RESTRICTEDWORLD TRADE
ORGANIZATIONTN/DS/M/8
30 June 2003
(03-3437)
Special Session of the Dispute Settlement Body
28 – 30 January 2003
MINUTES OF MEETING
Held in the Centre William Rappard
on 28 – 30 January 2003
Chairman:  Mr. Péter Balás (Hungary)
Subjects discussed: Page
1. Discussion of draft legal texts submitted by participants on the basis of the
compilation of dr aft legal texts ............................................................................................... .3
2. Other Business............................................................................................................... ............8
Prior to the adoption of the agenda, the Chairman  said that that the proposed agenda reflected
participants' agreement reached at the December meeting, that a new phase of work would be initiated
at the present meeting, namely, that participants would focus on the discussion of specific draft textsfor clarifications and improvements to the DSU.  He said that this was the fourth stage of the
discussions.  He recalled that under track I, there had been a general discussion of the changes that
participants wished to see introduced in the DSU.  Under track II, the discussions had focussed on
specific proposals introduced by participants.  Discussions were facilitated by the Checklist of Issues
issued under the Secretariat's responsibility.  However, this process had come to an end at the
December meeting.  He recalled that at that meeting due to the limited time available, he had made a
proposal, which was supported by participants, to enter into a new fourth phase of the negotiations:i.e. a discussion on the basis of draft legal texts put forward by participants.  In this respect, he
expressed appreciation to participants for their efforts in submitting specific texts for consideration at
the present meeting, as reflected in the large number of new proposals circulated since the DSB
meeting.
He then drew attention to documents which had been circulated since the previous meeting.
He said that the proposal introduced informally in December by Chile and the United States had now
been circulated as TN/DS/W/28.  Fourteen new c ontributions, most of them containing draft text
elaborating on prior proposals had been submitted: a proposal by China, circulated as TN/DS/W/29;
two proposals by Thailand, circulated as TN/DS/W/ 30 and 31;  a proposal by Japan, circulated as
TN/DS/W/32;  a proposal by Ecuador, circulated as TN/DS/W/33;  a proposal by Australia, circulated
as TN/DS/W/34;  a proposal by Korea, circulated as TN/DS/W/35;  a proposal by Chinese Taipei,
circulated as TN/DS/W/36;  a proposal by the LD C Group, circulated as TN/DS/W/37;  a proposal by
the European Communities, circulated as TN/DS/W/38;  a proposal by Mexico, circulated as
TN/DS/W/40;  a proposal by Canada, circulated as TN/DS/W/41;  a proposal by the African Group,circulated as TN/DS/W/42;  and, most recently, a proposal by Jordan, circulated as TN/DS/W/43.  In
addition, two documents had been circulated under Job(03)1 and Job(03)2, in response to the
suggestion made at the December meeting that model drafting conventions be made available to
participants.  These documents had been submitted by the United States and Canada, respectively, for
information to delegations.  Also, a first compilation of draft texts had been circulated as Job(03)10and Job(03)10/Add.1 on the basis of contributions received by the Secretariat as of 22 January 2003.TN/DS/M/8
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Due to the fact that the proposal by Jordan had been made available only recently, it was not possible
to include it in the new compilation of draft texts.  However, there would be a chance to take this text
into consideration as the proposal was on the table in the mentioned document.  He then turned into
more details regarding the organization of work under this item, but for the purposes of adopting the
agenda, he wished to give a broad outline of how he intended to proceed.  He said that under agendaitem 1, the main objective of the discussion would be to provide an opportunity to discuss various
specific text proposals, in the order in which they were reflected in the informal compilation of draft
text (Job(03)10 and Job(03)10/Add.1):  i.e. in the or der of the DSU provisions.  He said that he would
propose to conduct most of this discussion in an informal mode.  During the informal discussion, he
wished to address each issue in turn, and delegations who had put forward specific text proposals
would be invited to present the text in due course when specific issues would be discussed.  If
delegations wished to make formal statements with respect to any of these textual proposals, he wouldinvite them to do so at the end of the agenda item 1.  Any delegations wishing to announce any new
draft text proposals would also be invited to do so under agenda item 1.  However, as agreed, the
discussion on any specific proposal would be without prejudice to delegations' acceptance of the
underlying ideas in proposals.  Therefore, he said at the end of item 1, there would be a chance for
delegations to make statements for the record.  On the other hand, if any delegation wished to makeany statements of a more general or conceptual nature, he would invite them to do so under "Other
Business".  With regard to some of the recent proposals, including the proposal by China and other
proposals which related to the previous stage of negotiations, he said that delegations would have the
opportunity to introduce statements under "Other Business" for the record together with any
comments to be made by other delegations.  He said that due to the time constraints, he would notenvisage further lengthy conceptual discussions and proposed to start the new phase of negotiations
based on specific draft texts.  Under "Other Business" , he also wished to briefly refer to two issues
following up on earlier discussions:  (i) the prov ision of technical assistance to developing-country
Members, and (ii) proposals that had possible budgetary implications.  It was agreed that the
discussion under "Other Business" on the two mentione d issues would be held in an informal mode.
