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27 November 2017 
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Dispute Settlement Body Special Session   
 
 SPECIAL SESSION  OF THE DISPUTE SETTLEMENT B ODY 
REPORT BY THE  CHAIR PERSON , AMBASSADOR COLY SECK ,  
TO THE TRADE NEGOTIA TIONS COMMITTEE  
1  INTRODUCTION  
1.1.  This report, which I submit under my own responsibility and without prejudice to Members' 
positions, addresse s the work undertaken in the Dispute Settlement Body in Special Session  since 
my election as Chairperson in May 2017 . 
2  CONTINUATION OF FOCU SED WORK  
2.1.  Following my election as Chairperson, I announced to Members that I would continue the 
approach of my predece ssor and conduct focused work on the 12 issues under negotiation 
sequentially, with dedicated meeting cycles for each issue.  
2.2.  The first issue taken up after my election was Strictly Confidential Information. This was 
discussed over the course of May and Ju ne 2017. This issue had been identified by my predecessor 
as a possible next issue, based in part on its connection to the issue of Third -Party Rights that had 
been discussed under my predecessor. The subsequent issue that the group addressed was 
Sequencin g, which was discussed over the course of June and July 2017. This was an issue 
identified by several Members as being of current interest in view of procedural matters that had 
arisen in recent disputes.  
2.3.  The Appendix to this report  contains the Chair's t exts submitted for Members' consideration 
at the closing meeting for the two issues covered after my election as Chair. They include my 
assessment of the focused work conducted on each issue and the incremental improvements that 
the Chair's texts could hel p Members to realize.  
3  STOCK -TAKING EXERCISE  
3.1.  During the focused work on Strictly Confidential Information and Sequencing, I announced to 
Members that I would hold a stock -taking exercise following completion of our work on these 
issues. I indicated to Membe rs that this stock -taking exercise would serve a two -fold purpose: 
first, to assess whether one or more possible outcomes could be prepared on the basis of focused 
work undertaken in the DSB -SS since May 2016, when my predecessor took over; and second, to 
discuss the future work of the DSB -SS. 
3.2.  I held three open -ended stock -taking meetings and various informal consultations with 
Members between September and November 2017. In the course of these meetings, Members 
generally agreed that the group was not in a position to prepare possible outcomes for MC11  
based on the work accomplished to date. Nevertheless, Members that spoke recognized the value 
of the work undertaken in the DSB -SS since 2016.  
3.3.  In looking ahead to future work, Members discussed the focus, orga nization, and timing of 
such work. Many Members expressed an interest in continuing the focused work conducted to date 
by working through the remaining eight issues. Based on indicative outlines I provided of how 
future work could be structured and schedul ed, Members generally preferred focusing on a single 
issue at a time for each meeting cycle. In addition, many Members expressed an interest in having TN/DS /30 
 
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  an opportunity for horizontal negotiation across all issues after completion of focused work on each 
issue.  
3.4.  Several Members considered that  it would be useful  to allow the proposals  concerning the 
issues under negotiation  to be updated or supplemented to ensure that the proposals  remained as 
relevant as possible . Several  Members also expressed the view that this could be done by 
circulating any updated proposal sufficiently in advance of the opening meeting at which an issue 
will be discussed , which could involve  current proposals being amended, supplemented, or 
withdrawn, if appropriate . While some Members w ere open to the possibility of considering 
suggestions of new issues, other Members expressed the view that it was preferable to avoid 
starting negotiation s on new issues and to consider instead any new aspects of the existing 12 
issues, where appropriate.  In addition, some Members expressed interest in exploring the 
possibility of outcomes that would not require amendments to the DSU, but could take the form of 
decisions or recommendations of the DSB . In their view , this could lead  to concrete results in t he 
shorter term.  
3.5.  Based on the views expressed during the stock -taking exercise, and in the interest of 
resuming the substantive work expeditiously, I indicated to Members that Post -retaliation may be 
an appropriate next issue for focused work. As noted by  various Members during the stock -taking 
exercise, this issue is closely linked in several respects to the most recently discussed issue of 
Sequencing. With regard to the order in which remaining issues could be discussed, many 
Members expressed flexibilit y based on the understanding that all issues would be covered before 
an opportunity for horizontal negotiation. Specifically, Members that spoke indicated support for 
the idea of  taking up the remaining issues following Post -retaliation in either alphabeti cal or 
reverse alphabetical order.  
4  CONCLUSION  
4.1.  Overall, I have the impression that the group continues to benefit from a high level of 
Member interest and engagement. Equally, however, some Members have expressed 
disappointment at the continued lack of any  results, even incremental, despite the substantial 
efforts that have been undertaken since the DSB -SS embarked on its focused sequential work in 
November 2016. I therefore reaffirm my predecessor's call to Members that they should be  
prepared to be realis tic; concentrate on what is doable; and be open to delivering results through 
incremental steps.  
 
