RESTRICTEDWORLD TRADE
ORGANIZATIONTN/DS/M/4
6 November 2002
(02-6108)
Special Session of the Dispute Settlement Body
10 September 2002
MINUTES OF MEETING
Held in the Centre William Rappard
on 10 September  2002
Chairman:  Mr. Péter Balás (Hungary)
Subjects discussed: Page
1. Discussion of proposals submitted by participants................................................................1
(a) Proposal by Costa Rica ...................................................................................................... .........1
(b) Proposal by the United States ............................................................................................... ......8
(c) Proposal by the African Group ............................................................................................... ..20
(d) Proposal by a Group of Developing Countries .........................................................................21
(e) Proposal by  Jamaica......................................................................................................... .........24
(f) Proposal by Least-De veloped Countries...................................................................................25
Prior to the adoption of the agenda, the Chairman stated that since the 15 July 2002 meeting,
two new proposals had been submitted by Cost a Rica (TN/DS/W/12) and the United States
(TN/DS/W/13).  Apart from these two new proposals, he noted that two other proposals, one by the
African Group and the other by India, would be circulated in due course.  He said that he intended to
invite Costa Rica and the United States to present their proposals and give participants the opportunityto react to them.  He requested participants who wished to have their statements reflected in the
minutes of meeting to react to the proposals immediately after their introduction by Costa Rica and
the United States.  He said that participants who did not wish to react formally to these proposals
would have an opportunity to comment on them when this meeting switched to an informal mode.  He
said that while participants could comment on the proposals previously submitted, he wouldencourage them to provide their comments under item 2 of the agenda when all the proposals which
had been submitted would be discussed on an issue-by-issue basis.  He recalled that the issue-by-issue
discussion of all the negotiating proposals would be based on the Checklist of Issues, which had been
circulated by the Secretariat.  He noted that the Checklist would be updated regularly to take account
of new proposals that would be submitted by participants.  He proposed that the issue-by-issuediscussion be carried out in an informal mode.  He asked whether any participant would like to raise
any issue under "Other Business".  Since this was not the case, he proposed that the agenda be
adopted without the item relating to "Other Business".  It was so agreed.
1. Discussion of proposals submitted by participants
(a) Proposal by Costa Rica (TN/DS/W/12)
1. The representative of Costa Rica said that as his delegation had informally presented its
proposal at the 15 July 2000 meeting, he would only provide a brief summary.  He recalled that at the
previous meeting, he had stated that Members not directly involved in a dispute enjoyed very limitedTN/DS/M/4
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rights including the right to participate as third parties during the consultations and the
Panel/Appellate Body phases of the dispute settle ment system.  Notwithstanding the substantial
interest that some third parties might have in a cas e, the rights accorded to them were very limited.  It
was against this background that Costa Rica decided to submit its proposal which was essentially
aimed at broadening and deepening the rights of third parties in the dispute settlement process.  Inbroadening and deepening the rights of third parties, account should be taken of the need to preserve
an appropriate balance between the interests of third parties and the efficiency of the dispute
settlement process.  An important principle that  must be preserved was the expeditiousness of the
procedures, which was essential to the efficient working of the system.  Costa Rica's proposal was not
exhaustive;  it did not attempt to solve all the problems (real or theoretical) that had been experienced
in the exercise of third-party rights.  The propos al was based on Costa Rica's own experience with the
dispute settlement system in terms of the cases it had participated in, and also on discussions heldwith other delegations.  Costa Rica was conscious of the fact that its proposal did not cover all issues
related to third-party rights and would as such welcome comments from participants.  The proposal
encompassed five general topics:  (i) third-party participation in consultations;  (ii) third-party rights
during the panel and Appellate Body stages;  (iii) third-party participation in the interim review
process;  (iv) third-party access to information and participation in all stages of the process;  and(v) working procedures related to the exercise of thes e rights.  He reiterated that the objectives of the
Costa Rican proposal were to: strengthen the rights of third parties while preserving the
expeditiousness and effectiveness of the dispute settlement mechanism;  secure effective
implementation of the provisions of Article 10.1 of the DSU; build on past GATT/WTO practice and
Public International Law in establishing rights of third parties and achieve a better balance betweenthe rights of the parties and those of the third parties in the dispute settlement system.
2. The representative of the European Communities said that he would like to offer some
preliminary remarks on the Costa Rican proposal.  He said that the EC was supportive of the Costa
Rican proposal, as it was of the view that third parties should have better access and a larger role in
the dispute settlement process.  He said that it was the expectation of the EC that the proposal byCosta Rica would spawn a larger debate and encourage participants to table new proposals which
would seek to enhance the role of third parties in the dispute settlement mechanism.  However, some
of the proposals advanced by Costa Rica would need to be considered further.  It was the view of the
EC that at the consultations stage, the parties should still have the possibility to have closed sessions.
In other words, the right of Members to have consultations under Article XXIII of the GATT 1994
should be maintained.  It was clear that the first objective of the dispute settlement mechanism was to
find an amicable solution to the dispute.  Consultations had a role to play in securing this result and assuch it was necessary to maintain the present flexibility under the dispute settlement mechanism.  The
EC was also of the same view regarding the requirement that third parties should have a substantial
interest in a dispute before being allowed to participate in the dispute settlement proceedings.  The EC
could agree that the decision should not be left entirely to the discretion of the defending party.
However, the possibility to refuse the participation of third parties in the consultations should bemaintained, provided the defending party could justify its position that a claim of substantial interest
in a dispute was not well-founded.  Another aspect of the Costa Rican submission which required
further consideration was the proposal to allow third parties to present comments during the interim
review stage.  Since the parties to the dispute could negotiate a mutually agreed solution at this stage,
it might not be prudent to allow third parties a right to comment on the interim review stage.  The ECwas supportive of the Costa Rican proposal to allow Members to participate as third parties during the
Appellate Body stage, regardless of whether they part icipated in the panel proceedings.  The issues on
appeal might have a direct relevance for Member which wanted to participate as a third party in the
Appellate Body proceedings.
3. The representative of Chile welcomed the proposal by Costa Rica and said that it was a major
contribution to the work of the Special Session.  He said that Chile was particularly interested in the
issue of third-party rights having recently participated as a third party in a dispute.  While supportive
of the proposal to expand third-party rights, Chile was also of the view that the rights of third partiesTN/DS/M/4
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should never equal or exceed those of a party to a dispute.  It should be borne in mind that the WTO
dispute settlement system was designed in such a way to promote bilateral solutions to disputes.  It
flowed from this basic premise that some leeway  should be given to the parties to explore the
possibility of reaching mutually agreed solutions to disputes.  The flexibility granted to parties could
be severely compromised, if third parties were acco rded similar rights.  According extensive rights to
third parties could also affect the timeframes of the dispute settlement system.  Chile was, however, in
support of the proposal that would make it mandatory for third parties to be joined in consultations.
The distinction between Articles 4.11 and 10.2 of the DSU needed to be eliminated.  It was imperative
for there to be some sort of symmetry between the rights of third parties during the consultations and
the panel phases of the dispute settlement process.  Chile was supportive of the proposal aimed at
clarifying the time-period within which Members should reserve their third-party rights and also the
proposal that would entitle third parties to receive all the documents circulated among the parties andthe panel and to be present at all meetings.  Chile, however, had strong reservations against the
proposal that would require panels and the Appellate Body to give due consideration to the arguments
and opinions of third parties in their rulings.  This would not only complicate their main task, but
could also distract their attention from the main issues and arguments raised by the parties to the
dispute.  Besides, it was not certain that such a proposal would benefit small delegations who werealready finding it difficult to prepare and submit arguments either as complainants or respondents.  In
all likelihood, this proposal would only benefit a few important Members.  It would also not be
appropriate to involve third parties in deciding the panel's time-table and working procedures.  Chile
was also not in support of the proposal that third parties should be given access to interim reports of
panels, as it could complicate efforts by the parties to reach mutually agreed solutions.  The proposalthat Members which did not participate as third parties during the panel stage should have the
possibility of participating as third parties during the Appellate Body stage needed further reflection.
4. The representative of India said that his delegation was supportive of the proposal by Costa
Rica and appreciated its commitment to expand and strengthen third-party rights in dispute settlement
proceedings.  It was India's view that the Costa Rican proposal would contribute to greater internaltransparency of the dispute settlement process.  He said that India had taken note of the statement by
Costa Rica that its proposal was not exhaustive and that together with other Members, India might
submit proposals which would also touch on the issue of third party rights.
5. The representative of Uruguay welcomed the proposal by Costa Rica and said that Uruguay
was generally supportive of the Costa Rica's proposal to expand the rights of third parties in the
dispute settlement process.  It was, however, necessary for a clear distinction to be drawn between the
rights of the parties to a dispute and that of third parties.
6. The representative of Colombia welcomed the proposal by Costa Rica and said that Colombia
had  carefully examined the participation of third parties in the various stages of the dispute settlement
process and was convinced that this issue warranted further discussion.  Colombia was of the view
that the rights of third parties should be clarified and strengthened.  It was necessary for there to be a
reasonable balance between the rights of parties to the dispute and that of third parties bearing in mindthe multilateral nature of the dispute settlement mechanism.  With this in mind, Colombia supported
the proposal by Costa Rica to broaden the rights of third parties during the panel stage.  It did not,
however, support the idea of third-party participation in the interim review stage.  It believed that
participation of third parties at his stage could complicate and delay the process.  Colombia was also
not in support of the proposal relating to consultations.  It believed that the flexibility under thepresent system should be maintained and that third parties should not have an automatic right to be
joined in consultations.  Regarding the proposal on Article 17.4 of the DSU, Colombia was of the
view that it was necessary to resolve the proble ms stemming from the distinction made between two
types of third parties - active and passive - during the appellate stage.  It was salutary for the parties to
the dispute and for the system per se  to have an idea about the views and arguments of third parties.
There should be an express requirement for arguments to be presented by those wishing to participate
in a hearing.  Colombia was equally concerned about the current practice whereby a mere notificationTN/DS/M/4
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of a substantial interest in a matter automatically required the submission of a document during this
stage.  Colombia had reservations against the proposal to allow Members which did not participate as
third parties during the panel stage the right to participate in Appellate Body proceedings.
7. The representative of Norway referred to his statement at the last meeting in which he said
that Norway could support most of the proposals advanced by Costa Rica.  This remained Norway's
view after a closer examination of the proposal.  He said that Norway, however, had a few questions
which it would like Costa Rica to respond to and also to clarify certain aspects of its proposal.  Why
should there be a difference in the rights accorded under Article 4.11 of the DSU to third parties at the
consultations phase and those accorded to them under Article 10.2 during the panel stage? The easiest
solution would be to opt for Costa Rica's proposa l which would eliminate the discretion of the
responding Member.  On this point, Norway was not in agreement with the EC's suggested approach.
Norway would be grateful if Costa Rica could shed  some light on its proposal to amend Article 12.1
to provide that working procedures shall not limit the rights of third parties, unless they had been
consulted on the proposed changes.  Norway did not see the need for such a possibility to restrict the
rights of third parties.