The representative of Chile said that he wi shed to refer to the Chairman's statement
concerning the organization of the present meeting.  As stated by the Chairman, the discussion would
focus on the new compilation which had been circulated very recently and which his delegation had
not yet been in a position to review.  He, therefore, proposed to concentrate on the proposals rather
than on the compilation.
The Chairman said that he was aware that the new compilation had been circulated relatively
late, but this was due to the fact that it had taken a lot of time for delegations to prepare their papers.
He said that the compilation was not much different than the proposals themselves.  Therefore, the
discussion would, in fact, be based on the proposals which were reflected in the compilation in the
order of the DSU provisions.  Proposals would be taken in the order of the compilation and he wouldprovide delegations with the opportunity to introduce and explain their specific proposals.
The representative of Uruguay said that his delegation did not have a problem with the
Chairman's proposal on how to proceed at the present meeting.  However, in response to what had
been stated by Chile, he suggested that those participants who had recently made proposals couldintroduce them at the present meeting.  After brief introductions, participants could provide comments
on the presented proposals.  Thus delegations would be able to present their proposals and then they
could move to the examination of the new compilati on.  This approach would take into account what
had been stated by Chile and would give the possibility to other delegations to present the main
elements of their proposals.
The representative of India said that his delegation understood the time constraints, but
believed that it would be better, as suggested by Uruguay, to give the opportunity to delegations who
had submitted proposals to make brief presentations and to enable other delegations to comment on
them.  He recalled that at the December Special Session, some delegations had made only preliminaryTN/DS/M/8
Page 3
comments on the US-Chile proposal and had reserved their right to make further comments at a later
stage.  He, therefore, thought that delegations should be given the opportunity to comment on that
proposal at the present meeting.
The Chairman recalled that participants had ag reed not to continue with general conceptual
type of negotiations.  He recognized that some delegations might wish to make short presentations on
their proposals and he would enable them to do so, if they so wished.  However, there would be a
possibility in the context of the examination of the compilation to introduce proposals and to provide
basic rationales for the proposals.  With regard to previous proposals, he said that he would provide
opportunities for those delegations who wished to make statements for the record, under agenda
item 2 ("Other Business").  However, he stressed that a more conceptual discussion required more
time, but at this stage not much time was left.  He believed that if this conceptual discussion were tocontinue it would endanger the process and its success.  He, therefore, proposed that if delegations
wished to make general introductions of their proposals they could do so, but he would ask
delegations not to comment on them directly after those introductions, but to make specific comments
in the context of specific issues to be discussed in the context of the compilation in an informal mode.
The representative of Jordan supported the statements made by Chile, Uruguay and India and
said that his delegation wished to introduce its proposal and to be able to receive comments from
other delegations on its proposal.
The representative of Canada said that delegations had known for some time that they would
be moving on to the examination of the compilation at the present meeting.  His delegation was
encouraged that participants were moving away from the general discussion to discussions of specific
legal texts.  It was true that the compilation had only been recently circulated, but this was due to the
fact that delegations had been late with their submissions.  Canada believed that it would be a step
backward if one had to go back to the general discussions.  Canada, therefore, supported theChairman's approach that delegations should focus on the texts as soon as possible.  His country had
submitted a proposal, but would be prepared to waive any general introduction and would speak to it
once the relevant section of the compilation were to be discussed.  This would be a more efficient way
of proceedings.