_______________  
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  APPENDIX  – CHAIR'S TEXTS BASED ON WORK CONDUCTED FR OM MAY TO JULY 2017  
STRICTLY CONFIDENTIA L INFORMATION1 
The following text on Strictly Co nfidential Information (SCI) is presented under the Chair's own 
responsibility and is without prejudice to Members' final positions.  
 
The text reflects possible incremental improvements on which, in the Chair's assessment, there 
could be support among Mem bers, taking into account the views of Members expressed during the 
focused work of the DSB -SS on SCI.  
 
This text should not be taken as representing a conclusion by the Chair that further improvements 
in respect of SCI would not be possible. Rather, the text seeks to identify a possible common 
baseline reflecting the progress and convergence that has been achieved during the focused work 
conducted by the DSB -SS.    
 
Draft Article 18.3 of the DSU would constitute an improvement over the current DSU in seve ral 
respects:  
 It enhances clarity for Members and individuals or entities providing SCI by clarifying in the 
DSU itself that additional protection for SCI is available in proceedings under the DSU.  
 It creates greater certainty by providing that, if and whe n a party requests the adoption of 
SCI procedures for the protection of strictly confidential information that it wishes to submit 
in the context of the proceedings under the DSU, the relevant WTO adjudicator is required 
to adopt such procedures.  
 It ensur es consistency of the level of protection across successive proceedings in a dispute, 
by providing that the level of protection of SCI set in any initial proceedings (e.g. before a 
panel) will not be lower in any subsequent proceedings (e.g. before the App ellate Body) in 
which the SCI may also be used. This may also enhance the confidence of individuals or 
entities providing SCI.  
 It provides assurance to individuals or entities providing SCI that their information will be 
used by those authorized to access  the information (i.e. the panel, the Appellate Body, the 
arbitrator, the WTO Secretariat, the parties and the third parties) only for the purposes of 
the proceedings in which the information has been submitted or forms part of the record.   
Draft Article 18.3 is non -prescriptive regarding the operational details of the SCI procedures to be 
adopted. It thus preserves the flexibility to adapt SCI procedures on a case -by-case basis, 
including with regard to the definition of SCI, the precise level of protecti on and other operational 
aspects.  
The proposed Decision by the DSB would directly support draft Article 18.3 of the DSU by 
providing access to SCI procedures, both past and current, for parties that are considering 
whether to request the adoption of SCI pr ocedures or are consulted by a WTO adjudicator on 
proposed SCI procedures.  Ready access to a range of actual SCI procedures may also reduce 
uncertainty for individuals or entities considering whether to provide SCI. Public availability of such 
SCI procedur es through the WTO website would also facilitate greater access compared to the 
practice of annexing SCI procedures to WTO adjudicators' reports or decisions.  
 
