WT/DS537/15  
 
3 June 2020  
(20-3946) Page: 1/4 
  Original: English  
 
CANADA – MEASURES GO VERNING THE SALE OF WINE  
AGREED PROCEDURES FO R ARBITRATION UNDER ARTICLE 25 OF THE DSU 
The following communication, dated 29 May 2020 , from the delegation of Australia  and the 
delegation of Canada  to the Chairperson of the Dispute Settlement Body, is circulated at the request 
of these delegations.  
 
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Pursuant to Article 25.2 of the Understanding on Rules and Procedures Governing the Settlement of 
Disputes  (DSU), Australia and Canada  notify the Dispute Settlement Body that they have agreed to 
the attached Procedures for Arbitration under Article 25 of the DSU in the Canada – Measures 
Governing the Sale of Wine  (DS537) dispute.  
 
Australia and Canada jointly request that you notify all Members through circulation of those 
Procedures in the DS document series for that dispute.  
 
 
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  WT/DS537/15  
 
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  CANADA -AUSTRALIA AGREED PROCEDURES FOR ARBITRATION  
UNDER ARTICLE 25 OF THE DSU IN THE DISPUTE  
CANADA - MEASURES GOVERNING THE SALE OF WINE (DS537)  
 
1. In order to give effect to communication JOB/DSB/1/Add.12 in this dispute, Canada and 
Australia (the "parties") mutually agree, pursuant to Article 25.2 of the Understanding on Rules and 
Procedures Governing the Settlement of Disputes (DSU), to ente r into arbitration under Article 25 
of the DSU to decide any appeal from any final panel report1 issued to the parties in the dispute 
Canada - Measures Governing the Sale of Wine  (DS537). Any party to the dispute may initiate 
arbitration in accordance with these agreed procedures.  
2. The arbitration may only be initiated if the Appellate Body is not able to hear an appeal in this 
dispute under Article 16.4 and 17 of the DSU. For the purposes of these agreed procedures, such 
situation is deemed to arise where, on the date of issuance of the final panel report to the parties, 
there are fewer than three Appellate Body  members.  
For greater certainty, if the Appellate Body is able to hear appeals at the date on which the final 
panel  report  is issued  to the parties,  a party  may not initiate  an arbitration,  and the parties  shall be 
free to consider an appeal under Articles 16.4 and 17 of the  DSU. 
 
3. In order  to facilitate  the proper  administration  of the arbitration  under  these  agreed  
procedures,  the parties hereby jointly request the panel in DS537 to notify the parties of the 
anticipated date of circulation of the final panel report within the meaning of Article 16 of the DSU, 
no later than 45 days in advance of that date.  
4. Following the issuance of the final panel report to the parties, but no later than 10 days prior 
to the anticipated date of circulation of the final panel report to the rest of the Membership, any 
party may request  that the panel suspend the panel proceedings with a view to initiating the 
arbitration under these agreed procedures. Such request by any party is deemed to constitute a 
joint request by the parties for suspension of the panel proceedings for 12 months pu rsuant to 
Article  12.12 of the  DSU. 
The parties  hereby  jointly  request  the panel  to provide  for the following,  before  the suspension  takes 
effect:  
 
i. the lifting of confidentiality  with respect of the final panel report under the Working 
Procedures of the  panel, subject to the protection of business confidential information 
("BCI") in accordance with the panel's adopted procedures for the protection of BCI ("BCI 
procedures");  
 
ii. the transmission  of the panel record to the arbitrators upon the filing of the Notice of 
Appeal: Rule 25 of the Working Procedures for Appellate Review shall apply mutatis 
mutandis ; and,  
 
iii. subject  to the protection of BCI in accordance with the panel's adopted BCI procedures, 
the transmission  of a confidential and non -confidential version of the final panel report 
in the working languages of the WTO to the parties and to the third  parties.2 
 
Except as provided in paragraphs 6 and 18, the parties shall no t request the panel to resume the 
panel proceedings.  
 
5. The arbitration  shall be initiated  by filing of a Notice  of Appeal  with the WTO Secretariat  no 
later than 20 days after the suspension of the panel proceedings referred to in paragraph 4 has 
taken effect.  The Notice  of Appeal  shall include  the non-confidential final panel  report  in the working  
 
1 For greater certainty, this includes any final panel report issued in compliance proceedings pursuant to 
Article 21.5 of the DSU.  
2 The parties confirm that it is not their intention that the panel report be circulated within the meaning 
of Article 16 of the DSU.  WT/DS537/15  
 