8. The representative of Indonesia welcomed the proposal by Costa Rica and said that it was an
important contribution to the work of the Special Session.  He noted that Costa Rica's comprehensive
proposal was aimed at strengthening the rights of third parties from the establishment of a panel
through to the implementation period.  He said that the current dispute settlement system had created
a flexible mechanism through which a non-disputant could observe the proceedings and express their
views.  Since the creation of the system, it had accommodated and served Members' interest whenever
they were interested to participate as a third party.  Against this background, it was Indonesia's viewthat it was necessary to maintain a careful balance between the rights of the parties to the dispute and
third parties.  While Indonesia was generally supportive of expanding the rights of third parties, it was
also of the view that this should not be done at the expense of the rights of the parties to the dispute.
It should be borne in mind that the basic objective of the dispute settlement mechanism was to secure
a positive resolution of the dispute between the part ies.  Indonesia was of the view that the proposal
on Article 15 relating to the interim review stage was very broad and needed further reflection.  At
that critical stage, only the parties should be able to present their views and arguments.
9. The representative of the United States said that his delegation appreciated the Costa Rican
proposal to expand third-party rights in the dispute settlement process, and was willing to consider
how best to strike an appropriate balance between th e rights of parties to a dispute and that of third
parties.  The United States supported greater access by third parties to submissions, hearings and
reports.  It was convinced that most of these objectives could most easily and broadly beaccomplished through the transparency proposals it had submitted and which would be discussed
shortly. In considering proposals for greater third-party participation  in the dispute settlement
process, care needed to be taken to ensure that the parties were not over-burdened and that the process
efficiently accomplished its basic objective of resolv ing the specific dispute between the parties.  The
United States recognized that third parties could have a legitimate interest in having their viewsproperly reflected in the proceedings and could need the benefit of sufficient information in forming
those views.  In that context, their access to submissions by the parties could be helpful in the
preparation of their submissions.
10. The representative of Switzerland welcomed the proposal by Costa Rica and said that it was a
major contribution to the work of the Special Session.  He said that Switzerland could support most of
the proposals, especially those relating to the granting an unfettered right to third parties to join in
consultations, the right to be present at all panel and Appellate Body proceedings and to have access
to all submissions of parties. Switzerland neede d, however, to reflect on the proposal which would
allow Members which had not participated as third parties at the panel stage to be able to participate
as third parties during the Appellate Body proceedings.  From a systemic point of view, it was unusualTN/DS/M/4
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for a third party to participate only in the Appell ate Body's proceedings.  The impact of this proposal
on the time-frame needed to be taken into account.
11. The representative of Israel welcomed the proposal by Costa Rica and said that it attached
priority to this issue.  She, however, said that it was necessary to maintain an appropriate balance
between the rights of the parties to the dispute and third-party rights.  Israel was concerned about thepossible impact the Costa Rican proposal might have on the time-frame for the settlement of disputes,
and the probability of it complicating efforts by the parties to the dispute to reach a mutually agreed
solution.
12. The representative of New Zealand welcomed the proposal by Costa Rica and said that it was
a major contribution to the work of the Special Session.  He said that New Zealand was, however, in
agreement with the view that had been expressed by  a number of participants that the primary role of
the DSU was the settlement of disputes between the parties.  This objective should not becompromised by the granting of further rights to third parties.  New Zealand was also mindful of the
fact that panel and Appellate Body decisions not only affect the parties to the dispute, but also third
parties.  As such, New Zealand saw some merit in the proposal by Costa Rica and was supportive of a
number of its elements including allowing Members to reserve their rights as third parties during the
Appellate review stage, irrespective of whether they had participated in the panel proceedings.  In thiscontext, he said that New Zealand was in agreement with the reason provided by the EC, namely that
the issues on appeal might be of direct relevance to the Member wishing to participate as a third party
in the Appellate Body proceedings.
13. The representative of Korea welcomed the pr oposal by Costa Rica on third-party rights and
said it was an important contribution to the work of the Special Session.  While Korea was supportive
of expanding third-party rights considering the impact panel and Appellate Body reports could have
on Members other than the parties to the dispute, it was also its view that the Costa Rican proposal
should not compromise or depart from the basic pr inciples of DSU including the clear preference for
mutually agreed solutions to disputes.  Korea's support for the Costa Rican proposal was contingent
upon whether the proposals would compromise the basic principles of the DSU.  He reserved the rightof Korea to provide a detailed comment on other aspects of the Costa Rican proposal.
14. The Chairman reminded participants that they would have a further opportunity to comment
on the issue of third-party rights when agenda item 2 was taken up, namely the issue-by-issue
discussion of  the negotiating proposals in the order of the Checklist of Issues which had been
circulated by the Secretariat.
15. The representative of Brazil said that his country was of the view that the DSU should evolve
and adapt itself according to the necessities of a particular time.  Any review undertaken must be
forward-looking  and preserve the "acquis juridique" of the GATT/WTO.  The task of participants
was to craft a system which would take on board all the legitimate interests of Members.  This could
only be achieved through a rational debate of the negotiating proposals and maintaining a delicate
equilibrium between legal consistency, political concerns and pragmatism.  With respect to the
proposal by Costa Rica, Brazil was generally supportive of expanding third-party rights, particularlyaccess to documentation, but doubted whether this would actually benefit developing countries.  Only
a few countries would be in a position to take advantage of any improved access to panels and the
Appellate Body.  This would certainly be the case at the second panel meeting, which was dedicated
to a detailed discussion of the controversial issues in the case.  It was Brazil's view that only the
parties to the dispute should have access to this stage of the process.
16. The representative of Peru welcomed the Costa Rican proposal and said that her delegation
could agree to most of its elements.  As regards consultations, it was Peru's view that the flexibility
under the present system should be maintained.  Thus, it should be open to a complaining Member to
request consultations either under Article XXII or XXIII of the GATT 1994.  She said that Peru wasTN/DS/M/4
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supportive of the proposal to clarify the time-periods within which Members had to reserve their
third-party rights and also the proposal that third parties should have access to all communications and
be able to participate in all hearings.  It would not be advisable to allow third parties to participate in
procedural meetings, as it could affect the celerity of the process.  Peru was also not in agreement
with the proposal to allow third parties to partic ipate in the interim review stage, as it could
complicate the efforts of the parties to the dispute to reach a mutually agreed solution.  She said that
Peru had some doubts about the proposal to allow Members to participate as third parties in Appellate
Body proceedings, irrespective of whether they had participated in the panel proceedings.  It could
impose an extra burden on developing countries who would have to rebut any new argumentation that
might be advanced by the parties.
17. The representative of Hong Kong, China welcomed the proposal by Costa Rica and said that
it was a significant contribution to the work of the Special Session.  He said that Hong Kong, China
was broadly supportive of the proposal by Costa Ri ca and thought that it was possible to achieve
consensus on a number of its elements in these negotiations.  He said that his delegation could support
the following specific proposals: removing the limits on third parties to join in consultations;  allowing
third parties access to all the submissions and other information submitted to the panel or the Appellate
Body;  and allowing third parties to be present at the first substantive meeting and subsequent meetings ofthe panel and the Appellate Body.  He said that Hong Kong, China had some doubts about some elements
of Costa Rica's proposal.  First, Hong Kong, China was not sure whether it was necessary to require
panels and the Appellate Body to expressly accord due consideration to the arguments presented by third
parties in their reports, especially considering that Articles 14.2 and 17.10 of the DSU stipulate that
panels and Appellate Body should draft their reports in the light of the information provided and thestatements made.  The language used was sufficiently broad to cover information and statements
provided by third parties.  Second, Hong Kong, China shared the doubts expressed by some Members
regarding access by third parties to interim review reports and their participation in the interim review
stage.  Finally, Hong Kong, China had reservations about allowing Members who had not participated in
the panel stage to reserve their third-party rights during the appellate stage.  The participation of manynew third parties in the Appellate Body proceedings could be burdensome for the parties to the dispute
and delay the process.  It was possible for a Member to reserve its third-party rights during the panel stage
but not participate actively in the proceedings.  However, such a Member could participate actively in the
Appellate Body proceedings.
18. The representative of Ecuador welcomed the proposal by Costa Rica and said that it was a
significant contribution to the work of the Special Session.  He said that Ecuador was in broad
agreement with the proposal, except that it had reservations against some of its elements.  Under thecurrent system, Members which reserved their third-party rights had the right to make submissions
and participate actively in the process.  In the Banana case, for example, there was a record number of
third parties whose views were taken into account by the panels and the Appellate Body.  Depending
on the degree of its interest in a case, a Member could choose to become a party to the dispute or a
third party.  Against this background, Ecuador was concerned by the proposal that panels and theAppellate Body should expressly accord due consideration to the arguments presented by third
parties.  If this were to happen, the status of third parties would have been elevated to that of parties to
the dispute.  Ecuador also had reservations against the proposal to allow third parties to comment on
the interim report.  At this stage, it was still possi ble for the parties to the dispute to reach a mutually
agreed solution.  The participation of third parties at this stage of the process could frustrate theprimary objective of the dispute settlement system, which was to promote mutually agreed solutions
to disputes.  It was always open to third parties who believed that they had a significant interest in a
case to request the establishment of a panel in their own right.
19. The representative of Australia said that his country was of the opinion that it was necessary
to maintain a balance between rights of the partie s to the dispute and those of third parties and that
this would be its benchmark in evaluating the proposal by Costa Rica.  There was the need to reflect
carefully on any ideas or changes that might increase the administrative burden on the parties.TN/DS/M/4
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Australia had some reservations about changing the parties' rights concerning third-party participation
in consultations and also their involvement in the in terim review proceedings.  He said that Australia
would be interested in exploring further the que stion of third-party rights in Appellate Body's
hearings.
20. The representative of Mexico welcomed the constructive proposal by Costa Rica and said that
Mexico had taken note of the reservations of some participants against certain elements of the
proposal.  It was the view of Mexico that two elemen ts of the proposal should not create problems for
participants.  These were the right of access by third parties to all submissions of the parties and the
right to be present at all substantive meetings of the panel and the Appellate Body. Mexico would
wish to have a thorough discussion of all the proposals submitted by Costa Rica
21. The representative of Argentina welcomed the proposal by Costa Rica and said that it was a
significant contribution to the work of the Special Session.  While Argentina was supportive of
enhancing third-party rights, it also subscribed to the view already expressed by some participants that
this should not be done at the expense of the primary goal of the dispute settlement mechanism which
was to resolve a specific dispute between the parties.  It was imperative to strike a careful balance
between the rights of third parties and those of the parties to the dispute bearing in mind the right of
due process and also the need for a rapid solution to disputes.  It must be accepted that the rights ofthe parties to the dispute should always exceed those granted to third parties.  Turning to the specific
proposals, he said that Argentina agreed that third parties should have access to all documentation
submitted during the proceedings, at least up to the interim review part, as well as the right to attend
all relevant meetings.  He noted that it appeared that there was a consensus among the participants on
these two rights.  Regarding the proposal for the elimination of the discretion of the responding
Member to reject a request by a third party to be joined in consultations, he said that Argentina was
willing to consider further this proposal and that if  uniformity in the treatment of third parties was to
be ensured, it would probably be better to make acceptance of requests for consultations mandatory.
Argentina had doubts about the proposal which w ould require panels and the Appellate Body to
expressly consider  the arguments advanced by third parties during the proceedings.  Similarly, it was
also not sure whether it would be appropriate to allow Members which had not participated as third
parties in panel proceedings to participate in the Appellate Body proceedings.  He said Argentina
supported the statement by Chile that this proposal needed to be examined further.
