TN/DS/27  
 
6 August 2015  
(15-4067)  Page: 1/12  
Dispute Settlement Body Special Session    
 
SPECIAL SESSION OF THE DISPUTE SETTLEMENT BODY 
REPORT BY THE CHAIRMAN, AMBASSADOR RONALD SABORÍO SOTO  
1  INTRODUCTION 
1.1.  The objective of this report is to provide an  overview of recent work of the Special Session of 
the Dispute Settlement Body and to present to Members my overall assessment of the state-of-
play and way forward towards concluding the negotiations.   
1.2.  My sense remains, as previously reported to the Membership1, that the work conducted to 
date provides a solid foundation for a successful conclusion of the negotiations. Members have a shared responsibility to ensure that meaningful improvements and clarifications to the DSU can be 
agreed as soon as possible, for the benefit of the entire Membership. The time has come for us to 
make decisions. This will however require further efforts by all participants to confirm the elements 
on which convergence can be achieved and to translate this into agreed legal text.  
1.3.  Since this negotiation started, the number of disputes initiated under the DSU has doubled, 
to now closely approach the 500 mark
2, and two thirds of the Membership have taken part in 
dispute settlement proceedings.3 As a result, vast experience has been accumulated under the 
DSU over the 20 years since the creation of the WT O, covering all phases of the dispute settlement 
process. We have learned from this experience how valuable the dispute settlement procedures 
embodied in the DSU are to Members, and by ex tension to the functioning of the multilateral 
trading system as a whole.  
1.4.  The work in the negotiations has reflected this experience and the lessons drawn from it. The 
remarkable success of the dispute settlement system has brought with it certain challenges and 
made it necessary to consider how the management of dispute settlement proceedings can be improved. The urgency of this task was recently stressed by the Director-General and 
acknowledged by Members.
4 This is an integral part of the context against which this negotiation 
takes place and makes a successful outcome all the more timely and important.  
1.5.  All Members share a common interest in systemic improvements to the DSU that would 
increase the effectiveness of dispute settlement as a key instrument of predictability and security 
in the multilateral trading system. This is true for all Members alike, whether they have been frequent users of procedures under the DSU or not.  
1.6.  Members today have an important opport unity, and responsibility, to strengthen the 
institutional foundations of the WTO by fulfilling the Ministerial mandate to improve and clarify the 
DSU.
5 Doing so will ensure that WTO dispute settlement can continue to serve the Membership 
effectively and contribute to the security and predic tability of the multilateral trading system into 
the future. 
                                               
1 See TN/DS/26, 30 January 2015. 
2 As of 31 July 2015, 497 disputes had been initiated.  
3 See Statement by the Director-General regarding dispute settlement activities, 26 September 2014, at 
WT/DSB/M/350. 
4 Ibid.  
5 WT/MIN(01)/DEC/1, para. 30. TN/DS/27 
 
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  2  OVERVIEW AND GUIDING PRINCIPLES 
2.1.  In my last formal report to the TNC mentioned above, I described in some detail our work 
until the beginning of this year. Since then, work has continued to focus on searching for solutions at the conceptual level and for flexibilities that would allow remaining gaps to be bridged. The aim 
of this work has been to find convergence across all areas around realistic and balanced 
improvements and clarifications to the DSU. 
2.2.  It has been often expressed that a guiding pr inciple in these negotiations should be to "do no 
harm" where the system currently functions well. Our mandate is to agree on "improvements and 
clarifications": it is understood that no amount of "trade-offs" will lead participants to accept specific outcomes that they would consider detrimental to the functioning of the system. Rather than "trade-offs", I have urged participants to think in terms of overall balances, for an outcome 
reflecting the collective view of the Membership as to what will improve and clarify WTO dispute 
settlement procedures.  
2.3.  Our recent work has been organized around 12 themes.
6 Beyond these individual areas of 
work, however, the proposals under discussion have  spanned across all phases of the proceedings. 
Further, what is at stake is an overall balance that, while taking into account any systemic interests, ensures that the procedures as a whole can operate as effectively as possible. 
This involves finding outcomes based on a bala nce across all stages of the proceedings, and 
assessing the potential for various elements taken together to constitute "improvements and clarifications" for the benefit of all Members. 
2.4.  In the conduct of further work, the focus must now be on solutions that would be both 
achievable in light of the concerns expressed by various participants and workable in practice. 
This requires participants to be open to alternative ways of achieving their objectives and to take into account the views and concerns expressed by others. We should also draw upon the extensive 
experience and practices already in place under the DSU where this is instructive for our 
negotiation. 
2.5.  A number of proposals under consideration aim to address procedural issues that have given 
rise to litigation. Multilateral clarification of such issues has the potential to enhance efficiency by 
avoiding unnecessary uncertainty and litigation of procedural issues. At a time when the system is 
under significant pressure, this consideration should be an integral part of Members' assessment of the potential benefits that may arise from these negotiations.  
2.6.  The value of codifying existing practices,  where agreeable to all, should also not be 
underestimated. An explicit endorsement and consolidation of procedural solutions developed through practice would provide greater predictability and security for all Members. It would also 
lead to efficiency gains and better allocation of resources by averting the need for repeat 
consideration of such issues in individual disputes. 
2.7.  Finally, participants should be guided by the considerations outlined in my 2008 Report
7, 
including limiting changes to what is necessary to  achieve the intended purpose, ensuring drafting 
consistency throughout the DSU, and bearing in mi nd the procedural coherence of the system as a 
whole.   
3  STATE OF PLAY AND WORK AHEAD 
3.1.  In this section, I present my assessment of what I see as a basis for further work, building on 
the work to date. In earlier phases, we conducted extensive work based on draft legal text on all 
issues.8 Building on this text-based work, recent work has focused on bridging outstanding gaps at 
the conceptual level. It is against this background that I am setting out my assessment in this 
section – describing where we are in closing those gaps at the conceptual level. Further work will however need to involve a return to text-based discussion as soon as possible, to consolidate any 
convergences achieved at the conceptual level. 
                                               