The representative of Australia said that his delegation supported the statement made by
Canada and said that Australia would wish to fo llow the suggestion to go through the compilation and
to refer to its proposal once the relevant section of the compilation was discussed.  Australia
considered that participants had passed the stage of general comments and statements and that there
was a need to focus on the new compilation as it had been expected to do.  In this regard, the
Chairman had made clear that this approach had been agreed at the December meeting.
The Chairman said that, in response to the desire of some delegations, he would provide the
opportunity for a more general discussion.  In light of this, he proposed that an item under "Other
Business" be included in order enable delegations to have a conceptual discussion, to introduce
proposals and to make comments on them.
It was so agreed.
1. Discussion of draft legal texts submitted by participants on the basis of the compilation
of draft legal texts (Job (03)10 and Add.1)
1. The Chairman said that as he had proposed prior to the adoption of the agenda the following
statements, at the request of the respective delegations, would be reflected in the minutes under
agenda item 1 as they were directly related to the informal part of the discussion which was devoted
to the specific proposals contained in the compilation.TN/DS/M/8
Page 4
2. The representative of Jordan said that his country had never been a party to a dispute before
panels or the Appellate Body, not even as a third party, but was well aware of the vitality of the
dispute settlement mechanism's role as a corner stone of the multilateral trading system.  Dispute
settlement was an integral part of the WTO system, as it provided the mechanism for the enforcement
of rights and the observance of obligations prescribed in the WTO Agreements.  The system createdfor settlement of disputes in the WTO revealed the fundamental nature of law in achieving economic
objectives.  At the outset, it should be emphasized that WTO Members should always endeavour to
solve their disputes at the earliest possible stage, whether at the consultation stage or even through the
recourse to an effective mediation or conciliation system.  He said that there were a number of
practical steps to improve and clarify the DSU and given the rapidly shifting global context in which
the WTO now functioned, adaptability, predictability and flexibility within the DSU would be
essential to meet the challenges of this increasingly integrated world.  It should be stressed as wellthat proposals considered for the development of the DSU should aim at the overall goal of
facilitating the amicable resolution of disputes.
3. An analysis of the legal functioning of the system could necessitate the consideration of a
broad range of questions from general to specific, from theoretical to practical.  It could examine the
essential nature of international law and could consider the degree of conflict between notions ofglobalization and sovereignty.  In this respect, he wished to go through some suggestions on the
improvement and clarification of the DSU, which aimed at ensuring the effective functioning of the
dispute settlement mechanism.  First, conciliation and mediation.  The primary aim of the WTO
dispute settlement was to encourage mutually agreed solutions.  Article 5 of the DSU indicated that
good offices, conciliation and mediation were additional procedures that were available on avoluntary basis.  In the WTO context, a major impediment towards achieving the goals of such
alternative dispute resolution procedures was the need for consistency with WTO rules, which should
always support the ongoing rights and obligations of the interdependent Members.  The DSU, in this
respect, acknowledged in Article 3.6 of the DSU the right of WTO Members to ensure that any
mutually agreed solutions reached by such means be notified to the DSB where other Members wouldbe able to raise their concerns and queries.  To enhance this approach, Jordan suggested that recourse
to conciliation and mediation should also be made mandatory in cases where a developing or a least-
developed country Member was involved and should be subject to agreed upon terms of reference and
specific time-frames.  Moreover, to supplement the conciliation provision in the DSU, consideration
should also be given to the potential of having a comprehensive mediation system, to operate
alongside the panel procedure.  The standards stipulated within the TBT and the SPS Agreements
might be considered a tool that would assist in determining the procedures of such a system, whichwould, in turn, be administered by the DSB.  Se cond withdrawal of requests for consultation and
requests for establishment of panels.  He said that the DSU should include a provision enabling a
Member to formally withdraw a request for consultations, and that should address the issue of
consultations which had not been followed by a request for the establishment of a panel within a
certain time-frame whereby it should be considered formally withdrawn upon the lapse of a specifiedperiod.  The DSU should also include a provision enabling a complaining party in a dispute to
formally withdraw a request for establishment of a panel.  This right should be exercised within a
specific time-frame.
