RESTRICTED  WORLD TRADE  
ORGANIZATION  WT/DSB/M/283 
23 July 2010 
 (10-3966) 
Dispute Settlement Body 
18 May 2010  
 
 
   
MINUTES OF MEETING 
 
Held in the Centre William Rappard
 
on 18 May 2010  
 
Acting Chairman:  Mr. John Gero (Canada) 
  
 Prior to the adoption of the Agenda
, Amb. John Gero, the Chairman of the General Council, 
welcomed delegations and said that he had been ask ed to chair the present meeting in the absence of 
Amb. Yonov Frederick Agah, the Chairman of the DS B.  He noted that this was in accordance with 
the Rules of Procedure for meetings of the Disput e Settlement Body which provided that if the DSB 
Chairperson was absent from any meeting or part th ereof, the Chairperson of the General Council, or 
in the latter's absence the Chairperson of the Trade Po licy Review Body shall perform the functions of 
the DSB Chairperson.   Subjects discussed
: Page  
 
1. Surveillance of implementation of recommendations adopted by the DSB.........................2  
(a) United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by 
the United States .............................................................................................................. ...........3  
(b) United States – Anti-dumping measures on certain hot-rolled steel products from 
Japan:  Status report by  the United States...................................................................................6  
(c) United States – Section 110(5) of the US Copyright Act:  Status report by 
the United States .............................................................................................................. ...........7  
(d) European Communities1 – Measures affecting the approval and marketing of biotech 
products:  Status report by the European Union .........................................................................7  
(e) United States – Measures relating to zeroing and sunset reviews:  Status report by 
the United States .............................................................................................................. ...........8  
(f) United States – Continued existence and a pplication of zeroing methodology:  Status 
report by the United States.................................................................................................... ......8  
                                                      
1 On 1 December 2009, the Treaty of Lisbon amendi ng the Treaty on Europe an Union and the Treaty 
establishing the European Community (done at Lisb on, 13 December 2007) en tered into force.  On 
29 November 2009, the WTO received a verbal note (WT /L/779) from the Council of the European Union and 
the Commission of the European Communities stating that, by virtue of the Treaty of Lisbon, as of 
1 December 2009, the European Union replaces and succeeds the European Community. WT/DSB/M/283 
Page 2  
 
  2.
 United States – Continued Dumping and Subsidy Offset Act of 2000:  
Implementation of the recommenda tions adopted by the DSB ..........................................10  
(a) Statements by the European Union and Japan ..........................................................................10  
3. European Communities1 – Export subsidies on sugar.........................................................11  
(a) Statements by Australia, Brazil and Thailand...........................................................................11  
4. Korea – Anti-dumping duties on imports of certain paper from Indonesia......................12  
(a) Statement by Indonesia......................................................................................................... ....12  
5. United States – Use of zeroing in an ti-dumping measures involving products 
from Korea ..................................................................................................................... .........13  
(a) Request for the establishment of a panel by Korea...................................................................13  
6. United States – Anti-dumping measures on certain shrimp from Viet Nam.....................14  
(a) Request for the establishment of  a panel by Viet Nam.............................................................14  
7. European Union – Anti-dumping measures on certain footwear from China ..................14  
(a) Request for the establishment of a panel by China...................................................................14  
8. Proposed amendments to the Working Procedures for Appellate Review........................15  
ANNEX – Written comments on the proposed amendments to the Working 
                   Procedures for Appellate Review ............................................................................ ....... 51 
  1. Surveillance of implementation of recommendations adopted by the DSB 
(a) United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by the 
United States (WT/DS176/11/Add.90) 
 (b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.90) 
 
(c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.65) 
 (d) European Communities – Measures affecting th e approval and marketing of biotech products:  
Status report by the European Union (WT/DS291/37/Add.28) 
 
(e) United States – Measures relating to zeroing and sunset reviews:  Status report by the 
United States (WT/DS322/36/Add.8) 
 (f) United States – Continued existence and app lication of zeroing methodology:  Status report 
by the United States (WT/DS350/18/Add.5) 
 
1. The Chairman
 recalled that Article 21.6 of the DSU required that unless the DSB decided 
otherwise, the issue of implementation of the DSB's recommendations or rulings shall be placed on the Agenda of the DSB meeting after six months fo llowing the date of establishment of the reasonable 
period of time and shall remain on the DSB' s Agenda until the issu e was resolved.    WT/DSB/M/283 
 Page 3 
 
 
  (a) United States – Section 211 Omnibus Appropria tions Act of 1998:  Status report by the 
United States (WT/DS176/11/Add.90) 
2. The Chairman  drew attention to document WT/DS176/ 11/Add.90, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning US Section 211 Omni bus Appropriations Act of 1998. 
3. The representative of the United States  said that his country had provided a status report in 
this dispute on 6 May 2010, in accordance with Ar ticle 21.6 of the DSU.  As had been noted, a 
number of legislative proposals that would implem ent the DSB's recommendations and rulings in this 
dispute had been introduced in the First Session of the current (111th) Congress.  The Second Session of the 111th Congress had begun in January 2010.  Th e Committee on the Judiciary of the House of 
Representatives had held a hearing on certain of thes e proposals on 3 March 2010.  In addition, the 
US administration was working with Congress to im plement the DSB's recommendations and rulings. 
4. The representative of the European Union
 noted that the United States was presenting its 
ninety-first status report in this dispute.  The EU  hoped that the US authorities would take steps to 
finally implement the DSB's ruling and resolve this matter. 
5. The representative of Cuba  regretted that, as had happened on many previous occasions, there 
was nothing new in the US status report, despit e the seriousness of this dispute, in which the 
fundamental principles of the TRIPS Agreement – the most comprehensive multilateral instrument on 
intellectual property issues – were not respected.  C uba noted that 17 DSB meetings had already been 
held since the new US administration had taken offi ce, which had raised many expectations at that 
time.  The United States continued with its succinct st atus reports.  At the present meeting, before the 
DSB, was the ninety-first status report which contained nothing new, and the "sacrosanct rules" 
governing intellectual property rights continued to be violated without any action on the part of the EU or the United States.  
6. Cuba noted that at a meeting of the WIPO Committee on Development, which had been held 
three weeks ago, a topic had been discussed that the pa rties to this dispute would have preferred to see 
remain outside the scope of multilateral discussions, and the United States had referred to intellectual 
property as a tool for promoting development.  Th e question was, which countries' development did 
such rules serve to promote?  In Cuba's case, the United States was not even capable of respecting the 
most basic rights, as was clearly the case with Section 211.  That amoral and skilfully crafted legislation from the very outset had presumptuously  made it possible for the BACARDI company to 
take over a Cuban rum trademark and,  at a given point, in addition to using it, to succeed in having it 
registered.  Cuba recalled that the HAVANA CLUB trademark had been duly registered with the 
United States Patent and Trademark Office by  the Cuban company CUBAEXPORT since 1976.  
Cuba was astonished and concerned about one ne w case that had been settled in BACARDI's favour 
in April 2010 by a District of Delaware Court, wh ich had found that the company's use of the term 
HAVANA CLUB was not misleading or geographically described in such a way as to deceive the 
public.  If the term HAVANA CLUB m eant nothing to the District's judges, it must be that it had been 
decided to promote freedom of use of geographical na mes, including US names, for all.  Yet again, 
the rights over that trademark were being attack ed, international law was being breached, and basic 
principles that dated back to the Paris Convention of 1883 were being ignored. 
7. In accordance with international rules, Cuba prohibited the registration of trademarks that 
could mislead the public as to geographical origin.  Applications were examined for all trademarks 
alike, including those filed by a large number of US companies.  As Cuba had previously stated, the 
parties to this dispute, with regard to which the Appellate Body had ruled more than eight years ago, 
should take immediate action to repeal Section 21 1.  One could not impose rules upon others and 
require due compliance with those rules while viol ating international treaties and promoting unfair WT/DSB/M/283 
Page 4  
 
  competition practices.  The United States and the EU had made it possible for BACARDI to sell 
products under the Havana Club trad emark with labels carrying the words "Puerto Rican rum".  This 
situation was the most alarming and discouraging fo r those who had established what was or was not 
correct in the intellectual property area, and who so ught to strengthen the rules through commitments 
that had gone beyond the TRIPS Agreement by negotiating no less than an "Anti-Counterfeiting 
Trade Agreement" (ACTA).  This caused serious concern among nationals of the countries involved, 
and in particular European countries.  Cuba, ther efore, asked what anti-counterfeiting rules did those 
countries proclaim?  Was BACARDI's use of th e Havana Club brand not a clear-cut act of 
counterfeiting if only because of the small note on th e label bearing the words "Puerto Rican rum"?  
Was that not a mockery of human intelligence? 
8. On 30 April 2010, the Special 301 Report had b een released by the USTR and 11 countries 
were placed on the Priority Watch List.  There was also some form of alert on other countries for 
applying the so-called flexibilities provided for in th e TRIPS Agreement, the purpose of which was to 
protect human health.  While Section 211 remained in breach of a number of international rules, 
including the TRIPS Agreement, the fact that lists  of non-complying countries were being drawn up 
and countries availing themselves of the Agreem ent's provisions were singled out as meriting 
attention was totally unprecedented.  Cuba, once again, called on the pa rties to comply with the ruling 
and on the United States to repeal Section 211.  
9. The representative of India
 said that his country thanked the United States for its status report 
and its statement.  India again noted that there was no substantive change in the situation, as had been 
indicated on previous occasions.  Unfortunately, the US status report only confirmed the continuation 
of non-compliance.  India felt compelled, yet again, to stress that the principle of prompt compliance 
was missing in this dispute.  India was concerne d that this situation of non-compliance undermined 
the credibility and confidence that Members reposed in the WTO dispute settlement system.  India, 
therefore, urged the United States to fully impl ement the DSB's recommendations in this dispute 
without further delay.  
10. The representative of the Bolivar ian Republic of Venezuela  said that her country, once again, 
wished to make a statement rega rding the surveillance of implem entation of the recommendations 
adopted by the DSB with respect to the Section 211dispute.  Venezuela noted that Section 211, which was inconsistent with the TRIPS Agreement, was st ill in force, and that the principles of national 
treatment and most-favoured-nation treatment were  still being violated, in spite of the DSB's 
recommendations, which had been made more than eight  years ago.  This situation continued to cause 
injury to Cuba, and to undermine the credibility of the DSB.  Venezuela, on ce again, noted that the 
US status report, submitted on 7 May 2010, was merely  a copy of previous ones with a change of date 
and symbol.  As on previous occasions, Venezuela considered this to be as an "empty gesture" of the United States who justified itself through a v astly excessive reasonable period of time for 
implementation.  Since 2002, Cuba had been awai ting concrete signals a nd actions from both the 
United States and the EU in response to the Appe llate Body's ruling.  Cuba believed that other 
Members also wished to see some evidence of compliance by the United States with the DSB's 
recommendations, since this would have positive ef fects on the multilateral trading system and the 
DSB.  In addition, decisions of the DSB, whic h represented stability, guarantee and security for 
Members and was one of the greatest achievement s of the Uruguay Round, should be respected.  
Venezuela, therefore, called upon the United Stat es to put an end to its policy of economic, 
commercial and financial blockade  against Cuba.  Venezuela vigorously rejected that policy and 
urged the United States to respect its commitment to wards the DSB and to its obligation to implement 
the DSB's recommendations.  Finally, she said that Venezuela fully supported Cuba regarding this 
matter.    WT/DSB/M/283 
 Page 5 
 
 
  11. The representative of China  said that her country thanked the United States for its status 
report and its statement.  However, the US stat us report did not provide any new information and 
simply confirmed the continuation of non-compliance after more than eight years since the adoption, 
by the DSB, of the Reports pertaining to this dis pute.  China believed that the situation of prolonged 
non-compliance was not in line with the principle of prompt implementation contained in the DSU 
provisions and undermined the authority and credibility of the WTO dispute settlement system.  China 
supported Cuba and urged the United States to impl ement the DSB's decision as soon as possible.  
12. The representative of Ecuador  said that his country thanked the United States for its status 
report and supported the statement made by Cuba.  Once again, Ecuador emphasized that Article 21 
of the DSU referred expressly to prompt complianc e with the DSB's recommendations and rulings, in 
particular with regard to the matters affecting the interests of developing-country Members.  The 
United States closely monitored other Members' co mpliance with their WTO obligations and had, in 
various WTO Councils and Committees, expressed its  trade and systemic concerns about certain 
commitments undertaken by other Members.  The United States also drew up internal reports on 
countries' alleged non-compliance with their obligations  regarding intellectual property rights.  In fact, 
the United States had just recently published such  a report.  Ecuador, therefore, hoped that the 
United States would set a good example and, once again, urged the US administration and Congress to continue their efforts to ensure prompt comp liance with the DSB's recommendations and rulings by 
repealing Section 211.  Finally, he said that Ecuador wished to receive more detailed information 
from the EU on the steps being taken to resolve this dispute. 
13. The representative of Bolivia
 said that her country regretted, once again, that there had been 
no progress in this case.  Bolivia was concerne d about the consequences for the WTO of non-
compliance by Members with their WTO obligations.  The United States must comply with the DSB's 
recommendations and rulings and lift the restrictions  imposed under Section 211,  which were contrary 
to the rules of international law, in order to ensu re the integrity of the WTO system.  Finally, she said 
that Bolivia supported Cuba's statement. 
14. The representative of Brazil  said that his country thanked the United States for its status 
report.  Brazil wished to join previous speakers in expressing its concern about the lack of progress 
reported, once again, by the United States with regard to the implementation in this dispute.  Brazil, 
therefore, urged the United States to bring its  measures into conformity with the DSB's 
recommendations and rulings. 
15. The representative of Argentina  said that his country thanked the United States for its status 
report.  The failure to implemen t the DSB's recommendations, in par ticular over a long period of time, 
had consequences not only for the parties to the di spute.  The most worrying and the most serious 
systemic implication was the fact that the failure to comply cast doubts on th e system's effectiveness 
in settling the disputes brought by Members.  Argentina,  therefore, reiterated its call on the parties, in 
particular the United States, to ensure that th e recommendations in this dispute were fully 
implemented. 
16. The representative of Mexico  said that his country thanked the United States for its status 
report and wished to echo the concerns expressed by other delegations regarding the slow progress 
being made towards implementation in this disp ute.  Mexico called upon the parties to find a 
satisfactory resolution to this dispute through the legal remedies available under the DSU.  Mexico 
noted that WTO-inconsistent measures could affect more than one Member.  Therefore, any Member 
who might be affected by such WTO-inconsiste nt measures had the right, under the DSU provisions, 
to initiate its own dispute.  WT/DSB/M/283 
Page 6  
 
  17. The representative of the United States
 said that, in response to the statements made by some 
Members that this dispute raised concerns for th e dispute settlement system, as the United States had 
noted at previous DSB meetings, it did not believe that those concerns were well-founded.  In this 
dispute, as in the other few instances where US ef forts to come into compliance had not yet been 
entirely successful, the United Stat es had been working actively toward s compliance in furtherance of 
the purpose of the dispute settlement system.  In a ddition, as had been noted in the first intervention 
by the United States, the Committee on the Judiciary of the US House of Representatives had held a 
hearing in March on certain proposals to implemen t the DSB's recommendations and rulings in this 
dispute.   
18. The representative of Cuba  said that, at each DSB meeting, following the statement made by 
Cuba under this Agenda s ub-item, many other Members called on th e United States to comply with its 
obligations in the Section 211 dispute.  Members had heard the United States repeating the same 
arguments and stating that it had done everything it could in its power.  However, Cuba wished to 
hear something new at the next DSB meeting and considered that Members should be provided with 
some information regarding steps being taken by the United States towards its compliance.  Cuba, 
therefore, called on the United States to provide ne w information at the next DSB meeting regarding 
this dispute.  
19. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.90) 
20. The Chairman  drew attention to document WT/DS184/ 15/Add.90, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning US anti-dumping measures on certain hot-rolled steel products from Japan. 
21. The representative of the United States  said that his country had provided a status report in 
this dispute on 6 May 2010, in accordance with Ar ticle 21.6 of the DSU.  As of 23 November 2002, 
the US authorities had addressed the DSB's recommendations and rulings with respect to the 
calculation of anti-dumping margins in the hot-rolled steel anti-dumping duty inv estigation at issue in 
this dispute.  Details were provided in documen t WT/DS184/15/Add.3.  With respect to the DSB's 
recommendations and rulings that had not already been addressed by the US authorities, the US 
administration would work with the US Congress with respect to appropriate statutory measures that would resolve this matter. 
22. The representative of Japan
 said that his country thanked the United States for its statement 
and its latest status report.  Japan noted the US report that the United States had taken certain 
measures to implement part of th e DSB's recommendations in Novemb er 2002.  With respect to the 
remaining part of the DSB's recommendations a nd rulings, Japan hoped that the United States would 
soon be in a position to report to the DSB more tangible progress, as appeared to be the case under the 
previous sub-item on the Agenda of the present me eting.  Full and prompt implementation of the 
DSB's recommendations and rulings was "essential to  the effective functioning of the WTO and the 
maintenance of a proper balance of th e rights and obligations of Members".2  Japan called on the 
United States to fully implement the DSB's recommendations in this long-standing dispute without further delay. 
23. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting. 
                                                      
2 Article 3.3 of the DSU.  WT/DSB/M/283 
 Page 7 
 
 
  (c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.65) 
24. The Chairman  drew attention to document WT/DS160/ 24/Add.65, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning Section 110(5) of the US Copyright Act. 
25. The representative of the United States  said that his country had provided a status report in 
this dispute on 6 May 2010, in accordance with Ar ticle 21.6 of the DSU.  The US administration 
would continue to confer with the EU, and to work  closely with the US Congress, in order to reach a 
mutually satisfactory resolution of this matter. 
26. The representative of the European Union  said that the United States had again reported non-
compliance.  The EU was, again,  disappointed and remained ready to work with the US authorities 
towards the complete resolution of this case. 
27. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(d) European Communities – Measures affecting the approval and marketing of biotech products:  
Status report by the European Union (WT/DS291/37/Add.28) 
28. The Chairman  drew attention to document WT/DS291/ 37/Add.28, which contained the status 
report by the European Union on progress in the implementation of the DSB's recommendations in 
the case concerning its measures affecting the a pproval and marketing of biotech products. 
29. The representative of the European Union  said that, once more, her delegation noted that EU 
regulatory procedures on biot ech products continued to work as for eseen in the legislation.  The five 
authorizations decisions on GMOs issued on 2 Marc h 2010, including one for cultivation, had raised 
the number of GMOs authorized since the date of est ablishment of the Panel to twenty-nine.  Progress 
had also been made on other applications for auth orization, including a recent vote in the relevant 
regulatory committee on two GM maize stacks  (MON89034xNK603 and Bt11xGA21 maize).  The 
EU, once again, thanked both Argentina and Canada for their constructive approach on this matter and 
reiterated its invitation to the Unite d States to re-engage in dialogue. 
30. The representative of the United States  said that his country thanked the EU for its status 
report and its statement.  As the United States had noted at the March DSB meeting, earlier in the year the new Commission had made some progress in the operation of the EU's biotech approval system by approving five long-pending applications.  Th e recent approvals were encouraging, but the 
United States disagreed with the EU's statemen t at the April DSB meeting that "EU regulatory 
procedures on biotech products continue to work as foreseen in the legislation".  Unfortunately, that 
was not the case.  For example, one application file d 14 years ago, in 1996,  and another application 
filed nearly nine years ago, in 2001, remained stalled in the EU approval system.  The EU's own 
scientific authority had found that the products co vered by these applications would not have an 
adverse effect on human and animal health or the environment.  In addition, the DSB had found that 
applications for both of these products were subject to "undue delay", resulting in a breach of the EU's 
obligations under the SPS Agreement.
3  Yet, the applications remained  pending.  Furthermore, the EU 
Commission had announced that it was considering s ubstantial modifications to its biotech approval 
procedures in order to address such long-standing delays.  In those circumstances, it was more 
accurate to say that EU regulatory procedures on biotech products continued not to work as foreseen 
                                                      