6 See TN/DS/25, Appendix A, paras. 15-16. 
7 Ibid, paras. 10-11. 
8 See TN/DS/25, TN/DS/26, and JOB/DS/14.  TN/DS/27 
 
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  3.2.  My assessment and any suggestions pu t forward below are presented under my own 
responsibility, without prejudice to participants' positions. Ultimately, it will be for Members collectively to determine what can be part of a successful outcome.  
3.3.  In presenting this assessment, I am guided by the interests and needs expressed by all 
participants throughout these negotiations. I am also guided by the assumption that the shared 
objective is to achieve an ambitious yet realistic outcome that reflects the interests of all Members 
and can bring about meaningful improvements to the manner in which disputes are administered 
under the DSU.  
3.4.  I consider that certain issues are sufficiently mature to be part of a final outcome and do not 
require active work at this stage.
9 In our future work, therefore, we need to focus on those other 
elements under consideration that could secure a balanced outcome at a level of ambition 
matching the efforts invested by all in our negotiation.  
3.5.  Beyond the general consideration that im provements or clarifications to the DSU could 
provide systemic efficiency gains for all Member s, various dimensions have emerged from the 
discussions that may inform Members' shared view of the proper balances to be achieved. I have 
taken these into account in my assessment below. This includes a consideration of the respective roles of parties to the dispute, interested Member s as third parties, other Members, and the wider 
public. It also entails consideration of the respective roles of parties to the dispute in driving the 
process, of independent adjudicators in shaping th eir rulings, and of the DSB as the institutional 
decision-making forum in which Members may engage on issues of systemic interest. There should 
also be a reflection of the interests of all Members, including those facing greater constraints in 
participating in the system effectively.   
3.6.  To facilitate an overall perspective on pr oposed improvements and clarifications in their 
proper context, specific issues are presented below on the basis of procedural stages under the 
DSU, rather than according to the 12 themes mentioned above.  
3.7.  Where mature draft text is already available reflecting elements of convergence, this is 
indicated. Where further work is required to develop such text in line with elements of 
convergence, this is also identified. Draft legal text presented and discussed in earlier phases of 
the negotiations will often provide a useful basi s for translating existing and future conceptual 
convergence into final agreed text. 
3.8.  In general, the suggested work described below does not prejudge the legal form through 
which specific improvements or clarifications would be introduced. It remains to be determined 
which of these could be addressed through DSB action, rather than formal amendments to the DSU.  
3.1  Consultations  
3.9.  Regarding the time-frame for consultations , the overall objective has been to allow the 
proceedings to advance as promptly as possible following the initiation of the dispute, while 
allowing sufficient time, in particular for developing country respondents, to engage in meaningful 
consultations and to prepare for potential subsequent panel proceedings. Based on recent work in this area, my understanding is that there is support for allowing consultations to start at the latest 45 days after the request for consultations, rather than after 30 days, where the responding party 
is a developing country Member. Further work could focus on finalizing legal text reflecting this.  
3.10.  Regarding conditions for interested Members to be joined in consultations as third 
parties , earlier work has led to convergence
10 around specific text11 to reflect two shared 
objectives, namely (i) the automatic acceptance of requests to be joined in consultations in the 
absence of a timely rejection notification by the respondent; and (ii) transparency on all responses to such requests – whether negative or positive. The text developed also assumes the continued 
issuance of a Secretariat document with information in respect of accepted third parties.  
                                               