22. The representative of Canada welcomed the Costa Rican proposal and said that she would at
this stage only make a few preliminary remarks.  She said that Canada supported the enhancement of
third-party rights, but was also of the view that it was necessary to maintain a proper balance between
the rights of the parties to the dispute and third parties.  She further said that Canada found theproposal that Members should be given the right to  participate as third parties in Appellate Body
proceedings, even though they might not have participated in the panel proceedings very interesting
and would like to reflect further on it.
23. The representative of Japan welcomed the proposal by Costa Rica and said that Japan was
generally in support of the enhancement of third-party rights.  However, like other participants, Japan
was of the view that it was necessary to strike a careful balance between the rights of third parties and
those of the parties to the dispute.  It should be remembered that the primary objective of the dispute
settlement system was to secure a prompt resolution of the dispute between the parties.  She said that
Japan was not sure whether it would be appropriate to allow third parties to attend the second
substantive meeting of the panel.  Similarly, it was Japan's view that it was not appropriate to allowthird parties to participate in organizational meetings of panels, as it could lengthen the dispute
settlement process and frustrate the primary aim of securing a prompt resolution of the dispute
between the parties.  If third parties' views were to be taken into account, it would mean that the
schedule of meetings would have to be convenient to each Member that had registered its interest in
the case.  Japan also believed that third parties should not have access to the interim reports of panels.TN/DS/M/4
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24. The representative of Costa Rica thanked participants for their detailed comments and
questions and said that he would attempt to provide a preliminary response to them.  He said that
Costa Rica also subscribed to the view that there should be a balance between the rights of parties to
the dispute and third parties, and that it was not the intention of Costa Rica to obliterate the distinction
between these two classes of parties nor put them on an equal footing.  The main objective of Costa
Rican proposal was simply to enhance the participation of third parties in the dispute settlement
system.  In reaction to the comments on the proposal on consultations, he said that it was not the
objective of Costa Rica to seek an amendment to Article XXIII of the GATT 1994.  Costa Rica
appreciated that the parties to the dispute might sometimes try to resolve their disputes during
consultations.  What was the object of Costa Rica's proposal was the requirement of "substantial trade
interest" in a matter by a third party under Article 4.11 of the DSU.  It was Costa Rica's view that the
application of this Article could produce absurdities and arbitrary decisions, primarily because of theambivalent nature it had been phrased.  In relation to the proposal that due consideration should be
given by panels and the Appellate Body to the argume nts of third parties, he said that it was not the
objective of Costa Rica to require panels and the Appellate Body to consider arguments submitted by
third parties which were not relevant to the case under consideration.  In other words, all relevant
arguments should, for example, come within the scope of the terms of reference of the Panel.  Inrelation to the comment by Ecuador that if a Member had a substantial interest in a case, it should
participate as a party rather than a third party, he said that it might not always be possible for a
Member to become a party to a dispute.  The dispute could relate to an agreement which the interested
Member might not be a party to, but nevertheless was affected by its implementation.
25. Regarding the proposal that third parties should be consulted before panel procedures were
decided, he said that it was not the intention of Costa Rica to assign a larger role to third parties, but to
ensure that their effective participation in the proceedings was not compromised by procedural rules.
On the issue of the participation of third parties in all relevant meetings, he said that it was not the
view of Costa Rica that third parties should be present and participate in all meetings.  What Costa
Rica was seeking was the representation of third parties in all stages of the proceedings.  That impliedthat third parties would not attend each and every meeting, but only those relevant meetings at which
their interests could be furthered.  Regarding the participation of Members as third parties in
Appellate Body proceedings even though they might not have participated in the panel proceedings,
he said that there were a number of reasons that justified third-party participation at the Appellate
stage.  The ramifications of a case would probably not be known until after the Panel handed down its
decision.  In such cases, it would be desirable to give a Member which did not participate in the Panel
proceeding an opportunity to express its views and present its arguments to the Appellate Body.  In
relation to the proposal that third parties should be allowed to participate at the interim review stage,
he said that given Costa Rica's earlier proposal that the relevant arguments of third parties should be
taken into account by panels, it was only logical that they should be allowed to participate at the
interim review stage to comment or express thei r views on the interim panel report.  It would be
pointless if panels took into account the arguments of third parties in their decisions, but did notprovide them with an opportunity to comment or e xpress their views at the interim view stage.  He
said that Costa Rica was willing to further engage any interested participant on any of the proposals
that it had presented.
(b) Proposal by the United States (TN/DS/W/13)
26. The representative of the United States welcomed the opportunity to discuss its submission on
greater transparency in dispute settlement proceedings.  It was clear that all Members had an interest
in improving and strengthening the operation of the dispute settlement system.  One key improvement
would be to make that system transparent.  The Un ited States had long advocated the need to provide
greater transparency in the dispute settlement system.  Experience had shown that the
recommendations and rulings of the DSB could affect large sectors of civil society, yet representativesof civil society were unable even to observe the arguments or proceedings resulting in the
recommendations and rulings of the DSB.  Greater transparency, as was typical in otherTN/DS/M/4
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intergovernmental international tribunals, could improve public confidence in the fairness of the WTO
dispute settlement system.  This could, in turn, improve the operation of the system, as greater public
confidence could translate into greater support for the implementation of the recommendations and
rulings of the DSB.  At the same time, non-party WTO Members would also benefit from being able
to observe the arguments and proceedings of WTO disputes.  The proposal of the United States wouldaddress these concerns by allowing the public to observe all substantive panel, Appellate Body and
arbitration proceedings, making submissions and statements public, and providing for final reports to
be made available to WTO Members and the public once they were issued to the parties.  The
proposal also advocated the possible development of guidelines to deal with amicus curiae
submissions.  In addition, the US proposal would continue to safeguard confidential information.
27. The United States was conscious of the fact that a number of Members had reservations
against some of its proposals and was willing to work closely with those Members in order to reach amutually satisfactory solution.  He said that he would make an attempt to address some of the
concerns which had been expressed in the past.  The United States did not believe that greater external
transparency would affect the inter-governmental nature of the WTO.  Allowing the public to observe
dispute settlement proceedings and to read submissions, statements and final reports did not change
the fact that any proceedings would continue to be between only governments, and that only Members
would be parties and have the right to make submissi ons and statements.  It would continue to be only
Members which had rights and obligations under the WTO Agreement.  Transparency was about
greater understanding of the process by civil society; it was not about making the proceedings
non-governmental.  With respect to public hearings, the United States was conscious of the fact that
there would be a number of logistical problems and was committed to working with delegations tofind appropriate solutions.  With respect to making submissions and statements public, except for
those portions containing confidential information, the United States was pleased that a number of
Members, on their own volition, had began to observe this practice.  As these submissions and
statements would ultimately be made public in the reports, the United States saw no reason why they
could not be made public from the outset.  Likewi se, final panel reports should be made public, once
they had been issued to the parties.  The current rules encouraged speculation and the leaking of
reports.  It was not appropriate for Members and the public to wait for several months until translation
was completed to see a report already available to the parties.  It was not the intention of the United
States to diminish the importance of ensuring that reports were available in all three official
languages, nor diminish the importance of ensuring that adequate time was provided after circulation
for Members to assess the reports and exercise their rights accordingly.  For this reason, the United
States was proposing that reports should not have official status until after they had been circulated inthe three official languages, and that current DS U time-frames, such as those for the adoption and
appeal of reports, continued to run from the date of official circulation.  With respect to amicus
submissions, he said that the United states had taken note of the concerns expressed by Members
about the need to ensure greater predictability in how these submissions were handled, and also in
minimizing the burden on all parties by ensuring that parties knew in a timely manner when, and towhat degree, a panel or the Appellate Body was inte rested in exploring an issue canvassed in such a
submission.  Guidelines could be useful in addressing these concerns.  There was a clear distinction
between third parties and those who sought to provide an amicus  submission.  Members who reserved
their third-party rights had a right to participate, whereas a potential amicus  would first need to be
accepted by the panel or Appellate Body.
28. The representative of Malaysia commended the United States for its well crafted proposal and
said that the position of Malaysia on the issue of transparency had not changed.  Malaysia was still of
the view that the issue of transparency fell outside the scope of the Doha mandate which was to
clarify and improve the DSU.  Malaysia failed to see how the proposal by the United States would
assist in the realization of this objective.  He said that if the United States insisted on maintaining its
proposal, Malaysia and a number of developing-country participants would table a proposal on how
amicus curiae  submissions should be handled in the WTO legal system.  Turning to the proposal by
the United States, he said that the dispute settlement system of the WTO was unique and that it couldTN/DS/M/4
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not be likened to that of the International Court of Justice or the International Tribunal of the Law of
the Sea, and the other international organizations referred to in the proposal by the United States.  He
said that Malaysia could only support a few of the proposals advanced by the United States, namely,
those relating to the expansion of the rights of third parties and allowing the general public access to
reports on a timely basis.  Even with the latter, Malaysia had some reservations.  It would prefer thereport to be first released to Members and to the general public after a few days.  The interval would
enable small delegations such as Malaysia to prepare a report on the case to capitals.  It was important
for capitals to learn about the case "first hand" rather than through the media.
29. The representative of Chile welcomed the proposal on transparency by the United States and
said that it would enable the participants to engage in a frank discussion of the subject.  He said that
the United states had sought to argue in its paper that transparency was in the interest of all Members,
particularly those who were not parties to a dispute and that the judicial systems of other internationalinstitutions was more transparent than that of the WTO.  With respect to the first argument, it should
be borne in mind that there was an avenue created by the DSU through which Members which were
not parties to a dispute could participate in the proceedings.  Any Member interested in a case could
reserve its third-party rights within a prescribed time and would be entitled to receive the initial
documentation provided by the parties to the case and also have an opportunity to present its case to apanel or the Appellate Body.  With respect to the second argument, it should be remembered that most
of the judicial systems referred to by the United States were qualitatively very different from the
dispute settlement mechanism of the WTO, in the sense that they lacked an effective enforcement
mechanism and as such created less pressure on governments.  The United States further argued that
greater transparency would facilitate the task of legislators in implementing recommendations andrulings of the DSB, as they would have no doubts about the fairness and adequacy of the process.  He
questioned if the non-implementation of the recommendations and rulings of the DSB in the a number
of cases including United States – Section 110(5)  of the US Copyright Act; United States – Tax
Treatment for "Foreign Sales Corporations"; and United States - Anti-Dumping Act of 1916 be
attributed to the concern that there was no transparency in the decision-making process of the Panelsand the Appellate Body?  It was within the right of every WTO Member to include legislators in its
team which would represent it at panel and Appellate Body hearings, if they so wished.  He said that
the proposal by the United States was lacking in details in several respects.  It was, for example, not
clear what was meant by meetings should be open.  Did it mean that the general public would be
entitled only to observe the meetings or would they be able to intervene?  Would the general public be
able to attend all the meetings or only some of them?  It should be borne in mind that third parties
were not entitled to attend all meetings of the Panel but only a session of the first meeting.  Regardingthe proposal for the creation of a central registry for documents, was the United States proposing that
it should be accessible to the general public and that the documents should be made available after a
case had been decided or as soon as the documents were submitted by the parties?  The issue of access
to final reports was not a problem related to transparency, but rather to translation capacity.  It was
well known that the time lapse between the issuance of the final report and its circulation to Membersand the general public was due to the need to translate the report into French and Spanish.  In all but
one case, all reports had been issued by panels in English.  It would be inconceivable for panel and
Appellate Body reports to be circulated in only one of the official languages of the WTO.  Regarding
amicus curiae  submissions, he said that Chile would have appreciated if further details had been
provided in the proposal by the United States.  He further said that since the position of Chile waswell known, he did not wish to re-state them here.
