WT/DS529/12  
 
5 December  2018 
(18-7715) Page: 1/4 
  Original: English  
 
AUSTRALIA – ANTI -DUM PING MEASURES ON A4 COPY PAPER  
COMMUNICATION FROM T HE PANEL  
The following communication, dated 30 Novem ber 2018, was received from the Chairperson of the 
Panel with the request that it be circulated to the Dispute Settlement Body.  
 
_______________  
 
 
On 21 September, 3 October and 16 October 2018, Australia, China and the Russian 
Federation respectively have submitted requests for enhanced third party ri ghts in this proceeding.  
 
 On 29 November 2018, the Panel issued the attached decision to the parties and third parties.  
 
Paragraph 1(3) of the Working Procedures for the Panel proceedings in the dispute Australia 
– Anti-Dumping Measures on A4 Copy Paper provides in relevant part that "[t]he Panel will circulate 
preliminary rulings as a ppropriate." Therefore, I would be grateful if you could circulate this letter 
and the attached decision to the DSB.  
 
 
  WT/DS529/12  
 
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  DECISION OF THE PANE L CONCERNING THE REQ UESTS FOR ENHANCED T HIRD PARTY RIGHTS  
29 November 2018  
1.1.  At the organizational meeting held on 2 1 September 2018, Australia requested rights additional 
to those accorded in the Dispute Settlement Understanding (DSU) for third parties in this proceeding. 
At the request of the Panel, Australia confirmed its request in writing on 15 October 2018, 
refere ncing the communication by Canada regarding "Additional practices and procedures in the 
conduct of WTO disputes [on the] participation of third parties in Dispute Settlement"  endorsed by 
several WTO Members, including Australia.1 Specifically, Australia re quested that third parties 
receive all written submissions and answers of the parties, up to the issuance of the interim report; 
be present for the entirety of all substantive meetings with the Panel with the appropriate constraints 
on third -party interven tions and subject to the adopted Additional Working Procedures of the Panel 
Concerning Business Confidential Information; and be provided with an additional opportunity to 
express views on questions raised during the second substantive meeting.  
1.2.  On 3 Octob er 2018, China submitted a request for enhanced third party rights including receipt 
of all written submissions and answers of the parties, up to the issuance of the interim report; the 
opportunity to submit first and second written submissions and to resp ond to the Panel's questions 
in writing; participation during the entirety of all substantive meetings with the Panel and an 
opportunity to make brief statements at such meetings. China argued that it was subject to the 
underlying anti -dumping investigatio n where a "particular market situation" in China's A4 paper 
market was alleged, with regard to which the Australian investigating authorities made a negative 
finding. China further argued that it exports a significant amount of the subject product to Austr alia. 
For those reasons, China considered that it would be affected by the outcome of this dispute in a 
manner that is markedly different from its impact on other Members. China further stressed that the 
dispute raises novel issues of systemic importance and, t herefore, additional assistance from third 
parties would be helpful to the Panel.  
1.3.  The Panel gave an opportunity to third parties to comment on Australia's and China's requests, 
and a subsequent opportunity to the parties to provide comments. On 16 October 2018, Canada, 
the European Union, Japan, Korea, the Russian Federation, and the United States submitted 
comments.  
1.4.  In its comments, the Russian Federation requested additional third party rights similar to those 
indicated in China's request. The Russian Federation noted that it has a special interest in the 
outcome of the dispute since it  challenges the provisions of the EU legislation regarding the 
"particular market situation" in another ongoing dispute, EU – Cost Adjustment Methodologies II  
(Russia ) (DS494).  The Russian Federation additionally pointed out that it has a substantial legal and 
significant economic interest in this dispute: the Australian investigating authorities alleged the 
existence of a "particular market situation" in the R ussian market in previous investigations and that 
this dispute may affect the future practice of the Australian investigating authorities in this regard.  
1.5.  Indonesia objected to the requests for additional third party rights arguing that the additional 
participatory rights requested went beyond current accepted practice and would impose an additional 
burden and obligation on Indonesia in this dispute to which it does not consent. Indonesia further 
argued that its claim in this dispute is brought on an "as app lied" basis to resolve a dispute between 
Indonesia and Australia arising from Australia's action in a single anti -dumping case.  
1.6.  Australia supported China's request for enhanced third party rights, except for the opportunity 
to submit second written submiss ions and respond to questions posed by the Panel to the parties.  
1.7.  The rights specified in Article 10 and paragraph 6 of Appendix 3 of the DSU guarantee 
third-party participation in panel proceedings. It is well established that panels have discretion to 
grant additional participatory rights, subject to the requirement of due process and in a manner 
consistent with the DSU. We recall that, in approving the granting of additional third party rights in 
EC – Hormones , the Appellate Body stated "we believe that t his decision falls within the sound 
                                                