3 Panel Report:  "EC – Measures Affecting the Approval and Marketing of Biotech Products"; 
WT/DS291/R, adopted on 21 November 2006, para 8.18(a)(vii) (BT-11 maize) and (xi) (Bt-1507 maize). WT/DSB/M/283 
Page 8  
 
  in the legislation, and, accordingly, that the EU was considering changes to those procedures.  The 
United States, therefore, wished to reiterate what it had stated at the April DSB meeting, namely that 
it looked forward to further progress in the EU's operation of its biotech approval system. 
31. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(e) United States – Measures relating to zeroing and sunset reviews:  Status report by the 
United States (WT/DS322/36/Add.8) 
32. The Chairman  drew attention to document WT/DS322/ 36/Add.8, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning US measures relating to zeroing and sunset reviews. 
33. The representative of the United States  said that his country had provided a status report in 
this dispute on 6 May 2010, in accordance with Article  21.6 of the DSU.  As noted in that status 
report, the United States had taken steps to implem ent the DSB's recommendations and rulings in this 
dispute.  With respect to the outstanding issues, the United States would con tinue to consult with 
interested parties in order to address those issues.  
34. The representative of Japan  said that his country thanked the United States for its statement 
and its latest status report.  The United States had st ated in its status reports that it "will continue to 
consult with interested parties in order to address the findings contained in [the Appellate Body and 
the panel] reports" adopted by the DSB on 31 Au gust 2009.  Japan took this statement as an 
expression of commitment by the United States to fully implement the DSB's recommendations and 
rulings.  On 23 April 2010, Japan had requested the Arbitrator under Article 22.6 of the DSU to 
resume its proceeding4, which had been suspended since June 2008.5  The Arbitrator would determine 
the level of the suspension of concessions or other ob ligations to be authorized to Japan vis-à-vis the 
United States in this dispute.  Once again, Japan called on the Un ited States to fulfil its commitment 
by taking immediate and concrete action so as to resolve this dispute. 
35. The representative of the European Union  said that her delegation wished to reiterate its 
disappointment over the lack of any real progress by the United States on compliance with adverse 
rulings on zeroing in this dispute.  The EC re called that immediate compliance with the DSB's 
recommendations and rulings was not an option, but an obligation under the DSU provisions. 
36. The representative of the United States  said that, in response to Japan's statement that it had 
requested the Article 22.6 arbitrator to resume work , his country regretted that Japan had taken that 
step.  As the United States had explained in its first intervention, the United States was conducting 
consultations with all interested parties in order to address the findings in this dispute. 
37. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(f) United States – Continued existence and appli cation of zeroing methodology:  Status report 
by the United States (WT/DS350/18/Add.5) 
38. The Chairman  drew attention to document WT/DS350/ 18/Add.5, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning the existence and application of zeroing methodology by the United States. 
                                                      
4 WT/DS322/37. 
5 WT/DS322/30.  WT/DSB/M/283 
 Page 9 
 
 
  39. The representative of the United States  said that his country had provided a status report in 
this dispute on 6 May 2010, in accordance with Article  21.6 of the DSU.  As noted in that status 
report, the United States had taken steps to implem ent the DSB's recommendations and rulings in this 
dispute.  With regard to the remaining issues, the United States would continue to consult with interested parties. 
40. The representative of the European Union
 said that, at the April DSB meeting, her delegation 
had welcomed public statements by the USTR offi cials that the United States was finally trying to 
find a way to comply with the DSB's recommendations and rulings on zeroing.  The EU could understand that implementation c ould sometimes take time, but reminded the United States that 
Article 21.3 of the DSU provided for such time.  It  was called the reasonable period of time, and in 
this dispute it had been agreed to last ten mont hs, already generous, and had now been exceeded by 
five months.  The United States had, therefore, already had 15 months to implement the DSB's recommendations and rulings, but was yet to take conc rete and substantial steps to start its domestic 
compliance procedure.  This was very disappointin g, even more so when one considered all the 
zeroing disputes for which compliance was long over due.  The EU's concerns about the lack of 
implementation by the United States in this case we re well-known and recorded in the minutes of past 
DSB meetings.  Despite the aforementioned encour aging political statements, the recently published 
final determination in its Section 129 proceeding (1 2 March 2010) left the EU perplexed as to the US 
intentions on compliance with the ruling in this disp ute.  The EU, therefore, urged the United States to 
reconsider its Section 129 determina tion immediately and to implement.  The EU also wished to note, 
once again, that the United States had not pr esented a status report on the progress in the 
implementation of the DSB's recommendations a nd rulings in the DS294 dispute, which it was 
required to do pursuant to Article 21.6 of the DSU. 
41. The representative of Japan
 said that since the issue of implementation in the zeroing disputes 
brought by the EU (i.e. DS294 and DS350) were closely related to the one in Japan's own zeroing dispute with the United States
6, Japan was following the situations and developments in those disputes 
with great interest.  Japan agreed with the EU that, in the DS294 dispute, the issue had not been 
resolved and the United States was obliged to prov ide the DSB with a status report pursuant to 
Article 21.6 of the DSU.  Japan did not belie ve that on-going arbitration proceedings under 
Article 22.6 of the DSU would excuse implem enting Members from their obligations under 
Article 21.6 of the DSU.  
42. The representative of the United States  said that, in response to the EU's statement, the EU 
had made reference to Section 129 proceedings.  Th e United States had, at the March DSB meeting, 
explained the scope of these proceedings and would not repeat those points at the present meeting.  
With respect to the mention of status reports in the DS294 dispute, the United States noted that that 
dispute was now pending before an arbitrator unde r Article 22.6 of the DSU.  For the benefit of 
Members, the United States noted that the hearing in  that proceeding later that week would be open to 
observation by all WTO Members and the public. 
43. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
                                                      
6 WT/DS322. WT/DSB/M/283 
Page 10  
 
  2. United States – Continued Dumping and Subsid y Offset Act of 2000:  Implementation of 
the recommendations adopted by the DSB 
(a) Statements by the European Union and Japan 
44. The Chairman
 said that this item was on the Agenda of the present meeting at the request of 
the European Union and Japan.  He then i nvited the respective representatives to speak. 
45. The representative of Japan  said that, according to the CDSOA 2009 Annual Reports issued 
on 10 December 2009, some US$248 million had been distributed for FY2009.7  These latest annual 
distributions showed that the CDSOA remained oper ational.  In fact, as US Customs and Border 
Protection had explained, "the distribution pr ocess will continue for an undetermined period".8  Japan 
urged the United States to stop illegal distributions and repeal the CDSOA, not just in form but in 
substance, so as to resolve this dispute once and fo r all.  According to Article 21.6 of the DSU, the 
United States was under obligation to provide the DSB with a status report in this dispute. 
46. The representative of the European Union  said that, as announced at the previous DSB 
meeting on 20 April, the EU had, as of 1 May, brought  up to US$95.38 million, the level of retaliatory 
measures applied in this dispute.  This reflected the proportionate increase of the amount disbursed to 
US companies from anti-dumping and countervailing duties collected on EU products, as had been 
published in the latest distribution of October 20 09.  This showed that duties continued to be 
distributed to the US industry.  Once again, the EU wished to ask the United States when it would 
effectively stop the transfer of those duties to the US industry and hence, put an end to the condemned 
measure.  The EU also renewed its call on the Unit ed States to abide by its clear obligation under 
Article 21.6 of the DSU and to submit status reports in this dispute. 
47. The representative of Brazil  said that his country thanked the EU and Japan for keeping this 
item on the DSB Agenda.  The United States was require d to submit status reports in this dispute until 
such time as no more disbursements were made pur suant to the Byrd Amendment.  Only then would 
the issue be "resolved" within the meaning of Artic le 21.6 of the DSU and the United States would be 
released from its obligation to provid e status reports in this dispute. 
48. The representative of Canada  said that his country agreed with the EU and Japan that the 
Byrd Amendment remained subject  to the surveillance of the DS B until the United States ceased to 
administer it. 
49. The representative of India  said that his country thanked the EU and Japan for bringing this 
issue before the DSB, once again, and shared their concerns.  India remained disappointed at the US 
maintenance of the WTO-inconsistent  disbursements.  As had been mentioned by previous speakers, 
the CDSOA remained fully operational and allowed fo r disbursements by the US administration to its 
domestic industry.  This fact continued to raise con cerns to WTO Members.  As reiterated in the past, 
India was concerned that non-compliance by Members would lead to the erosion of the credibility of 
the WTO dispute settlement system.  India agreed with the EU and Japan that the Byrd Amendment 
remained subject to the surveilla nce of the DSB until the United Stat es ceased to administer it.  
50. The representative of China  said that her country thanked th e EU and Japan for, once again, 
bringing this matter before the DSB.  China shared  the concerns expressed by previous speakers and 
wished to join them in urging the United St ates to comply fully with the DSB's rulings. 
                                                      
7 See US Customs and Border Protection's website at:  
http://www.cbp.gov/xp/cgov/trade/prio rity_trade/add_cvd/cont_dump/cdsoa _09/report/fy09_annu al_report.xml. 
8 See US Customs and Border Protection's website at: 
http://www.cbp.gov/xp/cgov/trad e/priority_trade/add_cvd/cont_dump/cont_dump_faq.xml.  WT/DSB/M/283 
 Page 11 
 
 
  51. The representative Thailand  said that his country thanked Japan and the EU for continuing to 
bring this item before the DSB and supported the st atements made by previous speakers.  Thailand 
continued to urge the United States to cease the disbursements, repeal the Byrd Amendment with 
immediate practical effect, and resume providing stat us reports until such acti ons were taken and this 
matter was fully resolved. 
52. The representative of the United States  said that, as his country had already explained at 
previous DSB meetings, the US President had signed the Deficit Reduction Act into law on 
8 February 2006.  That Act included a provisio n repealing the Continued Dumping and Subsidy 
Offset Act of 2000.  Thus, the United States had ta ken all actions necessary to implement the DSB's 
recommendations and rulings in these disputes.  Furthermore, the United States recalled that 
Members, including the EU and Japan, had previous ly acknowledged during past DSB meetings that 
the 2006 Deficit Reduction Act did not permit the di stribution of duties collected on goods entered 
after 1 October 2007, some two-and-a-half years ago.   With respect to comments regarding further 
DSB surveillance in this matter, as it had already been explained at previous DSB meetings, the 
United States failed to see what purpose would be served by further submission of status reports 
repeating the progress the United States had made in the implementation of the DSB's 
recommendations and rulings. 
53. The DSB took note  of the statements. 
3. European Communities – Export subsidies on sugar 
(a) Statements by Australia, Brazil and Thailand 
54. The Chairman  said that the item was on the Agenda of the present meeting at the request of 
Australia, Brazil and Thailand. 
55. The representative of Australia , speaking also on behalf of Brazil and Thailand, said that 
Australia, Brazil and Thailand wished to recall their statements made at the meetings of the DSB of 
18 February 2010, 19 March 2010 and 20 April 2010, and in the Committee on Agriculture on 
10 March 2010, expressing their concern at the recent decision of the EU to export out-of-quota sugar 
in excess of its annual scheduled quantity commit ment level of 1.2735 million tonnes.  The EU had 
justified its decision on the basis of high world suga r prices at the time.  However, as had been 
mentioned at the 20 April DSB meeting, these add itional exports had negatively affected market 
sentiment and had driven world prices down.  Australia, Brazil and Thailand continued to be 
concerned by the EU's action.  Furthermore, by si gnalling to EU sugar producers that excess out-of-
quota sugar could be exported, the EU risked a c ontinuous cycle of overproduction and artificially 
depressed global prices, unwinding the important reforms undertaken by the EU following the 
"EC -Sugar" dispute findings.  As Members would r ecall, the EU had offered to provide the necessary 
technical information underpinning its decision to  export additional sugar.  It had subsequently 
withdrawn that offer.  Australia, Brazil and Thaila nd urged the EU to provide the necessary technical 
information, and to justify the WTO-consistenc y of its decision to export additional sugar. 
56. The representative of the European Union  said that, at previous DSB meetings, the EU had 
already highlighted that its decision to export 0.5 million tonnes of sugar was a temporary measure, adopted in view of the exceptional market conditions  at both the EU and world level, world prices 
being at a record high level creating a shortage  of sugar which affected importing developing 
countries.  The EU did not expect those market conditions to last beyond the season 2009-2010.  The 
exports of 0.5 million tonnes had now been exhaus ted and the EU had not renewed that temporary 
decision.  The decision fully respected the EU's in ternational obligations as the quantities on sale were 
not subsidized and happened at a time when worl d sugar prices were higher than EU production costs 
and EU producers had become much more comp etitive following the drastic overhaul of the EU WT/DSB/M/283 
Page 12  
 
  Common Market Organisation for sugar.  The EU continued to respect its WTO commitments and 
reiterated its insistence on its right to engage in in ternational trade, even if competing exporters of 
other WTO Members would have, for rather obvious  reasons of commercial interest, preferred 
otherwise.  The EU continued to offer its readin ess to continue a dialogue regarding the background 
underpinning its temporary decision to export sugar. 
57. The representative of the United States
 said that his country had been a third party in this 
dispute and had followed it with interest.  The Un ited States had also taken note of the statements 
made at the present meeting and at the three prev ious DSB meetings on this Agenda item.  The 
United States, therefore, was puzzled at the situati on that the EU had offered to provide the technical 
information supporting its decision to export out-o f-quota sugar in excess of its scheduled quantity 
commitment and had not followed through on that offer.  The United States had heard a lot from the 
EU, including at the present meeting, about the importance of providing information to Members 
relating to implementation of the DSB's recommendations  and rulings.  This situation would appear to 
the United States to be a particularly good opportun ity for the EU to live up to those standards and 
provide Members with information to address their concerns about the EU's implementation of its 
WTO commitments. 
58. The DSB took note  of the statements. 
4. Korea – Anti-dumping duties on imports of certain paper from Indonesia 
(a) Statement by Indonesia 
59. The Chairman  said that the item was on the Agenda of the present meeting at the request of 
Indonesia. 
60. The representative of Indonesia  said that his country thanked the DSB for the opportunity to 
make a statement at the present meeting regarding Korea's continued impositi on of WTO-inconsistent 
anti-dumping measures on certain paper products fro m Indonesia.  Korea had initially imposed anti-
dumping measures on imports of paper from Indonesi a in September 2003, six years ago.  Those 
measures had twice been challenged in dispute settlement proceedings and had been found twice to be 
inconsistent with Korea's ob ligations under the Anti-Dumping Agreement.  Indonesia was 
disappointed that despite two adverse Panel's rulings , Korea had not taken more positive steps to treat 
Indonesia's exporters in a manner consistent w ith Korea's obligations under the Anti-Dumping 
Agreement.  Following the ruling of the Article 21.5 Panel in September 2007 that Korea's measure 
remained WTO-inconsistent, Indonesi a could have requested the right to retaliate against Korea, but 
in a spirit of good will and cooperation it had decide d not to do so.  As a matter of law, Indonesia 
retained the right to request authorization from the DS B to retaliate in light of the Article 21.5 Panel's 
finding.  Indonesia noted that, notwithstanding the fact that it had maintained a WTO-inconsistent 
measure for six years, Korea had recently initiated a sunset review of this measure, the second such 
review since the measure was imposed.  Given that the measure had been found twice to be WTO-inconsistent, Indonesia expected Korea to allow th e measure to expire without conducting a further 
sunset review.  Indonesia, therefore, considered it appropriate that Korea terminate the current sunset 
review and allow the WTO-inconsistent measure to expire.  In the event that Korea would not allow 
the WTO-inconsistent measure to expire, Indonesi a would have no choice, but to assert its rights 
under the Anti-Dumping Agreement and the DSU. 
61. The representative of Korea
 said that his country wished to express its disappointment with 
Indonesia's statement asserting that Korea had some how failed to implement the DSB's decision of 
22 October 2007 concerning this dispute.  In fact, as Indonesia was well aware, Korea had taken 
additional steps following the October 2007 DSB decisi on to fully correct the problems identified in 
the Compliance Panel Report that had been adopted by the DSB.  Those steps had been completed in  WT/DSB/M/283 
 Page 13 
 
 
  August 2008.  Korea reminded Members that the Compliance Panel ruling adopted by the DSB in 
October 2007 had found only two pro cedural faults with Korea's or iginal implementation.  The 
Compliance Panel had not found any substantive violation of the Anti-Dumping Agreement in 
Korea's original implementation.  Following the adoption of the Compliance Panel's Report by the 
DSB, Korea had corrected the procedural faults the Compliance Panel had identified, and had duly 
delivered the results to Indonesia in August 2008 .  In that regard, Korea would welcome any 
opportunity to discuss Korea's implementation with I ndonesia at any time.  In the meantime, Korea, 
once again, confirmed that all of the DSB's recomme ndations had been implemen ted, and it, therefore, 
respectfully rejected Indonesia's claim, which was wit hout merit.  With respect to the sunset review 
referred to by Indonesia at the present meeting, he  said that, in January 2010, Korea's authorities had 
decided to start the sunset review on the Indonesian  paper upon application by the relevant industry.  
Korea would take into consideration the possible im plication for the sunset review on the past WTO 
dispute with Indonesia and was paying attention to  the review process, so that the results would 
comply with both the WTO Agreements and Korean laws. 
62. The DSB took note  of the statements. 
5. United States – Use of zeroing in anti-dum ping measures involving products from Korea 
(a) Request for the establishment of a panel by Korea (WT/DS402/3) 
63. The Chairman  recalled that the DSB had considered this matter at its meeting on 
20 April 2010 and had agreed to revert to it.  He drew attention to the communication from Korea 
contained in document WT/DS402/3, and invited the representative of Korea to speak. 
64. The representative of Korea  said that the US practice of "zeroing" in anti-dumping 
investigations was a long-standing issue that ha d been discussed on numerous occasions at previous 
DSB meetings.  Korea had joined other Members in bringing this practice before the WTO dispute settlement system in November 2009.  Since that ti me, Korea had tried sincerely and repeatedly to 
find a mutually convenient way to resolve the dispute but could not find a solution.  Therefore, on 8 April 2010, Korea had requested that a panel be est ablished with respect to the use of zeroing by the 
United States in anti-dumping investigations on stai nless steel plate in coils, stainless steel sheet and 
strip in coils, and diamond sawblades.  The request had been discussed at the previous DSB meeting 
held on 20 April 2010, but the United States had opposed the establishment of a panel at that time.  Korea considered the US measures to be incons istent with Article 2.4.2 of the Anti-Dumping 
Agreement.  Zeroing in anti-dumping investigatio ns had been found inconsistent with the Anti-
Dumping Agreement by numerous panels whose decisions had not been appealed by the 
United States.  Korea noted that the United Stat es had announced that it would no longer utilize 
zeroing in investigations that were pending as of 22  February 2007.  But this change in US practice 
had not remedied the problem with the above-menti oned measures on products from Korea.  Korea, 
therefore, requested that the DSB establish a panel pursuant to Article 6 of the DSU, with standard 
terms of reference, to examine the matte rs described in Korea's panel request. 
65. The representative of the United States
 said that his country was disappointed that Korea had 
chosen to pursue its request for a panel in this ma tter.  Of course, the United States understood that a 
panel would be established at the present meeting.  The United States, nonetheless, hoped that it would be able to continue its dial ogue with Korea about this matter. 
66. The DSB took note
 of the statements and agreed  to establish a panel in accordance with the 
provisions of Article 6 of the DSU with  standard terms of reference.   
67. The representatives of China , the European Union , Japan , Mexico , Thailand  and Viet Nam  
reserved their third-party rights to pa rticipate in the Panel's proceedings. WT/DSB/M/283 
Page 14  
 
