WT/GC/W/767  
 
28 March 2019  
(19-1976) Page: 1/2 
General Council  Original: English  
 
GUIDELINES FOR THE W ORK OF PANELS AND TH E APPELLATE BODY  
COMMUNICATION FROM B RAZIL  
The following communication, dated 28 March 2019, is being circulated at the request of the 
delegation of Brazil.  
 
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1  INTRODUCTION  
The General Council,  
1.1.  Acknowledging  that the dispute settlement system of the World Trade Organization (WTO) is 
a central element in providing security and predictability to the multilateral trading system;  
1.2.  Considering the essential role of adjudicators to assist the Dispute Se ttlement Body (DSB) in 
making the recommendations or in giving the rulings provided for in the covered agreements;  
1.3.  Considering the prompt settlement of disputes as a crucial element of a well -functioning dispute 
settlement system;  
1.4.  Reaffirming that the reco mmendations and rulings of the DSB cannot add to or diminish the 
rights and obligations of Members;  
1.5.  Recognizing  the duty of Members to maintain a standing Appellate Body, whose vacancies shall 
be filled as they arise;  and 
1.6.  Adopts the following guidelines f or panels and the Appellate Body in performing their functions 
as provided  in the WTO agreements:  
2  COMPLETION  OF APPEALS BY PERSO NS WHO CEASE TO BE A PPELLATE BODY MEMBER S 
2.1.  Only the Ministerial Conference or the DSB may authorize a person who ceases to be a member 
of the Appellate  Body to complete the disposition of any appeal to which that person was assigned 
while a member of the Appellate Body.  
3  TIMEFRAMES  FOR ISSUANCE OF A PPELLATE BODY REPORT S 
3.1.  The deadlines established under Article 17.5 of the Understanding on Rules and Procedures 
Governing the Settlement of Disputes (DSU) are binding and accord no discretion to the Appellate 
Body to issue reports outside the 90 -day deadli ne set out therein.  
3.2.  At the request of the parties to a dispute, the DSB may decide to deem a report issued beyond 
the 90 -day deadline  set out in Article 17.5 to be an Appellate Body report circulated pursuant to 
Article 17.5 of the DSU.  WT/GC/W/767  
 
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  4  FACTUAL ELEMENTS  OF PANEL REPORTS  
4.1.  Descriptions or factual  findings contained in the factual section of a panel report, issued to the 
parties pursuant to Article 15.1 of the DSU and possibly modified after the interim review stage, are 
not susceptible to appellate review.  
5  EXTENT OF ANALYSIS AND FIN DINGS BY PANELS AND THE APPELLATE BODY  
5.1.  Findings by a panel and the Appellate Body are restricted to those necessary to assist the DSB, 
in the context of a specific dispute, in making the recommendations or in giving the rulings provi ded 
for in the covered agreements, including recommendations pursuant to Articles 19.1 and 26 of 
the DSU. 
5.2.  Article 3.2 of the DSU is not meant to encourage panels or the Appellate Body to clarify existing 
provisions of the covered agreements outside the context of resolving a particular dispute, nor to 
provide opinions  beyond the findings that are necessary to assist the DSB in making the 
recommendations or in giving the rulings in the context of a particular dispute.  
5.3.  To address an issue pursuant to Article 17.12, the Appellate Body may consider and dispose of 
the issue to the extent necessary to assist the DSB in making the recommendations or in giving the 
rulings provided for in the covered agreements. Such action does not necessarily require addressing 
the merits of particular claims (e.g. by reasons of judicial economy).  
6  VALUE OF ADOPTED PAN EL AND APPELLATE B ODY REPORTS  
6.1.  Pursuant to Article IX of the WTO Agreement, the Ministerial Conference and the General 
Council have the exclusive authority to adopt interpretations of the WTO Agreement and the 
Multilateral Trade Agreements.  
6.2.  In deciding to adopt panel or Appe llate Body reports, the DSB does not intend that such 
adoption constitute a general and prospective endorsement, by the WTO membership, of any 
interpretations of provisions of the covered agreements contained in the reports.   Such 
interpretations, therefor e, do not become definitive interpretations of the relevant provisions of the 
covered agreements by virtue of adoption of panel or Appellate Body reports by the DSB.  
6.3.  Panels and the Appellate Body are thus not legally bound by the reasoning and findings of 
previous panel and Appellate  Body reports.  
6.4.  In recognition that such reports create legitimate expectations among WTO Members, they 
should be taken  into account where they are relevant to any dispute, especially if adjudicators find 
the reasoning in such re ports sufficiently persuasive to rely on it in conducting their own assessment 
of the matter in a dispute.  
7  FILLING OF VACANCIES  IN THE APPELLATE BO DY 
7.1.  WTO Members sitting in the DSB have a collective duty to ensure that vacancies in the Appellate 
Body shall be filled as they arise, as provided for in Article 17.2 of the DSU.  
7.2.  To assist Members in discharging that duty, the selection procedure to fill a vacancy that will 
arise as a result of the expiry of the mandate of an Appellate Body member shall be launch ed by the 
Chair of the DSB 180 days before the expiry of that member 's mandate.   If a vacancy arises before 
the regular expiry of an Appellate Body member's mandate or as a result of any other situation, the 
Chair of the DSB shall immediately launch the se lection procedure with a view to filling that vacancy 
as soon as possible.  
 
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