9 See JOB/DS/19, p. 1. 
10 See TN/DS/26, Annex 2, para. 785. 
11 Article 4.11(b), JOB/DS/14, p. 3. TN/DS/27 
 
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  3.11.  My understanding is that there is also support for facilitating more efficient consultations, 
including for developing country Members, by promoting advance questions  being sent in 
preparation for consultations, e.g. 7 days in advance. As regards the venue of consultations , 
there is support for allowing a developing country respondent to request that the consultations be 
held in its capital, or if that is not practicable for the complainant, through videoconference. 
Further work could focus on draft legal text to reflect these elements. 
3.2  Panel proceedings 
3.12.  The establishment of panels  at the first meeting at which they are considered by the DSB 
could bring efficiency gains for the system. However, at this point, there does not appear to be convergence around this concept, primarily due to concerns over the need to have sufficient time to prepare for the panel proceedings that follow. Such concerns could be addressed at least partly 
if the timeframe for the presentation of the respondent's first written submission were adapted, as 
discussed below. Consideration might also be given to panel establishment at the first DSB meeting but extending the minimum time required before a panel request may be considered by 
the DSB. 
3.13.  On panel composition , convergence reached to clarify the overall combination of 
expertise  required in the composition of panels is already reflected in mature draft legal text.
12 
We have also extensively discussed possible improvements to the process for  selecting 
panelists . While there is support for this objective, it has not been possible, to date, to find 
convergence around the proposed mechanism as pres ented. In this context, it has been suggested 
that the panel composition process could be facilitated if Members agreed to ease the restrictions 
on non-governmental nationals of third party Members  serving as panelists. To the extent 
that participants would consider this to be useful , draft legal text would need to be developed.  
3.14.  With respect to the  timetable for panel proceedings , my understanding is that there is 
support for rebalancing the timing of first written submissions under the indicative timetable in 
Appendix 3, by reducing the period for the complainant's first written submission (e.g. to 1-2 w e e k s )  a n d  e n s u r i n g  t h a t  m o r e  t i m e  i s  a l l o c a t e d for the preparation of the respondent's first 
written submission (e.g. 4-6 weeks). There is also support for requiring panel proceedings to be  
suspended  upon joint request of the parties to facilitate the negotiation of a mutually agreed 
solution between them
13, and mature text is available to reflect this.14  
3.15.  With respect to third party rights in panel proceedings , two aspects have been 
considered: (i) the conditions for expressing third party interest; and (ii) the level of third party 
rights to be granted to those Members who have expressed such interest. 
3.16.  My understanding is that there is support for codifying the current 10-day rule  for notifying 
third party interest, provided that the flexibility remains for later notifications  to be considered. 
Work remains to clarify through draft legal text the exact role of the parties and the panel in considering such notifications, taking into account any linkages to panel composition, including the 
implications of potentially easing the selection of non-government third party nationals as 
panelists. 
3.17.  There is also support for enhancing the rights to be accorded to third parties  to include, 
in addition to the current level of default rights und er the DSU: (i) presence at the entirety of both 
substantive meetings with the panel; and (ii) the right to receive all written submissions of the 
parties prior to the panel's interim report. At the same time, the opportunity for the panel to grant additional third party rights (such as enhanced "active" participation rights), upon third party 
request and following consultation with the parties, could be maintained. 
3.18.  There is also broad support for the introduction in the DSU of language to require panels to 
adopt procedures for the protection of strictly confidential information  (SCI), if requested by 
a party. Detailed text has been considered in this respect, and further work could focus on 
finalizing such text. In light of concerns expressed,  the definition of the type of information to be 
                                               
12 TN/DS/26, Annex 2, paras. 334-335 and Article 8.2, JOB/DS/14, p. 4. 
13 TN/DS/26, Annex 2, para. 19. 
14 Article 12.12 JOB/DS/14, p. 7. TN/DS/27 
 
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  covered under such procedures and other operational details might be left to be determined on a 
case-by-case basis, possibly drawing on an indicative default procedure.  
3.19.  With respect to the proposal to allow public observation of panel meetings  (subject to 
SCI protection), various sensitivities remain, and it has been suggested that an incremental 
approach could be pursued. On that basis, fu rther work could focus on identifying flexible 
solutions. 
3.20.  To date, panel meetings have been opened on an ad hoc  basis, upon agreement of the 
parties in individual disputes.15 This level of openness could be a good starting point for 
consolidating current practices. Requiring panels to open their meetings to public observation where the parties agree could provide greater certainty than is achieved now on an ad hoc  basis, 
while preserving the flexibility that is considered necessary by a number of participants. The 
specific modalities of hearings open to public observation could be clarified through standardized 
procedures or left for the panel to define in consultation with the parties and in light of the particular circumstances of the case.  
3.21.  This issue could also be considered as part of an overall balance of interests between the 
participation rights of Members and access of no n-Members. An incremental approach could also 
take into account the view that Members may have a particular interest in following developments 
in WTO disputes. In this light, consideration could be given to opening panel meetings to 
Members,  in addition to the ad hoc opening of meetings to the public.  
3.22.  Discussions on the publicity of submissions  involve similar considerations, and here too, 
a realistic solution could be based on an intermediate option involving neither immediate full 
access to all documents, nor complete confiden tiality of all submissions. The DSU already 
embodies a requirement to provide, upon a Member 's request, a non-confidential summary of the 
information contained in written submissions that could be disclosed to the public.
16 Panel reports 
themselves also contain summaries of the argu ments presented by parties and third parties. 
Therefore, what is at stake is primarily the timing and form in which information becomes available, rather than a decision to make public information that would otherwise remain 
permanently confidential. A solution on this i ssue could address: (i) the range of documents 
concerned (for example written submissions, non-confidential summaries); (ii) practical modalities for making these documents available without ad ditional burdens on submitting Members; and 
(iii) the moment at which various documents could become publicly available (during the 
proceedings or, at the latest, at the time of circulation of the report).  
3.23.  Unsolicited amicus curiae briefs  remain a sensitive issue. To date, non-Members have 
no recognized entitlement to file unsolicited amicus  briefs or to have these considered by panels; 
at the same time, panels have not been prevented from accepting such briefs on an ad hoc  
basis.
17 This leaves a degree of uncertainty as to ho w such filings may be received and approached 
in a given case. In particular, there is currently no a priori  limitation on the timing, length, or 
procedures for filing an amicus  brief, which can be a source of disruption in the proceedings.  
3.24.  There is limited common ground among participants that only parties and third parties have 
the right to present submissions and be heard in panel proceedings. However, views are opposed on the general acceptability of unsolicited briefs. In light of this, I see no basis to develop a 
general solution at this point. In the absence of such general solution, participants might consider 
whether there is readiness to confirm the limited common ground and explore means to assist panels facing unsolicited amicus briefs on an ad hoc  basis. 
3.25.   Text
18 was developed in earlier phases to allow the final report of the panel  to be made 
available in its original language at the time of its issuance to the parties, without affecting the timelines for adoption of the report. Nonetheless, recent discussions have shown outstanding 
concerns for some participants about the availability of panel reports in all three WTO languages.  
                                               