  6. United States – Anti-dumping measures on certain shrimp from Viet Nam 
(a) Request for the establishment of a panel by Viet Nam (WT/DS404/5) 
68. The Chairman
 recalled that the DSB had considered this matter at its meeting on 
20 April 2010 and had agreed to revert to it.  He  drew attention to the communication from Viet Nam 
contained in document WT/DS404/5, and invite d the representative of Viet Nam to speak. 
69. The representative of Viet Nam  said that, upon the instruction of his authorities, his country 
had timely submitted a second request for the establi shment of a panel in the DS404 dispute, which 
related to the application of zeroing of a country-w ide rate, and the refusal of the United States to 
provide individual company rates for parties request ing such rates in periodic reviews in connection 
with the anti-dumping measures imposed on frozen warm  water shrimp from Viet Nam.  Viet Nam's 
request for the establishment of a panel had b een circulated in document WT/DS404/5, dated 
9 April 2010.  Viet Nam believed that one purpose of the DSU was to promote resolution of disputes through discussions between the parties.  Therefor e, Viet Nam welcomed the opportunity to resolve 
this dispute at any time during this process.  Vi et Nam believed that it was fully justified in 
proceeding with this second request and pursuing the relevant issues through the panel and the 
Appellate Body process. 
70. The representative of the United States
 said that his country was disappointed that Viet Nam 
had chosen to pursue its request for a panel in this  matter.  As it had observed at the previous DSB 
meeting, the United States had serious concerns ab out this panel request.  For example, the panel 
request included:  (i) items that had not been iden tified in Viet Nam's request for consultations, and 
thus had not been the subject of consultations;  ( ii) proceedings that had been initiated pursuant to 
applications received prior to Viet Nam's Accession to the WTO, which were not subject to the Anti-
Dumping Agreement and were not properly a subject of review by a WTO dispute settlement panel;  
(iii) proceedings that had not yet been completed,  and thus were not measures that a panel could 
review;  and (iv) a measure described by Viet Na m as the "initiation" of the sunset review, though 
without a summary of the legal basis of Viet Nam's complaint sufficient to pr esent clearly the alleged 
problem with the initiation of the sunset review.  Viet Nam had not addressed these concerns, which 
the United States had also identified at the previous DSB meeting on 20 April.  Hence, the United States continued to strongly urge Viet Nam to  reconsider its decision to pursue a panel in this 
dispute.  Nevertheless, the United States understood  that a panel would be established at the present 
meeting, and looked forward to the opportuni ty to present its views to that panel. 
71. The DSB took note
 of the statements and agreed  to establish a panel in accordance with the 
provisions of Article 6 of the DSU with  standard terms of reference.   
72. The representatives of the European Union , Japan , Korea , Mexico  and Thailand  reserved their 
third-party rights to participate in the Panel's proceedings. 
7. European Union – Anti-dumping measu res on certain footwear from China  
(a) Request for the establishment of a panel by China (WT/DS405/2) 
73. The Chairman  recalled that the DSB had considered this matter at its meeting on 
20 April 2010 and had agreed to revert to it.  He drew attention to the communication from China 
contained in document WT/DS405/2, and invited the representative of China to speak. 
74. The representative of China  said that, at the 20 April 2010 DSB meeting, her country had 
stated its concerns and had provided the legal ba sis regarding the measures identified in its panel 
request, which had been circulated in document WT /DS405/2.  In the interest of time, China would  WT/DSB/M/283 
 Page 15 
 
 
  not repeat them at the present meeting.  China wi shed to further emphasize that the EU anti-dumping 
measures had a very serious impairment on the inte rests of Chinese industries.  To give but one 
example, the measures had negatively affected th e jobs and livelihood of  around 150,000 workers 
employed in the production of leather footwear.  Unfortunately, although China had repeatedly 
expressed its serious concerns to the EU on several  occasions, both bilaterally and multilaterally, thus 
far it had not been possible to resolve this matter.  As a result, in the absence of any other option and 
given the immediate and systematic consequences of the EU's anti-dumping measure, China had to 
renew its request to the DSB for the establishment of a panel in order to resolve this dispute. 
75. The representative of the European Union  said that her delegation had noted the second 
request by China for the establishment of a panel.  The EU regretted the step taken by China and 
considered it to be premature, in particular as Ch ina had decided not to comp lete the consultations.  
The EU recalled that the anti-dumping measures for which China was seeking a panel were not about 
protectionism, but about fighting unfair trade.  The EU strictly followed the applicable WTO rules in all its anti-dumping cases and was strongly convinced of  the strength of its case.  The EU stood ready 
to defend its measures, which it considered to be fully consistent with WTO law. 
76. The DSB took note
 of the statements and agreed  to establish a panel in accordance with the 
provisions of Article 6 of the DSU with  standard terms of reference.   
77. The representatives of Australia , Brazil , Japan , Turkey , Viet Nam  and the United States  
reserved their third-party rights to pa rticipate in the Panel's proceedings. 
8. Proposed amendments to the Workin g Procedures for Appellate Review 
(WT/AB/WP/W/10) 
78. The Chairman  said that, as announced at the 19 March 2010 regular DSB meeting and 
reconfirmed at the informal DSB meeting on 20 April 2010, this matter had been placed on the Agenda of the present meeting pursuant to the "A dditional Procedures for Consultations between the 
Chairperson of the DSB and the WTO Members in relation to Amendments to the Working 
Procedures for Appellate Review" c ontained in document WT/DSB/31.  The purpose of this Agenda 
item was to provide delegations with a formal  opportunity to comment for the record on the 
amendments proposed by the Appellate Body, as set  out in document WT/AB/WP/W/10.  Delegations 
had already had an informal exchange of views on the proposed amendments at the informal meeting 
on 20 April 2010.  Moreover, pursuant to the 2002 DS B Decision, delegations would also be given an 
opportunity to provide written comments.  In that re gard, at the request of some delegations it had 
been agreed to extend the orig inal deadline for submission of written comments until close-of-
business on 26 May 2010.  In accordance with para graph 4 of the 2002 DSB Decision, delegations' 
views presented at the present meeting, as well as all written comments received by 26 May 2010
9, 
would be promptly conveyed to the Appellate Body  along with the request that the Appellate Body 
take them into account.  As some delegations might  be aware, following the 20 April informal DSB 
meeting, the Chairman had  received a letter from Ecuador concerning its proposal to hold an informal 
interactive meeting with members of the Appellate Body concerning the proposed amendments.  It 
was the Chairman's understanding that Ecuador intended to make a formal proposal to this effect at 
the present meeting and would seek the views of othe r Members on its proposal.  With that by way of 
introduction, he invited delegati ons to provide their views on the proposed amendments for the 
record, beginning with the delegation of Ecuador.   
                                                      
9 Written comments on the proposed amendments are contained in the Annex to these Minutes. WT/DSB/M/283 
Page 16  
 
  79. The representative of Ecuador
 said that his country's statement on the proposed amendments 
to the Working Procedures for Appellate Review would consist of two parts.  The first part related to 
procedure and the second one to the three Appellate Body's proposals.  With regard to procedure, 
Ecuador reiterated that it had always supported the wo rk done by the Appellate Body;  i.e. Appellate 
Body members and the Secretariat.  He recalled th at in its statements to various WTO Councils and 
Committees, Ecuador had expressed its view that th e Appellate Body's recommendations and rulings 
were invaluable to consistent and correct inte rpretations of WTO Agreements.  Accordingly, as 
Ecuador had done at the informal DSB meeting on 20 April 2010, and in its letter addressed to the 
Chairman of the DSB on 28 April 2010, at the present meting, Ecuador again wished to ask the 
Chairman of the DSB to convey its request to  the Chairman of the Appellate Body or his 
representative to hold an interactive informal mee ting with WTO Members to enable them to obtain 
more information and make further comments on the Appellate Body's proposals, in order to 
understand better the proposals so as to be able to  submit more precise written comments.  He noted 
that on 4 May 2010, Ecuador had received the Chairman 's response to its letter of 28 April, and at the 
present meeting Ecuador wished to express its disagr eement with the Chairman's response to this 
letter.  Ecuador did not consider that, at the 20 April informal DSB meeting, there was a lack of 
consensus with regard to its proposal.  The pr oposal, in no way, sought to modify the 2002 DSB 
Decision as that Decision contained no reference to in formal meetings.  He noted that, at the 20 April 
informal DSB meeting, no delegation had spoken ag ainst Ecuador's proposal to hold an interactive 
meeting with the Appellate Body on the proposed  amendments or the US proposal to extend the 
deadline for submission of written comments until 26 Ma y 2010.  Furthermore, some delegations had 
supported Ecuador's proposal.  Ec uador hoped that, at the present meeting, Members would again 
express their views on its proposal.  He underlined that, by making its proposal, Ecuador did not seek to delay the submission of written comments by the agreed deadline of 26 May. 
80. Turning to the comments on the Appellate Body pr oposals, he said that with regard to the 
time-lines for written submissions, Ecuador had two c oncerns.  While sympathetic to the Appellate 
Body's intention to make this proposal, namely to a llow it more time to prepare its work, and hence to 
maintain its high standard of work, within the time- limit set out in Article 17.5 of the DSU, Ecuador 
had two concerns regarding this proposal.  The fi rst one was whether or not there was a need to 
maintain the Notice of Appeal if it were to be  filed on the same day as the appellant's written 
submission.  Ecuador wondered what would happen in the hypothetical case that not all the information required for the Notice of Appeal or the appellant's submission was supplied.  Which 
information would prevail?  Ecuador also wondere d whether it would serve any purpose to maintain 
the possibility to amend Notices of Appeal under Rule 23 bis.  Ecuador understood that the Appellate 
Body's intention to make this proposal was to gain time for the preparation of its work.  However, to 
maintain Rule 23 bis or different requirements for the Notice of Appeal and the appellant's submission 
could delay the dispute even further or allow for pr eliminary issues to be raised so as to delay the 
consideration of the case.  
81. Ecuador's second concern related to the proposal to modify the timetable for appeals, which 
implied taking away three days from the submission of the appellee so as to benefit submissions by 
third participants.  In Ecuador's view, that proposal  created an imbalance between the parties and had 
to be redressed.  A possible solution would be to  try to maintain the due dates for appellee(s)' 
submissions as they currently stood, and bring forwar d the due date for third participants' submissions 
to one day after.  This would give the Appellate Body a few more days to prepare for hearings, but 
would not cause an imbalance in the parties' timetable.  
82. With regard to the electronic filing and service of documents, he said that the proposal 
appeared to pursue an orderly submission of docu ments, but introduced in flexible deadlines since it 
modified the rights of parties from different time-zones.  It introduced a number of conditions such as 
certification of the authenticity of the paper copi es as compared to the electronic copy.  Ecuador 
wondered what would happen in the event of failure to  comply with some part of this provision.  For  WT/DSB/M/283 
 Page 17 
 
 
  example, could Rule 29 be invoked, under which th e Appellate Body division may even dismiss the 
appeal?  Furthermore, who would compare the text s to check for any discrep ancies?  The Appellate 
Body was unlikely to do this since it had already indi cated that its staff was too small to make copies.  
Ecuador also pointed out that no deadline was set in the event that one of the parties decided to submit 
its documents in the form of paper copies.  Ecua dor was also concerned about the vast number of 
copies that the Appellate Body requested for each dispute, at least 20.  Ecuador failed to see the need 
for so many copies since the Appellate Body had electronic versions of documents, which could be photocopied by the Secretariat.  Maybe the same nu mber of copies would be required if the proposal 
was adopted and a party decided to  send its documents by e-mail. 
83. Ecuador had the most concerns with regard to  the proposal for consolidation of appellate 
proceedings.  In Ecuador's view, it was not appropria te for the Appellate Body to have the authority 
and on its own initiative to consolidate proceedings or decide on the form in which the final report 
was to be issued.  Although the Appellate Body ha d always acted in good faith and with good will, it 
was, unlike the parties, unable to see the full picture of the dispute in terms of its implications for 
retaliation, negotiations, the search for a mutually ag reed solution, or even political consequences.  
Ecuador had doubts about certain subjective criteri a or concepts regarding the Appellate Body's 
decision as to whether or not to consolidate proceedin gs or issue a single report or separate reports, or 
reports in the form of a single document or in multiple documents.  Ecuador  was concerned about two 
concepts, namely, "substantial overlap in the cont ent";  and the proposal that the Appellate Body 
would issue a single report "unless, following a request  of a participant, it considers that there are 
good reasons to issue separate reports".  According to  the first concept, the Appellate Body would be 
free to decide what was meant by "substantial overlap  in the content".  The second concept placed the 
burden of proof on one of the parties as to the need  to issue separate reports, and the Appellate Body 
would always have the final decision over the proof  offered.  Ecuador was also concerned about the 
reference in the proposal to Article 17.5 of th e DSU, since this could give rise to some 
misunderstandings.  In particular, it could prompt the Appellate Body to  decide in haste to consolidate 
proceedings or issue a single report if it was under pressure to meet the time-limit set out in 
Article 17.5 of the DSU.  Like other Members,  Ecuador failed to see how consolidation of 
proceedings could be initiated prior to the cons titution of the Appellate B ody division which would 
hear the case.   
84. Finally, with regard to the process, Ecua dor, which consistently  spoke in favour of 
transparency and inclusion in the WTO, failed to  understand why a Member would not wish to share 
its written comments on the proposed amendments w ith other Members.  Ecuador would certainly 
share its written comments on this matter with other Members.  
85. The representative of Costa Rica
 said that his country thanked the Chairman for the 
opportunity to provide comments on the amendmen ts to the Working Procedures for Appellate 
Review proposed by the Appellate Body.  He sai d that Costa Rica had no major problem with the 
proposal that an appellant's written submission be  filed on the same day as a Notice of Appeal.  
However, as his delegation had previously stated, the relationship between the Notice of Appeal and 
the first written submission should be clarified.  Furthermore, Costa Rica noted that the Appellate 
Body had proposed to reduce by three days the time- period for the appellee to file its submission.  In 
Costa Rica's view, this could affect the participati on of an appellee who would not be familiar with all 
the arguments or substance until the appellant had fi led its first submission.  Costa Rica, therefore, 
had problems with this element of the proposal. 
86. With regard to the electronic filing and ser vice of documents, he said that, although 
Costa Rica recognized that e-filing was currently exte nsively used, it had doubts  with regard to the 
need to file a signed certification stating that th e paper copies were identical to the electronic copy 
since, in any event, according to the proposal, only the electronic copy would be taken into account in 
case of any discrepancy.  In addition, if only the electronic copy were to be taken into account, WT/DSB/M/283 
Page 18  
 
  Costa Rica was concerned about the integrity of  information filed by electronic means and the 
mechanism to ascertain the reliability of the sender,  since it might take the form of an electronic 
signature, a procedure which was currently not used in  the WTO.  It was also necessary to clarify who 
would verify that the paper copy was identical to the electronic copy and what would be the consequences in the event of any discrepancy. 
87. Finally, Costa Rica was concerned about vari ous aspects of the proposal on consolidation of 
appellate proceedings.  Costa Rica failed to unde rstand why the Appellate Body had proposed a 
different way of proceeding than th at set out under Article 9 of the DSU with regard to procedures for 
multiple complainants at the panel stage.  Artic le 9 of the DSU provided for consolidation of 
proceedings and specified that if one of the par ties to the dispute so requested, the panel would 
circulate separate reports without the need to jus tify such a request.  The conditions proposed by the 
Appellate Body were not the same since the Appellate Body would deci de to consolidate the appellate 
proceedings and would assess whether there were good reasons to issue separate reports, thereby 
placing the burden of proof on the parties to the dispute.  Costa Rica considered that the change proposed by the Appellate Body had gone beyond  mere amendment of its working procedures, 
because, by reserving for itself the final decision as to whether there was a substantial overlap in the 
content of the reports, it was addressing a substantiv e, not a procedural, matter.  In concluding, he 
recalled that, as Costa Rica had stated at the inform al DSB meeting on 20 April, a number of concepts 
in the proposal were not clear.  For example, what  was meant by "substantial overlap" or "around the 
same time", and what would constitute the "good r easons" for which it would be necessary to issue 
separate reports instead of a single report? 
88. The representative of Chile
 said that his country thanked the Appellate Body for its proposals 
to amend the Working Procedures for Appellate Review and the explanation in support of the 
amendments.  Chile believed that both the info rmal meeting held on 20 April 2010 and the present 
meeting were valuable opportunities for Memb ers to express their views on the proposals under 
consideration.  Turning to the substance of the pr oposal, he said that with regard to the proposal on 
time-lines for written submissions, Chile was in favour  of the appellant's written submission being 
filed on the same day as the Notice of Appeal.  Chile  agreed with the Appellate Body's reasoning that 
such a change would contribute to a more efficien t use of the time available.  However, Chile had 
some concerns with regard to two aspects of that am endment.  The first concern related to adjustments 
of subsequent time-lines in the appellate proceedings .  In particular, Chile was concerned about the 
shortening of the time-period for the appellee to file  its written submission.  Chile considered that it 
was necessary to maintain the balance between th e parties and, accordingly, requested that the 
Appellate Body reconsider that aspect of its proposal  in order to give the appellee more time before 
filing its written submission.  Chile's second concern was related to the fact th at the Notice of Appeal 
would be maintained.  Chile was not convinced that  this was necessary if the deadline for filing the 
appellant's written submission were to be brought forward.  In Chile's view, the purpose of the Notice 
of Appeal would be achieved by means of the appe llant's written submission (to set out the scope of 
appellate review). 
89. With regard to the electronic filing and ser vice of documents, Chile believed that it was 
appropriate to encourage the use of electronic mean s in panel and the Appellate Body proceedings.  
However, Chile had serious doubts regarding this pro posal.  Why was it necessary to require the paper 
copies if a party had decided to file document s by electronic means?  What was the purpose of 
requiring certification that the electronic copy w as identical to the paper copy if, in case of 
discrepancy, only the electronic copy would be taken into account?  It seemed that, although the overall objectives of the proposal were positive, the wording of the amendments proposed would not 
help to achieve those objectives.  WT/DSB/M/283 
 Page 19 
 