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  languages  of the WTO. The Notice of Appeal shall be simultaneously notified to the other party and 
to the third parties in the panel proceedings. Rules 20 -23 of the Working Procedures for Appellate 
Review shall apply mutatis mutandis . 
6. Subject to paragraph 2, where the arbitration has not been initiated under these agreed 
procedures, the parties shall be deemed to have agreed not to appeal the panel report pursuant to 
Articles 16.4 and 17 of the DSU, with a view to its adoption by the Dispute Settlement Body ("DSB"). 
If the panel proceedings have been suspended in accordance with paragraph 4, but no Notice of 
Appeal has been filed in accordance with paragrap h 5, the parties hereby jointly request the panel 
to resume the panel proceedings.  
7. The arbitrators shall be three persons selected from the pool of 10 standing appeal arbitrators 
composed  in accordance  with paragraph  4 of communication  JOB/DSB/1/Add.12  (the "pool of 
arbitrators").3 The selection from the pool of arbitrators will be done on the basis of the same 
principles and methods that apply to form a division of the Appellate Body under Article 17.1 of the 
DSU and Rule 6(2) of the Working Procedures for  Appellate Review, including the principle of 
rotation.4 The WTO Director General will notify the parties and third parties of the results of the 
selection.  The arbitrators  shall elect a Chairperson.  Rule 3(2) of the Working  Procedures  for Appellate 
Review shall apply, mutatis mutandis , to the decision -making by the  arbitrators.  
8. In order to give effect to paragraph 5 of communication JOB/DSB/1/Add.12 in this dispute, 
the arbitrators may discuss their decisions relating to the appeal with all  of the other members of 
the pool of arbitrators, without prejudice to the exclusive responsibility and freedom of the 
arbitrators with respect to such decisions and their quality. All members of the pool of arbitrators 
shall receive any document relating to the  appeal.  
9. An appeal shall be limited to issues of law covered by the panel report and legal interpretations 
developed by the panel. The arbitrators may uphold, modify or reverse the legal findings and 
conclusions  of the panel. Where  applicable,  the arbitration  award  shall include  recommendations,  as 
envisaged  in Article  19 of the DSU. The findings  of the panel  which  have not been appealed  shall be 
deemed  to form an integral  part of the arbitration  award together  with the arbitrators'  own findings.  
10. The arbitrators shall only address those issues that are necessary for the resolution of the 
dispute. They  shall address  only those  issues  that have been raised  by the parties,  without  prejudice 
to their obligation to rule on jurisdictional  issues.  
11. Unless otherwise provided for in these agreed procedures, the arbitration shall be governed, 
mutatis mutandis , by the provisions of the DSU and other rules and procedures applicable to 
Appellate Review. This includes in particular th e Working Procedures for Appellate Review and the 
timetable for appeals provided for therein as well as the Rules of Conduct.5 It also includes, mutatis 
mutandis , the panel's BCI procedures that were applicable at the time of the suspension of the panel 
proceedings pursuant to paragraph 4.6 The arbitrators may adapt the Working Procedures for 
Appellate Review and the timetable for appeals provided for therein, as well as the BCI procedures, 
where justified under Rule 16 of the Working Procedures for Appella te Review, after consulting the  
parties.  
12. The parties request the arbitrators to issue the award within 90 days following the filing of the 
Notice of Appeal. To that end, the arbitrators may take appropriate organizational measures to 
streamline  the proceed ings, without  prejudice  to the procedural  rights  and obligations  of the parties 
and due process. Such measures may include decisions on page limits, time limits and deadlines  as 
well as on the length and number of hearings  required.  
 
3 If the pool of arbitrators has not been composed, footnote 1 to paragraph 4 of communication 
JOB/DSB/1/Add.12 shall apply.  
4 However, at the request of a party to a dispute, any member of the pool of arbitrators who is not a 
national of a partic ipating Member shall be excluded from the selection process. Two nationals of the same 
Member shall not serve on the same case.  
5 For greater certainty, paragraphs 14 – 17 of the Rules of Conduct shall apply to arbitrators.  
6 For greater certainty, referen ces in the panel's BCI procedures to the "Panel" shall, in these arbitration 
proceedings, be understood as references to the "arbitrators".  WT/DS537/15  
 
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  13. If necessary  in order  to issue the award  within  the 90 day time-period,  the arbitrators  may also 
propose substantive measures to the parties, such as an exclusion of claims based on the alleged 
lack of an objective assessment of the facts pursuant to Article 11 of the  DSU.7 
14. On a proposal  from the arbitrators,  the parties  may agree  to extend  the 90 day time-period  
for the issuance of the  award.  
15. The parties  agree  to abide  by the arbitration  award,  which  shall be final. Pursuant  to Article  25.3 
of the DSU, the award shall be notified to, but not adopted by, the DSB and to the Council or 
Committee of any relevant  agreement.  
16. Only parties to the dispute, not third parties, may initiate the arbitration. Third parties which 
have notified  the DSB of a substantial  interest  in the matter  before  the panel  pursuant  to Article  10.2 
of the DSU may make  written  submissions  to, and shall be given  an opportunity  to be heard  by, the 
arbitrators. Rule 24 of the Working Procedures for Appellate Review shall apply mutatis  mutandis . 
17. Pursuant  to Article  25.4 of the DSU, Articles  21 and 22 of the DSU shall apply  mutatis  mutandis 
to the arbitration award issued in this dispute.  
18. At any time during the arbitration, the appellant, or other appellant, may withdraw its appeal, 
or other appeal, by notifying the arbitrators. This notification shall also be notified to the panel and 
third parties, at the same time as the notification to the arb itrators. If no other appeal or appeal 
remains,  the notification  shall be deemed  to constitute  a joint request  by the parties  to resume  panel 
proceedings under Article 12.12 of the DSU.8 If an other appeal or appeal remains at the time an 
appeal or other a ppeal is withdrawn, the arbitration shall  continue.  
19. The parties shall jointly notify these agreed procedures to the panel in Canada - Measures 
Governing the Sale of Wine (DS537) and ask the panel to grant, where applicable, the joint requests 
formulated in paragraphs 3, 4, 6, and  18.9 
 
__________  
 
7 For greater certainty, the proposal of the arbitrators is not legally binding and it will be up to the party 
conce rned to agree with the proposed substantive measures. The fact that the party concerned does not agree 
with the proposed substantive measures shall not prejudice the consideration of the case or the rights of the 
parties.  
8 If the authority of the panel ha s lapsed pursuant to Article 12.12 of the DSU, the arbitrators shall issue 
an award that incorporates the findings and conclusions of the panel in their entirety.  
9 For greater certainty, should any of these requests not be granted by the panel, the parti es will agree 
on alternative procedural modalities to preserve the effects of the relevant provisions of these agreed 
procedures.