4. Third, disputes involving developing and least-developed country Members.  He said that the
participation of developing and least-developed country Members was increasingly evident in thedispute settlement process and, therefore, representation of panelists from such countries would
provide a further assurance and incentive for effective participation in the process.  Fourth, working
procedures for panels.  Detailed standard working procedures should be developed for panels similar
to the working procedures established by the Appe llate Body for its proceedings.  Currently, panels
had only very general guidelines set out in Appendix 3 to the DSU.  As disputes became morecomplex, both in terms of the number of parties and third parties involved and the number of issues to
be examined under the relevant WTO Agreements, the fairness and efficiency of the panel process
would be greatly facilitated by having standard working procedures.  This had been reiterated by theTN/DS/M/8
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Appellate Body in a number of its recent reports whereby it had recommended that panels should
develop standard working procedures.  In the meantime and for the purposes of the current mandate of
negotiations, there were a number of additional working procedures that should be addressed, among
which were the following:  (i) Jordan agreed with Costa Rica that Article 12.1 should be amended to
include consultation with third-party rights, on the issue of deciding on the application of the workingprocedures as specified in Appendix 3;  (ii) Jordan agreed with Japan and the EC on the need to
amend paragraph 3 of Appendix 3 with respect to the issue of the provision of non-confidential
summaries of the information contained in the submissions of the parties and third parties;  and
(iii) Effective participation of third parties would enrich the dispute settlement process by allowing
parties to a dispute, and Members with interest in the outcome of a certain disputes, to fully
participate in the proceedings.  Fifth, time-frame for third-party participation.  In accordance with past
practice that the time-frame available for a third party to notify the DSB of its interest to make writtensubmissions in a dispute before a panel was 10 days.  This practice should be explicitly provided
within the ambit of Article 10.2 of the DSU.  It  should be noted that this short time-frame was
necessary since the notification of third-party interests was a prerequisite for the composition of a
panel since nationals of third parties to a dispute should not be appointed as panelists in that particular
case.
5. Sixth, the relationship between Articles 21.5 and 22 of the DSU.  Perplexities had emerged in
terms of the relationship between Article 21.5 and Article 22.6 of the DSU.  The main question was
whether Article 21.5 proceedings had to precede Article 22 proceedings.  The current drafting of the
two provisions created some uncertainty.  Article 21.5 of the DSU required a reconvened Panel to
complete its work within 90 days of the referral of the matter to it.  It did not, however, specify whensuch proceedings should be initiated.  Nothing in the express wording of the provision prevented
initiation of such a proceeding before or after the expiry of a reasonable period of time for
implementation of recommendations and rulings.  Article 22.6, on the other hand, stated that the DSB
shall grant authorization to suspend concessions and other obligations "within 30 days of the expiry of
the reasonable period of time unless the DSB decides by consensus to reject the request" or anobjection to such request is raised and referred to  arbitration.  Article 22 thus provided an express
time-limit for DSB authorization to be requested and granted, while Article 21.5 did not have any
timetable that could ensure that the analysis was completed by that time.  In this respect, Jordan
agreed with the conclusion that Article 22 could only be utilized when Article 21.5 procedures had
been completed.  This argument proceeded on the basis that Article 21.5 stated that "where there is
disagreement as to the existence or consistency with a covered agreement of measures taken to
comply with the recommendations and rulings such di spute shall be decided through recourse to these
dispute settlement procedures, including ..." in addition Article 22.6 is limited to cases where "the
situation described in paragraph 2 occurs".  The latter was a reference to cases where the Member
concerned failed to bring the measure found to be inconsistent with the covered agreement into
compliance.  Where an Article 21.5 procedure was thus pending, the argument was that the conditions
for a request for suspension under Article 22.6 could not be fulfilled.  Therefore, where there wasdisagreement on implementation, it was Article 21.5 that had to be involved not Article 22, the
contrary would deprive Article 21.5 of its raison d'étre .  Jordan would be reviewing the legal texts
proposed to this effect and looked forward to wo rking with delegations in order to reach a common
understanding in this connection.