30. The representative of the European Communities welcomed the proposal by the United States
and said that the EC, which had made a similar proposal , shared the view of the United States that the
public had a legitimate interest in the WTO dispute settlement proceedings.  The EC was also in
agreement with the US argument that a more open  process would not only benefit the general public,
but also non-party WTO Members, particularly developing countries which had no experience with
how the system worked in practice.  On access to submissions, the EC considered that it was
necessary to have some rules concerning when disclosures should be made.  The EC's practice was toTN/DS/M/4
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make its submissions public on the same day that they were submitted to the WTO adjudicating body.
The EC would like to know the views of the United States on the possible adoption of the EC's
practice as the general practice in the WTO.  On access to the final and definitive reports of panels
and the Appellate Body, he said that the EC was still considering the proposal by the United States
that the reports should be made available to Members and the general public in their original languagebefore being translated into the other official languages of the WTO.  On amicus curiae  briefs, he said
that the EC's proposal was similar to that of the United States as both called for the development of
guidelines to regulate how these briefs should be handled in the WTO.  He said that the EC would be
interested in knowing from the US which legal means could be used to achieve their objectives.  In
this regard, he was not sure  if the United States was contemplating an amendment to the relevant
rules of the WTO or other legal means?  The EC would also be interested in knowing whether the
United States had any thoughts on how amicus  briefs could be filtered for admission in dispute
settlement proceedings.
31. The representative of Norway welcomed the proposal on transparency by the United States
and recalled that Norway had indicated its support for greater transparency in previous statements to
the Special Session.  He recalled that the United States was advocating for access to be granted to the
general public to observe all substantive meetings of panels, the Appellate Body and arbitrationproceedings with the exception of sessions where business confidential information would be
considered.  He further recalled that US proposal called for the provision of a basic set of procedures
with some flexibility for the relevant adjudicatin g body to refine these in light of the particular
circumstances.  Given the fact that findings of panels and the Appellate Body could directly influence
businesses and be of interest to the civil society,  Norway supported the US proposal that submissions
to panels and the Appellate Body should be made public as soon as practicable.  Regarding the
suggestion that submissions should be made to a central registry at the WTO, it was Norway's view
that this should be optional.  Parties should be able to decide which medium they were going to use to
make their submissions public.  Regarding the suggestion that the general public should receive the
final reports by panels and the Appellate Body at the same time as the parties, it was Norway's viewthat, if such a solution was chosen, this should equally apply to other WTO Members.  This proposal,
however, raised the question of whether the 20-day period for the consideration of panel reports by
the DSB, set forth in Article 16:1 of the DSU, and the time frame for appeal, should start from this
earlier date.  He said that Norway would be interested in hearing the views of the United States and
other participants on this point, as improved transparency might make it easier to reduce the time-
frame for the settlement of disputes.  Regarding the proposal to grant access to the substantive
meetings of panels and the Appellate Body, he said  that Norway was unsure of the necessity of this
proposal.  Norway would appreciate hearing from the United States how it foresaw the
implementation of this proposal and its financial implications.  It might be useful if this proposal was
implemented on a trial-basis to assess how it would work in practice.  Regarding amicus  briefs, he
said that Norway had indicated earlier that it found the proposal by the EC to amend Article 13 of the
DSU very interesting and would request a further el aboration of this proposal.  Norway would like to
hear from the United States exactly how it foresaw the implementation of these procedures, and
whether it was foreseen that amicus  briefs could be submitted only at the Panel stage and not at the
Appellate Body stage.  In relation to the statement by the United States in its proposal that "[b]eing
better informed about disputes generally could aid Members in deciding whether to assert third party
rights in a particular case", he drew attention also to the statement just made by the United States that"Members which reserved third party rights had the "right" to participate, whereas amicus  briefs must
first be accepted by the Panel or the Appellate Body".  Could these two statements inspire the position
of US with respect to third party rights during consultations?  Automatic acceptance of third parties in
consultations would facilitate Members' assessment of third party rights in other stages of the process.
Concerning the proposal to make changes to the DSU as guidelines instead of amendments, he saidthat Norway would prefer that any changes to the current rules that might be agreed upon by
participants to be reflected in the DSU, and thus was not in support of guidelines that did not have a
clear legal basis in the text of the DSU itself.TN/DS/M/4
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32. The representative of New Zealand welcomed the proposal by the United States and said that
it raised very fundamental questions which deserved the attention of participants.  The Special Session
had been charged with the responsibility of reviewing the DSU and to consider whether the rules
agreed to in 1995 could be improved in light of the experience of the last seven years.  One of the
realities that must be borne in mind, as pointed out in the paper by the United States, was the fact thatthe WTO dispute settlement system had attracted considerable attention from many different sectors
of society.  New Zealand believed that this was a positive development.  Partly, it was a reflection of
the fact that the DSU had operated effectively, and had been used extensively by WTO Members to
resolve trade disputes.  However, in New Zealand's view, it also suggested that issues associated with
the openness of WTO dispute settlement processes warranted further consideration.  Clearly this was
a sensitive issue that would require very careful consideration.  New Zealand believed that a useful
starting point for discussions on this issue might be a closer consideration of the rules and experiencesin other international dispute settlement tribunals, su ch as those referred to in the introduction of the
US paper.  In this regard, New Zealand thought that  it would be helpful if the Secretariat produced a
paper reflecting the rules and practices of other international judicial bodies on the openness of
meetings.  This paper could also, perhaps, consider the practical implications of such rules, including,
for example, appropriate meeting venues, room capacity, and procedures for closed sessions and thehandling of confidential information.  New Zealand was aware that some delegations had expressed
the view that the WTO dispute settlement system was unique and that it was materially different from
those of other intergovernmental institutions, but was convinced that a short factual paper as described
above, would facilitate discussions among participants.  He said that New Zealand would give further
thought to the other proposals tabled by the United States and provide their comments at a futuremeeting.
33. The representative of India welcomed the proposal by the United States and said that it dealt
broadly with two issues, namely transparency and amicus curiae  briefs.  On amicus curiae  briefs, the
US proposal tried to emphasize that it was merely a procedural issue.  It stated that Members might
wish to consider whether it would be helpful to adop t guidelines for handling such briefs to address
those procedural concerns that had been raised by  Members, panels and the Appellate Body.  He said
that India's views on this subject were well-known.  In that context, he recalled the statement made by
India to the Special Session on 15 July 2002 and said that he did not wish to repeat India's concerns
and arguments against the consideration of unsolicited amicus curiae  briefs by the WTO quasi-
judicial bodies.  India would like to make it clear that  this was not a procedural issue.  It was indeed a
substantive issue affecting adversely the rights and obligations of the Members, especially the
developing-country Members.  This issue was considered and rejected during the Uruguay Round.  Itwas India's view that the US proposal was not acceptable to a majority of Members.  Given the
divergences in the views of Members, it would be better if this issue was resolved definitively.  With
that in mind, India would later introduce a proposal on this issue.
34. As regards the transparency proposal of the United States, India was of the view that it was
unnecessary to open up the dispute settlement proceedings to the media and the general public.  If thedispute settlement process was made accessible to the general public, there was the real possibility
that the media could influence the outcome of cases , turning the process into trial by media.  This
would be an unhealthy development, as it could result  in miscarriage of justice.  It was the view of
India that the factual and legal issues arising out of trade disputes had to be discussed in an objective
and dispassionate manner, rather than under public glare and media scrutiny.  Moreover, it could be aburdensome proposition for Members, especially th e developing-country Members, for not only did
they have to retain the best possible lawyers to repr esent them, but also to cultivate relations with the
media.  This was simply impossible.  India did not agree with the United States that paragraph 10 of
the Doha Ministerial Declaration supported its proposal on transparency.  It could not be inferred
from this paragraph that Ministers supported the opening up of the process to the general public.  Therecord of the United States on transparency in dispute settlement matters was neither encouraging nor
inspiring.  In that context, he referred to the statement made by Norway and said that the US had
consistently opposed the broadening of third-party rights in a number of cases.  These included FSCs,TN/DS/M/4
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Shrimps, HFCS, Automotive, etc).  The US and the EC  failed to notify their mutually agreed solution
to the DSB in a textiles case until after the lapse of about a year.  They had also not disclosed the
arrangement they had reached in the Copyright case.  Australia had requested the parties to respect
their notification obligations, but those requests had gone unheeded.  It seemed clear that the US was
more concerned about the rights of the general public and the media than the rights of WTOMembers.  For this reason, India could not accept the US proposal on transparency.
35. The Chairman said that the Secretariat had indicated to him that it could prepare the factual
paper requested by New Zealand on the rules and practices of other international judicial bodies
governmental institutions regarding transparency is sues.  He stressed that the paper was only meant to
assist participants in their consideration of proposals relating to transparency and that it would be up
to them to draw their own conclusions.
36. The representative of Hong Kong, China welcom ed the US proposal and said that the issues
covered in the proposal were highly controversial and there was no consensus among Members on
them.  Regarding the proposal to grant the general public access to meetings of panels, the Appellate
Body and arbitration proceedings, he said that while Hong Kong, China appreciated the impact that
the decisions of panels and the Appellate Body could have on some sections of civil society, it was
unconvinced by the argument more openness would ensure greater compliance and enhance thecredibility of the dispute settlement system.  This view had been contradicted by a number of
academics who asserted that opening up the process would serve no useful purpose and could
complicate efforts of the parties to reach a mutually agreed solution.  Parties were more likely to
harden their positions when the general public was fully apprised of the facts and circumstances
surrounding the case.  This would defeat the primary goal of the dispute settlement mechanism.  Hesaid in that context that Hong Kong, China was in  agreement with Chile that the panel and Appellate
Body process could not be likened to that of a court of law in domestic jurisdictions.  The WTO
process was not meant to be adversarial;  its main purpose was to assist the parties to find an amicable
settlement to their dispute.  In that sense, the system was unique and could not be compared with the
systems of other intergovernmental institutions.  He  said that Hong Kong, China, however, supported
the proposal relating to access by the public to reports on a timely basis.  Early circulation of panel
reports would not affect the substantive rights of the parties and could enhance public understanding
of the dispute settlement mechanism.  Hong Kong, China did not agree that parties and third parties to
a dispute should be obliged to make their submissions public; it should be left to the discretion of each
party to the dispute.  It also had some doubts about the usefulness of the creation of a central registry
to which parties should deposit their submissions.  It would impose administrative burdens on the
Secretariat which was already stretched in terms of human resources.  On amicus  briefs, he said that
Hong Kong, China was sympathetic to many of the arguments advanced by India in its statement to
the Third Special Session.  It shared the view of India that this issue had not been resolved by the
Appellate Body and that it was still an outstanding issue which needed to be resolved definitively.
India also concurred with the view that acceptance of amicus  briefs would impose a burden on the
parties to the dispute and also delay the process.  In that context, it did not agree with the UnitedStates that acceptance of such briefs would not affect the time-frame for the settlement of disputes.
While Hong Kong, China was willing to consider further the views of the United States on this issue,
it was of the view that given the wide differences between Members, it would not be possible to
achieve consensus on this issue.