 
  90. Finally, Chile was most concerned about th e proposal on consolidation of appellate 
proceedings since that proposal seriously reduced the participation of the parties to the dispute 
regarding the consolidation of proceedings.  In Ch ile's view, it was critical that the parties to the 
dispute agree to proceed towards consolidations.  Chile disagreed with the reasons provided by the 
Appellate Body regarding this proposal.  There was no need to codify the practice.  It was preferable 
to continue with ad hoc  decisions on a case-by-case basis, which would take into account the 
specificities of the case and the positions of the parti es to dispute.  Accordingly, Chile requested that 
the Appellate Body reconsider this proposal in order to preserve the parties' right to decide on and to 
control the course of the proceedings.  Chile hoped th at its comments would be useful and would help 
the Appellate Body to reach the best decision from the systemic point of view.  
91. The representative of Brazil  said that his country thanked the Chairman for the opportunity to 
provide views on the Appellate Body's proposed ame ndments to its Working Procedures.  In Brazil's 
view, proposals that sought to improve the opera tion of the WTO dispute settlement procedures 
should always be welcomed.  As a matter of prin ciple, however, Brazil also believed that Members 
were the ultimate users and beneficiaries of the sy stem.  In that regard, Brazil accordingly believed 
that Members' views and concerns regarding any proposed changes to the dispute settlement 
procedures should be a central element leading to the decisions that,  in this case, would eventually be 
taken by the Appellate Body with respect to its Working Procedures.  With regard to the specific 
proposals, he said that Brazil wished to take them up in an order slightly different from the one presented by the Appellate Body, starting with the proposal on electronic filing and service of documents.  Brazil was in principle sympathetic to this idea.  Although it was not clear what would be 
the immediate procedural gain to the Appellate Body,  the proposal could serve to facilitate the orderly 
and timely filing of documents, sparing Members the hectic moments of last-minute reproduction of 
paper copies, not rarely subject to technical glitches.   However, Brazil would expect that paper copies 
by the parties on the following day would continue to be provided.  Brazil could also accept the filing 
of a certification to the effect that electronic and paper submissions were identical and that, in case of 
discrepancy, the electronic version would prevail, as  long as nothing more than that was said.  As a 
word of caution, however, Brazil noted that there might still be many potential technical problems related to security, authenticity, software compatib ility and reliability that should be properly dealt 
with before migrating to a system of electronic filing.  
92. With regard to the proposal on consolidati on of appellate proceedings, although Brazil 
understood that consolidation could certainly contribute to a more efficient use of resources, it was 
not clear to Brazil in the first place why the Appella te Body would wish to codify it in the Working 
Procedures instead of simply keep ing the practice which, to Brazil's knowledge, was functioning well.  
The Appellate Body had explained that "consolidat ion refers to cases in which merged appellate 
proceedings were conducted regardi ng separate disputes that were not consolidated before a single 
panel" and that "consolidation of  appellate proceedings has occurred where separate disputes were 
reviewed by separate panels composed of the same individuals".  However, the proposed amendment 
did not actually reflect those situations, if they were in fact intended to be the target of the proposal.  
The language suggested by the Appellate Body contai ned at least three elements that deserved careful 
reflection:  (i) an apparently significant margin  of discretion implied by the condition "if [the 
Appellate Body] considers that a subs tantial overlap in the content of ap peals is likely";  (ii) the role 
accorded to consultations with Me mbers – from the content of the proposal, it would appear that the 
Appellate Body could make a decision on consolid ation that might be contrary to the position 
expressed by a participant or even by all participants  for that matter;  and (iii) the issue of single or 
separate reports.  With respect to the third issue, Brazil recalled that, pursuant to Article 9.2 of the 
DSU, even where a single panel reviewed separat e disputes, Members had the right to request the 
panel to issue separate reports.  Under the proposed  amendment, the Appellate Body would appear to 
have the discretion to deny a similar request even in cases reviewed by separate panels.  Although the 
two proposals might have their problems and possibl y unintended implications, it appeared to Brazil WT/DSB/M/283 
Page 20  
 
  that the principles behind them were legitimate and in line with the objective of making a more 
efficient use of resources.   
93. However, the proposed amendment that caused  Brazil the gravest concern was the one 
regarding the time-line for written submissions.  Br azil could not have been  more emphatic on how 
disturbed it was by the proposal and its practical effects, which could be envisaged looking ahead.  
First, there was the proposal to file the Notice of  Appeal and the appellant's submission on the same 
date.  The Appellate Body had jus tified that proposal at considerable length.  Although the set of 
changes proposed by the Appellate Body did not seem to tackle the gist of the time-line problem as 
outlined in the DSU, the simultaneous filing of  both documents was arguably a burden many 
Members could live with.  It was a burden, because in Brazil's experience, and possibly that of many 
other Members, every day counted and time was ne ver enough to finalize submissions.  However, the 
other adjustments further down the time-line were not similarly accompanied by justification.  In this 
regard, Brazil wished to repeat some of the poi nts made at the informal DSB meeting held on 
20 April 2010.  The Appellate Body had given reas ons for three changes in relative terms only and 
without reference to specific deadlines:  (i) that th e Notice of Other Appeal and the other appellant's 
submission be filed on the same date;  (ii) that the time-period between submissions in appeals and 
other appeals be approximated;  and (iii) that thir d parties file their submissions after the appellee's 
submission was received.  However, there was no jus tification for the proposal that, for example, the 
appellee's submission be due 15 days after the filing of  a Notice of Appeal; or that an other appellant's 
submission be due five days after the filing of a Notice of Appeal.   
94. One could argue that those changes would be of  lesser consequence for Members if one were 
to accept two assumptions:  (i) that, in an appeal, the appellee's work only began after it received the 
appellant's submission (and nothing was done before that  date after it received the Notice of Appeal);  
and (ii) that, when the appellee received the other party's Notice of Appeal, the decision to file an 
other appeal had already been made and the other ap pellant's submission had to a large extent already 
been drafted.  In Brazil's experience none of these assumptions was true.  For an appellee, the current 
7-day period between the original Notice of Appeal  and the appellant's submission was not a "waiting 
period".  Work was already being done during those seven days, both organizational and substantive, 
in reaction to the specific points raised by the other party in its Notice of Appeal.  The amount of time involved in preparation of the appellee's arguments and submission, therefore, was currently not just 
18 days counted as of receipt of the appellant's subm ission, but 25 days counted as of receipt of the 
Notice of Appeal.  According to the proposal, this  time-period would be reduced to 15 days.  It was 
thus not about a 3-day reduction, but about the suppression of ten days that Members currently had to 
work as appellees after the beginning of an appeal.  Moreover, in Brazil's experience, the decision to 
file an other appeal was considerably a reflection of the first appeal.  Some of those other appeals, for 
instance, were conditional on the Appellate Body's rulings with respect to the first appeal.  The 
Appellate Body, however, was proposing not only that the deadline for such a decision be cut by 
almost two thirds from 12 to five days.  It was al so proposing that the other appellant's submission be 
also filed only five days after receipt of the origin al Notice of Appeal, a full two-thirds cut in relation 
to the current time-frame.  All those proposed re ductions seemed to be too drastic.  The resulting 
deadlines might give the Appellate Body more time to discharge its duties, but this would happen at 
the expense of the already compressed time-table of Members.  Brazil believed that the proposed 
adjustments would have a negative impact on th e ability of developing countries to participate 
effectively in the Appellate Body's proceedings.  One should not assume that every Member had the 
capacity to spend resources in guessing what the ot her party might appeal or how an other appeal 
could accordingly be framed before the appe llate proceedings effectively began.   
95. Brazil reiterated that it would be prepared to  work with Members, the DSB Chairman, the 
Appellate Body and the Secretariat to identify means to address any logistical or procedural 
difficulties faced by the Appellate Body in carrying out its work.  Brazil considered the work of the 
Appellate Body to be of the highest quality, and of the greatest value to the WTO.  The real motive of  WT/DSB/M/283 
 Page 21 
 
 
  this time-line quandary seemed to rest, it was not diffi cult to find out, on the increasing complexity of 
disputes, on the one hand, and on the disproporti onately tight time-frames faced by the Appellate 
Body and Members in order to meet the deadlines se t out in the DSU provisions.  The real solution, 
then, would seem to lie in a change to the DSU provisions, allowing for adequate additional time for 
the Appellate Body to discharge its task.  Brazil would be  ready to discuss this course of action with 
other Members.  The current proposal, however, did not seem to be an adequate response to those 
difficulties.  If it was true, that given the growing size of panel records and the increased complexity 
of disputes, the Appellate Body may find itself wo rking under tight time-frames to meet the deadline 
foreseen in the DSU provisions, it was no less true th at Members were also affected by the growing 
size of the records and the complexity of disputes.  It was also true that the time-frames provided for 
Members in the current Working Procedures were already tight.  From Brazil's perspective, there was 
no reason to assume that Members currently enjoyed a margin that could be cut into so as to further 
reduce those time-frames.  Some Members might ha ve such a margin.  Others did not.  Brazil 
believed that the Appellate Body's proposal, if a dopted, could have a negative impact on the ability of 
developing countries to participate effectively in appellate proceedings.  In conclusion, Brazil once 
again thanked the Chairman for the opportunity to express its views on this issue, which Brazil 
considered to be of great importance.  
96. The representative of Guatemala  said that his country thanked the Chairman for convening 
the meeting and the opportunity to formally comm ent on the Appellate Body's proposed amendments 
to its Working Procedures for Appellate Review.  Guatemala wished to shar e its observations about 
those proposed amendments and would refer to the three issues under discussion in the following 
order:  (i) the filing of the appellant's submission on the same day as the Notice of Appeal;  (ii) the 
authorization to file and to serve documents electr onically;  and (iii) the c onsolidation of appellate 
proceedings.  On the first issue, Guatemala supporte d the idea of making a more efficient use of time 
and resources, including the possibility of giving th ird participants the opportunity to review all 
documents before filing their respective submissions.  Guatemala believed that any amendment to the 
Working Procedures should take into consideration bo th the needs and interests of the Appellate Body 
as well as those of all participants in a given disput e.  While the Appellate Body's proposal moved in 
that direction, Guatemala considered that there were  still some elements that needed to be addressed.  
Particularly, the legal effects of the Notice of Appeal and the imbalance between the deadlines 
provided for each of the appellees in cases of cross appeals.   
97. Concerning the first issue (i.e. the legal effects of the Notice of Appeal), Guatemala no longer 
saw the need to give certain legal effects to the Notice of Appeal:  namely, the effect of 
commencement of an appeal and the demarcation of th e scope of appellate review.  First, by filing the 
appellant's written submission on the same day as  the Notice of Appeal, such notice would not 
necessarily "trigger" the appeal.  In  other words, the appeal could al so be initiated by only filing the 
appellant's submission.  Second, th e appellant's submission set out de tailed arguments in support of its 
position and spelled out the recommendations and ru lings requested.  It was more complete and 
elaborate than the Notice of Appeal, which only include d a brief statement of the nature of the appeal.  
By submitting both documents on the same day, Gu atemala did not see the utility of "demarcating" 
the scope of appellate review through the Notice of  Appeal when the appellant's submission explained 
in detail the scope of such appellate review.  Ther efore, Guatemala suggested that the Appellate Body 
consider maintaining the Notice of Appeal only for transparency purposes.  In Guatemala's view, the 
function of demarcating the scope of the appellate review, as well as triggering the appeal, would be 
fulfilled by the appellant's submission.  Further, a wa y to clearly differentiate the legal effects of these 
documents could be the institution of the obligation to submit such Notice of Appeal "x" number of 
days after the filing of the appellant's submission.   
98. Regarding the second issue (i.e. the imbalance be tween the deadlines provided for each of the 
appellees in cases where there were cross appeals) , Guatemala observed that the Appellate Body 
proposed a reduction of three days from the deadli ne previously provided for appellees submissions WT/DSB/M/283 
Page 22  
 
  after the filing of the appellant's submission.  Howe ver, there still remained a difference of five days 
between the deadline for the appelle e to file its submission after the filing of the appellant's 
submission and the deadline for the appellee to f ile its submission after the filing of the other 
appellant's submission.  In Guatemala's view, th is could be solved if the Appellate Body had 
addressed the issue of the legal effects of the Notice of Appeal and had provided for the filing of the 
appellant's submission and the other appellant's s ubmission on the same day.  Therefore, Guatemala 
proposed that the appeal be triggered by the notific ation under Article 16.4 of the DSU.  Pursuant to 
this provision, a panel report "shall be adopted  at a DSB meeting unless a party to the dispute 
formally notifies the DSB of its decision to appeal.... .".  In this regard, the appellant would only need 
to formally notify the DSB of its decision to a ppeal (and not necessarily to describe the scope and 
content of the appeal).  Guatemala proposed that th e appellant file its submission five days after the 
presentation of a formal notification of a decision to appeal under Article 16.4 of the DSU.  In cases where there were cross appeals, it was also proposed th at the other appellant file its submission on the 
same day as that provided for the filing of the appe llant's submission.  The reason was that both the 
appellant and the other appellant would have the same period of time to read and analyze the final 
panel report and commence their preparation for th e appeal.  Consequently, the proposed period of 
five days between the formal notification under Article 16.4 of the DSU and the filing of those 
submissions was only intended to give th e other appellant the necessary time to ﬁnalize and file its 
submission.  This period of time was as long as  the period of time proposed by the Appellate Body 
between the filing of the appellant's submission and the filing of the Notice of other Appeal and the 
other appellant's submission.  It was proposed that both participants submit their respective Notices of 
Appeal two days after the filing of the appellant's  and other appellant's submissions.  The idea of 
submitting such Notices of Appeal after the filing of the submissions was to make clear that the content of the Notices no longer had the effect of tr iggering the appeal or demarcating its scope.  The 
Notices of Appeal would simply be the public documents notifying WTO Members of the commencement of an appeal and informing them of  its nature.  It was also proposed that both 
appellees file their respective submissions on day 20.   This would eliminate the time difference that 
currently existed (and was maintained in the A ppellate Body's proposal) between the deadlines for 
both appellees.  Put another way, it would redress the existing imbalances between the appellees.  
Finally, after having had access to all submissions,  third participants would have to file their 
submissions on day 23.  In Guatemala's view th e adjustments described above may contribute to 
improving the Appellate Body's proposal on this issue.  
99. With regard to the second proposal (i.e. the authorization to file and serve documents 
electronically), as expressed by the Appellate Body, it  had been the practice of participants to send a 
version of their documents by electronic mail to th e Appellate Body registry on the day the documents 
were due, followed by the same-day delivery of paper copies to the Appellate Body Secretariat.  For 
this reason, the Appellate Body had considered it "appropriate, and practical, to explicitly allow 
electronic filing of documents in appellate procee dings".  In addition, the Appellate Body had 
anticipated that authorizing the submission of docum ents electronically "would assist participants and 
third participants in the filing process and better acc ord with their actual working practices".  In light 
of the above, the Appellate Body had proposed a new Rule 18(1) bis in the Working Procedures.  In 
general terms, this proposed rule would give the participants the " option" to file documents through 
electronic mail.  Should the participants decide to submit a document through electronic mail, such a 
document would have to be sent by 5 p.m. on the day such document was due, with the obligation to 
deliver paper copies to the Appellate  Body no later than 11 a.m. the following day.  In addition, the 
paper copies would have to be accompanied by a signe d certification stating that they were identical 
to the electronic copy.  Furthermore, the Appellate Body had proposed that in case of any discrepancy 
between the electronic copy and the paper copies,  only the electronic copy would be taken into 
account.  In Guatemala's view, the only advantage of the proposed amendments was to give the 
participants a couple of extra hours to edit and correct their documents before submitting them 
electronically.  In effect, participants deciding to file electronically would have until 11 a.m. of the 
following day to print, staple and deliver the paper copies to the Appellate Body Secretariat.  While  WT/DSB/M/283 
 Page 23 
 
 
  this could be very convenient for the participan ts, especially those that must consult with their 
respective capitals in different time zones, the proposal contained however,  some elements of concern 
to Guatemala.  One of the elements was the fa ct that current technology did not guarantee on-time 
delivery of electronic communications.  It was a common problem that electronic mails, especially those including big amounts of information, reached the servers of the recipients some minutes, hours 
or maybe days after the moment they had actually been sent.  Even though the Appellate Body 
provided for a confirmation of receipt by its Secretariat, there was no clear indication about the consequences of late arrival of electronic communi cations.  Electronic communications registered the 
date and time of reception.  According to Rule  29, it could be the case that any communication 
arriving after 5 p.m. may be considered as a failu re to submit a document "within the required time-
periods".  In Guatemala's view, this uncertainty could be resolved if the Appellate Body avoided 
including the expression "by 5 p.m." in its proposal.  Another element of concern to Guatemala was 
the "signed certification" stating that the paper c opies were identical to th e electronic copy.  There 
was no indication as to who had to issue such certification.  Neither was there an indication of the merit of such certification if, in case of any discrep ancy between the electronic copy and paper copies, 
only the electronic copy would be taken into account  by the Appellate Body.  This, in Guatemala's 
view, would require that both the electronic vers ion and the paper copies be reviewed, thereby 
creating an unnecessary burden on the Appellate Body  Secretariat and the participants.  Therefore, 
Guatemala suggested that the Appellate Body also  consider the possibility of eliminating the 
requirement of certification as well.  Finally, In Gu atemala's view, the Appellate Body should allow 
either the submission of electronic files or paper copies, but not both.  
100. With regard to the last proposal, the consolida tion of appellate proceedings, according to the 
Appellate Body, where two or more disputes shared  a high degree of commonality, consolidation of 
appellate proceedings had proven to be a pragmati c way of conducting appeals, as it maximized the 
efficient use of resources available to the parties, third parties and the Appellate Body.  In addition, 
the Appellate Body had stated that consolidation of appellate proceedings fostered consistency in 
decision-making as well.  For those reasons, on certa in occasions, the Appellate Body had deemed it 
appropriate to consolidate appeals of separate pa nel reports into single a ppellate proceedings by 
establishing a single division and conducting a single oral hearing.  The Appellate Body had found a 
legal basis for the consolidated appellate proceedings  in Rule 16(1) of the Wo rking Procedures.  That 
rule provided that the Appellate Body may "adopt an  appropriate procedure for purposes of [a given] 
appeal only, provided that it is not inconsistent w ith the DSU, the other covered agreements and [the 
Working Procedures]".  Furthermore, the Appellate Body had clarified that decisions to consolidate 
appellate proceedings had been made on an ad hoc b asis in consultation with the parties.  In its view, 
the frequent resort to consolidated proceedings made it appropriate "to codify this practice" by adding 
a rule on consolidation to the Working Procedur es.  Guatemala supported the idea of having clear 
rules regarding consolidation of a ppellate proceedings.  It may enha nce legal certainty and increase 
predictability.  Nevertheless, Guatemala had doub ts about the manner in which the Appellate Body 
had interpreted current practice.  In Guatemala's vi ew, current practice existed because the parties had 
understood the advantages of consolid ation and had given their consent to it.  Furthermore, to the best 
of Guatemala's knowledge, there was no precedent of  any party opposing consolidation.  This, 
probably, was due to the fact that both the Appellate  Body and the parties had carefully analyzed all 
necessary elements to guarantee that due process wa s respected for each single appellate proceedings 
that was consolidated.  However, looking at the proposal, it seemed that the Appellate Body could 
take a decision to consolidate, even if any or a ll the parties opposed such consolidation.  Guatemala 
did not believe that this would be a reflection of current practice.  
101. In addition, Guatemala noted that the Appella te Body had made an important effort in 
defining  the parameters for consolidation.  Neverthel ess, by doing so, the Appellate Body had also 
introduced some phrases that may eventually be probl ematic and subject to di fferent interpretations, 
such as "around the same time", "and/or" and "substantial overlap" in the first sentence;  or "good reasons" in the penultimate sentence, to mention some examples.  Moreover, there was no clear WT/DSB/M/283 
Page 24  
 
  indication as to why the Appellate Body had decide d to use the expression "substantial overlap in the 
content of [the panel reports]" in the first sente nce and "substantial overlap  in the content of the 
appeals" in the second sentence.  Without more in formation than that provided in the Appellate 
Body's proposal, Guatemala assumed that the second sen tence would authorize the Appellate Body to 
take a decision to consolidate appellate proceedings , without consultations with the parties, if it 
considered that the overlap in the c ontent of the appeals was likely.   
102. With respect to the issuance of the reports, the Appellate Body had basically stated that, by 
default, it would issue a single report.  If there was a request of a participant and "there are good 
reasons", the Appellate Body may issue separate re ports, in a "single document" or in "multiple 
documents".  While there appeared to be a nua nce (although not necessarily a clear one) between a 
"single report" and "separate reports in a single document", Guatemala would have preferred to see 
reflected in the Appellate Body's proposal only tw o options:  either a single report (logically in a 
single document) or separate reports (in separate documents).  Furthermore, in Guatemala's view, in single reports the Appellate Body should include separate pages containing the rulings and recommendations resulting from each  appeal.  Since not necessarily  all appeals may refer to the same 
issues of law, this practice would be helpful in determining the specific results for each of them.  
Guatemala suggested the elimination of "separate reports in a single document" since this would 
avoid confusion with a "single report".   
103. Finally he said that Guatemala would submit its  written comments, which would reflect what 
it stated at the present meeting and would ask for t hose comments to be circulated to the rest of the 
Membership.  With regard to Ecuador's propo sal, Guatemala supported any initiative that was 
intended to spark informal discussion with the Members and with the Appellate Body. 
104. The Chairman
 said that since delegations would also have the opportunity to submit written 
comments on the proposed amendments by 26 May 2010, they might wish to consider this in the context of how they would wish to intervene at the present meeting.  
105. The representative of Egypt
 said that her country thanked the Chairman and the Appellate 
Body for providing the opportunity to comment on the proposed amendments to the Working 
Procedures for Appellate Review.  Concerning the time-line for written submissions, despite having 
no practical experience with the Working Proce dures for Appellate Review and understanding the 
reasons for the proposed changes, Egypt considered  that requiring appellants to file their written 
submission on the day of the filing of appeal woul d impose an additional constraint on those Members 
who had little dispute settlement experience and expe rtise.  While Egypt recognized that Members 
normally had time after the circulation of the interi m and final panel reports, a one-week shortening of 
the period available to file an appellant submi ssion should not be deemed insignificant.  Egypt 
reiterated that Members with limited experience an d expertise already faced difficulties, similar to 
those faced by the Appellate Body, with the existi ng deadlines.  In Egypt's view, a shortening of the 
time available to appellants to file their written su bmission to the benefit of the Appellate Body was 
not the most appropriate solution to the problem identified by the Appellate Body.   
106. Regarding the electronic filing and service of documents, Egypt agreed with the Appellate 
Body that it was appropriate and practical to e xplicitly allow electronic filing of documents in 
appellate proceedings.  Egypt also welcomed the possi bility offered to Members to continue to use the 
existing rules for the filing of documents.   
107. Finally, in connection with cons olidation of appellate proceedi ngs, Egypt considered that the 
consolidation of appellate proceedings was a ppropriate in some cases and that, given the 
multiplication of consolidated proceedings in recen t years, the Appellate Body was justified in 
proposing that specific rules be adopted in this r espect.  However, Egypt considered that, under the 
proposed rules, the Appellate Body would enjoy to o great a discretion.  Even though consultations  WT/DSB/M/283 
 Page 25 
 