6. Seventh, a time-frame for arbitration under Article 21.3(c) of the DSU.  The time-frame for
the completion of arbitration under Article 21.3(c) of the DSU should commence from the date of the
appointment of the arbitrator and not from the date of the adoption of the report.  Eighth, remand
authority.  Granting the Appellate Body the power to  remand findings or conclusions of facts to the
panel was necessary to ensure the efficacy of the two-tier system of the dispute settlement, thus
preserving one of the main principles that distinguished the WTO dispute settlement mechanism fromthat of other bodies and tribunals in the international arena.  Due to the Appellate Body's limited
jurisdiction to questions of law, it was sometimes difficult, in situations where it had reversed a legal
conclusion of a panel, to decide how to modify the panel's conclusions without remanding a claim toTN/DS/M/8
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the original panel.  Introducing the remand concept, however, would require the extension of the
overall time-frames for dispute settlement, and pro cedures would have to be developed allowing for
further consideration by the panel.  Thus, in the absence of clear guidelines that would regulate the
remand power, the Appellate Body would be placed in an invidious position.  Moreover, giving the
Appellate Body a power to remand would raise certain shortcomings in the WTO system.  This might
be evidenced by the fact that panelists were not currently permanent judicial officers, thus it would be
difficult to reconstitute the initial panel to hear the remanded report and that should be taken into
consideration in reviewing the issue of the Appe llate Body's remand authority.  Ninth, unsolicited
amicus curiae  submissions.  The WTO system had now reached a stage in its development where it
made sense to recognize non-state interests in disputes between Members.  Article 17 of the DSU, on
its face did not allow amicus curiae,  but he asked whether the Appellate Body or panels were bound
by what was explicitly stated in the DSU.  If this was indeed the case, one could end up with ratherconflicting outcomes.  For example, nowhere in the DSU was it mentioned that the Appellate Body
had to make an objective assessment of the "issue"  before it.  The term "issue" comprised, in any
dispute, issues of facts and law, as the unambiguous wording of Article 11 of the DSU made clear.
Such an obligation of objective assessment was imposed only on panels pursuant to Article 11, but he
wondered whether this precluded the Appellate B ody from making an objective assessment of the
matter before it.  This was certainly not the case.  The Appellate Body, hence, should have some
discretion to conduct procedures before it.
7. The key was that, when exercising their discretion, the panel or the Appellate Body should
not undo their implicit duty to respect due process and should ensure that unsolicited briefs did not
extend to factual issues and that the parties to a dispute had ample time to react.  It should always betaken into consideration that the unsolicited amicus curiae  briefs would only be used to evaluate
arguments made by the parties to the dispute and not to make the case for the complainant or the
respondent.  Therefore, a provision that clearly regulated the submission of unsolicited amicus curiae ,
or non-state interventions, within the ambit of the DSU would be of assistance to the dispute
settlement process.  This right of intervention would allow an interested person or group (such asenvironmental organizations, competing private sector firms, and citizens) to present evidence and
arguments (legal or otherwise) to the panel or th e Appellate Body, which would provide for increased
transparency and expert information that would no t be presented in Member's submissions.  Again,
this privilege might be misused in certain circumstances should there not be a clear framework for its
application especially when a dispute involved a developing or a least-developed country Member,
taking into consideration the financial burdens that might face them in addressing such submissions.
Tenth, questions of interpretation.  There was nothing in the DSU that prevented interpretations frombeing provided within the scope of the WTO whether through the Ministerial Conference or the DSB.
Nevertheless, in keeping with the notion that the WTO was one body in the domain of public
international law, Jordan suggested that panels, Appellate Body and/or DSB be granted the power to
"seek" advisory opinions from the International Court of Justice (ICJ) on matters of international law.
This would entail extending the advisory function of the ICJ to the WTO, as had been done with otherspecialized bodies.  Reference to an independent panel such as the ICJ would attest to the impartiality
of the WTO in the resolution of disputes that might emerge as a result of the application and
implementation of the WTO Agreements.  Advisory opinions should be considered as an instrument
of interpretation that aimed at assisting the relevant bodies in recommending or adopting a report.
The said opinion should be subject to adoption by the Ministerial Conference or the General Councilpursuant to Article IX(2) of the Marrakesh Agreement Establishing the WTO.  In the meantime and
for the purposes of the current mandate of negotiation, Jordan agreed with the African Group's
proposal with regard to the need to address the is sue of interpretations through the organs of the
WTO.