37. The representative of the Philippines welcomed the proposal by the United States and stated
that it was aware of the importance of this issue to the United States.  Philippines, however, had some
serious concerns about the proposals tabled by the United States.  He said that the Philippines could
not understand why it was necessary for civil soci ety and non-party Members to have an opportunity
to observe the arguments or proceedings.  If they wished to become acquainted with the facts of the
case and the surrounding circumstances, they coul d read the relevant reports and communications
when these were made public.  Members which had an interest in the case could participate as third
parties in the proceedings or could even request consultations in their own right.  The disputeTN/DS/M/4
Page 14
settlement system of the WTO was unique and it was not appropriate for the United States to compare
it with those of other intergovernmental institutions  such as the International Court of Justice, the
International Criminal Court and the Tribunal of the Law of the Sea.  While sections of civil society
might be affected by panel and Appellate Body decisions, it was up to their governments to defend
their interests.  Addressing the US argument that increased transparency could promote greatercompliance and increase the credibility of the dispute settlement system, he said that the crucial
question was whether panels and the Appellate Body would have decided differently in previous
cases, if the general public had been allowed to observe the proceedings?  Philippines agreed with
other participants that opening up the process to the media and the general public could complicate
efforts by the parties to reach a mutually agreed solution and encourage them to play to the media
gallery with a view to sending signals to their domestic constituencies that their interests were being
strongly defended at the WTO.  In relation to the argument that being better informed about disputescould assist Members in deciding whether or not to reserve their third-party rights in a particular
dispute, he said this had relevance only to future disputes, given the fact that such rights had to be
reserved within 10 days of the establishment of the panel.  A Member could not decide to become a
third-party in mid-stream.  Members which decide t become third parties in a dispute were usually
motivated by commercial considerations.  It seemed clear that the US proposal was designed to satisfy
its domestic constituency.  If the civil society in the US wanted to be better informed about the WTO
dispute settlement system, it was up to the United States to fulfil those demands.  It was not
appropriate for the US to attempt to resolve its domestic problems in a multilateral context.  In
relation to the proposal that the general public should access to reports and other documentation on a
timely basis, he said that it was the Philippines' view that such reports and submissions should bemade available to the general public within a reasonable period of time.
38. The representative of Brazil welcomed the proposal by the United States and said that Brazil
was sympathetic to some of its elements, particularly those relating to the timely access of the general
public to submissions and reports.  Brazil was willing to work with the United States with a view to
refining these proposals.  On access of the general public to the proceedings of panels and theAppellate Body, he said that in most domestic ju risdictions, the public had a right to observe the
proceedings except, for example, where sensitive in formation or evidence was being considered.  It
should, however, be borne in mind that the WTO dispute settlement was not a court of law as had
been pointed out by Chile.  It was, therefore, not appropriate to compare it with other systems.  It was
a quasi-judicial body as well as a negotiating forum.  The ramifications of the US proposal should be
fully assessed before a decision was made.  Would the granting of access to the general public to the
proceedings encourage the parties to be more forthcoming or would it result in a hardening ofpositions and make reaching compromises difficult?  Granting access to the public would invariably
benefit the developed world, as the costs for attending these meetings would be too prohibitive for
individuals and organizations in the developing world.  On amicus curiae  briefs, it was the view of
Brazil that the US proposal would raise more problems than it would solve.  It would be appropriate
to label amicus curiae  briefs as amicus partis  or amicus causae , since they were usually intended to
assist one of the parties instead of enlightening the panel or the Appellate Body.  Brazil would rather
maintain the current Article 13 of the DSU which authorized panels to seek information.  It should,
however, be understood this right did not encompass receiving unsolicited information.
39. The representative of Canada said that she was going to offer preliminary comments on the
US proposal.  Canada supported the goal of greater transparency in WTO dispute settlement
proceedings, as it believed that granting access to the general public would help to dispel suspicion
about the WTO process.  Interested observers could see for themselves the highly professional and
impartial way in which the WTO dispute settlement mechanism operated.  Granting access to the
general public did not mean that procedures could not be adopted to protect sensitive information
including business confidential information.  In relation to timely access of the general public tosubmissions, he said that Canada's practice was to make its submissions public at the time of filing,
after removing any business confidential information.   She said in that context that Canada was not
alone in adopting this practice and that a number of Members had also adopted this practice.  CanadaTN/DS/M/4
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was supportive of the proposal by the US to amend the DSU to provide that submissions should be
made public.  On timely access to final reports, sh e said that Canada was in agreement with the
United States that final reports should be released as soon as possible, after the removal of any
business confidential information.  Canada was willing to work with participants with a view to
reaching agreement on the earliest possible date that reports should be released to the general publictaking into account the need to respect the WTO policy regarding the circulation of reports in the
three official languages of the organization.  In relation to amicus curiae  submissions, he said that
Canada favoured the adoption of multilaterally agreed procedures for handling these submissions.
The current situation where procedures were decided on a case-by-case basis was not satisfactory.  He
reserved Canada's right to make a detailed statement on any of the proposals at a future date.
40. The representative of Indonesia welcomed the proposal by the United States and said that
Indonesia was in agreement with the US that th e WTO dispute settlement mechanism could affect
large segments of civil society.  Indonesia was, how ever, of the view that it was the responsibility of
each Member to keep civil society  abreast of developments in a case to which it was a party or a
third-party and explain the implications of the decision of the Panel or the Appellate Body, as the case
may be.  The WTO dispute settlement mechanism was unique and could not be compared with the
judicial systems of other intergovernmental organiza tions.  A key feature of the WTO system was the
flexibility that the Members had in exploring mutu ally agreed solutions to their disputes.  The
confidential nature of the proceedings encouraged  parties to be more forthcoming during bilateral
consultations aimed to resolve the dispute.  Indonesia was of the view that this aspect of the current
system should be maintained and not changed.  Indonesia's stance on this issue did not mean that it
was against transparency.  In relation to the argument that increased transparency could facilitate theimplementation of the DSB's recommendations and rulings and enhance the credibility of the system,
he said that Indonesia was of the view that th e link between transparency and implementation was
very tenuous and that implementation depended on the political will of the responding Member.  On
granting access to the proceedings to the general publi c, he said that Indonesia did not see a need for
this.  Opening up the process could make it difficult for the parties to achieve a mutually agreedsolution.  Each party was likely to harden its position making it extremely difficult to achieve a
political settlement.  On amicus curiae  briefs, Indonesia was of the view that this issue could be
resolved if all interested persons or groups submitted their briefs through their respective governments
which, in turn, could decide to incorporate them into their own submissions.  Currently, submissions
by a number of Members reflected the interest s and concerns of a number of disparate groups
including the business community and non-governmental organizations.  The inter-governmental
character of the WTO should be preserved; only Members should be able to submit their viewsdirectly to panels or the Appellate Body.  One of the main challenges facing the WTO was how to
improve internal transparency.  External transparency could be resolved if Members put in place an
effective internal coordination policy.
41. The Chairman noted the divergences in the opinions of participants on this issue and said that
this issue would again be taken up at a later stage.
42. The representative of Malaysia said that Malaysia was unable to join in any consensus on this
issue.  He said that there was no need for the Secretariat to prepare the paper requested by New
Zealand, as the WTO dispute settlement system was different from the judicial systems of other inter-
governmental institutions.
43. The representative of Uruguay welcomed the proposal by the United States and said that it
had four main themes, namely (i) open meetings;  (ii) timely access to submissions;  (iii) timely
access to final reports;  and (iv) amicus curiae  submissions.  He said that while Uruguay was in
favour of increased transparency, it wanted to make the following comments on the US proposal.
With regard to timely access to submissions and final reports, it was Uruguay's view that positive
consideration should be given to the US proposals, as they could result in greater transparency andincreased efficiency.  On granting access to the general public to observe meetings of panels and theTN/DS/M/4
Page 16
Appellate Body, except when business confidential information was being considered, he said that
this proposal needed to be considered thoroughly given the inter-governmental and contractual nature
of the WTO and the possibility of some privat e companies and non-governmental organizations
playing a greater role in the process than some Members, particularly developing countries.  On
amicus curiae  submissions, he said that the US proposal was carefully worded.  He referred to the
statement (WT/GC/38 and Corr. 1) made by Uruguay at the General Council meeting of
22 November 2000 and said that Uruguay's position on this issue had not changed.  The issue of
amicus curiae  submissions was not a transparency issue; it raised systemic and institutional questions,
given that the dispute settlement mechanism created rights and obligations for Members only.  The
question that needed to be answered was whether amicus  briefs submitted by non-parties would
contribute positively to the dispute settlement m echanism?  Uruguay was of the view that rights
accorded to non-Member third parties should not be greater than rights of Members.  The problemsthat could result from accepting unsolicited submissions were many and complex.  He urged
participants in their consideration of this issue to take into account the views expressed by Members
at the 22 November 2000 meeting of the General Council.
44. The representative of Thailand welcomed the US proposal and said that it raised a number of
important issues which needed to be carefully considered.  Thailand was in agreement with the US
that the recommendations and rulings of the DSB could affect large segments of civil society, as well
as non-Members.  However, care needed to be taken before opening up the process to the general
public.  Internal transparency was equally important to enhance the credibility of Members in the
dispute settlement system.  It was important for participants to consider the role of panels and the
Appellate Body.  The dispute settlement system of the WTO could not be likened to that of a court of
law.  The confidential nature of the proceedings en couraged parties to resolve their dispute, especially
where issues of national importance were being challenged and the relevant party did not want this to
become public knowledge.  It should also be borne in mind that in the WTO context, panels and the
Appellate Body made recommendations to the DSB which could decide whether to endorse or reject
them.  Participants also needed to reflect further on whether they wanted the WTO to be accountableto civil society which had undertaken no obligations or commitments.  On the proposal relating to the
timely access to parties' submissions and written versions of oral statements, he said that Thailand was
unsure if this was the practice of any international tribunal.  He asked the US to provide further
justification for its proposal.  He said that Thailand was prepared to accept the proposal that the final
panel report should be made available to the public, once it was issued to the parties.  On amicus
curiae  submissions, he said that Thailand was aware of the differences in the views of participants and
said that the rights of non-party Members should exceed the rights accorded to third parties by theDSU.
45. The representative of Switzerland welcomed the US proposal and said that Switzerland was
supportive of increased transparency in the disput e settlement mechanism of the WTO.  On granting
access to the general public to the proceedings of panels and the Appellate Body, he said that
Switzerland had some doubts as to its necessity.  The primary purpose of the dispute settlementsystem was to promote bilateral settlement of disputes.  This objective would be frustrated, if
members of civil society were able to attend meetings of panels and the Appellate Body.  A likely
result would be the hardening of positions to reassure their constituencies that their interests were
being vigorously defended.  It was the responsibility of each Member to keep its civil society abreast
of any developments at the WTO in any case to  which it was a party or had an interest in.
Switzerland was supportive of the proposal relating to the timely access of the general public to
parties' submissions and reports of panels and the Appellate Body.  On amicus curiae  briefs, he
reiterated the position of Switzerland that such briefs could undermine the inter-governmental
character of the WTO.  The rights of non-party Members should not exceed the rights accorded to
third parties.  There was the real risk that amicus curiae  submissions, once accepted, could over-
burden the parties to the dispute, especially when they were a small delegation.TN/DS/M/4
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46. The representative of Mexico welcomed the proposal by the United States and said that
Mexico had taken note of the statements made by previous speakers on the US proposal.  It should be
borne in mind that the WTO dispute settlement system only addressed the rights and obligations of
Members.  The DSU was flexible and had been drafted in a manner to meet the concerns of Members.