15 As of 31 July 2015, panel meetings have been opened to public observation in 22 original and 
compliance disputes. 
16 See Article 18.2 of the DSU. 
17 As of 31 July 2015, panels have referred to receiving one or more unsolicited amicus curiae  briefs in 
33 original and compliance disputes. 
18 See TN/DS/25, p. A-24 and JOB/DS/1, p. 7. TN/DS/27 
 
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  3.3  Appellate Body proceedings 
3.26.  It is understood and endorsed that one of the objectives in respect of SCI protection  would 
be to ensure continuity in the protection of in formation beyond the panel stage, to cover also 
appellate (and any subsequent) proceedings. Accordin gly, the solutions to be finalized in regard to 
SCI protection at the panel stage would also cover subsequent stages of WTO dispute settlement. 
3.27.  Many participants would value the opportunity for Members to notify a third party interest  
for the first time at the appellate stage. This woul d allow Members' views to be heard in respect of 
legal issues under appeal that they may not have b een able to anticipate on the basis of the panel 
request, and thus enhance Members' participation in, and access to, WTO dispute settlement. However, some concerns remain, in particular in relation to the potential impact on the management of the proceedings for both the Appellate Body and the parties. As suggested in the 
discussions, the practical details of managing potential multiple third participants could be left to 
the Appellate Body to clarify through its own Working Procedures. If it is considered necessary, general principles could be developed to ensure that the Appellate Body takes due account of the 
parties' interests in the organization of its work with third participants. 
3.28.  Favourable consideration has been given to the possibility of suspending appellate 
proceedings  upon joint request of the parties, in the in terest of facilitating the negotiation of a 
mutually agreed solution between the parties. Furt her work could focus on text clarifying the exact 
terms and conditions under which this could be done. Specifically, it has been suggested that a time limit should be placed on this opportunity (f or example at the latest by the time of the oral 
hearing) as well as on the duration and possibly the number of instances of such suspension (for 
example a maximum of 6 months only once) in order to address any implications for the efficient 
management of appellate work in a predictable manner. 
3.29.  There is currently no remand  mechanism available in the DSU to complete the analysis of 
claims left unresolved at the end of the original appellate proceedings.
19 
3.30.  Recent work has allowed important progress toward clarifying the essential features of a 
possible mechanism to allow unresolved issues to be addressed on an expedited basis and avoid 
the initiation of entirely new proceedings for this purpose. The following elements have been 
identified as a possible basis for a solution:   
 the Appellate Body would finalize and circul ate its report, identifying any issues for 
which remand would be available; 
 the Appellate Body would be prevented from making findings and recommendations 
on issues that risk being modified after completion of the remand proceedings; 
 only the complaining party would have the right to initiate remand, to address only 
those issues identified by the Appellate Body; 
 the remand panel would make all necessary factual and legal findings and circulate a 
final remand report; 
 the remand panel report would be subject to appeal; and 
 the initial and remand panel and Appellate Body reports would be subject to single 
adoption. 
3.31.  This combination of elements would be intended to address in particular concerns about the 
time-frame implications of remand as well as the need to ensure the greatest possible level of 
clarity and security in the mechanism. Allowing the remand panel to complete both the relevant factual and legal analyses, and deferring the adoption of all recommendations and rulings until 
                                               