8. Eleventh, the role of the Secretariat.  Pursuant to Article 27 of the DSU, the Secretariat had
the responsibility of assisting panelists in a number of aspects.  In practice, they did provide legal
expertise and assisted panelists in a number of ways including drafting certain parts of their
recommendations.  This might have a diverse impact on transparency of the process of disputeTN/DS/M/8
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settlement should there not be a system that ensured that all documents, notes, information or any sort
of contribution made available by the Secretariat were promptly provided to the parties and third
parties to the dispute.  Finally, the ability of the DSU to balance trade and legal objectives would
continue to be one of its most significant tasks that could be achieved, with some innovation and
willingness to change.  The focus of this change should be toward greater integration of WTO law andpractice with public international law and other trade policy issues.  For the development of a more
viable international trade regime, it was fundamental to have a dispute settlement mechanism that was
fair and just and provided genuine redress for the weak against the strong.  Developing countries
would need to be prepared to face the challenges in improving and clarifying the dispute settlement
mechanism.  However, it should always be kept in mind that a legal system that did not encourage the
participation of all its Members eventually lacked credibility and became unsustainable.  Jordan
welcomed Members' comments and questions on any of the above and was ready to work with otherdelegations towards reaching a common understanding on all points of concern in the on-going
negotiations on the DSU.
9. The representative of Thailand said that his country's contribution focussed on the panel
system.  Thailand had examined the proposal made by the EC and its member States for the
establishment of a permanent panel body and noted that a number of Members were not prepared toproceed in that direction, due to various reasons.  One of the reasons included an increase of financial
costs.  It should be noted that no delegation to date had indicated that such a proposal had no merit.
With that in mind and other factors, particularly the indication from the EC that it was prepared to
consider any contribution from Members regarding the panel system, Thailand had formulated some
ideas which it wanted to share with Members.  Under the current system, if agreement was notreached on the panelists within 20 days after the establishment of a panel, the Director-General could
be requested by either party to appoint the panelists in consultation with the Chairman of the DSB and
the Chairman of the relevant Council.  It was Thailand's proposal that notwithstanding the existence
of the indicative list of panelists maintained by the Secretariat, which was regularly updated, the
Director-General should also maintain an indicative list of candidates with the requisite qualificationsstipulated in Article 8 of the DSU.  This list, after approval by the DSB, shall be referred to as a
"Roster of Panel Chairs" comprised of individuals who might be appointed by lot as Chairs of Panels.
As indicated in part III.1 of Thailand's contributi on (TN/DS/W/31), the number of individuals on the
Roster shall be adjusted as and when necessary.  Members might request the Director-General to
appoint the Chair of the Panel, by drawing lot, from the Roster of Panel Chairs or determine
determining the composition of the panel as provid ed for under Article 8.7 of the DSU.  In the latter
case, full effect had to be given to the prior appointment of a Panel Chair and/or any agreementbetween the parties on a panellist nominated by the Secretariat.  In case where there were concurrent
requests from the parties to a dispute for the appointment of a Panel Chair and the composition of the
panel, the Director-General shall, in consultation with the parties, determine the composition of the
panel as provided for under Article 8.7 of the DSU, including, where appropriate, through the
selection, by drawing lot, of a Panel Chair from the Roster of Panel Chairs.  He said that furtherdetails about the proposal by Thailand and the benefits that Members could gain from the proposed
system were reflected in document TN/DS/W/31.  He stressed that the proposed system would
certainly facilitate work of the Director-General when he had to determine the composition of panels.
It appeared, more often than not, that once a Panel Chair was appointed, it would be much easier for
parties to a dispute to agree on the composition of a panel.  Furthermore, should this system beadopted, it would not be necessary to amend the DSU.  A decision by the DSB would be sufficient.  It
would in that context be worthwhile to have a comp ilation of all DSB decisions in a single document.
10. The representative of India welcomed Thailand's proposals on a roster of Panel Chairs and
said that it appeared to be an improvement over  the EC's proposal on the same matter.  The main
advantage appeared to be its flexibility; it would not do away with the current system, but strengthenit.  He said, however, that his delegation had a number of questions which it would like to receive
responses from Thailand.  He wondered whether the roster of Panel Chairs be broadly representative
of the WTO membership, as had been provided for in Article 17.3 of the DSU in respect of AppellateTN/DS/M/8
Page 8
Body members.  Given that the appointment of the chair of the panel would be by drawing lots from
the roster of panel chairs, he wondered whether it would not effectively reduce to inutility the
provisions of Article 8.3 of the DSU.  He also wondered whether it would not be useful if certain
safeguards were provided, whereby citizens of Members whose governments were parties to the
dispute or third parties shall not chair a panel in charge of that dispute.  He asked what should be theduration for which an individual might remain on the roster of panel chairs.  He further asked how
frequently would the roster of panel chairs be revised.