 
  with the parties were provided for in the proposal, Egypt would prefer a greater involvement of the 
parties, as they were directly affected by the deci sion of the Appellate Body to consolidate or not, and 
in the form of the consolidation. 
108. The representative of China  said that first her country wished  to say a few words on the issue 
of the means of communication between WTO Memb ers and the Appellate Body.  China believed 
that the previous practice carried out in accordan ce with the 2002 Decision was agreeable.  China 
believed that the views and the positions of th e WTO Members could be conveyed to both the 
Chairman and the members of the Appellate Body authentically and completely through the DSB 
Chairman.  China did not see a need to change this practice at this st age.  China thanked the Appellate 
Body and its Secretariat for their great efforts re garding the proposed amendments to the Working 
Procedures for Appellate Review.  China considered that the practic es to date had proven that the 
Working Procedures worked quite well, contributi ng significantly to the efficient settlement of 
disputes among Members.  Thus China shared the view of the Appellate Body that the Working 
Procedures had operated smoothly and effectively.  China recognized that there might be room for 
further improvements and clarifications of the DSU and practical experiences.  With regard to the 
proposed amendments to the Working Procedures unde r consideration, China believed that a number 
of principles should be observed and in the interest of time it would not intend to repeat them as they 
would be included in China's written comments an d had already been outlined by China at the 
informal DSB meeting on 20 April 2010.   
109. With respect to the details of the proposed am endments, China wished to make the following 
comments.  First, with regard to the time-line for written submissions, China understood and was able 
to accommodate the proposal to request the appellant  to submit its written submission when an appeal 
was commenced, on the same day as the filing of a Notice of Appeal.  As to the effect of the Notice of 
Appeal, China believed that the current practice had its value in terms of its jurisdictional meaning 
and hoped that this could be maintained.   China had serious concerns on the proposal to shorten the 
period of time allocated to the appellee from 18 days to 15 days.  China did not wish to repeat the 
reason for this as this would be included in its written comments.  With respect to the timing of 
submissions by third participants, China consider ed that, because third participants still had an 
opportunity to make comments on the submissions of the appellee and other third participants during 
the oral hearing, whether or not a third particip ant was given an extra three days to prepare its 
submission would not impair its substantive rights.  
110. With regard to the electronic filing and ser vice of documents, China acknowledged that 
electronic files were widely used nowadays as the re sult of the evolution of technology.  In proposing 
Rule 18(1) bis, the Appellate Body had also stated that in  proposing to authorize expressly electronic 
filing, it did not intend to eliminate the need to f ile paper copies with the Appellate Body Secretariat 
and indeed anticipated having hard copies of subm issions following Members' emails.  Members who 
did not wish to file documents through electronic means could file paper copies as contemplated in 
Rule 18(1).  Based on this understanding, China had the following comments.  The content of 
electronic filing should include an electronic cove r letter (a scanned one) signed by officials of 
Members so that the authenticity and legality of th e filed documents could be assessed.  According to 
the proposed amendment, after the document ha d been submitted through e-mail, Members would 
receive confirmation from the Secretariat.  In practice, this would require both the Secretariat and the submitting Member to allocate a special person to monitor e-mails on a specific day.  Furthermore, if 
Members sent e-mails on time but had not received confirmation from the Secretariat by 5 p.m., or if 
non-attributable technical problems occurred and resulted in e-mails not being correctly or properly 
received, it was not clear from the proposed Rule 18(1) bis whether Members who submitted the 
documents would be regarded as having done so with in the required time-frame.  According to the 
proposed Rule 18(1) bis, hard copies of electronic documents sha ll be delivered to the Appellate Body 
no later than 11 a.m. the following day.  Otherwise a document sent by e-mail would not be 
considered duly filed.  It was not very clear to  China what purpose this requirement (submission of WT/DSB/M/283 
Page 26  
 
  hard copies) would serve if an electronic document was submitted on time and the Secretariat 
confirmed its receipt.  Indeed, it would simply add to the logistical burden of Members who chose to 
use e-mail transmission and redu ce the convenience and advantages of electronic filing compared 
with filing of hard copies.  Furtherm ore, because the pr oposed Rule 18(1) bis stipulated that the 
electronic copy would prevail in case of discrepancy, it seemed unnecessary to further require a 
signed certification from Members stating that the pa per copies are identical to the electronic copy.  
111. With regard to consolidation of appellate pr oceedings, China understood the intention of the 
Appellate Body to make good use of available resour ces.  China also understood that consolidation of 
appellate proceedings had been handled properly on a case-by-case ba sis in the past.  China also 
appreciated prior efforts of the Appellate Body to  keep decision-making consistent and consolidate 
certain particular disputes after full consultations w ith the parties, and getting agreement from them.  
China considered prior practices as evidence that the previous appr oach adopted by the Appellate 
Body, namely consulting with the parties and obt aining consensus from them, operated smoothly and 
effectively and had the full suppor t and cooperation from Members.  There seemed to have been no 
big practical problems and the Appellate Body in its proposal did not inform Members of any 
problems that would make a change imperative.  Thus, China did not think it was necessary to make 
changes as proposed in Rule 16(1) bis.  Having said that, with respect to the detail of the proposed 
Rule 16(1) bis, China observed that the definition of "substa ntial overlap" was not clear from the text 
of Rule 16(1) bis.  The proposed Rule 16(1) bis stated that the Appellate Body may consolidate 
appellate proceedings "upon request by a party or on  its own initiative" and "a fter consultations with 
the parties".  It seemed from the text that the Appe llate Body could consolidate proceedings even if 
the parties to the dispute disagreed.  Under such a  scenario, it was difficult to understand how the 
appellate proceedings could operate efficiently and smoothly without the voluntary cooperation from 
the parties to the disputes.  It seemed a great challe nge to fully ensure that Members' rights, bestowed 
by the DSU, would not be impaired or prejudiced.  The consolidation of ap pellate proceedings in 
different disputes would necessarily lead to a number of procedural questions.  For instance:  how to 
guarantee that the confidentiality requirements in the DSU would be fully observed in consolidated 
appellate proceedings of different disputes to which the parties and third parities were not the same?  
What was the legal basis in the DSU for a non-thir d party participant to observe the Appellate Body 
hearing?  The text of Rule 16(1) bis seemingly did not provide a clear answer.  Finally, China thanked 
the DSB Chairman for the opportunity to express its views on this matter.  
112. The representative of Turkey
 said that his country thanked the Appellate Body and its 
Secretariat for their work towards improving the Wo rking Procedures with a view to reflecting several 
years of practical experience.  Turkey also tha nked the Chairman for giving Members the opportunity 
to comment on those proposals and believed that a ny proposal to facilitate the appeal process would 
be useful for all Members and would be a very positive  exercise.  In general terms, in Turkey's view 
amendments should not nullify or impair the rights and obligations of WTO Members.  They should 
not impose disproportionate burden on the parties.  The amendments should alleviate the unnecessary 
burden and time pressure on the Appellate Body.  In  addition to this, the needs and the views of the 
developing-country Members, which had significan t difficulties in participating in the dispute 
settlement system should be taken into account.  At  the present meeting, Turkey wished to make 
specific comments regarding the proposed amendmen ts to the Working Procedures of the Appellate 
Body.   
113. With respect to the time-lines for written submissions, Turkey supported the proposal to 
eliminate the 7-day period between filing of the Notice of Appeal and filing of the appellant's 
submission, and similarly where there was an other appeal.  However, this proposal was based on two assumptions.  The first assumption was that the appell ant did not work on its submission after filing 
the Notice of Appeal.  The second assumption was that  the appellee did not work after receiving the 
Notice of Appeal.  Turkey believed that both of the assumptions were invalid and unfounded.  The 
Notice of Appeal was an "early warning mechanism"  not only for the appellee, but also for the third  WT/DSB/M/283 
 Page 27 
 
 
  parties.  It contained information including a brief st atement of the nature of the appeal as stated in 
Rule 20(2)(d).  This information was significant fo r the appellee to be informed.  The information 
gave the appellee and third parties an opportunity  to prepare themselves and be ready for the 
appellant's claims.  In that respect, taking into acco unt the elimination of the benefit of the Notice of 
Appeal for the appellee, shortening the seven day peri od for the appellant to file its submission did not 
have the same effect for the appellee.  Therefore,  Turkey strongly believed that the proposed 15 days 
for the appellee should be at least 18 days.  In add ition, taking into account that the Notice of Appeal 
was the only publicly available document, Turkey cons idered that it should be retained for the sake of 
transparency.  
114. Turkey welcomed the time-line changes for third parties.  It was an im portant improvement to 
enhance third-party rights in the appellate process.  Turkey supported giving an opportunity to the 
third participants, after having seen the arguments of  the appellant and the responses of the appellee, 
to submit their arguments in this respect.  Turkey  considered that this change also provided a 
sequencing process for the appellate stage parallel to th at which existed at the panel stage.  However, 
Turkey also believed that three days were not really  sufficient time for third participants to consider 
and reflect upon the appellee submissions and take  them into account when drafting their third 
participant submissions.  In Turkey's view, increa sing this time period to fi ve days would provide a 
more realistic time-frame for third participants to respond properly to the issues raised by the 
interested parties.  This would allow third particip ants sufficient time to pr epare a fully considered 
submission that addressed issues raised not only by the appellant, but also by the appellee.  Turkey considered that any additional time allowed for thir d participants to prepare their submissions should 
not be allocated at the expense of the time allocat ed for the appellee to prepare its submission.  
115. With respect to electronic filing, Turkey su pported any amendment that would encourage 
electronic filing.  Turkey believed that submission of documents electronically would assist interested parties and third parties in the filing process and better accord with the Appellate Body's Working 
Procedures.  However, in Turkey's view, the propo sed amendment did not encourage electronic filing, 
because it did not eliminate the need to file paper copies.  The amendment proposed two alternatives.  
One was to submit both an electronic copy and pa per copies;  the other was to submit only paper 
copies.  Turkey considered that there should be no requirement to submit additional paper copies for 
those Members who submitted electronic filing in due time.  In addition to this, Turkey had some 
technical questions regarding the proposal.  What would happen if there was a last minute technical 
problem in sending an electronic file or receiving a confirmation message?  If that was the case, 
would the deadline of 11 a.m. the following day for the paper copies also be valid?  Why would paper 
copies have prevalence over electronic filing?  Who would be the authorized person to sign the certification stating that the paper copies were iden tical with the electronic copy?  If the electronic 
copy had prevalence over the paper  copies why was there a need for such a certification?  
116. With respect to consolidation of appeals, Tu rkey supported the consolidation of appellate 
proceedings in certain circumstan ces as was the general practice of the Appellate Body in certain 
appellate proceedings.  One of the main aspects of  this proposal was to give discretion to the 
Appellate Body to consolidate the appeals even di sregarding the view of the parties.  The proposal 
stated that:  "The Appellate Body may take such a de cision if it considers that a substantial overlap in 
the content of the appeals is likely".  In Turkey 's view, this created problems because the proposal 
allowed the Appellate Body to consolidate with or without the parties' consent.  The question of how 
the process would move forward without the par ties' cooperation should be addressed.  Turkey 
believed that the parties' consent or at least no objection was probably a necessary precondition to this 
consolidation.  Turkey believed that the terms "a  substantial overlap" and "likely" were vague and 
ambiguous in the language of the proposed amendmen t.  With respect to the single report, the 
proposed amendment assumed that the Appellate Bo dy would always issue a single report unless a 
reasonable request was received from the participants .  As it had been drafted, the proposal imposed WT/DSB/M/283 
Page 28  
 
  the burden of proving the need for separate reports on the participants.  Turkey considered that this 
burden of proof should be addressed.  
117. With regard to Ecuador's proposal, he said that  Turkey supported the proposal and welcomed 
the suggestion for the Appellate Body to address some  of the questions that Members had so as to 
have a better understanding of the purpose of the ame ndments.  Finally, Turkey wished to highlight its 
support for the Appellate Body for its on-going effo rts to improve the Working Procedures.  Turkey 
also thanked the Appellate Body and its Secretaria t for tabling the proposed amendments and for the 
opportunity to comment on them. 
118. The representative of Peru
 said that her country thanked the Chairman for convening the 
present meeting as well as the informal meeting DS B held on 20 April to enable Members to 
exchange views on the three amendments proposed by the Appellate Body.  Peru appreciated and 
supported the idea of working towards the improvements of the Working Procedures  to help the 
Appellate Body to make better-quality decisions.  Peru agreed with Brazil and Turkey that the 
interests of Members, as users of the system, were  at stake regarding those procedures.  Peru hoped 
that the views of Members, and in particular developing-country Members, would be taken into 
account by the Appellate Body.  With regard to Ec uador's proposal for a meeting with the Appellate 
Body, she said that Peru had no objection to holding  such a meeting since this would enable Members 
to have a better understanding of the proposals and would help the Appellate Body to understand 
Members' comments.  
119. With regard to the proposal that the appellant's  written submission be filed on the same day as 
the Notice of Appeal and for all of the other d eadlines for written submissions, the Notice of Other 
Appeal and third-party notificati ons to be advanced, Peru cons idered that, although the proposal 
contained positive elements, the time available to  the appellant to file its written submission, 
including substantive arguments, would be reduced  by seven days.  Likewise, the new time-line 
would imply a significant reduction in the time availabl e to the appellee to file its submission.  This 
would have a particular impact for developing coun tries in the preparation of their defence, given 
budgetary and institutional limitations  of developing countries.  If this proposal was approved, it 
would also affect certain rules of proce dure for Appellate Review, such as Rule 23 bis concerning the 
amendment of Notices of Appeal, which, in Peru's vi ew, would have to be eliminated.  Similarly, in 
operative terms, the implementation of this proposal  would require simplification of certain inherent 
processes given the reduction in the time available to the parties.  Peru considered that the proposal 
would worsen the situation of the parties involve d in the appellate proceedings and would have a 
significant impact on developing countries due to their limitations in preparing their defence. 
120. With regard to the proposal concerning the explicit authorization, subject to certain 
conditions, of electronic filing and service of documen ts, Peru believed that this was positive to the 
extent that the electronic filing of documents was an  option, and that if the parties opted for that 
possibility, the electronic copy should prevail.  Th is was logical since the version submitted by the 
deadline should prevail.  Otherwise, the procedure could be abused and, for example, an electronic 
version could be submitted in order to meet the deadline, followed by a "finished" version.   
121. The proposal on consolidation of procedures app eared reasonable, provided that, in addition 
to a substantial overlap in the content of panel re ports, the cases were the same, and that the parties 
were not only consulted, but their a pproval had to be sought.  Thus, Peru  considered that if the parties, 
or one of the parties, disagreed and had grounds for disagreeing, the Appellate Body should not 
consolidate the proceedings.  With regard to the proposed consultations with the parties, the new 
procedures should clarify the scope of such consultations.  WT/DSB/M/283 
 Page 29 
 
 
  122. The representative of Australia  said that, in principle, her country was sympathetic to the 
Appellate Body's intention to amend the Working Pr ocedures to address:  (i) the time-lines for written 
submissions;  (ii) electronic filing;  and (iii) co nsolidation of appeals.  However, Australia was 
concerned that the underlying rationa le and objectives for certain asp ects of the proposed amendments 
were unclear, with a resulting lack of clarity in some aspects of the drafting of each of the proposed 
amendments.  Australia was also concerned that the amendments should balance the needs of the 
Appellate Body with those of the parties to an a ppeal.  Accordingly, Australia had specific comments 
on the proposed amendments.    
123. With regard to time-tines for written subm issions, the Appellate Body had suggested a 
number of adjustments to the time-lines for appe llate proceedings.  In Australia's view, any 
adjustments needed to maintain a balance between the needs of th e Appellate Body, parties to the 
appeal and third participants.  Li ke others, Australia supported the pr oposal to eliminate the seven-day 
period between filing the Notice of Appeal and l odgement of the appellant submission, and for a 
corresponding adjustment to the times for lodgement of a Notice of Other Appeal and other appellant 
submission.  Australia noted comments from some  Members questioning the continued need for a 
Notice of Appeal and a Notice of Other Appeal.  These had been provided for in Rules 20(1) and 
23(1) of the Working Procedures respectively.  In Australia's view, the Notices were important 
transparency tools in the appeal process, and may provide the only public document on the record that 
would inform Members not party to the appeal and the public generally of the existence, nature and 
scope of the appeal.  Australia, therefore, supported their retention.  That said, Australia could support 
the scope of the appeal being delineated either by the Notices of Appeal or by the appellant 
submissions themselves.  Given that under the prop osal, both documents would be filed at the same 
time, Australia would assume that the contents of those documents would be consistent.  Australia 
was sympathetic to the time pressures faced by the A ppellate Body in the appeals process.  However, 
Australia was conscious that the current time-table  already placed severe pressure on the appellee and 
was concerned that a reduction in the time available to the appellee following receipt of the principal 
appellant submission would disturb the current equili brium of the parties' rights, disadvantaging the 
appellee.  To maintain the current equilibrium, Au stralia suggested that appellee submissions should 
be filed on the 18th day following commencement of  the appeal, rather than on the 15th day as 
proposed by the Appellate Body.  
124. Australia supported the Appellate Body's proposal  that additional time be allocated to third 
participants to prepare their submissions follo wing lodgement of appellee submissions.  Such 
additional time would allow third participants tim e to reflect on arguments raised in appellee 
submissions in addition to those raised in appellant  submissions, and to offer a view in their written 
submissions, as was the case in panel proceedings.  Parties to the dispute and the Appellate Body 
would then have adequate time to consider third pa rticipants' perspectives on the totality of the issues 
under review ahead of the oral hearing.  Questioning of  third participants at the oral hearing could, as 
a result, be focused on those aspects of third particip ant submissions of most interest to the Appellate 
Body.  However, Australia questioned whether three da ys was sufficient time for third participants to 
prepare submissions that commented meaningfully  on arguments that may be raised in appellee 
submissions.  Australia thought that a more realistic time frame would be for third participants to be 
required to lodge their submissions on the fifth day following lodgement of appellee submissions.  
That said, Australia wanted to emphasize that any additional time allowed for third participants to 
prepare their submissions should not be allocated at th e expense of the time allo cated to the parties to 
the dispute to prepare their submissions.  Australia  noted that the time-table for prohibited subsidies 
appeals would largely be determined by the final tim e-table decided for general appeals.  As in the 
case of general appeals, Australia supported the Appella te Body's proposal that third participants be 
allocated some additional time to prepare their s ubmissions.  As with general appeals, however, 
Australia thought that the additional time should be such as to allow third participants to comment 
meaningfully on arguments in appellee submissions.  For that reason, Australia thought that third 
participant submissions should be lodged on th e third day after appellee submissions.   WT/DSB/M/283 
Page 30  
 
