RESTRICTED  WORLD TRADE  
ORGANIZATION  WT/DSB/M/209 
3 May 2006 
 (06-2118) 
Dispute Settlement Body 
10 April 2006  
 
 
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard  
on 10 April 2006  
 
Chairman:  Mr.  Muhamad Noor Yacob (Malaysia) 
 
 
1. Extension of the deadline for nominations of  candidates for an Appellate Body member 
(a) Proposal by China 
1. The Chairman  said that the above-mentioned item was on the agenda of the present meeting 
at the request of China.  He recalled that Chin a's proposal for the extens ion of the deadline for 
nominations of candidates for an Appellate Body me mber had already been considered by the DSB at 
the informal meeting held on 28 March 2006.  At that meeting, an informal understanding had been 
reached that China's proposal should be accepted.  Sub sequently, in order to bring this matter formally 
before the DSB, China had requested  that a special DSB meeting be held in order to consider its 
proposal.  He then invited the re presentative of China to speak. 
2. The representative of China  recalled that at its 17 February 2006 meeting, the DSB had 
launched the process of selecting an Appellate Body member to succeed the late Mr. John Lockhart 
for the remainder of his term.  At that meeting,  it had also been agreed  that the deadline for 
nominations of candidates would be 31 March 2006.  At the DS B meeting on 24 March 2006, taking 
into account both the ongoing selection process in Ch ina and the fact that no nomination had been 
submitted up to 24 March, China had proposed, under "Other Business", that the deadline for 
nominations of candidates for an Appellate Body member be extended until 30 April 2006.  Based 
upon an understanding that had been reached at th e informal meeting held by the Chairman on 
28 March 2006, China was now putting forward a form al proposal for consideration by Members that 
the deadline for nominations of candidates for an Appellate Body member be extended up to 
30 April 2006 and that a decision be made accordingly. 
3. The representative of Brazil  said that his delegation noted China's proposal to extend the 
deadline for nominations of candidates for an Appella te Body member.  As it had been pointed out in 
the context of the previous discussion on this matter,  Brazil fully appreciated the complexity inherent 
in the task of selecting domestically a candidate wi th an adequate profile and required knowledge to 
perform such a unique and important function in the WTO.  In this light, Brazil expressed its appreciation for the efforts made by Ghana and South Africa in order to present their respective 
candidates in a timely fashion.  While Brazil woul d not oppose the consensu s on China's proposal, it 
considered that it was important to stress the follo wing systemic issues.  First, Members should be 
extremely cautious about taking decisions with retro active effects.  Such course of action had a clear 
impact on the credibility of the decision-making pr ocess of the DSB.  Brazil hoped that the current 
situation would stimulate WTO Members, in the next selection process for Appellate Body members, to consider all the relevant factors so as to dete rmine really appropriate time-periods for different WT/DSB/M/209 
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  steps in such a process, including for nominations of candidates.  In any case, in Brazil's view, a 
decision by the DSB at the present meeting to extend the 31 March deadline should not set a 
precedent for the future.  
4. Second, Brazil wished to briefly comment on th e use by Members of "Other Business" items 
for substantive purposes.  Brazil's comment wa s related not only to the specific issue under 
consideration, which had initially been raised unde r "Other Business" at the 24 March DSB meeting, 
but also to a series of instances where substantive matters had been brought to the DSB's attention in 
that way.  Brazil strongly recommended that Memb ers refrain from raising substantive matters under 
"Other Business".  Appropriate advance notice of the matters to be discussed in the DSB was a key 
pre-condition for the DSB's ability to ensure secur ity and predictability in the application of the 
multilateral rules.  In most cases, discussions in th e DSB were either a result of, or a prelude to, 
prolonged disputes with serious economic and political  consequences for the parties directly involved, 
and systemic implications for the whole Membership.  In that sense, at a minimum, delegations should be given time to properly consult with capita ls about any matter to be discussed in a DSB 
meeting. 
5. The representative of the United States
 said that selecting members of the Appellate Body 
was one of the most important decisions for the DSB.  The United States had long supported the idea 
of having a robust pool of candidates for Members' consideration.  Therefore, the United States was 
sympathetic to the objective of providing suffi cient time for Members to come forward with 
nominations of candidates to serve on the Appe llate Body.  And because this was an important 
decision, the United States also considered that it was important that DSB procedures be followed.  
