deleting the following words:
"upon request by a least-developed country Member"Article 24 should be further amended by adding the following paragraph 3:A developed country Member shall not commence a request for the establishment of a panel
before fully using the good offices, conciliation and mediation before the Director-General or
the Chairman of the DSB.  When requesting for the establishment of a panel against a least-
developed country Member, a developed-coun try Member shall provide the DSB with a
written account of how it has exercised due restraint in accordance with paragraph 1.  Where
the DSB grants the request for the establishment of the panel, the developed country Member
shall file the written account on due restraint with the panel, which shall make preliminary
findings, before proceeding with the case, on the written account, on the basis of the
provisions of paragraph 1, and on the existence and adequacy of efforts to reach a mutuallyagreed solution.  Where the panel finds that due restraint has not been exercised or that no
efforts or inadequate efforts had been made to reach a mutually agreed solution, it shall refer
the matter to the DSB, which shall take those findings into account and make preliminary
recommendations and rulings on the matter.  In this regard, the DSB shall request the
Director-General to provide good offices, conciliation and mediation.
X. RESPONSIBILITIES OF THE SECRETARIAT
Article 27.1 should be amended by adding the following:
The Secretariat shall avail the legal, historical and procedural research and other material
prepared with respect to a dispute, to the least-developed country Members that are parties
or third parties in the dispute.  Such research and other material shall cover and specifically
provide guidance on the specific rights and obligations relating to the particular issues raised
in the case.
Article 27.2 should be amended by adding the following:
The Secretariat shall maintain a geographically balanced roster of legal experts from which
least-developed country Members may select the experts to provide the legal services that the
Secretariat is required to avail under this paragraph.  Notwithstanding the reference to
impartiality in the provision of legal and other services by the secretariat, the legal expert
provided by the Secretariat shall fully discharge the functions of counsel to the least-developed country Member party to a dispute.
__________