Regarding outstanding concerns, a number of them could be resolved to a large extent through good
practice.  It was the belief of Mexico that the US wished to multilateralize a domestic issue.  As had
been stated by Chile, there was nothing preventing the US from including lawmakers or any
representative of an interested group in its delegation to present its case to a panel or the Appellate
Body.  Regarding timely access to submissions, he said that Mexico had taken note that it was the
practice of the US and a number of Members to make their submissions public at the same time of
filing them at the WTO.  It was the view of Mexico, however, that it would be inequitable to oblige all
Members to adopt this practice.  Regarding amicus curiae  briefs, Mexico was of the view that nothing
prevented the US or any other participant which supported this proposal from including civil society's
arguments in their written submissions, nor was there anything preventing these countries from
submitting draft submissions to the public or to specific interest groups.  On timely access to final
reports, Mexico was of the view that a signif icant increase in the budget for translation would
expedite the circulation of reports in the three official languages of the WTO.
47. The representative of Peru welcomed the US proposal and said that Peru was supportive of
increased transparency in the dispute settlement mechanism of the WTO.  Peru had reservations
against the proposal to allow the general public to attend meetings of panels and the Appellate Body.
This could have an adverse effect on the inter-governmental nature of the organization and also
adversely affect the actual proceedings.  Peru also had reservations against the proposal relating totimely access to submissions and documentation by the general public and the creation of a central
registry to which submissions should be deposited.  On amicus curiae  briefs, it was the view of Peru
that panels and the Appellate Body should not receive unsolicited briefs.  Regarding timely access to
final reports, Peru was willing to accept that they could be circulated to Members and the general
public and Members after they had been available to the parties to the dispute.
48. The representative of Korea welcomed the US proposal which dealt with an important and
controversial issue.  He said that Korea would like to make preliminary comments on the
understanding that it could make additional statements on this proposal at a future date.  In general,
Korea was supportive of increased transparency in the dispute settlement process of the WTO.
Increased transparency could increase the knowledge of the general public of the dispute settlement
system of the WTO and invariably enhance the credibility of the system.  The challenge was the
extent to which the process should be enhanced.  He reiterated Korea's view that any proposal shouldbe consistent with the basic principles of the current DSU, particularly the prompt settlement of
disputes and preference for mutually agreed solutions to the dispute. Under the current system, it was
open to the parties to negotiate a diplomatic solution to their dispute regardless of the stage of the
dispute.  The willingness of the parties to accommodate each other might be compromised, if the
process were to be opened up to the general public along the lines being suggested by the UnitedStates, namely being granted access to the proceedings and receiving promptly all submissions of the
parties to the dispute.  Korea was, however, supportive of making final reports accessible to the
general public sooner rather than later.  The US proposal in this regard merited further discussion.
49. The representative of Singapore welcomed the US proposal and said that in Singapore's view,
the dispute settlement system had worked satisfactorily.  She recalled that the ultimate aim of the
dispute settlement system was to find an expeditious solution to the dispute between the parties, and
said that the WTO system could not be likened to a court of law in domestic jurisdictions.  Against
this background, she said that Singapore had some difficulties with the US proposal.  Opening up the
process to the general public could make it difficult for the parties to reach mutually agreed solutions.
Once the general public was fully apprised of the facts and circumstances of the case, the parties weremore likely to harden their positions.  Granting access to the general public to attend the proceedings
of panels and the Appellate Body would also affect the inter-governmental nature of the WTO.  SheTN/DS/M/4
Page 18
noted that some of the proposals of the United States were currently being implemented by some
Members, and said that not all Members were facing the same problems as the United States in terms
of the public perception that the WTO dispute settlement mechanism was not transparent and that it
lacked legitimacy.  On amicus curiae  briefs, she said that Singapore was in agreement with Uruguay
that it was strictly not a transparency issue and that it raised a number of systemic questions.  It wasthe view of Singapore that unsolicited briefs should not be accepted; panels and the parties to the
dispute should focus on the merits of the case at hand, without also having to consider opinions of
interest groups.
50. The representative of Colombia welcomed the US proposal and said that it was within the
mandate of the Special Session to examine transparency and amicus curiae  briefs.  He said that the
dispute settlement system was unique and as such s hould not be compared with the judicial systems of
other inter-governmental institutions.  Colombia had reservations against granting access to theproceedings to the media and the general public, as it would give the impression that the WTO was a
supranational body which was actually was not the case.  He recalled that the primary objective of the
dispute settlement system was to encourage the pa rties to the dispute to reach a mutually agreed
solution.  This objective would be difficult to attain if the process was opened up to the scrutiny of the
media and the general public.  The WTO was an inter-governmental institution and as such thegeneral public should not have direct access to the dispute settlement mechanism.   Opening up the
process to the general public would benefit only a handful of interest groups in developed countries.
Colombia did not want the WTO to be reduced to a forum for discussions between multinational
corporations or between them and non-governmental organizations.  The WTO had played a sterling
role in the post-war international economic arena and it  should continue to play a leading role in the
search of solutions to the increasing myriad of problems being faced in the world, especially by
developing countries.  It was for this reason that Colombia was unprepared to accept any proposal
which would ultimately impair the intergovernmental nature of the WTO.  On amicus curiae
submissions, he said that the views of Colombia we re already known and as such he would not like to
repeat them.  Suffice it to say that their views were, however, identical to those expressed by India atthe third Special Session on 15 July 2002.
51. The representative of Hungary welcomed the US proposal and said that Hungary would like
to make a few preliminary comments on it.  She said that Hungary was generally in support of
increased transparency in the WTO dispute settlement mechanism.  It, however, had doubts about the
proposal to grant the general public access to the proceedings of panels and the Appellate Body. The
WTO was an inter-governmental institution and as such the general public should not have direct
access to the dispute settlement mechanism.  Hungary was in a position to support the proposalrelating to timely access of final reports by the general public.  On amicus curiae  briefs, she said that
the DSU did not contain any specific rules on the acceptance or prohibition of these briefs.  However,
in interpreting the relevant provisions of th e DSU, the Appellate Body had allowed non-party
Members to submit these briefs on a case-by-case basis.  A consensus-based multilateral solution
would be preferable to the current case-by-case approach.
52. The representative of Costa Rica welcomed the US proposal and said that Costa Rica had
always been wary of proposals that would change  the inter-governmental nature of the WTO under
the guise of promoting transparency.  The US propos al seemed to be premised on the idea that the
dispute settlement mechanism did not offer sufficient  guarantees to its Members.  On the contrary, it
had been able to safeguard the interests of all Members very effectively.  While Costa Rica recognisedthat the DSU might need some adjustments, it was of the view that the proposals of the United States
would not strengthen the system to the benefit of all Members.  It was likely the US proposal would
undermine the inter-governmental nature of the WTO and benefit only a few interest groups in the
developed world, as had been alluded to by Colombia.  He recalled that Chile had correctly pointed
out that the dispute settlement mechanism was aimed at finding solutions to trade disputes and that itwas not a court of law.  The dispute settlement mechanism was unique and could not be compared
with the judicial systems of other inter-governmental institutions.  It was imperative for Members toTN/DS/M/4
Page 19
continue to have the flexibility to explore the possibi lity of reaching mutually agreed solutions to their
disputes. On access to information, he said that it  was Costa Rica's view that it was the responsibility
of governments to provide information to interest ed groups in their countries.  The WTO should be
involved in Members' domestic consultative processes.  The position of third parties could not be
compared to that of special interest groups which did not have any rights and obligations under theWTO Agreement.  The legitimacy and responsibility of these special interest groups could not be
ignored in the discussion of this issue.  Costa Rica was not in a position to support the drawing up of
guidelines for regulating the acceptance of amicus curiae  briefs.  The intergovernmental nature of the
WTO should be preserved.
53. The representative of Venezuela welcomed the US proposal and said that Venezuela was
generally in support of increased transparency in the dispute settlement mechanism, although it did
not agree with most of the elements of the US pr oposal.  He referred to the statement in the US
proposal that the recommendations and rulings of the DSB could affect large sectors of civil society
and said that virtually all decisions of the WTO and other international organizations such as the
OECD affected civil society.  If the US statement was taken to its logical conclusion, access should be
granted to the general public to observe meetings of the various WTO bodies as well as the
negotiations.  He said that Venezuela agreed with other participants which had stated that the WTOdispute settlement system was unique and that it could not be likened to a court of law in domestic
jurisdictions nor to the judicial systems of other inter-governmental institutions such as the
International Court of Justice.  Regarding the third and fourth proposals of the US, he said that these
were already being implemented, although there was scope for further improvement.  On amicus
curiae  briefs, he said that Venezuela was in agreement with Uruguay that it was strictly not a
transparency issue and that its broad implications needed to be taken into account.
54.  The representative of Ecuador welcomed the US proposal and said that Ecuador agreed with
Venezuela that it was not only the decisions of the DSB which affected civil society.  What was
needed was improved transparency in all the operations of the WTO.  Ecuador was opposed to
granting the general public access to panel and A ppellate Body meetings.  The inter-governmental
character of the WTO should be preserved.  If the general public and the media were to be granted
access, it was likely that the process could be hijacked by a few non-governmental institutions and
other interest groups which would push issues of intere st to them.  It would put pressure on the parties
and frustrate their efforts to reach mutually agreed solutions to their dispute.  A compromise solution
would be for the parties to the dispute to decide wh ether they would like to grant access to the general
public on a case by case basis.  If one of the parties was not in agreement, access would not be granted
to the general public to observe the meetings.  On amicus curiae  briefs, it was the view of Ecuador
that the current situation where such briefs were accepted on a case by case basis by panels and the
Appellate Body was not satisfactory and that it should be resolved definitively.  As a compromise
solution, Ecuador would suggest that the decision as to whether amicus curiae  briefs should be
accepted should be taken by the parties to the dispute and not by the Panel or the Appellate Body.
Where the parties were not in agreement, these briefs should not be accepted.  Another solution wouldbe what was proposed by Mexico, namely that it would be up to the parties to the dispute to
incorporate in their submissions the views expressed by various interest groups.
55. The representative of the United States said that a number of participants raised the question
why was it necessary to have greater transparency when the public could always read the reports later
and get a full understanding of the issues that were deliberated upon?  He reiterated his earlierstatement that this argument could be turned on its head: the fact that the submissions of the parties
would eventually be made public was the reason why they should be disclosed from the outset.
Keeping them secret served no useful purpose, except to encourage speculation and
misunderstandings as to the nature of the process.  With respect to the issue that making reports public
could complicate efforts of the parties to the di spute to reach mutually agreed solutions and
undermine the bilateral nature of the dispute settlement system, the United States wished to stress that
its proposal would not compromise any of these elements.  The aim of its proposal was to increase theTN/DS/M/4
Page 20
confidence of the public in the process that would eventually render a decision in a particular dispute.