  125. With regard to electronic filing, Australia supported the proposal to authorize electronic filing 
and service of documents, and noted that the Aust ralian court systems had implemented effective 
electronic filing systems.  That said, Australia noted  the valid technical and procedural issues raised 
by some Members would require clarification if th e proposed amendment were to be taken forward.  
Australia also wondered about the requirement to  file submissions in hard copy as well as 
electronically.   
126. With regard to the consolidation of appeals, Australia supported the consolidation of appeal 
proceedings in certain circumstances, and noted  that consolidation had occurred in certain 
proceedings in the past.  However, Australia wa s unclear as to the rationale for the proposed 
amendment, given the relative infre quency of consolidated appeal pr oceedings and the availability of 
Rule 16(1).  Australia would appreciate clarification of the problem that was being sought to be 
remedied.  In any case, Australia noted that the proposed amendments raised a number of questions, 
the answers to which were not clear on the face of the current draft.  Would proceedings be 
consolidated only where the proceedings concerne d the same measures of the same respondent?  
Would proceedings be consolidated only where there were similar claims in respect of the same 
measures of the same respondent?  Would proceedi ngs be consolidated where there were similar 
claims in respect of similar measu res of different respondents?  Could a party to the dispute object to 
the consolidation of proceedings and, if so, on what basis?  Could the Appellate Body reject a party to 
the dispute's request for separate reports to be issued  and, if so, on what basis?  At what point would 
consolidation of appeal proceedings  have to be requested by a party to the dispute or decided upon by 
the Appellate Body on its own initiativ e?  For example, would such a request or decision have to be 
made before an appeal was formally initiated fo r one, or both, of the relevant proceedings?   
127. On procedural issues, with regard to Ecuador's  request for an informal interactive exchange 
with the Appellate Body members on the proposed revisions, Australia noted that there was no 
impediment in principle to such a meeting being held , and recalled that in the past the Appellate Body 
members had met with the Membership off-campus, in  the context of the DSU review negotiations.  
However, Australia was concerned that the time fo r implementing such a proposal was constrained by 
the 26 May 2010 deadline for written comments a nd would not wish to see any delay in the 
consideration of the proposals.  Australia also noted  that as a full supporter of transparency, it would 
request that its written comments on the proposals be circulated to the Appellate Body members and 
to the Membership.  In conclusion,  Australia thanked the Appellate Body for the circulation of its 
draft proposed amendments.  Australia thought it  was important that the Working Procedures were 
periodically reviewed to ensure their continued effectiveness.  Australia commended the Appellate 
Body for its ongoing efforts to streamline and improve the procedures.   
128. The representative of Singapore
 said that her country thanked the Appellate Body for the 
proposed amendments to its Working Procedur es and the Chairman for making the discussion on 
them possible.  Singapore viewed the present m eeting as an inclusive and transparent way of 
discussing the amendments and how best to refine  them.  Singapore was presenting its comments in 
order to provide feedback to the Appellate Body so that the proposals could be further refined.  The 
Working Procedures for Appellate Review and thei r amendments were not only important for the 
appeal proceedings, they could ha ve important implications on pro cedures for panel proceedings and, 
even possibly, set precedents for procedures in ot her fora which may look to the WTO as a model for 
international dispute settlement.  In principle, Singapore supported the Appellate Body's efforts to 
clarify its Working Procedures, facilitate proceedings  and make its work more efficient, so long as 
they did not undermine the parties' rights.  Singapore wished to highlight some of its concerns with the proposals.   
129. With regard to the proposed amendments re lating to time-lines, Singapore welcomed the 
proposal to give third parties the opportunity to  consider both the appe llee's and appellant's 
submissions, before their own submi ssions were due.  This would enable third parties to provide more  WT/DSB/M/283 
 Page 31 
 
 
  considered and balanced submissions.  In fact , like Turkey and Australia, Singapore questioned 
whether three days were sufficient and preferred that more time be given to third parties to consider 
the appellee's submission.  However, this improvement  should not be at the expense of the appellee.  
Singapore, therefore, urged that together with the improvement for third parties, the existing timeline 
of 18 days after the appellant's submission be mainta ined for the appellee to file its submission.   
130. With regard to the amendments relating to  electronic filing, Singapore recognized that 
electronic filing was the trend.  In fact, in its domestic courts, documents for civil litigation were 
electronically filed.  In principle, Singapore supported the initiative for documents to be filed electronically.  Singapore recognized that electr onic filing could substantially reduce many paper 
copies of submissions that had to be currently submitted.  However, Singapore was concerned that 
there was no information on the system supporting electronic filing.  For electronic filing to be relied 
on as a mode of submission envisaged by the proposal, the system must address:  (i) security of confidential information that may be contained in the submission;  (ii) format of the documents 
submitted;  and (iii) veracity of  the identity of the sender, and accuracy and certainty of time.  
Singapore found the information on these matters missi ng.  They needed to be addressed before 
parties could rely on electronic filing with confidence in the integrity of the system.  
131. With regard to the amendments relating to c onsolidation, Singapore supported the efforts to 
consolidate proceedings and reports.  Singapore w as aware that consolidation took place in practice 
and noted that the proposal took a very different a pproach from Article 9 of the DSU.  Singapore was 
concerned about this difference and that the proposal seemed to go beyond what Singapore understood was the current practice and may prejudi ce the parties.  In particular, Singapore was 
concerned that:  (i) the proposal seemed to allow cons olidation of proceedings to take place even if 
parties did not agree to it;  (ii) there needed to  be "good reasons" before there could be separate 
reports (even separate reports in a single document) , and the proposal provided for a single report as 
the default even though it may be difficult for parties to adopt and implement the rulings applicable to 
each of them separately from a single report;  and (iii)  the tests for consolidation of proceedings and 
when a report would be separated were not clearly defined.  Singapore urged the Appellate Body to 
take into consideration the constructive views of Me mbers which, in the end, had the same objective, 
namely, how best to make the appellate proceedings work. 
132. The representative of Switzerland
 said that his country wished to take the opportunity to 
comment on the Appellate Body's proposals to ame nd the Working Procedures for Appellate Review.  
Switzerland thanked the Appellate Body for its  detailed communication containing not only the 
proposed changes, but also the reasons for proposin g those changes.  Since many delegations had 
asked for the floor, Switzerland's statement would be very short.  Switzerland particularly welcomed 
the proposed amendment to Rule 24 giving third pa rties the opportunity to take a written position on 
the arguments and reasoning of the parties.  This would enable third participants to take a position 
prior to the date of the hearing.  In addition,  like Australia, Switzerland would propose that the 
deadline in this respect be extended by two days. 
133. The representative of Korea  said that his country believed that the three issues included in the 
proposed amendments to the Working Procedures provided a platform for productive discussions 
among Members in order to facilitate and improve the Appellate Body's proceedings.  Korea also 
recognized the logistical burden the Appellate Body  was currently facing in the course of discharging 
its duty under the DSU provisions within a relativ ely short time-frame.  The pursuit of time-saving 
and efficiency, however, could sometimes lead to an unintended abridgement of Members' legitimate 
rights under the DSU in Appellate Body proceedin gs.  Thus, Korea believed that discussions on the 
three proposed amendments should allow a proper ba lance to be struck between the two competing 
themes.   WT/DSB/M/283 
Page 32  
 
  134. First, Korea recognized the underlying rationale  for the proposal for simultaneous submission 
of the appellant's submission and its Notice of App eal.  However, like previous speakers, Korea noted 
that the initial 7-day period offered crucial oppor tunities to prepare overall strategies and develop 
legal arguments.  Consequently, the simultaneous  submission may undermine an appellant Member's 
ability to present its factual and legal claims effectivel y.  In Korea's view, the merits and demerits of 
eliminating the 7-day preparation period for the appe llant deserved careful consideration by Members. 
135. Second, the proposed amendment suggested that  Members consider wider application of 
recent IT technologies in Appellate Body proceedin gs.  As a general matter, Korea regarded this 
proposal as appropriate and timely.  Application of  recent IT technologies, however, also posed new 
challenges such as confirming authenticity, preser ving confidentiality and maintaining a reliable 
electronic submission system.  The experience of other tribunals may shed some helpful light on how 
to deal with and overcome such new challenges.   
136. Finally, with regard to the proposal for conso lidation of multiple appellate proceedings, Korea 
shared the concern expressed by some Members th at the proposal was somewhat vague and did not 
necessarily reflect current practice.  In particular , as other speakers had already pointed out, it was not 
entirely clear from the proposed text whether or not the Appellate Body would retain the authority to 
consolidate multiple cases even in the absence of clear consent from the parties to the disputes.  Such 
consolidation without the parties' consent might run the risk of undermining Members' legitimate right 
to appellate review, as guaranteed under Article 17 of the DSU.  Korea looked forward to working 
closely with the Appellate Body and other Member s to address the concerns the Appellate Body had 
raised in the proposed amendments.   
137. The representative of Norway
 said that his country thanked the Chairman for providing 
Members with the opportunity to present their vi ews on the proposed amendments to the Working 
Procedures for Appellate Review, contained in document WT/AB/WP/W /10.  Norway was generally 
supportive of the proposed amendments.  Even if th e Working Procedures, in Norway's experience, 
operated well, it was possible to make further impr ovements, in light of how practice had evolved 
over time.  The proposal by the Appellate Body cons isted of three elements and Norway wished to 
comment on all of them.   
138. Starting with the proposal to amend d eadlines for written submissions, Norway was 
sympathetic to the wish of the Appellate Body to a llocate, more efficiently, the limited time available 
for appellate proceedings.  Norway understood that the 7-day period between a Notice of Appeal and 
the appellant's written submission seemed like an unn ecessary waiting period, particularly in light of 
the increasingly complex appeals and lengthy writte n submission.  As a Member that mostly 
participated as a third party in the proceedings, Norway also saw the benefit in moving the deadline 
for the third participants' submission to a separa te day after the filing date for the appellee's 
submissions to afford the third participants a bett er opportunity to address all relevant arguments.  
However, Norway did understand the concerns raised by other Members with regard to the fact that 
other deadlines would have to be shorter than at present.   
139. With regard to the proposal to expressly authorize electronic filing of submissions, Norway 
noted that this proposal would accord better with  the actual practice of Members than what was 
currently in the Working Procedures.  Furthermore, Norway understood that allowing electronic filing of submissions would be in line with trends in ot her international tribunals.  Norway had, however, a 
comment regarding the proposed d eadline for the service of paper copies.  To accommodate Members 
that had limitations in their IT facilities, Norway wondered whether there should not in fact be an 
obligation to deliver paper copies of the submission on the same day as the electronic version.  Time was a factor in appellate proceedings, and it, therefor e, seemed to be of essence that all participants 
had access to submissions as soon as possible after the deadline for filing.    WT/DSB/M/283 
 Page 33 
 
 
  140. Finally, with regard to the proposal regarding consolidation of appellate proceedings, it was 
Norway's understanding that there had been sever al instances where the Appellate Body had 
consolidated appeals of separate panel reports into single appellate proceedings.  In the absence of an 
express provision in the Working Procedures on such consolidation, this had been done pursuant to 
Rule 16 (1), which provided that the Appellate Body  may adopt an appropriate procedure for a given 
appeal only.  Norway believed that it would be a positive addition to the procedure to codify the 
practice of the Appellate Body in this regard.  A codification would make the system more predictable 
for Members.  Norway understood the concerns ra ised by some Members regarding the possibility 
that the Appellate Body would consolidate proceedi ngs where the parties did not agree to this.  In 
Norway's view, the obligation to consult with pa rties before making a decision on consolidation 
should be adequate. 
141. The representative of the United States  said that his country thanked the Chairman for the 
opportunity to provide views, in accordance with the December 2002 Decision of the DSB, on the 
proposed amendments to the Appellate Body Workin g Procedures.  The process set out by the Chair 
had afforded delegations time to study the proposed  amendments and exchange views on them, which 
had led to a deeper understanding of the proposals.  On the basis of those exch anges, the explanations 
given by the Appellate Body, and, most importan tly, the text of those proposed amendments, the 
United States wished to offer its views.    
142. With regard to the time-line for written submissi ons, the United States first wished to address 
the proposal regarding filing of the appellant's su bmission on the same day as the Notice of Appeal 
and consequential changes to the d eadlines.  The United States joined  other delegations in desiring to 
optimize the use of the time allotted to appeals.  In  particular, it had become increasingly apparent that 
the 90 days allotted for Appellate Body reports placed significant time pressure on the Appellate 
Body.  Of course, the time-period was effectivel y less than 90 days once account was made for 
translation.  Accordingly, it was important that th e time be used productively.  An appellant typically 
had a significant amount of time before filing an ap peal to develop its appeal, including its appellant 
submission.  As a result, the time currently provi ded between commencing an appeal and filing the 
appellant submission did not appear  to be time that was being u sed as productively as it could be.  
Those seven days could better serve the system if th ey were used for the Appellate Body's work.  An 
appellant should be able to prepare its appellant su bmission in advance such that it could be filed at 
the beginning of an appeal.  Therefore, the United States was sympathetic to making the appellant submission due on the first day of an appeal.   
143. However, this did raise questions about the continued role of a Notice of Appeal.  The 
United States noted that the proposed amendments would retain the Notice of Appeal as a separate 
document.  That Notice would continue to retain some role in expressing the scope of the appeal.  
This raised questions about whether there would be jurisdictional arguments in an appeal based on the 
Notice of Appeal.  With the full appellant submis sion in hand, it was hard to understand why the 
Notice of Appeal should serve to limit or constrai n the scope of appeal.  Presumably the appellant 
intended its submission to be a full expression of its appeal.  It would seem that there should be ways 
to provide the transparency current ly afforded by a Notice of App eal while avoiding the procedural 
issues that accompanied giving the Notice of Appeal so me sort of jurisdictional status.  Furthermore, 
it would seem contrary to the desire  to use the time for an appeal as productively as possible to invite 
jurisdictional arguments based solely on the No tice of Appeal.  The United States noted that 
Article 16.4 of the DSU required a Notice of Appeal, but that notice was to the DSB only, and it did 
not call for one to be filed with the Appellate Body.  Therefore, it would appear that one option could 
be for the Appellate Body's Working Procedures to  omit specifying any requirement for a Notice of 
Appeal to the Appellate Body and rely simply on the DSU.   WT/DSB/M/283 
Page 34  
 
  144. With regard to the consequential changes to the deadlines, the United States said that the 
proposed amendments altered the s ubsequent deadlines after the filing of the appellant submission.  
While the United States understood the symmetry in also requiring the other appellant submission to 
be filed on the same day as the Notice of Appeal, the United States would have the same concerns 
regarding a Notice of Other Appeal as just expresse d with respect to a Notice of Appeal.  In other 
words, it would seem that there should be ways to provide the transparency currently afforded by a 
Notice of Other Appeal while avoiding the proce dural issues that accompany giving the Notice some 
sort of jurisdictional status.  Nor, the United States said, did there appear to be value in shortening the 
time for appellee submissions from 18 days to 15 da ys.  As the Appellate Body had noted in the 
proposed amendments, "Appellants' submissions are typically the longest written submissions in an 
appeal".  Accordingly, reducing the time for appellee submissions could prove particularly 
disadvantageous for an appellee.  Nor did there appe ar to be value in changing the existing practice of 
the past 15 years so as to provide for third partic ipant submissions to be filed after the appellee 
submissions.  In the first place, it appeared odd that third participants should be provided an 
opportunity to respond in writing to the appellee subm ission(s) while the appellant did not have that 
opportunity.  Second, the explanation for the proposal was to allow third partic ipants time to respond 
to the appellee submission(s).  However, in realit y the additional three days proposed would not be 
sufficient time to prepare a written response to that appellee submission.  That had been reflected in 
comments at the present meeting proposing to give th ird participants even more time to prepare their 
submissions.  Moreover, the proposed change could undermine the objective of using the time for an 
appeal more productively.  The United States assumed that the oral hearing was set for the earliest 
date possible after the appellee and third particip ant submissions, taking into account the need to 
review those submissions and prepare for the hearing.   Providing for a later date for third participant 
submissions would imply delaying the hearing, th us reducing the time for the Appellate Body's 
deliberations and work during the 90-day period. 
145. Turning to the second element of the proposed ame ndments – authorization, subject to certain 
conditions, to file and serve documents electronica lly – as an initial matter the United States noted 
that it appreciated the fact that filing electroni c versions of documents had become much more 
prevalent since the Working Procedures were first developed.  However, since it had become typical 
for Members to file an electronic version in add ition to the paper copy, it was not clear why this 
amendment was needed or what was its value adde d, and it raised some concerns.  The proposed 
amendment would appear to mean that a Member must  either file only paper copies, or be subject to 
the new rules, including that the electronic versi on would prevail.  The United States was concerned 
that this may discourage rather than encourage el ectronic filing.  The United States had had previous 
instances in which differences in software or hard ware, or merely transmitting via email, had meant 
that the electronic version appeared differently on one system than on another system.  There was a 
concern about what it meant to say that the electr onic version would prevail over the paper copy since 
in those circumstances there could be more than on e electronic version.  The United States also shared 
the concerns expressed by a number of delegatio ns about the proposed requirement for a signed 
certification.  It was not clear what the purpose of such a certification was other than to highlight the 
fact that allowing paper copies to be filed the fo llowing day could increase the chance that the paper 
copy would diverge from the electronic copy. 
146. Finally, the United States wished to turn to th e third element of the proposed amendments – 
consolidation of appellate proceedings.  The proposed  amendments raised a number of questions and 
concerns that had already been well-expressed by a number of other delegations at the present 
meeting.  For example, consolidation of appeal s to this point had been handled on a case-by-case 
basis and with the consent of the parties.  Th e United States echoed one Member's comment that 
dealing with consolidation on a flexible basis was not a flaw in the system but a strength.  The 
United States was not aware of any appeal in whic h parties had not consented to consolidation nor 
was it aware of any instance of consolidation over the objection of a party.  The United States was concerned by the possibility raised by the proposal  that the Appellate Body could consolidate two  WT/DSB/M/283 
 Page 35 
 
 
  appeals when at least one party said that it should not.  Also troubling was the idea that the Appellate 
Body would decide to consolidate two appeals based on the Appellate Body's view that a substantial 
overlap in two appeals was "likely".  This raised the question on what basis the Appellate Body would 
determine that a substantial overlap was "likely", pe rhaps even at a time when no appeal had yet been 
filed.  Concerning issuing single or separate reports, the proposal also raised a number of questions.  
The United States was troubled by the possibility raised  by the proposal that the Appellate Body could 
issue a single report covering appeals of separate pane l reports when at least one party to the dispute 
said that it should not, and perhaps even where a party believed that its rights could or would be impaired by a single report.   
147. With respect to the written comments that Members would provide, the United States 
intended to submit written comments and would welcom e circulation of those comments.  Circulation 
of written comments was appropriate for a number of r easons.  First, the oral statements made at the 
present meeting would be contained in the DSB mi nutes, and the United States believed the written 
comments should be treated similarly.  Second, the 2002 DSB Decision stated that the Chairperson of 
the DSB would request the Appellate Body to ta ke the views of Members, including their written 
comments, into account.  Circulation would make clear to Members and the Appellate Body what 
were the views to be taken into account.  Third,  circulation would assist Members in retrieving and 
viewing these written comments in the future.  The United States, once again, thanked the Chairman 
for the opportunity to make its statement and for th e opportunity to provide written comments.  At the 
present meeting, delegations had made a numb er of very interesting comments which the 
United States would reflect on further. 
148. The representative of Chinese Taipei
 said that her country appreciated the efforts made by the 
Appellate Body and its Secretariat towards putting forward the proposed amendments to the Working 
Procedures for Appellate Review.  Noting the si gnificant impacts that these proposed amendments 
might have on appellate proceedings and the WTO dispute settlement mechanism, Chinese Taipei 
wished to provide some observations on the proposed amendments.  With respect to the first proposal, 
Chinese Taipei noted that, compared with the curre nt 18-day period, appellees would have three days 
less to work on their submissions since such submis sions would be due only 15 days after the filing of 
the Notice of Appeal and the appellant's submis sion.  Chinese Taipei thought that this would 
constitute a drastic change that would put the appellees, especially developing-country Members, at a 
great disadvantage in the litigation process.  Chinese Taipei, therefore, believed that it would be more 
reasonable to maintain the current rule of the fili ng of the appellees' submissions within 18 days.    
149. With regard to the proposed amendment on the filing of third participants' submissions, which 
would be due three days after the filing deadline for appellees' submissions, Chinese Taipei viewed 
this adjustment as a positive development in th e appellate review proceedings on the following 
grounds.  First, the proceedings would be carried ou t pursuant to rules that were parallel to those at 
the panel stage, as provided in the DSU, where thir d parties get a chance to comment in writing after 
receiving both parties' written submissions.  It would still allow the Appellate Body and all 
participants sufficient time to consider the arguments  advanced by third participants before the oral 
hearing.  Second, this would make the entire appellate proceeding more  balanced between the 
interests of stakeholders of the dispute and the dispute settlement system, i.e. the appellant(s), 
appellee(s) and third participant(s).  Therefore, Chinese Taipei supported the idea of providing third participants with an opportunity to respond to bot h the appellants' and the appellees' submissions in 
writing before the oral hearing.  Chinese Taipei no ticed that some of the previous speakers had 
suggested that the third participants' submissions  be due five days after the filing deadline for 
appellees' submissions.  Chinese Taipei welcomed this  initiative and would have no problem with it.   
150. With regard to the second and third proposals,  Chinese Taipei noted that many Members had 
expressed their concerns and had requested further cl arifications regarding the amendments.  Chinese 
Taipei also found that it would need more careful reflection on those proposals at this stage.  In WT/DSB/M/283 
Page 36  
 