1 Statement on a mechanism for developing, documenting and sharing practices and procedures in the 
conduct of WTO disputes, Addendum: additional practices and procedures in the cond uct of WTO disputes, 
participation of third parties in Dispute Settlement , JOB/DSB/1/Add.4.  WT/DS529/12  
 
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  discretion and authority of the Panel, particularly if the Panel considers it necessary for ensuring to 
all parties due process of law."2 In approving the denial of additional third party rights in US – 1916 
Act, the App ellate Body similarly stated "[a] panel's decision whether to grant 'enhanced' 
participatory rights to third parties is thus a matter that falls within the discretionary authority of 
that panel. Such discretionary authority is, of course, not unlimited and  is circumscribed, for 
example, by the requirements of due process."3  
1.8.  The Panel notes that in past cases additional third party rights have been granted over the 
objections of a party only in exceptional circumstances such as parallel proceedings involvin g the 
same measures4, where challenged measures had a significant economic effect on third parties5, or 
where certain third parties maintained similar measures that could be affected by the outcome of 
the case .6  
1.9.  The Panel has carefully considered the requ ests of Australia, China, and the Russian Federation, 
as well as the related comments of all the third parties and the respective positions of the parties. 
In the Panel's view, taking into account the balance between participatory rights of the disputing 
parties and third parties provided for in the DSU, the justifications relied upon in the requests of 
Australia, China, and the Russian Federation do not present compelling circumstances that would 
warrant granting additional participatory rights to third pa rties in this dispute over the objection of 
a disputing party.   
1.10.   None of the parties or third parties have alleged the existence of parallel proceedings involving 
the same measures as the present dispute or indicated that they maintain measures similar to t he 
challenged one that could be affected by the outcome of the dispute. China, the Russian Federation, 
and Australia have equally not demonstrated the existence of significant economic effects of the 
contested measures on third parties or presented other s imilarly compelling circumstances that 
would suggest that granting additional third party rights is warranted.  
1.11.   Regarding China's argument that it was subject to the underlying anti -dumping investigation 
where the existence of a "particular market situation " was alleged, the Panel observes that the 
relevant aspects of Australia's measure imposing anti -dumping duties contested in this proceeding 
relate to dumping by Indonesian exporters and do not concern dumping by Chinese exporters. The 
contested measures t herefore are not applicable to imports from China and therefore do not have 
the type of significant economic effect on China that has underpinned prior grants of additional third 
party rights. Moreover, in regard to existence of measures maintained by Aust ralia that do impact 
imports of A4 copy paper from China, it is noteworthy that such measures are dissimilar to the 
challenged measures in this dispute insofar as the investigating authority did not find a "particular 
market situation" to exist in China. W e recall additionally China's argument that it exports significant 
amounts of A4 paper to Australia. Since China's exports are not affected by the contested aspect of 
the measure, the existence of those exports is, in our view, not a sufficient reason for the granting 
of additional participatory rights.  
1.12.   China further points out that Indonesia's panel request raises "issues of novelty" such as "the 
particular market situation" and that such issues have systemic implications in the anti -dumping 
investigation s by the Members, meaning that additional assistance from third parties would be 
helpful to the Panel's examination of the case. We note that the WTO panels are often called upon 
to interpret novel legal issues with implications for the WTO Membership and this consideration is 
not unique to the present dispute. We note as well that the DSU contains a number of options for 
third parties to communicate their views during the proceeding. As far as enhanced third party rights 
are concerned, however, an interest  in the interpretation of the relevant provisions of the covered 
agreements does not distinguish China from any other third party or any other WTO Member. In this 
vein, a number of panels have concluded that significant legal or systemic interests are not a 
                                                