However, the United States was troubled by aspects of the manner in which this issue had been put 
before Members at the present meeting.  While the agenda item made clear that the issue of additional 
time for nominations was to be discussed, it was onl y from informal discussions that the United States 
understood that the intention was to take a decision in this regard.  Further, the DSB agenda was not 
accompanied by the documentation for China's pr oposal, as would normally be the case when a 
decision was to be taken.  In this regard, the Unite d States noted rules 4 and 26 of the General Council 
rules of procedure which were applicable to the DSB.  The United States, like others, had therefore 
been handicapped in its ability to prepare for the pr esent meeting.  He recalled that when this issue 
had been discussed at the 24 March DSB meeting, Members had raised concerns about the precise 
formulation of any decision.  Having the precise text  of what was being proposed for decision would 
be of significant benefit to Members as they developed their positions on the proposal.  The 
United States appreciated the explanation that ha d been provided at the present meeting that the 
decision was to establish a deadline of 30 Apr il 2006 for nominations of candidates.  The 
United States did not object to the substance of th is request, and accordingly it was willing to join a 
consensus to extend the deadline.  However, the United States wished  to reiterate that it was essential 
that the rules of the DSB be followed, in partic ular rules designed to ensure that all Members 
normally had advance notice of the decisions they were being asked to take. 
6. The representative of Canada  said that a number of issues that he would have wished to raise 
had already been touched upon, therefore, he would not address them at this point.  However, there 
were three points that he wished to comment on.  First, Canada thanked the three Members that had 
already submitted their nominations within the dead line;  i.e. Benin, Ghana and South Africa, and 
stressed that the decision to extend the deadlin e did not and ought not reflect, in any way, on 
Members' collective judgement in respect of any of the three candidates, all of whom on first 
impression appeared to be of the highest calibre.   
7. Second, he wished to refer to the point rai sed by the United States with respect to the 
importance of having a robust pool of candidates from  which to appoint an Appellate Body member.  
This was why Canada would not oppose the extension of the deadline.  However, as he had mentioned 
at the 24 March DSB meeting, and as had been pointed  out by Brazil at the present meeting, Members  WT/DSB/M/209 
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  had to be careful about extending deadlines retroactiv ely.  In this particular instance, the matter had 
been raised before the end of the 31 March deadline and the reasons for the extension were set out in 
China's statement.  Given the nature of the deadlin e and the nature of this unexpected vacancy as well 
as the importance of the task, one could make ex ceptions, but this should not be seen as setting a 
precedent for the future.  
8. Third, he said that Canada had already raised its systemic concerns regarding this matter on 
another occasion and, at the present meeting, he simply wished to recall the statement made by Canada at the 24 March DSB meeting.  He noted that the problem with raising items under "Other 
Business" and expecting substantive discussions or substantive decisions was that delegations would 
not be able to comment because th ey would have no instructions from capitals.  A simple extension of 
the deadline by one month, which appeared not to be a big deal, had ended up requiring quite a lot of 
consultations between Members and their capitals because of the systemic issues involved.  Thus 
Members had been put in a very difficult position at the 24 March meeting as they had been obliged to oppose the consideration of the item raised by Chin a.  While Members valued China's comments and 
sympathized with its concerns they had had no instructions from capitals and had not been in a 
position to make a decision.  It was, therefore, important that Members exercise due restraint when 
bringing up matters under "Other Business", in partic ular issues such as an extension of a deadline 
which could have been anticipated in advance.  
9. The representative of the European Communities
 stated that the EC supported China's 
proposal to extend the deadline by one month to nominate candidates to fill the vacancy in the 
Appellate Body.  The agreed deadline was understanda bly short in order to have the Appellate Body 
with only six members for as brief a period of tim e as possible.  However, the EC fully understood 
that Members would need some time in order to identify and propose strong candidates for the 
important position to be filled.  At the 17 February 2006 DSB meeting, the EC had stated that the 
quality of the candidates was of the utmost importanc e and that the late John Lockhart was a lawyer 
of the highest standing.  Ultimately, it was more important to fill the current vacancy with a person 
equally qualified for, and as committed to the importa nt tasks of an Appellate Body member rather 
than to complete the process quickly.  Having as ma ny candidates as possible might thus be beneficial 
for the Selection Committee, and ultimately for the DSB's tasks in the present selection process.  The 
EC thanked those Members who had already pro posed candidates and thanked in advance those 
Members who would make their proposals in the coming weeks. 