11. The representative of Mexico said that sin ce Members were now reaching the second phase of
the negotiations and had the legal texts before them, it was important for the following issues to be
addressed:  (i) what was the problem that a particular proposal would solve?  (ii) was there some sort
of symmetry between the identified problem and the proposed solution or amendment to the DSU?
He recalled that Mexico had raised these same questions when it introduced its own proposal.  It waswith this in mind that Mexico was submitting its legal text.  Mexico was seeking to solve what it
considered to be the greatest problem confrontin g the dispute settlement system.  Mexico's proposed
solution had taken into account a number of factors, including the need to achieve prompt and
effective settlement of the dispute between the parties.  Another merit of the Mexican proposal was
that it made minimum changes to the existing text and was couched in simple language.  
2. Other Business
12. The representative of India recalled that at the December Special Session of the DSB, his
country had made certain preliminary comments on the joint proposal by Chile and the United States
(TN/DS/W28) indicating support for some of its elements and said that they wanted to provide further
comments on some elements of the proposal.  With respect to the introduction of an interim reviewphase in Appellate proceedings, he said that notwithstanding the support expressed by India for this
proposal, it did not share the view that the parties should be able to use this procedure to delete by
mutual agreement certain parts of the report which they deemed to be unhelpful or unnecessary to
resolve the dispute between them.  This was not the practice nor purpose of the interim review stage
in panel proceedings.  The purpose had been, and ought to be, to point out any factual errors and makean assessment of the relevant legal issues.  With respect to the proposal on "partial" adoption of panel
and Appellate Body reports, he recalled that India had argued strongly in favour of such a procedure
during a DSB meeting in April 2002, when the panel report in " India - Automotive Sector " was being
considered for adoption by the DSB.  In that case, the Panel had made findings on issues, which were
beyond its jurisdiction, and the United States in its statement had agreed with India.  However, India
wished to know which procedures should be put in place and who would decide which portions of
reports should be adopted.
13. He said that his delegation would like to get clarification from the proponents why they had
invented two layers of protection – the interim re view and the Appellate Body stages – to ensure
control over the dispute settlement process by Members.  With respect to the proposal relating to the
suspension of panel and Appellate Body proceedi ngs upon the mutual agreement of the parties, he
recalled that under Rule 30(1) of the Working Procedures for Appellate Review , provision was only
made for the withdrawal of appeals and not for suspension of the proceedings.  He wondered whether
the parties could suspend the proceedings at the interim stage, i.e., after the issuance of interim report
to parties.  If this was the case, there was the real possibility of abuse by Members.  With respect to
the proposal on ensuring that panelists had the requisite knowledge and expertise, he said that his
delegation would like to know the motive behind it.  He referred to the statement contained in theproposal that "Members may wish to consider whether the current DSU provides sufficient assurance
that members of panels have the appropriate expertise to appreciate the issues presented" and asked
whether the proponents favoured a system of permanent panelists along the lines advocated by the EC
or whether they were proposing strict qualifications criteria for individuals to be included in the
indicative list of governmental and non-governmental panelists.  With regard to the proposal onproviding additional guidance to the WTO adjudicative bodies, he said that his delegation would beTN/DS/M/8
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interested in knowing from the proponents what sort  of "additional guidance" that they had in mind.
He wondered if these new rules would complement the existing rules of interpretation.  He asked
whether the introduction of these new rules would not compromise the independence of the
adjudicative bodies.  The proposal was quite significant from India's view given the increasing resort
by panels/Appellate Body to other international in struments to interpret the covered agreements.  In
US - Gasoline , for example, the Appellate Body held that by virtue of Article 3.2 of the DSU, the
WTO system, like any other sub-system, could not be construed in "clinical isolation" of the
widespread sources of public international law.  This brought to an end to the belief that the
GATT/WTO was a "self-contained" system.  In the US – Shrimp case, the Appellate Body, for the
first time, ruled that Article 31(3)(c) of the Vienna Convention on the Law of Treaties was the key to
finding "additional interpretative guidance" fr om public international law.  The Panel in the Korea -
Government Procurement  case even went one step further and employed rules and principles of
customary international law to fill the unintended gaps in the WTO agreements.  It stated that
customary international law applied "to the extent that the WTO treaty agreements did not 'contract
out' from it".