  conclusion, Chinese Taipei appreciated the Appellate Body's hard work and looked forward to more 
balanced and agreeable amendments that accommodate d not merely the efficiency of the appellate 
proceedings but also the expectations of most Memb ers in structuring a fair and predictable dispute 
settlement system that properly balanced the rights and obligations of Members. 
151. The representative of the Bolivarian Republic of Venezuela
 said that her country thanked the 
Appellate Body for the proposals to amend its Working Procedures, as set out in document 
WT/AB/WP/W/10, and for the informal meeting held by the DSB Chairman on 20 April 2010.  Venezuela considered that it was important for Members, and in particular developing-country 
Members, to learn more about any advantages of such amendments as well as whom they benefited 
and why.  Clarity in that regard was vital, as st ated by Ecuador at the informal DSB meeting on 
20 April 2010 when it had requested that an informal meeting be held with the Appellate Body 
regarding the proposed amendments.  Since at th e 20 April meeting no objection had been raised 
regarding Ecuador's proposal, Venezuela understood th at there was a consensus on the proposal.  She 
recalled that, at that meeting, another proposal put  forward by one delegation regarding the deadline 
for filing written comments by 26 May 2010 ha d also been accepted without any objection.  
Venezuela supported Ecuador's request for an inform al meeting with the Appellate Body Chairman.  
It was in the interest of Members to achieve an  outcome from which they would not only derive 
greater benefits in the appeal proceedings, but would also see improvements to the Working 
Procedures for Appellate Review and ultimately a st ronger multilateral trading system.  This could be 
achieved through an exchange of views among Member s and explanations provided by the Chairman 
of the Appellate Body, proposing new aspects to the proposals under consideration. 
152. Venezuela was concerned about the proposal to file a written appellant's submission at the 
same time as the Notice of Appeal.  The proposal ma de sense from a practical point of view, but did 
not appear feasible from a legal point of view due to  the lack of balance and equality of opportunities 
among the parties, as underlined by some delega tions.  Combining the Notice of Appeal and the 
written appellate submission in a single document implied setting up different deadlines for the other 
appellants and an imbalance in the treatment of th e parties to the proceedings, thereby worsening the 
existing asymmetry among WTO Members. 
153. With regard to the proposal to file submissions  by electronic means, she said that this set an 
official status requirement for electronic submissi ons as well.  Venezuela considered, however, that 
the proposed amendment did not necessarily constitut e an advantage for the parties from the legal 
point of view as compared to the current procedur es, given that authenticity would continue to be 
contingent upon submission of paper copies to the A ppellate Body.  In additio n, if inclusion of the 
amendment did not entail any legal consequences, it did not make sense to introduce the change as 
currently drafted.  That did not mean that Vene zuela disagreed with technological developments, but 
that in order to accommodate electronic notification of documents, language different to that set forth in the proposal had to be used for incorporating this change. 
154. With regard to consolidation of appellate proceedings, Venezuela would not, in principle, 
have any objection to substantia lly similar appeals being consolidated in a single proceeding, 
provided that it was clearly established what the "substantial overlap" involved so as to avoid 
discretionary criteria and the decision falling solely  within the Appellate Body's purview, because 
such a decision should be taken in consu ltation with the parties to the disputes.  
155. Venezuela was ready to pursue the discussion aimed at improving the Appellate Body's 
Working Procedures, bearing in mind that the deve lopment dimension must be taken into account in 
any possible improvements to the WTO procedures, as had repeatedly been stated by Ministers at 
meetings of the Ministerial Conference, which was the highest WTO body.     WT/DSB/M/283 
 Page 37 
 
 
  156. The representative of Colombia  said that with regard to the proposed amendment to file the 
appellant's written submission when the appeal w as commenced, his country appreciated the reasons 
provided by the Appellate Body to have a more e fficient time-line for appeals.  This might increase 
the prospect of enhancing the quality of the Appe llate Body reports.  Colombia believed that the 
objective must be sought by trying to maintain the ability of the parties and third participants to 
respond to the arguments made both by the appellan t/other appellant and the appellee(s).  For that 
reason, Colombia was concerned about the proposed adjustments to the deadlin es for the appellee's(s') 
submission(s) and the third participant's(s') submissi on(s).  In Colombia's view, both the appellee(s) 
and the third participant(s) should have the ch ance to give a considered response both to the 
appellant(s) and the appellee(s).  Such a response comprised two elements, written submission and the 
oral statement during the hearing.  If the writte n submission was comprehensive enough, there would 
be less need to make new points in the oral st atement, hence less chance that the Appellate Body 
would need to work after the hearing on issues  additional to those already presented in the 
submission.  Consequently, Colombia would rath er keep the current 18-day period between the 
deadline for the appellant's submission and the a ppellee's(s') submission and supported the proposed 
3-day period between the deadline for the appellee' s(s') submission and the third participant's(s') 
submission.  The additional time being requested fo r the appellee could be taken away from the other 
appellant's(s') deadline to give notice of the other appeal and present the submission.  At the end, the 
other appellant(s) would have alr eady had a period of time similar to the appellant to prepare the 
submission, and would only be waiting for the appellant's  decision to appeal in order to take its (their) 
own decision.   
157. With regard to the Notice of Appeal, Colombia noted that the Appellate Body's view was that 
it remained necessary because it triggered an appeal and served the function of demarcating the scope of appellate review in a specific dispute.  However,  Colombia noted that Articles 16.4 and 17.5 of the 
DSU made reference to the "formal notification to the DSB of the decision to appeal", which in 
essence was the very first step of an appeal, and c ould serve the transparency functions of the current 
Notice of Appeal.  Thus, an additional feature that  would increase efficiency would be to eliminate 
the Notice of Appeal and transfer its transparency fu nctions to the formal notification of the decision 
to appeal.  The function of dema rcating the scope of appellate re view would be fulfilled by the 
appellant's(s') submission(s).  In the same fashion,  the functions of the Notice of Other Appeal would 
be fulfilled by the notification of appeal provided by Rule 23(1) and by the other appellant's(s') 
submission.  In any case, whether or not there woul d be changes to the rules regarding the existence 
and content of the Notice of Appeal, Colombia was of the view that there must be full clarity and 
precision about its nature, legal effects and format.  If the Notice of Appeal and the Notice of Other 
Appeal were kept, it was Colombia's view that the scope of Rule 23 bis should be clarified or 
amended, as necessary, to keep consistency betw een the Notice of Appeal and the submission. 
158. With regard to the proposed amendment to c onsider duly filed documents and notifications 
sent by e-mail, Colombia appreciated the reasons provided by the Appellate Body to enhance the 
efficiency of the procedures by means of the use of  technological tools.  Colombia further appreciated 
that the proposal was presented as a non-mandatory alternative with enough time to process printed 
copies.  Colombia had concerns related to the absen ce of any rule that regulated cases of insufficient 
or faulty electronic transmission of the documents an d the nature, scope and format of the certification 
stating that the paper copies were identical to th e electronic copy.  Should an institutional electronic 
docket system guarantee the accuracy, timeliness,  and confidentiality of documents, Colombia 
thought that the proposed modifications could serve as an appropriate basis for a possible regulatory framework.  Meanwhile, Colombia thought that th e rules could include the current practice to 
distribute documents in electronic form, including by e-mail, as a supplement to paper copies.  The 
latter would continue to have their current value and deadlines.   WT/DSB/M/283 
Page 38  
 
  159. With regard to the proposed new rule about c onsolidation of appellate  proceedings, Colombia 
appreciated the Appellate Body's objectives to maximize the efficient use of resources available to itself, the parties and third participants and to pr omote the uniformity of Appellate Body decisions.  
Colombia was concerned about the ro le that parties would play in the implementation of the decision 
to consolidate and meeting the deadline for the appe llate proceedings provided for by Article 17.5 of 
the DSU.  Even if the parties did not affirmatively reject that the criteria and requirements to proceed 
with consolidation were fulfilled, nothing in the pr oposal guaranteed that the parties would have their 
own findings.  Should consolidation be added to th e Working Procedures, Colombia was of the view 
that the Appellate Body should issue separate reports in multiple documents upon request by a 
participant.  In any case, Colombia wished to have more clarity regarding the requirements and 
procedure to adopt the decision to consolidate.   
160. As it had indicated at the 20 April 2010 informal DSB meeting, Colombia would appreciate 
having more information from the Appellate Body regarding some aspects of the proposed 
amendments provided on a multilateral and transp arent basis.  Colombia supported Ecuador's 
proposal regarding this matter and hoped that the Ch airman would find the most practical way to 
address it.  
161. The representative of Japan
 said that his country thanked the Chairman for providing 
Members with the opportunity to formally presen t their views on the amendments to the Working 
Procedures for Appellate Review proposed by the Appellate Body.10  Japan had carefully examined 
the proposed amendments and had benefited from the useful informal exchanges of views with other 
Members.  The three proposed amendments were  mutually independent and each one was a stand-
alone proposal.  Accordingly, each proposal should be  considered on its own merit.  That being said, 
Japan understood that the objective common to the proposed amendments was to "maximize[] the 
efficient use of" time and resources for those involved in appellate reviews.11  Japan did not disagree 
with this underlying objective.  However, any amendments that purported to embody this objective must be consistent with the DSU and should not introduce a new rule that may potentially cause any 
procedural complication at the appellate review st age.  Japan's general approach in examining the 
proposed amendments was that:  (i) any new or  amended rules should be simple and easy to 
understand and operate without causing unnecessary procedural complications;  (ii) any new or amended rules should be we ll balanced, taking due account of the in terests of all participants in the 
appellate review proceeding;  and (iii) anything to be regulated under th e Working Procedures must 
be within the authority of the Appellate Body conferred under the DSU.  Bearing this general 
approach in mind, Japan wished to turn to the specific proposals.   
162. With regard to the time-line for written submissi ons, Japan attached utmost importance to the 
high quality of the Appellate Body reports, becau se such high quality reports had served and would 
continue to serve the very objective of the disput e settlement system.  Under the DSU, the time period 
allowed for appellate proceedings was limited to  90 days.  This had proved to be extremely 
challenging.  Thus, even one working day may have  a great marginal utility and could make a big 
difference.  Under those circumstances, a reallocati on of the timeline that would allow a better use of 
the limited time available for the Appellate Body may serve to maintain its high quality reports and 
should be considered positively.  Gi ven the preparatory time generally available for parties to disputes 
Japan was sympathetic to the proposal that an appe llant's submission be filed on the day that a Notice 
of Appeal was filed.  However, the time-constr aint in appellate proceedings under the DSU also 
applied to the parties to the dispute.  Thus, any change in the time-lines or an allocation of time in 
appellate proceedings must strike a proper balance amongst the interests of all participants in the 
                                                     
 
10 Proposed Amendments to the Working Procedures for Appellate Review ("proposed amendments"), 
WT/AB/WP/W/10. 
11 Proposed amendments, p. 9, second paragraph from the top;  see also proposed amendments, p. 5, 
first paragraph from the top.  WT/DSB/M/283 
 Page 39 
 
 
  proceedings.  For example, under the proposed am endment, the time-period between an appellant 
submission and an appellee submission would be re duced from present 18 days to 15 days.  Given the 
limited time available for appella te review, this could mean that the proposed amendment would 
change the allocation of the working time to the disadvantage of an appe llee who would lose three 
working days.  On balance Japan considered it to be  reasonable to maintain the current 18 day period 
between the filing of an appellant submission and an appellee submission, as other delegations had 
argued.  The Appellate Body also proposed that the date for filing of an other appellant submission be 
moved forward from day 15 to day 5.  Since, like an appellant, the other appellant/appellee also had 
several months (from the issuance of interim report, for instance) to prepare for its other appeal, the 
Appellate Body might wish to consider the possib ility of moving forward the date for filing the other 
appellant submission further (say, to day 3).  In th at way, the other appellant/appellee may be relieved 
of its burden somewhat by gaining extra days fo r the period between filing its other appellant 
submission and appellee submission, which was curren tly, and under the proposal as well, 10 days.   
163. Under the proposed amendment, third parties w ould have three extra days from the filing of 
an appellee submission for preparing their subm issions, which would presumably enable third 
participants to respond in their submission to the appellee's arguments.  Japan understood that this 
proposed change purported to afford an opportunity  for all participants and the Appellate Body to 
review and analyze all possible arguments to be presen ted in the proceeding prior to the oral hearing.  
However, Japan was not sure that, as a practical ma tter, three extra working days could make much 
difference in terms of thoroughness and the extent of coverage of the arguments in third participants' 
submissions.  This was especially so from the pe rspective of a non-WTO official language speaking 
Member.   
164. As the Appellate Body had noted, there was an emerging practice that electronic media and 
means were used for the filing of documents in the dispute settlement proceedings.  Japan had no 
quarrel with the general proposition that the disput e settlement system was to be updated to, and 
keeping in line with, the evolution of technology that may allow the system to better and efficiently 
use such means and media.  Howe ver, this must be done in full accord with the principle of 
procedural fairness and with due regard to the s ecurity and certainty of such delivery method and 
media.  Under the proposed amendments, a party had an option as to the means of delivery.  
Assuming that one party decided not to file by elect ronic means for legitimate reasons (i.e. security or 
certainty concerns) but the other party decided othe rwise, given the time needed for printing and other 
clerical works in the case of paper filing, the fo rmer must complete its substantive work on its 
submission much earlier than the latter.  This woul d create a discrepancy in terms of the practical 
deadline for the works associated with  the filings.  In "a rules-based system of adjudication, such as 
that established under the DSU"12, where a strict adherence to the principle of procedural fairness was 
required, Japan was not sure why having legitimate c oncerns about the security or certainty of filing 
methods would justify being treated differently.  Furt her, the proposed Rule 18(4) appeared to assume 
that the means of serving a document (and the deadline) could or did differ depending on the 
recipients;  i.e. between the Appellate Body and ot her parties to a dispute.  Japan was not sure how 
such a different treatment could be justified in "a rules-based system of adjudication".  Finally, Japan 
was not convinced that e-mail was a secure means of delivery in the dispute settlement proceeding 
because of the possibility of failure of mail servers of  the Secretariat or Geneva missions of parties, 
mistyping of e-mail addresses, or e-mail spoofing.  In addition, there would be discrepancies between 
the electronic version and what the party intended to submit due to the difference of the version or 
language setting of operational and/or word processing so ftware.  Japan considered that such concerns 
on the technical issues and security of delivery methods must be addressed.  
                                                      
12 Appellate Body Report, "US - Continued Suspension", para. 433. WT/DSB/M/283 
Page 40  
 
  165. With regard to consolidation, Japan did no t disagree with the Appellate Body's general 
observation that consolidation of  appellate proceedings  would "maximize[] the efficient use of 
resources available to" the participants in the pr oceedings and "foster[] consistency in decision-
making".
13  However, it was Japan's understanding that consolidation of appe llate proceedings had 
been made possible through the practical and pr agmatic cooperation and ag reement among the parties 
to the dispute.  Given the voluntary nature of arrangements and practices to consolidate appellate 
proceedings that had worked well thus far, Japan was not quite sure that consolidation or practice 
thereof could be susceptible to a formal and hard  regulation by the Appellate Body.  Although the 
Appellate Body explained that the proposed rule  was a codification of the existing practice, it 
appeared to Japan that the rule went beyond a simp le codification of the existing practices and added 
new elements or rules to the process.   
166. Japan had a number of questions conceptually, le gally, and practically, to the proposed rule 
for consolidating appellate proceedings.  For example,  the proposed text indicated that the rule was 
designed to regulate not only the act of consolidation after the Notice of Appeal was filed, it appeared 
to be designed also to regulate at the pre-appeal st age.  For instance, the proposed text contained such 
language as "When more than one pa nel report is circulated … at or around the same time", and "the 
Appellate Body may take such a decision if it consider s that a substantive overlap in the content of the 
appeals is likely".  Japan understood that the c onsolidation process contemplated under the proposal 
ordinarily involved such steps as consultations with the parties and a decision by the Appellate Body 
to consolidate, and it may also foresee a specific orde r by the Appellate Body on the parties to act in a 
particular manner in accordance with such decision.  For example, to file simultaneously their Notices 
of Appeal on a specific (or the same) date.  Under the proposal, all those procedural steps could be 
taken before the initiation of appellate proceedings .  However, Japan was not quite sure whether, 
except for certain institutional matters, the Appella te Body was authorized under the DSU to regulate 
or act on individual appeals that had yet to be initiated.  Japan recalled that Article 17.1 of the DSU provided that "The Appellate Body shall hear appe als from panel cases".  Rule 3(1) of the current 
Working Procedures further elaborated, "In accordan ce with paragraph 1 of Article 17 of the DSU, 
decisions relating to an appeal shall be taken sole ly by the division assigned to that appeal".  How 
could the division take any decisions regarding an appeal including to consolidate before the appeal 
was even initiated, let alone, be established and assi gned to a non-existing appeal?  The language in 
the proposed text "The Appellate Body may take such a decision if it considers that a substantive 
overlap in the content of the appeals is likely" also  indicated that the Appellate Body, in deciding the 
issue of consolidation, could prejudge the scope of the possible appeals at the pre-appeal stage.  The 
parties might be forced to expose their possible sc ope of appeal to other parties during the required 
consultations on the issue of consolidation with th e Appellate Body before they actually filed their 
Notices of Appeal.  Under the proposal, the Appellate  Body could decide to consolidate appeals over 
the objection(s) of the parties.  This was a clear deviation from the current practice as Japan 
understood it.  The proposed text did not set forth any rule for a remedy that could be applied to 
prejudice (or a claim of prejudice) that might be suffe red by the parties as a result of consolidation.  
The proposed rule appeared to intend to cover a wi de variety of scenarios, as explained on pages 7 to 
9 of the proposed amendments.  However, Japa n was not sure that one of the conditions for 
consolidation (i.e. "substantial overl ap") would properly capture, or c ould be applied consistently to, 
such diverging situations.   
167. Under the proposal, issuing a single report w as a norm and parties must show "good reasons" 
to depart from this norm.  However, because of the concern about a possible complication as to the 
rights and obligations of the parties at the implementation stage of a dispute in a multiple complainants' situation, the practice had been devel oped in which separate re ports were issued, should 
the parties so request.  This current practice made  perfect sense and Japan found little reason to justify 
a departure from this well-established practice.  In that respect, Japan noted that Article 9.2 of the 
                                                     