The text on third -party rights builds on former DSB -SS Chair Karau's text on components of thir d-
party rights. The new text in Articles 10.2(b)(i) and 10.3(a) would constitute an improvement over 
the initial draft in document JOB/DS/14 in that it preserves the current situation under which SCI 
procedures typically grant third parties access to SCI, while also maintaining the possibility, where 
this is deemed necessary, to restrict access to SCI for third parties on a case -by-case basis, 
through procedures adopted pursuant to draft Article 18.3 of the DSU that are consistent with the 
DSU. 
                                                
1 Previously made available as RD/TN/DSB/18.  TN/DS /30 
 
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CHAIR'S TEX T FOLLOWING THE DISCUS SIONS ON STRICTLY CONFIDEN TIAL INFORMATION  
Article 18 – Communications with the Panel or Appellate Body2 
Note: As explained during the opening meeting on SCI, the proposal discussed in the course of the 
group's focused work on SCI rep laced an earlier proposal under Article 18.3 of the DSU. Therefore, 
the provision below has been numbered and treated as proposed new Article 18.3 in this Chair's 
text. 
 
3. Where requested by a party to the dispute, the panel, the  Appellate Body and the 
arbitrator acting pursuant to Articles 22 or 25 of this Understanding shall adopt 
procedures for the protection of strictly confidential information, including business 
confidential information, after consulting the parties to the dispute. The Appellate Body  
and the arbitrator shall adopt procedures that afford a level of protection not lower than 
that provided by the panel and that allow for the designation as strictly confidential 
information of newly -submitted information. The panel, the Appellate Body, th e 
arbitrator, the WTO Secretariat, the parties and the third parties shall use information 
obtained in proceedings under this Understanding and protected under procedures 
adopted pursuant to this paragraph only for the purposes of the proceedings in which 
the information forms part of the dispute record.  
 
Proposed decision by the DSB on protection of SCI  
The DSB directs the WTO Secretariat and the Appellate Body Secretariat to make publicly available 
on the WTO website: (i) all published additional working procedures for the protection of strictly 
confidential information (SCI procedures), including business confidential information, adopted by 
a WTO adjudicator in past disputes; and (ii) subject to the agreement of the parties, any SCI 
procedures adopted b y a WTO adjudicator after the date of this decision, upon adoption of the final 
version of these procedures and following their transmission by the WTO adjudicator. Public 
availability of these SCI procedures furthers transparency and provides a reference tool for parties 
to a dispute that are considering whether to request the adoption of such procedures.  
 
 The expression "WTO adjudicator" refers to panels, the  Appellate Body and arbitrators acting pursuant to 
Articles 22 or 25 of the DSU.  
 
ARTICLE 10 – Third -Party Rights in Panel Proceedings3 
Article 10.2  
  
(b)  Each third party has the right to:  
 
(i) be present at any substantive meeting of the panel with the parties to the dispute 
preceding the issuance of the interim report to the parties, subject to  any procedures 
adopted by the panel in accordance with paragraph 3 of Article 18 that are consistent 
with this Understanding ; 
 
… 
 
Article 10.3           
 
(a) Each party to the dispute shall make available to each third party its written 
submissions to the panel (other than any submission made subsequent to the issuance 
of the interim report to the parties) at the time such submissions are made, subject to 
any procedures adopted by the panel in accordance with paragraph 3 of Article 18 that 
are consistent wi th this Understanding . 
… 
                                                
2 This text uses  bold text  to indicate proposed additions to the DSU.  
3 This text uses  bold text  to indicate proposed additions to the DSU suggested  by Chair Karau in 
connection with Third -Party Rights, and uses bold underlined text  to indicate the additional Chair's text in 
connection with SCI.  TN/DS /30 
 
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  SEQUENCING4 
The following text relating to the discussions on Sequencing is presented under the Chair's own 
responsibility and is without prejudice to Members' final positions.  
 
The text reflects elements discussed in recent focuse d work of the DSB -SS on Sequencing, on 
which, in the Chair's assessment, there is broad convergence among Members. During this recent 
period of work, there was broad support among Members for the view that no suspension of 
concessions or other obligations should be authorized, unless there has been a prior WTO 
determination of non -compliance or there is another situation establishing that there is no 
disagreement between the parties on compliance. However, Members continue to hold divergent 
views on whether  disagreements on compliance should be resolved exclusively by panels acting 
under Article 21.5 of the DSU and before the DSB may be requested to authorize the suspension of 
concessions or other obligations under Article 22.2 of the DSU.     
 