Once the public became aware that the process was transparent and equitable, it could engender their
support for the system and the decisions it produced.  With regard to access to meetings, it was the
view of the United States that the granting of access to the public would not necessarily mean that
there would be huge masses of people attending panel and Appellate Body proceedings, neither wouldit imply that observers would become part of a delegation's team.  The United States wanted to
underline that observers would have no right to speak or protest during meetings.  The meetings
which could be opened to the public were essentially substantive meetings of Panels, the Appellate
Body and arbitration proceedings – not meetings on procedural matters or prior to litigation.  In
relation to the question of whether the general public would have similar rights as third parties, he
reiterated that it was not the intention of the United States to put them on an equal footing and that
there was a significant difference between the two:  third parties had a right to be heard, whereas anamicus  did not have an automatic right.  The request and submission of an amicus would have to be
accepted by the Panel or the Appellate Body.  On the related issue of amicus curiae  submissions, the
United States was of the view that it would be better if guidelines were developed, especially
considering that panels and the Appellate Body were already accepting such submissions.  The choice
was leaving it unregulated or regulating how it could be introduced and considered consistently withthe views of Members.  Regarding the issue of when submissions of parties should be made public, he
reiterated the view of the United States that they should be made public from the outset.  He said that
the United States was willing to further discuss its proposals with any interested participant.
(c) Proposal by the African Group (TN/DS/W/15)
56. The representative of Kenya, on behalf of the African Group
 (Group), welcomed the
opportunity to present the Group's contribution to the Special Session and said that an effective
dispute settlement mechanism was a central element in guaranteeing security and predictability in the
multilateral trading system.  The dispute settlement system afforded Members the opportunity to
defend their rights and legitimate expectations under the WTO Agreement.  He said that Africa's
experience with the dispute settlement mechanism of the WTO had not always been encouraging.They had faced a number of obstacles in their attempts to enforce their rights and get their trading
partners to abide by their obligations.  This experience, which was not unique to only African
countries but also other developing countries, had shaped their proposals.  It was the expectation of
African countries that the negotiations would fully address their problems and provide equitable
solutions to them.  This was necessary to enhance the credibility of Members in the dispute settlement
mechanism.  Turning to the problems faced by African countries, he said that the dispute settlement
system was complicated and overly expensive to access.  To counteract this problem, the Group hadsuggested the need for the WTO to earmark adequate resources to support developing countries,
especially those from Africa.  The technical assistance programmes of the WTO should be
strengthened in that respect.  Under the present system, injury suffered by the complaining Member
had not been satisfactorily compensated in situations where the offending measures were withdrawn
before or after the commencement of proceedings.  To address this situation to benefit developingcountries, the Group had suggested that such measures should be promptly notified to the Dispute
Settlement Body which, in turn, should assess the injury caused to the economies of the affected
developing countries, and adopt remedial action, including requesting the respondent Member to
provide financial compensation to the injured party.  In the Group's experience, the means provided
for enforcement of the recommendations and rulings of the DSB, particularly the suspension ofconcessions, were skewed against developing countries.  To ensure that all Members exploited to the
full the remedies provided under the DSU, particularly the suspension of concessions, the Group had
proposed that in cases involving developing countries, it should be possible for all Members to
retaliate collectively against the responding developed-country Member.  He said that currently the
dispute settlement system operated in isolation and did not take into account the developmentobjectives of the WTO.  This had to change in light of the priority accorded to development issues.  It
should be required that the DSB should be briefed on the development implications of any findings
and recommendations made by panels and the Appellate Body.  He noted that the special proceduresTN/DS/M/4
Page 21
for developing-country Members had not addressed the core difficulties African Members face in
seeking to use the dispute settlement mechanism.  To ameliorate this situation, the Group had
suggested that the special procedures should not re late merely to time-frames, but also focus on the
actual resource constraints of developing countries.  Making available legal expertise would be
extremely helpful in that regard.  In their interpretation and application of the provisions of the WTOagreements, some panels and the Appellate Body had, in several instances, exceeded their mandate
and fundamentally prejudiced the interests and rights of developing-country Members as enshrined in
the WTO Agreement.  To address this situation, the Group had suggested the possibility of obtaining
authoritative interpretation of the relevant provisions under consideration from the General Council
and also the scope of the jurisdiction of panels a nd the Appellate Body before proceeding with cases.
In this context, he said that the Group had stressed on a number of occasions the importance of WTO
provisions being interpreted correctly and had expressed its views on some controversial decisionsthat had been taken by panels and the Appellate Body, including the one on amicus curiae
submissions.  The composition of panels and the Appellate Body had not been balanced in terms of
geographical representation underscoring the development deficit in panel and Appellate Body
reports.  To redress that, the Group had proposed that geographical representation should be given
more weight in the selection process.  To enrich the jurisprudence of the WTO, the Group hadproposed that instead of requiring decisions to be taken unanimously, panelists and members off the
Appellate Body should be encouraged to give dissenting opinions, whenever appropriate.  He said that
the Group did not share the commonly expressed view that the dispute settlement mechanism had
been a resounding success.  A system which had sidelined more than half of the membership of the
WTO could not possibly be described in those terms.  It would only be fair if all Members had accessto the system, when the need arose.  He said that the Group was willing to work closely with all
interested participants with a view to reaching fair solutions and a successful outcome of the
negotiations.  He said that Members of the Group wished to reserve their rights to come back with
written and/or oral communication regarding all the issues raised in future.
57. The representative of Egypt welcomed the introduction of the African proposal by Kenya and
said that the proposal contained issues of importance to the African Group which comprised least-
developed and developing countries.  It was Egyp t's expectation that the proposal would be given
serious consideration by the participants.
58. The representative of India welcomed the African proposal and said that it contained some
interesting elements which were of interest to India and other developing countries.  India looked
forward to participating in the substantive discussions on these proposals.
59. The representative of Korea welcomed the proposal  by the African Group and said that it was
positive to receive as many proposals as possible from participants, especially if they reflected the
broad spectrum of views on issues under considerati on.  Korea looked forward to participating in the
discussions on the proposal.
60. The Chairman welcomed the proposal by the African Group and said that its elements would
be incorporated in the next revised versions of the Checklist of Issues and the Compilation of
Proposals submitted by participants to date.  This should enable a thorough discussion of all the
elements raised in the African proposal.
(d) Proposal by a Group of Develo ping Countries (TN/DS/W/18)
61. The representative of India, on behalf of Cuba, Malaysia, Sri Lanka  said that these proposals
had been drafted in consultations with a group of developing countries.  Some of these countries had
requested for some more time in order to consult with their respective capitals in order to get the
concurrence to be co-sponsors of the proposals.  Once this process was completed, the proposals
would be circulated by the Secretariat. He recalled the proposals that had been submitted by a group
of developing countries during the DSU Review in 1998-1999 and said that it was the intention of thisTN/DS/M/4
Page 22
group to play an active part in the current negotiations launched by the Doha Ministerial Declaration.
He referred to the proposals that had already been submitted to the Special Session and said that the
group of developing countries would provide substantive comments on them in due course.  He said
that their proposal covered some systemic issues and it was their expectation that it would contribute
to strengthening the dispute settlement system, whic h was "a central element in providing security and
predictability to the multilateral trading system".  On mutually agreed solutions, Article 3.6 of the
DSU required Members to notify the DSB and other relevant WTO bodies of any mutually agreed
solutions in respect of matters formally raised under the WTO dispute settlement procedures.  It did
not, however, prescribe any time-period by which such solutions should be notified or the details that
such notifications should contain.  To redress this situation, the group of developing countries was
proposing that Article 3.6 of the DSU should be amended so that the terms of settlement on matters
formally raised under the consultation and dispute settlement provisions of the covered agreementswere mandatorily notified within 60 days of the solu tion being reached in sufficient detail to the DSB
and the relevant Councils and Committees, where any Member might raise any question relating
thereto or seek further clarification.  In relation to a micus curiae  briefs, he said that the group was not
in agreement with the EC that there should be a multilateral framework for regulating the submission
of these amicus  submissions, as panels did not have a right under the DSU to accept unsolicited
information.  They only had a right to seek information.  The confusion had arisen as a result of
certain decisions by the Appellate Body and some panels.  It was imperative for the scope of Article
13 of the DSU to be clarified.  To that end, it was the proposal of the group that a footnote should be
added to clarify the meaning of the word "seek" in Article 13.  "Seek" should be defined to mean any
information that was sought or asked for, or demanded or requested by panels, arbitrators or theAppellate Body.  Unsolicited information should not be taken into consideration by panels, arbitrators
and the Appellate Body.  With regard to the term of appointment of Appellate Body members, he said
that Article 17.2 of the DSU provided that the DSB shall appoint persons to serve on the Appellate
Body for a four-year term and that each person might be reappointed once upon request.  In order to
maintain and enhance the dignity of the high office of the Appellate Body members, and in order toensure that the Appellate Body members did not have to depend upon WTO Membership for securing
a second term, it was the proposal of the group that all future appointments of Appellate Body
members (i.e. any appointment which would be effected on or after 1 January 2004) should be for a
non-renewable fixed term of six years.
62. With regard to suspension of concessions and other obligations, he said that securing
compliance from the defaulting Member was proving to be an increasingly difficult task and it was
likely that in many disputes, developing countrie s would be left with no option other than to seek
recourse to suspension of concessions and other obligations under Article 22 of the DSU.  However
the tremendous imbalance in the trade relations between developed and developing countries placed
severe constraints on the ability of developing countries to exercise their rights under Article 22.  The
economic cost of withdrawal of concessions in the goods sector alone would have a greater adverse
impact on the complaining developing-country Member than on the defaulting developed-countryMember and would only further deepen the imbalance in their trade relations.   The experience of
some Members in this regard was common knowledge and did not need to be repeated.  In order to
overcome this problem, the group was proposing that a complaining developing-country Member
should be permitted to seek authorization for suspending concessions and other obligations in sectors
of their choice without going through the onerous process of proving, (a) that it was not "practicableor effective" to suspend concessions in the same sector or agreement where the violation was found;
and (b) that the circumstances were serious enough to seek suspension of concessions under the
agreements other than those in which violation had been found to exist.  On litigation costs, he said
that the India's experienced showed that the cost of litigating before WTO panels and Appellate Body
was prohibitively high.  It would, therefore, be necessary to provide special and differential treatmentto complaining developing-country Members in disputes against developed-country Members.  If a
developed-country Member was found to be in violation of its obligations in a dispute brought by a
developing-country Member or if the developed-country Member failed to prove its claims against a
developing-country Member in a dispute brought by  it, the panel/Appellate Body should determine aTN/DS/M/4
Page 23
reasonable amount of the legal costs and other expenses of the developing-country Members that
should be borne by the developed-country Member.