19 To date, the Appellate Body explai ned that it has been able to "complete the analysis" in 25 disputes. 
In 31 disputes, the Appellate Body explained that it could not complete the analysis. For a description of the 
types of situations in which the Appellate Body cannot complete the analysis, see for example the Appellate Body Reports in Canada – Feed-in Tariff Program / Renewable Energy  at paragraph 5.224. TN/DS/27 
 
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  completion of the remand procedure, would bring the procedures closer to known DSU processes. 
Restricting the initiation of remand to the complainant would also eliminate the risk of dilatory tactics by the respondent, since it would be for the complainant to decide whether to pursue the remand issues and which remand issues identified by the Appellate Body to pursue, thus retaining 
some control over any associated additional time for the completion of the proceedings.  
3.32.  While there is significant support for the intr oduction of such mechanism to facilitate a full 
and prompt resolution of disputes, it has always been clear that convergence on this issue would 
require a high level of assurance that no unintended consequences would arise in the proceedings. 
In particular, there remains some concern as to how remand may affect the overall flow of the proceedings, including the Appellate Body's practice in relation to completing its analysis and the risk of an endless loop of litigation through multiple remands. These concerns will need to be 
addressed if remand is to be introduced. This mi ght be done for example by a clear affirmation by 
the Membership that it encourages the Appellate Body to complete its analysis wherever possible, in the interest of a prompt and full dispute resolu tion, and by limiting the opportunity for remand 
to a single recourse per dispute. Further work on this issue could focus on developing draft text 
reflecting the elements above, assessing how th ey would operate, and confirming whether they 
could provide a sound basis to address this issue. 
3.33.  With respect to open hearings and the publicity of submissions , the considerations and 
options for increased transparency at the panel stage may be similarly applied to the appellate 
stage. This could entail opening Appellate Body meetings to Members and, where the parties to a 
dispute agree, to public observation. A solution addressing the documents to be made available at 
the panel stage, as well as the timing and modalities for doing so, might also be extended to 
appellate proceedings.  
3.34.  Similar to the panel stage, there has been  discussion of the possibility of clarifying the 
treatment of unsolicited amicus  briefs  submitted to the Appellate Body. In addition to the 
important differences of views existing in relation to such briefs in general, their relevance at the appellate stage has been questioned. Given this cont ext, at this point, I see no basis to develop a 
general solution to address this issue at the appellate stage.  
3.35.  The possibility of introducing interim review  at the appellate stage has also been 
discussed, but concerns have been expressed abou t the intended scope of such review and its 
potential impact on the Appellate Body's exercise of its independent adjudicating function. As a 
result, I do not perceive a clear basis for achieving convergence on this proposal in its current 
form. Concerns about re-litigation of issues deci ded by the Appellate Body might be addressed by 
exploring appropriate procedural safeguards. To the extent that the underlying interest is to allow 
parties to a dispute the opportunity to express th eir views on precise aspects of Appellate Body 
rulings that they would disagree with, it has been suggested that this could be achieved through enhanced mechanisms for the parties to express their views on the report. For example, it may be 
explored whether the final report of the Appellate Body would not be subject to revision, but open 
to comment or a joint statement of the parties to be recorded in a document relating to the dispute.  
3.36.  As has been discussed by certain Members outside our negotiations, experience shows that 
the timeframe of 90 days for completing Appellate Body proceedings  under Article 17.5 is 
not always sufficient. In our negotiations, we have proposals regarding the timeframes of proceedings, and a mandate to improve and clarify the DSU. Therefore, I believe that there could 
be merit in addressing the 90-day issue in this negotiation by providing a durable solution, to the 
extent it could form part of a balanced outcom e. Such solution could possibly involve extending 
the timeframe for completing appellate proceedings and/or agreeing on terms respectful of both 
parties' interests and the independence of the Appellate Body under which this timeframe could be 
exceeded in exceptional circumstances. This could meet current workload challenges in a way that 
gives parties greater predictability while preserving the ability of the Appellate Body to produce high quality reports. Should Members wish to purs ue possible solutions in this respect, this would 
need to be based on more specific suggestions. TN/DS/27 
 