In light of t he broad convergence among Members in respect of some elements discussed in the 
context of Sequencing and a lack of convergence in respect of others, the text presented below 
reflects possible clarifications and improvements with regard to Articles 21.5 an d 22.7. These 
clarifications and improvements could be made independently of a possible amendment mandating 
recourse to Articles 21.5 in cases where there is disagreement as to the existence or WTO -
consistency of a measure taken to comply, before recourse may be had to Article 22.2.  
 
The text below on Articles 21.5 and 22.7 is largely based on relevant portions of the Sequencing 
working text of 2011, which reflects extensive work conducted among co -proponents and other 
interested delegations.  
 
With regard to compliance proceedings under Article 21.5, the text contains possible incremental 
improvements that in some respects may also represent time -savings compared to current 
procedures under the DSU.  
 
 Consultations:  Draft Article 21.5(a) would provide that each party shall accord sympathetic 
consideration to a request from another party for consultations during the reasonable period 
of time (RPT), so as to give parties an opportunity to prevent a dispute over compliance 
from arising, without obligating a par ty to enter into consultations if so requested. Further, 
draft Article  21.5(c)(i) would clarify that after the expiry of the RPT and in situations where 
there is a dispute over compliance, formal consultations are not required before requesting 
the establi shment of a compliance panel.  
 Notification of measures taken to comply:  Draft Article 21.5(b) would improve transparency 
at the implementation stage of disputes by requiring a Member to notify the DSB once it 
considers that it has fully complied with DSB r ulings and recommendations. The required 
notification would include a description of any measure considered to achieve compliance, 
the date of entry into force, and the text of the measure, if any. Members may wish to 
consider whether similar to draft Arti cle 21.5(a) and Articles 3.6 (on mutually agreed 
solutions) and 4.4 (on consultations) of the DSU, the text could also provide for notification 
to the relevant Councils and Committees.     
 Compliance panel establishment and composition:  Draft Article 21.5( c)(ii) would provide for 
mandatory establishment of compliance panels at the first DSB meeting at which the panel 
request is made. This draft provision would also provide for the possibility to replace a 
member of the original panel who is no longer availa ble within an expedited time -frame 
compared to that provided for under current Article 8 of the DSU.  
 No additional RPT following a finding of non -compliance:  Draft Article 21.5(c)(iv) would 
clarify that a responding party is not entitled to an additional R PT to comply, should the DSB 
rule that a measure taken to comply does not exist or is WTO -inconsistent.  
Taking into account views expressed during recent focused work, and recalling the lack of 
convergence regarding a possible amendment mandating recourse  to Article 21.5 for 
                                                
4 Previously made available as RD/TN/DSB/23.  TN/DS /30 
 
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  disagreements on compliance, the text below would ensure that both complaining parties and 
responding parties may initiate compliance proceedings. Further, the chapeau of draft 
Article  21.5(c) would clarify that DSU rules and procedure s, including those concerning appellate 
review, and relevant special or additional rules and procedures in Appendix 2 would apply in 
compliance proceedings, subject to any modification under draft Article 21.5(c).  
 
With respect to Article 22.7, the added t ext provides for greater transparency through a 
requirement to notify the DSB of any measure taken pursuant to the DSB's authorization to 
suspend concessions or other obligations, including any amendment or termination of the 
measure, within a specified de adline. Such measures are discriminatory and trade -restrictive by 
design. Members may wish to consider whether the text could also provide for notification to the 
relevant Councils and Committees.  
 
