WORLD TRADE  
ORGANIZATION  TN/DS/W/79 
13 July 2005 
 (05-3134) 
Dispute Settlement Body  
Special Session Original:   English 
 
 
  
CONTRIBUTION OF THE UNITED STATES ON SOME PRACTICAL CONSIDERATIONS 
IN IMPROVING THE DISPUTE SETTLEM ENT UNDERSTANDING OF THE WTO 
RELATED TO TRANSPARENCY AND OPEN MEETINGS 
 
Communication from the United States
 
   The following communication, dated 13 July 2005, is being circulated at the request of the 
delegation of the United States. 
 
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 I
NTRODUCTION  
 
 As the United States has previously observe d, over 10 years of experience under the WTO 
dispute settlement system has demonstrated that the recommendations and rulings of the Dispute 
Settlement Body can affect large sectors of civil so ciety.  At the same time , increased membership in 
the WTO has also meant that more governments a nd their citizens have an interest in those 
recommendations and rulings. 
 
 The United States continues to believe that it is  important to improve the transparency of the 
dispute settlement system.  In this regard, in TN/DS/W/13 and TN/DS/W/46 the United States 
proposes: (1) open meetings, (2) timely access to subm issions, and (3) timely access to final reports.  
The United States has also suggested in TN/DS/W/13 that Members may wish to consider whether it 
would be helpful to propose guideline procedures fo r handling amicus curiae submissions to address 
those procedural concerns that have been rai sed by Members, panels and the Appellate Body. 
 
In this contribution, the United States elaborat es on the various benefits that could flow from 
opening panel, Appellate Body and arbitrator mee tings to WTO Members in general and the public, 
and shares with Members some further thought s on how open meetings could be achieved in 
practice.1   
 
The United States notes first that civil society and Members not party to a dispute have been 
unable to observe the proceedings that result in these recommendations and rulings.  The result has 
been that the WTO has missed the opportunity to de monstrate that dispute settlement proceedings are 
fair, professional, and permit parties a full opportuni ty to present their positions before neutral, 
engaged, impartial and objective arbiters.  The WT O approach also stands in contrast to other 
international dispute settlement fora and tribunals, which are also intergovernmental in nature and 
whose hearings are open to the public.   
 
                                                      
1 The proposal to open meetings to the public and WTO Members in general is intended to work with 
the other components of improved transparency included in the U.S. proposals. TN/DS/W/79 
Page 2  
 
 Allowing WTO Members in general and the public to observe WTO disputes, as they can 
other intergovernmental disputes, would benefit the dispute settlement system and the WTO more 
broadly.  Indeed, implementation of the DSB reco mmendations and rulings may be facilitated if those 
being asked to assist in the task of implementa tion have confidence that the recommendations and 
rulings are the result of a fair and adequate pro cess.  It would also help strengthen the dispute 
settlement system if all WTO Members could ob serve the arguments and proceedings of WTO 
disputes to become better informed about disputes and the dispute settlement process in general.  T
HE UNDERLYING U.S.  PROPOSAL  
 
It may be useful to first recall the underlying U.S. proposal: 
 
U.S. proposal in concept  (from TN/DS/W/13): 
 
"The DSU should provide that the pub lic may observe all substantive panel, 
Appellate Body and arbitration2 meetings with the parties except those portions dealing with 
confidential information (such as business c onfidential information or law enforcement 
methods).  The DSU could provide a basic set of procedures for this  purpose with some 
flexibility for the relevant body to refine these in  light of the particular circumstances of a 
specific proceeding.  For example, the proce dures could provide a number of options for 
allowing the public to observe the meetings, such as broadcasting meetings to special viewing 
facilities."  
 
 
U.S. proposal to reflect this in the text of the DSU  (from TN/DS/W/46):  
 
 "a) Article 18 of the DSU is amended by  inserting the following new paragraph 3: 
  "3. All substantive meetings with the par ties of a panel, the Appellate Body, or an 
 arbitrator
3 shall be open for the public to observe,4 except for those portions dealing with 
 confidential information.5 "" 
 
 "b) Appendix 3 is amende d by deleting paragraph 2. 
  Conforming changes to reflect the inclusion of arbitrators in Article 18:   "c) Article 18 is amended by deleting in the title "with the Panel or Appellate Body".  
 
" "d) Paragraph 1 of Article 18 is amended by inserting ", ar bitrator," after "panel’ both 
 places that it occurs." 
 
                                                     
 
2 This would include arbitration under Articles 21.3(c), 22.6, and 25 of the DSU. 
3 As used in this Article, the expression "arbitrator" means any arbitrator under paragraph 3(c) of 
Article 21, paragraph 6 of Article 22, or Article 25.  [N OTE:  this list is intended to include all arbitration 
proceedings under the DSU and  the references would need to be upda ted to reflect any amendments to the 
DSU.] 
4 The expression "observe" does not re quire physical presence in the meeting . 
5 For purposes of this Article, the term "confide ntial information" shall mean certain  factual 
information designated as such by the party or third party to the dispute at the time that party or third party 
submitted the information .  TN/DS/W/79 
 Page 3 
 
 
 SOME PRACTICAL CONSIDERATIONS  
 
In light of this underlying proposal, the United States in this contribution offers the following 
observations on some of the practical considerations involved in panel, Appella te Body, and arbitrator 
meetings that are open to all WTO Members and the public. 
 
Physical presence?  
 
As noted in the U.S. proposal in TN/DS/W/ 46, allowing civil society and WTO Members to 
observe a meeting does not require their physical presen ce in the meeting.  In fact, there are a number of 
considerations that would indicate that physical pr esence may not necessarily be the preferred approach.  
For example, physical presence could impose certa in constraints on who would be in a position to 
observe.  It would also raise issues of space, part icularly where there is a need to accommodate the 
presence of a large number of delegate s who will be attending the meeting as  parties or third parties.  In 
some cases, physical presence might lead to issues of maintaining order or security as well. 
 
Alternatives to physical presence?  
 
Some alternatives to physical presence could be  electronic broadcast, either through a closed-
circuit or intranet facility or through webcasting.  These alternatives would offer greater flexibility in 
terms of location for observing meetings which in turn  could permit more inter ested persons to observe, 
including those in the territories of the parties, third parties, or other WTO Members.  In this way, these 
alternatives would respond to concerns  about any restrictions entailed in interested persons having to 
travel to Geneva.  
Any electronic broadcast should be done under the c ontrol of the Secretariat and arranged to be as 
discreet and unobtrusive as possible.  Options to expl ore would include a voice-activated camera to focus 
on and track only those who are speaking. 
 An additional issue to explore would be whethe r to permit re-broadcast of the meeting.  Re-
broadcast could permit greater flexibility concerning viewing times, but may also raise questions about who would have rights to re-broadcast, for what purpose, and under what conditions. 
 
Confidential information?
 
 
As the United States confirmed in TN/DS/W/46, those portions of meetings dealing with 
confidential information would not be open.  An additional safeguard could be provided against the 
disclosure of confidential information.  If meetings were broadcast electronically, it may be possible to 
include a delay in the broadcast to ensure that th ere would be no inadvertent disclosure of confidential 
information. 
 
Modalities?  
 
As in general with working procedures, the exact  modalities in individual disputes would be left 
up to the panel, Appellate Body, or arbitrator to refi ne as part of the appropriate working procedures.  
Members may want to consider providing some gui dance for the working procedures.  Any guidance 
should be flexible to take into account e xperience gained in holding open meetings. 
 
 
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