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  3.4  Adoption and compliance 
3.37.  While the possibility of facilitating a more rapid  adoption of panel reports has been 
considered, I have not seen a specific interest in pursuing this in recent discussions.  
3.38.  We have not, at this stage, seen convergence on a partial deletion or adoption of panel 
or Appellate Body reports, due to serious concerns over the impact that this may have on the 
integrity of the adjudicators' rulings. It was also noted in this context that, even absent partial adoption, the parties to a dispute would remain in a position to take account of their common 
views in the context of determining the means for im plementation of the rulings at issue. There is 
also some willingness to consider alternative ways of ensuring that the views of the Membership on the rulings, and in particular those of the partie s to the dispute, are given appropriate visibility 
upon the adoption of the reports. This could be explored further, on the basis of more specific 
suggestions.  
3.39.  In respect of the duration of the reasonable period of time (RPT) for 
implementation , discussions have focused on the manner in which the interests of developing 
country Members should be taken into account. The current general guideline period of 15 months 
for arbitrators is not called into question, nor is the current practice of arbitrators of determining the RPT based on the "shortest period possible"
20 within the implementing Member's legal system. 
Proponents seek to clarify that it is appropriate to take into account the specific circumstances of 
implementing developing country Members in establishing an RPT – whether this is done through arbitration or by agreement of the parties. Arbitrators to date have paid particular attention to demonstrated affected interests of developing co untry members, with reference to Article 21.2 of 
the DSU.
21 Members may consider reaffirming that it is appropriate, in determining the RPT, to 
take due account of such interests of develo ping country Members. This may enhance the 
predictability of the RPT by operationalizing Article 21.2 of the DSU in a more explicit manner.  
3.40.  There is convergence on the introduction of an enhanced notification requirement at the 
end of the RPT  for the responding Member to notify to the DSB all relevant information, including 
a description, the text, and the date of entry into force of the measures taken to comply with DSB 
recommendations and rulings, and to explain how these achieve compliance with such 
recommendations and rulings. In addition to improv ing surveillance by the DSB, such notification 
would facilitate the complaining Member's assessment of whether compliance has been achieved. 
3.41.  Earlier work in respect of "sequencing" also led to draft legal text to clarify certain aspects 
of compliance proceedings under Article 21.5 of the DSU. This draft legal text reflects the 
shared understanding that: 
 sympathetic consideration would be accorded by the requested party to consultations 
requested as early as halfway through the RPT (or after the DSB meeting at which no 
RPT is requested); 
 after measures have been taken to comply , consultations are not necessary before 
requesting the establishment of a compliance panel; 
 compliance proceedings would be initiated by the complaining party; 
 the compliance panel would be established at the first meeting of the DSB where a 
request is made and the same panelists as in the original proceedings would be 
appointed;  
 the compliance panel's report would be subject to appeal; and 
 if compliance proceedings lead to a finding of non-compliance, there would be no 
additional RPT to comply. 
                                               
20 Award of the Arbitrator, EC — Hormones  (Article 21.3(c)) , para. 26. 
21 See Award of the Arbitrator, EC – Chicken Cuts (Article 21.3(c)) , paras. 81-82. Article 21.2 of the 
DSU provides: "Particular attention should be paid to matters affecting the interests of developing country 
Members with respect to measures which have been subject to dispute settlement." TN/DS/27 
 
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  3.42.  My understanding is that there is also support for confirming that third party rights  in 
compliance proceedings  w o u l d  b e  a c c o r d e d  o n  t h e  s a m e  t e r m s  a s  i n  o r i g i n a l  p r o c e e d i n g s ,  
mutatis mutandis , before the panel and the Appellate Body, and where relevant in consultations.  
3.43.  In the context of discussions on "effect ive compliance", it has been proposed that 
surveillance of implementation  be strengthened through administrative measures to be applied 
in the event of continued non-compliance beyond the end of the RPT. Recent discussions suggest 
that such measures could include regular notification to the DSB, the General Council, and the 
Ministerial Conference. Further work on this issue could focus on clarifying through draft legal text 
the details of such measures, including their frequency and the situations to which they would apply.  
3.44.  In respect of " sequencing ", it is understood that, where there is genuine disagreement as 
to whether compliance has been achieved, a determ ination of compliance is necessary before an 
authorization to suspend obligations may be granted. Mature draft text was developed in earlier phases of our work to reflect this by providing that compliance proceedings under Article 21.5 
should be completed before an authorization to suspend obligations pursuant to Article 22 can be 
granted, if there is a disagreement as to whether compliance has been achieved.
22 In recent 
discussions, alternative procedural avenues were mentioned to address concerns with foreclosing 
direct recourse to Article 22 where there has been no bona fide effort to comply. However, these 
alternatives have not been explored in detail, and my understanding at this point is that, as part of an overall agreement, the current text may prov ide the basis for a permanent solution to this 
issue.  
3.45.  As regards third party rights in retaliation arbitral proceedings , past arbitrators have 
considered requests for participation rights by interested Members on an ad hoc  basis. We have 
not discussed this issue in detail recently, but pa st discussions suggested mixed views on this, as 
well as on the possibility of appealing Article 22.6 arbitration decisions , in light of some 
participants' views that such proceedings, to the extent that they involve primarily factual and determinations of a bilateral nature, do not warrant third party participation or appeal. Further 
work on these issues may need to take into acco unt in particular the outcome on sequencing in 
respect of compliance determinations. 
3.46.  A number of proposals relate to the suspension of concessions or other obligations, 
reflecting the importance attached to effective compliance  by a number of participants.  
3.47.  As regards the calculation of the level of nullification or impairment , recent 
discussions left unclear the relationship between proposals to determine a reference period for the calculation and the inclusion of the period starting from the end of the RPT in the calculation. 
Earlier discussions suggested that the need for a reference period should be assessed with a 
degree of flexibility and that concerns existed with respect to the potential retroactivity associated with the inclusion of the period from the end of the RPT in the calculation of the level of 
nullification or impairment.  
3.48.  The proposal regarding the impact of challenged meas ures on the economy of 
developing countries as an element in calculating the level of nullification or impairment seeks 
to build upon Article 21.8, which requires the DSB to take into account this factor in considering 
what action it might take in the context of surveillance of implementation. Concerns remain 
however on the conceptual and practical implications of having a distinct level of nullification or impairment for developing countries.  
3.49.  In discussions on cross-retaliation,  the general sequence of principles and procedures 
embodied in the current Article 22.3 has not been questioned. Facilitated cross-retaliation was proposed as special and differential treatment for developing country Members in general. There is 
broad recognition that Members that face particular challenges in their ability to retaliate 
effectively should have access to cross-retaliation. However, there is concern that any facilitation of this process should be closely linked to the existence of such constraints in a particular case.  
                                               