CHAIR'S TEXT  FOLLOWING THE DISCUS SIONS  ON SEQUENCING  
Artic le 21.5 of the DSU 5  
5. (a) After the midpoint of the reasonable period of time, or after the DSB meeting 
referred to in paragraph 3 where the Member concerned does not have a reasonable 
period of time pursuant to paragraph 3, each party shall, if request ed by another party, 
accord sympathetic consideration to any request for consultations in good faith with a 
view to reaching a mutually satisfactory solution regarding the implementation of the 
recommendations and rulings of the DSB. The party requesting c onsultations shall notify 
its request to the DSB and the relevant Councils and Committees.  
 
(b) Where the Member concerned considers that it has fully complied with the 
recommendations and rulings of the DSB it shall so notify the DSB in writing without 
delay. The Member concerned shall include with the notification all relevant information 
including a description of any measure it considers achieves compliance, the date of 
entry into force of the measure, and its text, if any.  
 
(c) Where there is disagreem ent as to the existence or consistency with a covered agreement of 
any measure s taken to comply with the recommendations and rulings of the DSB,  such 
disagreement  dispute  shall be decided through recourse to these dispute settlement procedures, 
including w herever possible resort to the original panel.  the rules and  procedures of  this 
Understanding  and relevant special or additional rules and procedures identified in 
Appendix 2,  as modified by this sub -paragraph. 
 
_______________  
 This is without prejudice  to the right of a party to initiate new dispute 
settlement procedures under Articles 4, 5, 6 and 25 of this Understanding.  
 
(i) The procedures under this sub -paragraph do not require a party to request 
consultations under Article 4 before requesting the e stablishment of a panel.  
 
(ii) The DSB shall establish a panel upon request by any party at the first 
meeting at which the request is made, unless it decides by consensus not to do so. 
The same persons shall serve on this panel as served on the original p anel. If any 
member of the original panel is not available, unless the parties agree otherwise, 
the Director -General shall appoint a replacement within 14 days after the date of 
establishment of the panel, after consulting with the parties.  
 
(iii) The pane l shall circulate its report within 90 days after the date of referral of the 
matter to it  its establishment . Whe nre the panel considers that it cannot provide  circulate  
its report within this time frame  timeframe , it shall inform the DSB in writing of the  reasons 
for the delay together with an estimate of the period within which it will submit  circulate  its 
report.  
 
                                                
5 Proposed deletions to the current DSU text are reflected in strikeout  and proposed new text is in bold. 
Footnotes reproduced from the current DSU carry their current numbering, whereas proposed footnotes are 
identified with letters.   TN/DS /30 
 
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  (iv) Where the DSB rules that a measure taken to comply does not exist or is 
inconsistent with a covered agreement, the Member concerned shall  not have an 
additional reasonable period of time to comply with the recommendations and 
rulings of the DSB.  
 
Article 22.7 of the DSU  
7. The arbitrator16 acting pursuant to paragraph 6 shall not examine the nature of the 
concessions or other obligations to  be suspended but shall determine whether the level of such 
suspension is equivalent to the level of nullification or impairment. The arbitrator may also 
determine if the proposed suspension of concessions or other obligations is allowed under the 
covered agreement. However, if the matter referred to arbitration includes a claim that the 
principles and procedures set forth in paragraph 3 have not been followed, the arbitrator shall 
examine that claim. In the event the arbitrator determines that those princi ples and procedures 
have not been followed, the complaining party shall apply them consistent with paragraph 3. The 
parties shall accept the arbitrator's decision as final and the parties concerned shall not seek a 
second arbitration. The DSB shall be info rmed promptly of the decision of the arbitrator and shall 
upon request, grant authorization to suspend concessions or other obligations where the request is 
consistent with the decision of the arbitrator, unless the DSB decides by consensus to reject the 
request.  The authorized Member shall notify the DSB of any measure taken pursuant to 
the authorization granted by the DSB and any amendment or termination of the 
measure. The Member shall submit the notification, including any relevant information, 
in writi ng no later than 28 days after the date on which the measure, its amendment or 
termination takes effect.  
 
_______________  
16 The expression "arbitrator" shall be interpreted as referring either to an individual or a 
group or to the members of the original panel when serving in the capacity of arbitrator.  
 
__________