10. The representative of Japan  said that it was not the first time that the extension of this type of 
deadline was being considered by the DSB.  In the p ast the DSB had faced this type of situation.  At 
that time, Japan had made a statement to the effect that this type of extension should not constitute a 
precedent.  In that sense, he wish ed to join the previous speakers who had raised that point.  While 
Japan did not oppose the extension of the deadlin e, it believed that Members should refrain from 
misusing this type of avenue to extend a deadline that had already been agreed upon. 
11. The representative of Mexico  said that, on previous occasions, his country had already 
expressed its concern about decisions being taken no t at the right time and supported the statements 
made by other Members to this effect.  The only ad ditional comment that Mexico wished to make was 
that, like the United States, Mexico agreed that th e selection of a member of the Appellate Body was 
one of the most important decisions to be taken by the DSB.  However, on the two occasions when 
this matter had been discussed very few delegations  were present in the room.  Therefore, Members 
had to exercise due restraint in holding meetings  such as the present meeting with only one item on 
the agenda, which would last for a short period of time and not many delegations would turn up, as 
was the case at the present meeting.    
12. The representative of India  said that his country supported China's proposal.  However, he 
wished to join other speakers who had highlighted sy stemic concerns relating to the retroactive effect WT/DSB/M/209 
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  of decisions taken by the DSB and the need for advance notice for all important matters brought 
before the DSB.  The decision to be taken at th e present meeting, therefore, should not constitute a 
precedent for the future.   
13. The representative of Norway
 said that, like Brazil, the Unite d States, Canada and Mexico, 
his country had systemic concerns regarding the matte r at hand.  To this effect, he underlined that 
systemic issues should not be raised under "Other  Business" because as Mexico had just stated, 
Members needed time to consider and to know that a particular matter would be taken up so that they 
should be present in the room.  Another point to which some previous speakers had referred to was 
that selecting Appellate Body members was an impor tant issue and Norway understood the need for 
time to be able to present high qua lity candidates.  Therefore, Norway  could join in the consensus to 
extend the deadline at the present meeting.  He stre ssed that, like Canada, the decision to extend the 
deadline should in no way prejudge Members' positi on in respect of the three candidates presented 
thus far.    
14. The representative of Korea  said that his country wished to  join previous speakers who had 
expressed concerns about the way this matter had b een dealt with.  Korea understood that adequate 
time should be given to Members to prepare nomina tions in order to have qualified candidates.  
Therefore, Korea had no objections to the substa nce of China's proposal.  However, as other Members 
had pointed out, taking a retroactive decision and the lack of opportunity for Members to consider the issue properly was not the right way to ensure sec urity and predictability of the dispute settlement 
system.  Therefore, Korea believed that this should not set a precedent and that efforts should be made 
in order not to repeat such a situation.  
15. The representative of Kenya
 said that his country supported China's proposal.  
16. The representative of Canada  said that he wished to add that Members should thank China for 
bringing the matter to their attention because, in  the end, all Members would benefit from further 
reflection on possible candidates.  There were syst emic concerns involved but what China had done 
was positive.   
17. The Chairman  proposed that the DSB take note of th e statements made and agree to China's 
proposal to extend the deadline for nominations of candidates for an Appellate Body member until 
30 April 2006.  He further proposed that this decision have retroactive effect to 1 April 2006 with respect to the time-period covered by the decision.  
18. The DSB took note
 of the statements and so agreed .     
19. The Chairman  noted that thus far three nominations  of candidates for an Appellate Body 
member had been submitted.  These nominations ha d been proposed by Ghana, South Africa and 
Benin respectively.  At this point, and in light of the decision to extend the deadline until 30 April 2006, he wished to remind delegations th at any new nominations together with curricula 
vitae of candidates should be addressed to the Chai rman of the DSB in care of the Council and TNC 
Division.  These nominations would then be circulated as Job documents to all WTO Members.  
The Selection Committee would begin its work shortly after 30 April in order to be able to present its 
recommendation to the DSB at the earliest possible date thereafter.  The Selection Committee would 
interview all candidates and, upon request, would make itself available to hear the views of interested 
WTO Members in this regard as well. 
20. The DSB took note
 of the statement.  
__________