22 Articles 22.2bis and 22.6, JOB/DS/14, pp. 13-14. TN/DS/27 
 
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  3.50.  Based on the discussions, my sense is that further work could focus in the first instance on 
building upon solutions developed in practice, in particular as regards cross-retaliation. Arbitrators to date have taken into account a range of ci rcumstances in determining whether same-agreement 
or same-sector retaliation was not "practicable or effective" within the meaning of Article 22.3, 
including an imbalance in terms of trade volume between the parties, situations where the 
complaining party is highly dependent on imports from the other party
23, the proportion of 
relevant trade affected by the inconsistent measure24, and the level of diversification of the 
economy.25 Further work on this issue could explore th e possibility of the Membership explicitly 
confirming the relevance of such considerations in applying the principles of Article 22.3, including 
in considering the factors identified in Article 22.3(d)(ii)26 and recognizing that this type of 
constraint may affect in particular developing country Members.  
3.51.  There is support for introducing in the DSU an obligation for notifying measures taken 
pursuant to an authorization to su spend concessions or other obligations , and mature 
draft legal text has been developed to reflect this.27  
3.52.  Recent work among proponents of post-retaliation  has led to significant progress towards 
clarifying the procedures to withdraw an authorization to retaliate, where it is established that the respondent has achieved compliance. Recent discussions focused in particular on the relationship 
between the initiation of compliance proceedings and the allocation of burden of proof in this post-
retaliation context
28, and proponents have developed a common understanding on the following 
basis: 
 the implementing Member would be subject to an obligation to provide an enhanced 
notification of compliance; 
 
 there would be a mechanism for a formal request to the DSB for removal of the 
authorization to suspend obligations, which includes automatic removal of the 
authorization if certain defined steps are not taken within a specified period of time; 
 
 the complaining party would have recourse to consultations if it requests it; 
 
 the complaining party is in the best position to define the scope of the disagreement 
and would be responsible for doing so; 
 
 the implementing Member would bear the initial onus of demonstrating its compliance 
with respect to the provisions with which it was found to be non-compliant in the 
initial proceedings; and 
 
 the authorization to suspend obligations would remain in place until withdrawn or 
modified by the DSB, either through decision (e.g. adoption of a compliance report) or 
automatic expiry through inaction. 
 
                                               
23 Decision of the Arbitrator, EC – Bananas III (Ecuador) (Article 22.6 – EC) , para. 73. 
24 Ibid., para. 84. 
25 Decision of the Arbitrator, US – Gambling (Article 22.6 – US), para. 3.108. 
26 Article 22.3(d)(ii) refers to "the broader economic elements related to the nullification or impairment 
and the broader economic consequences of the su spension of concessions or other obligations". 
27 See Article 22.7, JOB/DS/14, p. 15. 
28 These issues were addresse d by the Appellate Body in US - Continued suspension.  See Appellate Body 
Reports , US — Continued Suspension / Canada — Continued Suspension, paras. 358–365. In these reports, 
the Appellate Body observed that "[m]uch of the reluctan ce of the parties to secure  a definitive determination 
in respect of Article 22.8 is the apprehension that, upon initiation, a party will attrac t the full burden of proof" 
and clarified that, in its view, "the allocation of the burd en of proof, in the context of Article 22.8, should not be 
determined simply on the basis of a mechanistic rule that the party who initiates the proceedings bears the burden of proof". It further identified  the considerations that should, in its view, guide the allocation of burden 
of proof in this context. The Appell ate Body has also observed that Ar ticle 21.5 compliance proceedings "form 
part of a continuum of events" toge ther with original proceedings, and that "[a] panel's examination of a 
measure taken to comply cannot, ther efore, be undertaken in abstraction from the findings by the original 
panel and the Appellate Body adopted by the DSB. Such findings identify the WTO-inconsistency with respect 
to the original measure, and a panel's examination of a measure taken to comply must be conducted with due 
cognizance of this background ." See Appellate Body Report, Chile – Price Band System (Article 21.5 – 
Argentina) , para. 136. TN/DS/27 
 