2 Appellate Body Report, EC – Hormones , para. 154.  
3 Appellate Body Report, US – 1916 Act , para. 150. 
4 Panel Report, EC – Hormones (Canada) , paras. 8.14-8.20; Decisions by the Arbitrators,  EC – 
Hormones (US) (Article 22.6 – EC), para. 7; and EC – Hormones (Canada) (Article 22.6 – EC), para. 7.  
5 Panel Reports, EC – Bananas III  (Ecuador) , paras. 7.6 -7.9; EC – Bananas III (Guatemala and 
Honduras) , paras. 7.6 -7.9; EC – Bananas III (Mexico) , paras. 7.6 -7.9; EC – Bananas III (US) , paras. 7.6 -7.9; 
EC – Tariff Preferences , Annex A, para. 7; and EU – Poultry Meat (China) , paras. 7.40 -7.42. 
6 Panel Report, EC – Tariff Preferences , Annex A, para. 7. WT/DS529/12  
 
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  sufficient reason for granting of additional third party rights.7 We therefore consider that the above 
argument of China, in light of the past panel decisions, does not warrant the granting of enhanced 
third party rights.  
1.13.   The Russian Federation, in its request, makes an essentially similar argument relating to the 
systemic implications of this dispute for the WTO Members. For the reasons just discussed, we do 
not consider this to be a compelling argument on the basis of past practice. Additionally, the R ussian 
Federation argues that it has a special interest in the outcome of the present dispute since it  contests 
the provisions of the EU legislation regarding the "particular market situation" in another ongoing 
dispute, EU – Cost Adjustment Methodologies II (Russia) (DS494) . Faced with like arguments, two 
recent panels have found that a similarity of legal issues in different disputes does not justify the 
granting of enhanced third party rights.8 In fact, even where parallel proceedings involved the same 
contested measures and different panels composed by the same panel members, a number of panels 
have not considered this to be a sufficient basis for the granting of enhanced third party rights.9 The 
Panel therefore finds that the overlap between legal issue s in the two disputes does not warrant the 
granting of enhanced third party rights.  
1.14.   The Russian Federation has further submitted that, in other investigations, the Australian 
investigating authorities have alleged the existence of a "particular market situ ation" in relation to 
the Russian market. The Russian Federation argues that it has a "substantial legal and significant 
economic interest in this dispute" since the outcome of this dispute may affect the future practice of 
Australia in this regard. We do not see how this differentiates the Russian Federation from any other 
WTO Member or other third parties having a "substantial interest" in the case pursuant to Article  10.2 
of the DSU: exports of any WTO Member in the future could be subject to an investig ation by the 
Australian authorities involving the allegation of a "particular market situation". Furthermore, as 
Indonesia pointed out in its comments, its challenge is brought on an "as applied" basis and concerns 
a specific investigation. Accordingly, th e Panel finds this claimed interest of the Russian Federation 
to be too attenuated to compel the granting of additional third party rights in this dispute.  
1.15.   Finally, with regard to Australia's request, we note that, apart from the reference to the policy 
document relating to third party participation and endorsed by some WTO Members as framework 
for voluntary  expansion of third party participatory rights, Australia has not provided any specific 
reasons why the enhanced third party rights should be granted i n this proceeding. For the reasons 
elaborated above, we do not consider Australia's request to warrant the granting of enhanced third 
party rights over the objection of Indonesia.  
1.16.   The Panel therefore declines the requests of Australia, China, and the Russi an Federation for 
enhanced third party rights in this proceeding.  
 
 
__________  
                                                
7 Panel Reports, Argentina – Import Measures , para. 1.24;  China – Rare Earths , para. 7.9;  US – 
Countervailing Measures (China) , para. 1.13;  and India – Solar Cells , para. 7.35 . 
8 Panel Reports, EU – Biodiesel (Indonesia) , Annex D -2, p. D -4; US – Washing Machines , para. 1.12 . 
9 Panel Reports, US – 1916 Act (EC) , paras. 6.32 -6.36; US – 1916 Act (Japan) , paras . 6.32-6.35; US – 
Shrimp (Thailand) , paras 7.1 -7.4; and US – Customs Bond Directive , paras 7.1 -7.4.