14. He said that these cases testified to the growing influence of public international law on the
WTO dispute settlement process.  He asked the proponents whether they could react to the followingquestions:  (i) When confronted with a gap in any of the covered agreements, should the
panel/Appellate Body distinguish between principles  in universal/multilateral treaties as opposed to
regional or simply bilateral treaties;  (ii) In the US – Shrimp case, the Appellate Body had extensively
referred to principles laid down in multilatera l environmental agreements like the UNCLOS, the
Convention on Biological Diversity, and the Conv ention on the Conservation of Migratory Species of
Wild Animals to interpret Article XX of GATT 1994.  This was despite the fact that not all of parties
to that dispute were parties to the agreements.  What should be the guidelines for a panel/Appellate
Body in such situations?  Should it rely only on the principles contained in those treaties to which the
parties to the dispute were both signatories?  Under what circumstances could principles stipulated in
a bilateral treaty be resorted to in a dispute initiated under the WTO dispute settlement system?  Hesaid that his delegation was ready to engage in constructive discussions with the proponents and
would appreciate if they could clarify their concerns.
15. The representative of Jordan welcomed the joint Chile-US proposal and said that it contained
many interesting elements which his delegation could probably support.  These included the
introduction of an interim phase in Appellate Body proceedings; permitting the parties by mutual
agreement to "suspend" panel and Appellate Body proceedings and authorising the partial adoption of
reports.  He said that his delegation looked forward to receiving the legal texts of the proponents onthese proposals.
16. The representative of China said that the paper by China circulated in document TN/DS/W/29
was not a proposal as such.  Almost all the points in the paper had been raised by many developing-
country Members during the negotiations.  The communication reflected China's support for some of
the proposals put forward with a view to strengthening S&D provisions in the DSU.  China was of theview that a number of developing-country Members lacked sufficient understanding of many of the
WTO Agreements and did not have the requisite human resources to defend their rights under the
DSU.  It was imperative for developing countries to be assisted so that they could make greater use of
the dispute settlement system.  She said that China was willing to work closely with other
participants, in order to come up with language that would be acceptable to all.
17. The representative of the United States thanked India and Jordan for expressing support for
certain elements of the US-Chile proposal.  He said that his delegation had taken note of the very
thoughtful comments and questions and would refer them to capital and consider them as the co-
sponsors worked on developing the legal text of the proposal.  He assured both delegations that the
co-sponsors were open to discussing further their proposal with them.TN/DS/M/8
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18. The representative of Chile thanked China for its conceptual paper and said that Chile shared
many of the ideas contained therein.  He, however, asked if China could clarify paragraph 8 of
Section 3 of its paper.  It was stated in this paragraph that China supported the shortening of the time-
frame for dispute settlement, particularly as regards disputes involving abusive trade remedy
measures.  He wondered why a distinction had been made between developed and developingcountries regarding abusive trade remedy measures and whether there was any justification for
granting special treatment to developing countries.  From Chile's point of view, such measures were
equally abusive for developed and developing countries alike.  He recalled that it was already
mandated that the special situation of developing countries should be taken into consideration by
panels and the Appellate Body.  He suggested that it would be useful in an informal mode to take up
the issue whether or not developing countries should be granted differential treatment when
considering abusive trade measures.
19. The representative of China said that her delegation would refer the question back to capital,
but its preliminary response was that it would be r easonable to give developing countries special and
differential treatment, given the fact that they had limited resources and lacked the same expertise as
developed countries in using to the full the dispute settlement system.
20. The representative of India welcomed China's contribution and said that it contained several
positive elements which India would like to study in detail before providing its comments formally
later.
21. The representative of Thailand thanked China for its proposal and asked whether China
intended to submit any legal text covering these proposals.  He also asked whether China would like
to see paragraph 2 of its proposal included in any DSU provision.
22. The representative of China said that she would contact her authorities to find out whether
China would be submitting a legal text.  However, since it was a conceptual paper, China would
continue to work with other participants on specific issues.  With regard to the question raised by
Thailand, she said that she would provide her response in the near future.
23. The Chairman informed participants that the next meeting of the Special Session would take
place on 17 and 18 February and that the discussion of the draft legal texts would continue.  He asked
if any delegation intended to submit any draft legal text before the next meeting.  If so, he would
invite them to do so by 7 February, in order for these new proposals be included in a revised
compilation of draft legal texts.
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