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  3.53.  These elements would embody a degree of  parallelism with the pre-retaliation phase, 
through recourse to the procedures established under Article 21.5, modified as reflected above, where there is a disagreement as to whether compliance has been achieved. These elements also embody a degree of parallelism with the procedural steps towards the initial authorization to 
retaliate. 
3.54.  Further work on this issue should confirm these elements as possible basis for a permanent 
solution on this issue and focus on draft legal text to reflect such solution.  
3.5  Mutually agreed solutions 
3.55.  Mutually agreed solutions negotiated between the parties to a dispute remain 
acknowledged as the preferred outcome. The above-mentioned proposals on the suspension of panel and appellate proceedings upon the parties' agreement are intended to enhance the 
opportunities for parties to negotiate such solutions. In addition, there has been convergence on 
the goal of improving notification of such solution s to the DSB. This has been reflected in mature 
draft text in earlier phases of the work.
29 Further work on this issue should focus on finalizing such 
text, clarifying in particular the level of detail to be required in the notification.  
3.6  Capacity building 3.56.  It is recognized that a successful outcom e will need to address the constraints faced by 
some Members in accessing the system. As discussed above, access to dispute settlement may be 
improved through a variety of avenues within the procedures themselves, including the enhancement of third party rights, increased tr ansparency, and generally the benefits of any 
added security, predictability, and efficiency in  the procedures. In addition to recognizing 
developing country interests in various phases of the proceedings, recent discussions have 
addressed a number of solutions to enhance developing country Members' access to dispute settlement through capacity building  on international trade law and support in litigation.  
3.57.  In particular, there has been positive engagement as regards creating a funding mechanism 
targeted at trade law-related technical assistance and dispute settlement capacity building, within the context of an overall package. This could possibly target initial impediments to more 
meaningful participation in dispute settlement proceedings. It has also been suggested that 
contributions need not only be financial, but that they could also be "in-kind" in the form of legal training and expertise. In addition to establishing  a stable framework or "funding envelope", it has 
been suggested that voluntary funding programs could exist in parallel to provide resources to 
such capacity building facility. Future work could focus on specifying the types of activities to be 
supported and the resources to be contributed, whether in the form of funding or technical assistance.  
3.58.  In this connection, there has also been consideration of the potential role of the ACWL, 
having regard for its separate institutional character and governance, and how its activities might be supported to improve developing countries' access and capacity in WTO dispute settlement. 
There is recognition that solutions in this respec t would have to be based on, and driven by, an 
active commitment of ACWL members and contributors .  
3.7  DSB action 3.59.  Proposals to address specific issues through the Membership's collective action in the DSB 
span across various aspects of WTO dispute settlement.  
3.60.  In respect of proposals on guidance to WTO adjudicators , there is some willingness to 
look at providing further clarity on the operation of the procedures, in a manner that may assist in 
applying and administering the rules more efficiently, provided that the independence of 
adjudicators is maintained. There are different levels of comfort with the various elements 
proposed for DSB action in this regard, and further work should focus on identifying the areas in 
which there is a level of shared understanding. Based on the views I have heard, this might 
include affirming Members' commitment to key DSU principles, including prompt and effective 
                                               
29 See Article 3.6, JOB/DS/14, p. 2. TN/DS/27 
 
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  settlement of disputes, and reiterating that that  recommendations and rulings of the DSB cannot 
add to or diminish the rights and obligations provided under the covered agreements. Potential 
DSB action in this context might also address certain principles of treaty interpretation that are widely recognized to be relevant across WTO disputes.  
3.61.  In addition, issues of common interest that  affect the functioning of the DSU could be the 
object of collective guidance from the Membership through the DSB. Current procedural 
challenges  in WTO dispute settlement, such as matters relating to workload and efficiency, could 
also be addressed through DSB action based on specific proposals.  
3.62.  More generally, it has been suggested that the role of the DSB in administering the 
rules and procedures of the DSU  could be strengthened, for instance by introducing in the 
agenda of the DSB a regular consideration of ge neral oversight issues and providing a forum to 
discuss on an on-going basis any procedural issues  of shared concern. Such oversight by the DSB 
could lead to incrementally developing durable solutions to issues identified by the Membership in this context. Members could consider explicitly endorsing such a role for the DSB, in light of 
Article 2.1 of the DSU. 
4  NEXT STEPS 4.1.  As we resume our work in September, we should focus on confirming what would constitute 
the basis for a successful outcome. My assessment above is intended to facilitate this task by 
identifying what I would see as a fruitful basis fo r further work at this stage, based on discussions 
t o  d a t e .  O f  c o u r s e  i t  w i l l  b e  f o r  M e m b e r s  t o  d e t e r m i n e  w h a t  t h e y  s e e  a s  a n  a c c e p t a b l e  a n d  desirable outcome to these negotiations. 
4.2.  As we progress in this effort, we should al so aim to move promptly to text-based discussions 
reflecting the most recent state-of-play and emerging convergences. As described above, in certain areas, no further text-based work should be needed. In other areas however, updated text 
will be necessary to reflect the evolution of discussions and the most recent work. Where 
proponents have already been working on such updated text, I encourage them to share it with other participants promptly. 
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