63. With regard to inputs provided by the Secretariat to the panels, questions had been raised
about the appropriateness of the Secretariat assisting panels in the light of the requirement that the
Secretariat should be neutral.  In certain disputes, the Secretariat seemed to have provided negotiatinghistory of certain agreements, which had not been approved by Members, to the panels which had
relied on them.  It would be necessary to ensure that all documentation made available by the
Secretariat to the panels would be promptly given to the parties to the dispute.  This would enable
such parties to submit their views on the documents, which might be used by the Panel in deciding on
the dispute.  Accordingly, the group would like  to propose an amendment to paragraph 10 of
Appendix 3 of the DSU.  On sufficiency of Notice of Appeal, he said that a majority of the notices of
appeal being filed with the Appellate Body, though br ief, sufficiently identified the nature of appeal
and the issues of law on appeal.  In a few cases, however, they were too brief and the appellees and
third parties could not make out which legal issues were on appeal.  This adversely affected their right
to respond adequately and defend themselves in the appeal, which had to be done in 25 days.  If the
Notice of Appeal was not sufficiently clear, they were compelled to wait for the appellant's
submission before developing their response/defence.  The time-lag was 10 days, which wassignificant, especially for developing-country Members whose resources were limited.  To redress this
situation, the group was proposing that the Appellate Body should be requested to lay down
guidelines on the nature of Notice of Appeals in th e working procedures.  On third-party rights at the
Appellate level, he said that a number of Members wanted to preserve and expand the rights of third
parties in the dispute settlement process.  He noted that so far there had been no suggestion on thedistinction made by the Appellate Body between "third party" and "third participant" in Rules 1, 24
and 27(3) of its working procedures.  Pursuant to these Rules, the Appellate Body in about six
disputes had disallowed third parties from making an oral presentation because of their failure to file
written submissions.  The filing of a written su bmission transformed a third-party into a third
participant with greater rights than the former.  Th e third parties were, however, allowed to participate
in the hearings of the Appellate Body as "passive obs ervers" with no rights to intervene.  They could
only observe the proceedings, if they so wished.  Even this limited right to attend the hearings was
subject to the consent of the participants and thir d participants.  For the sake of greater internal
transparency and to enhance the rights of Members to participate in the dispute settlement process, the
group had proposed that Article 17.4 should be modified along the lines of Article 10.2.  This would
necessitate the Appellate Body to modify its working procedures.
64. In relation to special and differential treatment provisions, he said that in pursuance of the
Doha Work Programme, some of the co-sponsors had submitted proposals to the Committee on Trade
and Development.  These proposals were co ntained in documents TN/CTD/W/2, which was
co-sponsored by Cuba, Dominican Republic, Egypt,  Honduras, India, Indonesia, Kenya, Mauritius,
Pakistan, Sri Lanka, Tanzania, and Zimbabwe and TN/CTD/W/6, which was tabled by India.  These
proposals covered Articles 12.10, 4.10 and 21.2 of the DSU.  The objective of these proposals was toconvert the non-mandatory language in these provisions into binding legal language and to extend the
timeframes under the DSU, so as to give developing-country Members the opportunity to adequately
prepare their submissions.  The proponents of these proposals in the Special Session of the CTD
intended to re-submit them to the Special Session of the DSB for the consideration of participants.  He
said that it was the expectation of the sponsors that their proposals would be considered favourably byparticipants and that they looked forward to a substantive discussion of their proposals.
65. The Chairman welcomed the proposal by the group of developing countries and said that its
elements would be incorporated in the next revised versions of the Checklist of Issues and the
Compilation of Proposals submitted by participants to date.  This should enable a thorough discussion
of all the elements raised in the proposal.TN/DS/M/4
Page 24
(e) Proposal by Jamaica (TN/DS/W/21)
66. The representative of Jamaica welcomed the opportunity to present Jamaica's views to the
Special Session and said that she expected Jamaica's proposal to be circulated shortly by the
Secretariat to participants.  She said that her presentation would focus on some of the salient elements
raised in Jamaica's proposal.  On consultations, she said that Jamaica would wish to see theconsultative mechanism strengthened to meet the objective of securing a positive solution to the
dispute which was mutually acceptable to the parties.  A strengthened consultative process would
allow developing countries to use more frequently the dispute settlement mechanism.  Resort to the
panel process could be costly and time-consuming.  For transparency purposes, Jamaica was
proposing that a concise and factual written report of the consultations be provided to Members on the
conclusion of the consultations.  On legal representation, from its experience in the Banana case,
Jamaica would like to have formally recognized in the DSU text the right of Members to include
private lawyers in their delegations at both the panel and Appellate Body stages.  Although technical
assistance was currently being provided by the WTO in accordance with Article 27.2 of the DSU,
such support had proven to be inadequate in assisting developing countries to take advantage of the
dispute settlement mechanism.  While the establishment of the independent Advisory Centre on WTO
Law was positive, it was Jamaica's view that additional independent mechanisms needed to bedeveloped to ensure that developing countries not only obtained general legal advice, but also
assistance in arguing their cases before panels or the Appellate Body at a cost which these countries
could afford.
67. With respect to procedural issues, she said that Jamaica was proposing that prior to the
presentation of substantive arguments in a dispute, the panel could convene a special preliminaryhearing to address any procedural issues which might have arisen and the decision be rendered by the
Panel immediately following the hearing in the interest of transparency, as there was no useful
purpose waiting for the final report before discovering the decision of the panel on these matters.  In
respect of the terms "substantial trade interest" and "substantial interest", she said that it was
imperative for there to be symmetry between thes e two provisions.  In that context, Jamaica was
supportive of the proposal by Costa Rica to amend Article 4.11 of the DSU.  Jamaica was supportive
of the enhancement third-party rights to participate in panel and Appellate Body proceedings, where
the Members seeking this enhanced status could demonstrate substantial trade interest and that the
decision in the dispute could  have a serious impact on their economic development and on their rights
and obligations.  With respect to legal costs, as a special and differential measure, Jamaica was
proposing that in a dispute between a developed and developing country, especially where the dispute
was initiated by the developed country, the developed country should pay the legal costs of thedeveloping country, if a developing country was successful in the dispute before the panel.  She noted
that a similar proposal had also been made by the delegation of India.  On compensation, she said that
in disputes involving developing countries, compensation did not always have to take the form of a
reduction in tariffs on products of export interest to the complaining Member.  At the request of a
prevailing developing-country Members, other form s of compensation should be explored.  Lastly,
she said that Jamaica was proposing the development of an agreed negotiating history.  A precise
record of the negotiations and discussions both formal and informal, which would result in the revised
DSU should be kept.  This record would constitute the negotiating history to which future panels and
the Appellate Body could resort in rendering decisions in accordance with international law in
general,  and in particular, the Vienna Convention on the Law of Treaties.
68. The representative of India welcomed the proposal by Jamaica and said that it was an
important contribution to the work of the Special Session.  India looked forward to receiving the
proposal and to participate in the discussions thereon.
69. The Chairman welcomed the proposal by Jamaica and said that its elements would be
incorporated in the next revised versions of the Checklist of Issues and the Compilation of ProposalsTN/DS/M/4
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submitted by participants to date.  This should enab le a thorough discussion of all the elements raised
in the proposal.
(f) Proposal by Least-Developed Countries (TN/DS/W/17)
70. The representative of Zambia, on behalf of the least-developed countries , said that it was
worth noting that to date no least-developed country Member had sought to resolve a trade dispute
through the WTO dispute settlement system.  This was not because these countries had no concerns
worth referring to the dispute settlement system, but rather due to the structural and other difficulties
that were posed by the system itself.  To use this system, a country required substantial resource
endowments and sharp legal skills that were readily available.  Unfortunately, these were precisely the
resource requirements that LDCs lacked.  Since LDCs had been recognized in the WTO Agreements
as deserving special treatment, they would like to see this fully reflected in the rules for dispute
settlement.  In this regard, LDCs had suggested some textual specificity that clearly referred to them.The importance of this was to accord treatment that was LDC-specific and that reflected their
relatively more disadvantaged position.  In the com position of panels, LDCs wished to see that every
panel that handled a case involving a developing country, or a LDC, had at least one panelist from a
developing country or a LDC.  And if requested, the second panelist should also come from a
developing country or a LDC.  As was pointed out by Kenya, on behalf of the African Group, LDcs
was a clear case for dissenting opinions in the dispute settlement system.  It was no secret that on the
whole, the outlook of the dispute settlement jurisprudence was developed-country oriented.
Dissenting opinions would thus be a useful way of developing a wide variety of views that could
assist in a balanced manner the thinking in WTO ju risprudence.  While the DSU required that special
and differential treatment should be taken into account in cases, panel findings and recommendationshardly reflected that.  This was due to the weak nature of the language used in the relevant provision.
To ensure that due consideration was given to special and treatment provisions, the LDCs were
proposing that the relevant provision in the DSU be strengthened and made mandatory in all cases.  In
that context LDCs also wanted the Ministerial Decision on Measures in Favour of LDCs to be
considered as a covered agreement within the meaning of the DSU.
71. He said that LDCs had their own perspective on the issue of sequencing.  They did not wish
to see that the demands for speedy implementation of recommendations result in the trampling down
of the LDCs, as they already faced considerable problems in seeking to comply with their obligations.
The development prospects of LDCs should also be fully taken into account by the DSB in adopting
any findings and recommendations, and in authoriz ing trade retaliation.  It was common knowledge
that LDCs did not have the wherewithal to resort to trade retaliation.  To ensure that all Members
could effectively utilize the remedies provided by the dispute settlement mechanism, there should be arule allowing collective retaliation.  For this to be effective, there should be an exception to the
requirement that suspension of concessions had to be equivalent to the level of nullification and
impairment in concessions caused by the non-implementation of the recommendations and rulings of
the DSB.  With regard to compensation, he said that the primary remedy under the dispute settlement
system should continue to the withdrawal of the WTO-inconsistent measure.  However, if it wasimpossible for the measures to be withdrawn, compen sation could be provided as an interim solution.
In the award of compensation, however, account should be taken of the exceptional vulnerability of
LDCs.  There should be a mandatory obligation to financially compensate the loss and injury suffered
for the whole duration that the WTO-inconsistent measure was maintained.  He said that similar
proposals had been made by a number of participants including India, on behalf of a group ofdeveloping countries, and Kenya, on behalf of the African Group, and Jamaica.  Under the DSU,
Members were required to exercise restraint before bringing cases against LDCs.  Yet this
requirement did not have specific criteria for determining how and whether restraint had been
exercised.  To address this issue, there should be a rule clearly requiring a preliminary hearing by
panels with a view to establishing whether restraint had been exercised.  Secondly, use of the goodoffices of the Director-General, and conciliation and mediation, should be a mandatory requirement,
such that the preliminary hearings could take into  account these initial attempts to reach a mutuallyTN/DS/M/4
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agreed solution.  The WTO and Appellate Body Secretariats should make available to the parties all
documentation that they provide to panels and the Appellate Body.  This would enable the parties to
adequately prepare their case.  In the case of LDCs, this would be of significant assistance considering
their capacity constraints.  He said that LDCs were willing to engage in further discussions on any of
their proposals and looked forward to working closely with participants.
72. The Chairman welcomed the proposal by LDCs and said that its elements would be
incorporated in the next revised versions of the Checklist of Issues and the Compilation of Proposals
submitted by participants to date.  This should enable a thorough discussion of all the elements raised
in the proposal.
73. The representative of Kenya welcomed the proposal by LDCs and said that there were some
similarities between their proposal and that of the African Group given the fact that out of the
49 LDCs, 34 were African countries.  There were, however, some important differences between the
two proposals.  He said that the African Group lo oked forward to participating in the discussions on
the LDC proposal.
74. The representative of India welcomed the LDC proposal and said that it contained some
interesting ideas and thoughts on issues like collective retaliation, compensation and assistance from
the Secretariat.  These were issues in which India was keenly interested.  He said that India waslooking forward to the formal presentation of the proposal and to the subsequent discussions on these
proposals.
75. The Chairman welcomed the proposals and the comments provided on them by participants
and said that the present meeting was different from the previous ones, because of the varied nature of
the proposals that had recently been submitted, including those from developing countries.   With thisbroad spectrum of views on the various issues on the table, it should be possible for participants to
have enriched discussions.  He stated that participants would have a further opportunity to comment
on all the proposals when this meeting switched to  an informal mode and considered the various
proposals on an issue-by-issue basis as had been agreed.
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