 
13 WT/AB/WP/W/10, p. 9.  WT/DSB/M/283 
 Page 41 
 
 
  DSU provided that, upon request by the parties, the panel shall submit separate reports, as other 
delegations had also mentioned.  Under the proposal on "the Time -line for Written Submissions", an 
appellant submission shall be filed on the same da te as the Notice of Appeal.  If, in a multiple 
complainants' situation, the Notices of Appeal were  filed and the appeals were initiated by different 
parties on different dates, how practical would it be to consolidate those staggered proceedings 
without prejudice to any of the parties to the di spute and within the prescribed 90-day time period?  
These were comments on and concerns that Japan  had about the proposed amendments to the 
Working Procedures for Appellate Review.  Japa n would further elaborate on these points in its 
written comments.   
168. Finally, Japan wished to touch upon the procedural  issues.  In this regard, Japan said that the 
idea of circulating written comments by Members would serve the purpose of better records and 
transparency of the DSB Chairman's communicati on to the Appellate Body in conveying the views 
expressed by Members on the proposed amendments.  Thus, Japan would support that idea.  With respect to the idea of having an interactive se ssion between Members and the Appellate Body 
members, having listened to the comprehensive an d detailed comments presen ted by delegations at 
the present meeting and at the informal DSB meetin g, it appeared that Members fully understood the 
proposals and the rationale behind them.  Thus, Japan was not sure what value would be added to hold 
such an interactive session at this stage. 
169. The representative of Hong Kong, China
 said that her delegation appreciated the Appellate 
Body's efforts to improve the Working Procedures for Appellate Review and was grateful for the 
opportunity to provide its comments.  With regard  to the time-line for written submissions, she said 
that considering that the final version of a panel report was sent to the parties to a dispute before 
circulation to all WTO Members and the parties to  a dispute had 60 days to appeal after such 
circulation, the proposed changes would not incr ease the burden on the appellant, as it already had 
ample time to analyze the final panel report and pr epare the submission prior to the filing of a Notice 
of Appeal.  Therefore, Hong Kong, China did not have a principled objection to the proposal that an 
appellant's written submission be f iled on the same day as the filing of the Notice of Appeal.  The 
Notice of Appeal remained n ecessary as a public document notifying Members of the commencement 
of an appeal and informing Members of its nature.  In addition, it was proposed to request the other 
appellant to submit its Notice of Other Appeal and submission simultaneously.  The submission 
deadline for the other appellant was proposed to be advanced to day 5.  Given that the interval 
between the appellant's submission and the filing of  the Notice of Other Appeal remained unchanged, 
Hong Kong, China also did not have a principled objection to the proposal.   
170. However, on the other hand, it was proposed to cu t short the interval between the appellant's 
and appellee's submissions by three days, from 18 to  15 days.  Third participants' submissions and 
notifications would be due on a day separate from, a nd three days after the filing date for appellee's 
submission.  Furthermore, extra days were re-allocat ed for the preparation of the oral hearing and the 
Appellate Body report.  Hong Kong,  China believed that a balanced approach should be taken in the 
allocation of time.  Hong Kong, China noted that th e appellee played a responsive role in the appeal 
process and it needed to take the appellant's submis sion into account in order to formulate its own.  
Therefore, the proposed cut may undermine the appellee's rights and as such, Hong Kong, China did not support cutting the time for the preparation of the appellee's submission.  Therefore, the appellee's submission should be filed by day 18 instead of day 15.   
171. Like Guatemala, Turkey, Australia, Switzer land, Chinese Taipei, Singapore, Norway and 
Colombia, Hong Kong, China welcomed the opportunity  to afford third participants the chance to 
respond to the arguments made by the appellee in its written submissions, bearing in mind that the 
time accorded to third participants to respond in th e oral hearing was very limited.  While waiting for 
the third participants' submissions, the Appellate Bo dy could already start to consider the appellant 
and appellee's submissions.  After receiving third par ticipants' written submission, the Appellate Body WT/DSB/M/283 
Page 42  
 
  would have an overview of all the issues and thus be able to focus on its questioning at the oral 
hearing.  This would facilitate a more efficient u se of time in the oral hearing.  Thus, Hong Kong, 
China supported the Appellate Body's suggestion of  allocating three days for third participants' 
submissions following that of the appellee.  The pr oposed changes of the timetable for general appeals 
would automatically have an impact on the timetable for prohibited subsidies appeals under 
Article 4.12 of the SCM Agreement.  Hence, H ong Kong, China's comments also applied to the 
proposed consequential adjustments to the tim etable for prohibited subsidies appeals.  
172. With regard to electronic filing and service of  documents, Hong Kong, China appreciated the 
initiative of the Appellate Body to authorize electr onic filing.  The proposal intended to clarify the 
status of the electronic copy and paper copy.  However, Hong Kong, China would appreciate further 
clarification on how the date of submission would be  counted if the hard copy was not received by 
11 a.m. of the following day.   
173. With regard to the consolidation of appe llate proceedings, Hong Kong, China supported 
consolidation of appellate proceedings before a singl e division, unless the parties to a dispute agreed 
otherwise.  It would be helpful if clear definiti ons could be provided for the terms "around the same 
time" and "substantial overlap".   
174. The representative of Canada
 said that his country appreciated the Appellate Body consulting 
with Members on its proposed amendments to th e Working Procedures for Appellate Review.  
Canada was pleased to submit its comments on the proposed amendments circulated in 
WT/AB/WP/W/10 on 12 January 2010.  The Appellate Body had proposed to alter certain aspects of 
the timetable for appeals.  With regard to the ti metable proposal, Canada rec ognized that the timetable 
of an appeal was extremely tight for all involved , including the Appellate Body.  However, Canada 
could not support altering the timetable as had been proposed.  Such a reduction in time risked diminishing the quality of the submissions, which would ultimately make the Appellate Body's job more difficult.  In particular, it would be prejudicial to the appellee to reduce the time allotted to prepare its submission.  The appellee already ha d the shortest amount of time, and, under the 
proposal, it would lose three days of preparation time following the appellant's submission.  This 
reduction of time was not justifiable, even if it re sulted in staggering the third party submissions from 
the appellee's submission.  Moreover, in a dispute involving two parties, the proposal would allot the 
same party, the appellee, a mere five days to pro duce an other appellant submission.  In other words, 
it would lose seven days to file the Notice of Other Appeal and would lose ten days to file the other 
appellant submission.  Admittedly, some of this part y's preparatory work could take place prior to the 
launch of the appeal, but important decisions would necessarily await receipt of the Notice of Appeal.  
Five days simply did not allow for the necessary cons ultations to take place.  In sum, Canada did not 
support altering the current timetable through an am endment of the Working Procedures.  However, 
Canada was willing to consider adding to the time provided to the Appellate Body through a 
negotiated amendment to the DSU.    
175. With regard to electronic filing, Canada appreci ated the Appellate Body's desire to promote 
and encourage electronic filing.  Canada recalled that the proposal authorized, but did not oblige 
Members to e-file.  If a party opted for e-filing, it mu st file and certify the requisite paper copies too, 
by the next day.  The proposal made clear that wh ere there was an electronically filed submission, it 
was that version and not the paper copy that would be  treated as the authentic version.  The exchange 
of electronic documents was useful and should be encouraged.  Yet the proposal risked discouraging 
Members from filing electronically by requiring the e-version to be treated as the authentic version.  
The proposal, if implemented, may cause Members who had a preference for authentic paper versions or technical concerns about filing electronically to  avoid e-filing altogether .  This would stunt a 
growing trend and result in fewer documents being exchanged electroni cally.  Therefore, Canada did 
not support this proposal as written.  In Canada's view, a better approach woul d be to require parties 
to file both electronic and paper copies at the sa me time, but to allow a party to declare upon filing  WT/DSB/M/283 
 Page 43 
 
 
  which version was authentic.  Doing so would re- assure those Members who remained uncomfortable 
with e-filing that their paper version could be the authentic one.  It also would avoid disagreements 
about whether a submission was filed on time, and it would ensure that the practice of e-filing 
continued to grow and evolve.  If e-filing were made mandatory, but  with adequate flexibility, all 
parties would necessarily influence the evolution of the practice.    
176. With regard to consolidation, Canada agreed with the Appellate Body that consolidation of 
appellate proceedings could maximize the efficien t use of resources and foster consistency in 
decision-making.  To date, the Appellate B ody had consolidated appeals on an ad hoc  basis with the 
agreement of the parties, and Canada supported the c odification of this practice.  However, insofar as 
the proposed rule did not embody a codification of cu rrent practice, Canada c ould not support it.  The 
proposal departed from current practice in at least th ree respects.  First, the proposal stipulated that 
consolidation could occur "when a report is circulated and /or appealed".  Therefore, it would allow 
the Appellate Body to consolidate appeals before th ey were launched.  Given that the mandate of the 
Appellate Body was to address the issues raised by th e appeal, it must lack the authority to take action 
prior to the launch of an appeal.  Second, the prop osal departed from practice by implying that the 
Appellate Body may consolidate "when it considers that  a substantial overlap is likely".  In Canada's 
view, it would be improper for the Appellate Body to decide on its own whether two appeals should 
be consolidated, particularly before their scope became clear.  Currently, where consolidation was a 
possibility, parties discussed the potential scope of the appeal with the Appellate Body.  For 
consolidation to work, the Appellate Body needed th e cooperation of the parties.  It might be more 
advisable simply to reflect this fact in the propo sal, by specifying that the agreement of the parties 
was necessary.  Third, the proposal created uncer tainty around the question of whether the parties 
would be able to obtain separate reports in a conso lidated case.  The proposal stipulated that a single 
report was the norm and that a party would have to demonstrate good reasons why separate reports 
were necessary.  Currently, under consolidated pane l proceedings, parties had the right to separate 
reports.  It seemed incongruous that this right s hould be lost upon appeal.  In some cases, a Member 
would benefit from the clarity that separate reports  could provide in leaving no doubt as to which 
recommendations and rulings applied to it.  To c onclude, Canada could s upport the codification of 
current practice regarding consolidation, but not the proposal as written.  Canada appreciated the 
efforts made by the Appellate Body to exam ine and improve their Working Procedures and 
appreciated even more the consultation exercise and tr usted that its views would be fully considered.  
177. The representative of New Zealand  said that her country welcomed the opportunity to 
comment on the Appellate Body's proposed amendm ents to its Working Procedures.  New Zealand 
joined other Members in expressing its support and a ppreciation for the work of the Appellate Body.  
New Zealand was sympathetic to the Appellate Body's wish to make more efficient use of time during 
the 90-day appeal period and supported changes that would give the Appellate Body more time to 
engage in its careful and thorough analysis.  Howe ver, New Zealand wished to ensure that, at the 
same time this goal was balanced with the needs of  all the parties involved in the appeals process.  
With regard to the time-line for the Notice of A ppeal and written submissions, and the removal of 7-
day period between the Notice of Appeal and the appellant submission, New Zealand shared other 
Members' support for requiring the appellant to file its submission on the same day as the Notice of Appeal.  By the time the appellant filed its Notice of Appeal, it would already have had sufficient time to prepare for the appeal and to draft its submissi on.  The appellee, however, had much to gain from 
seeing the appellant's full submission as soon as possible in order to give it adequate time to prepare 
its own submissions in response.  New Zealand not ed that several Members had questioned the utility 
of retaining the Notice of Appeal, if it was submitted at the same time as the appellant's submission.  
New Zealand considered that there was benefit to be had for the parties, and the public, in filing a 
Notice of Appeal.  The Notice served important func tions, in terms of transparency and delineating 
the scope of the appeal.  New Zealand shared the concerns of Members over the proposal to bring 
forward the appellee's submission date.  Currently the appellee had 25 days from the date of the 
Notice of Appeal (and 18 days from receipt of the appellant's submission) in which to file its WT/DSB/M/283 
Page 44  
 
  submission.  The Appellate Body's proposal woul d see the Notice of Appeal and the appellant's 
submission due on the same day, with the appellee's s ubmission due 15 days later.  This reduction in 
time for the appellee risked upsetting the balance of rights between the principal parties, particularly 
in the case of resource-constrained appellees.  No t only would the appellee lose time in which to 
prepare its submission after having seen the appellant's submissions, but it would also lose the seven 
days otherwise available to organize resources and to  prepare based on the in formation provided in 
the Notice of Appeal.  As noted above, the extra seve n days gained by requiring the Notice of Appeal 
and appellant's submission to be filed on the same day should be allocated to the appellee.  
New Zealand considered that 25 days from the No tice of Appeal to tabling of the appellee's 
submission would represent an appropriate balance of  rights between the principal parties.  In 
principle New Zealand supported third parties having an opportunity to review the appellees' 
submission before submitting their own.  However, th e extra three days proposed for third parties to 
prepare their submissions should not come at the expense of the preparation time for the principal 
parties. 
178. With regard to electronic filing, New Zeala nd noted that the Appellate Body's proposal 
contemplated that filing would not be complete until both electronic and paper copies were received 
by the Appellate Body.  New Zealand was sympathe tic to concerns expressed informally by other 
Members regarding the potential for corruption of el ectronic documents and would, therefore, prefer 
that paper copies continued to be regarded as the of ficially filed documents.  The obligation also to 
supply electronic copies to the parties to the dispute and to the Secretariat should be formalized, but not be a requirement of successful filing.   
179. With regard to consolidation, New Zealand was sympathetic to the idea of formalizing current 
practice concerning consolida tion of proceedings in appeals, partic ularly to the extent that it would 
make it easier for third parties with limited resources to participate.  However, real and meaningful 
consultation with the parties before determining wh ether or not to consolidate would be vital.  
New Zealand agreed with other Members that in rea lity consolidation would on ly work if the parties 
to the dispute agreed to it.   
180. New Zealand thanked the Secretariat and th e Appellate Body for providing it with the 
opportunity to make formal comments and to submit written comments by 26 May 2010.  New Zealand requested that any written comments that it might submit be circulated to DSB Members, and to the Appellate Body. 
181. The representative of Mexico
 said that his country thanked the DSB Chairman for the 
opportunity to comment on the proposed amendmen ts to the Working Procedures for Appellate 
Review.  Pursuant to Article 17.9 of the DSU, the Appellate Body was authorized to draw up its working procedures in consultation with the Chairm an of the DSB and the Director-General.  Even 
though Members had had an indirect role in estab lishing the Appellate Body's Working Procedures, 
any amendment in that regard had an immediate im pact on their dispute-related work.  Therefore, 
Mexico believed that it was important to participate in this exercise and to exchange views in the DSB 
on the proposed amendments to the Appellate Bo dy's Working Procedures.  Mexico supported 
Ecuador's request that the DSB Chairman convey a request to the Appellate Body Chairman for an 
informal meeting with the members of the Appellate Body or the Appellate Body Secretariat in order 
to have an interactive dialogue with them on the proposals to amend the Working Procedures for 
Appellate Review. 
182. With regard to the first proposal regarding si multaneous filing of the Notice of Appeal and the 
appellant's written submissions, and in particular new time-lines, Mexico was pleased to note that all 
the time-lines, except one, at different stages of an appeal, remained the same in terms of the number 
of days or the number of days was increased under the proposal.  This was a very positive development.  The only instance in which the numbe r of days was reduced was the deadline for the  WT/DSB/M/283 
 Page 45 
 
 
  appellee's submission.  This was negative because the appellee needed sufficient time to prepare its 
submission.  In this regard, Mexico proposed to  extend the time-period for appellees' submissions in 
the proposal to 18 days instead of 15.  This w ould give appellees three more days to present their 
written submissions.  Mexico noted that this would leave no time for third participants to include 
appellees' submissions in their written submissions.  However, it seemed more important to give 
sufficient time to appellees, even if this would shor ten the deadline for third parties by three days.  In 
any event, three days was very little time for in corporating appellees' arguments efficiently into 
third-party written submissions.   
183. With this proposal, the Notice of Appeal woul d lose much of its legal utility.  Although it 
would continue to serve as a document for transparen cy purposes, its legal utility would appear to be 
considerably diminished.  Mexico noted that Ar ticle 16.4 of the DSU provided that a panel report 
shall be adopted "unless a party to the dispute forma lly notifies the DSB of its decision to appeal".  
Article 16.4 of the DSU, in principle, gave the A ppellate Body the opportunity to amend, abolish or 
regulate the Notice of Appeal in some other way un der its Working Procedures.  In other words, the 
DSU did not require a Notice of Appeal for the part y commencing the appeal to notify the DSB of its 
wish to appeal.  Therefore, the status of a Notice of Appeal to be delivered simultaneously with the 
appellant's or other appellant's submission should be clarified. 
184. With regard to the authorization to file docume nts by electronic means, Mexico noted that the 
use of electronic means to file appellate submissi ons could render the process far more efficient.  
However, the efficiency of electronic filing would be  contingent on the number of copies required to 
be filed by a party using electronic facilities.  It was not specified in Rule 18(1) bis, how many paper 
copies a party using the electronic option would be required to file.  If it was the same number of 
paper copies as that required under the traditional fili ng system, the benefits of this amendment would 
be practically nil. 
185. With regard to consolidation of appellate proceedings, Mexi co said that the criteria for 
consolidation appeared to give the Appellate Bo dy discretion in terms of whether or not to 
consolidate, which was not necessarily a bad thing.   However, according to Mexico's understanding, 
the Appellate Body did not have jurisdiction over pa nel reports at the stage of circulation.  The 
Appellate Body's jurisdiction began only once the a ppeal commenced.  This should be reflected in 
Rule 16(1) bis.  One fundamental issue regarding consolida tion of proceedings was the format of an 
Appellate Body report.  The Appellate Body's propo sal did not specify what the format would be in 
the event that reports were issued as a single documen t.  In some cases one would have more than one 
complainant or more than one respondent would be i nvolved in a series of bilate ral legal relationships.  
Therefore, each of those legal relationships needed  to be clearly specified in the conclusions and 
recommendations of the Appellate Body report.  It would be very useful if such a format were 
provided for in the Appellate Body's Working Pro cedures.  That would avoid many implementation- 
related problems. 
186. The representative of Malaysia  said that his country thanked the Appellate Body for coming 
up with proposals on improvements to the Working Pr ocedures for Appellate Review.  Turning to the 
proposals on timetables, Malaysia was supportive of the proposal for the Notice of Appeal and the written submission to be filed on the same day.  Ho wever, it wished to express its concern that the 
time-period for the appellees to respond to the wr itten submission was cut short by three days.  
187. Second, with regard to electronic filing, Malays ia sought clarification as to the intention of 
the proposals.  If the intention was to simply allow Members to submit soft copies of documents to the 
Appellate Body, Malaysia wondered whether this could continue to be done without amendments to 
the Working Procedures.  If, however, the intentio n of the proposal was to establish an electronic 
filing system, Malaysia sought clarification on the va lue that would be added by this proposal, since 
hard copies of documents would ha ve to be filed anyway.  In fact, it seemed that Members choosing WT/DSB/M/283 
Page 46  
 
  to make electronic filings would have an additiona l burden, in that they were required to submit 
electronic copies on top of written copies.  Furthermore, if the intention was to establish an electronic filing system, more issues would need to be clarifie d in the text.  Taking into consideration the use of 
electronic communication in commercial transactions, issues such as time of sending, time of receipt, 
acknowledgment of receipt, effect of absence of  acknowledgement and whether what was received 
was the same as what was sent would have  to be provided for in the text.   
188. Third, on the proposal regarding consolidation,  Malaysia sought clarification on the phrase 
"on its own initiative", which implied that the Appell ate Body may decide to consolidate the disputes 
without the consent of the parties.  Furthermor e, Malaysia was concerned with the practical 
application of vague and subjective criteria such as "substantial overlap", and "good reason" which 
were contained in the proposal. 
189. The representative of Argentina
 said that his country thanked the DSB Chairman for the 
opportunity to make comments on the proposed amendments and the Appellate Body for its proposals.  Argentina agreed with the Appellate Body that the Working Procedures "have operated 
smoothly and effectively"
14, but it was also of the view that, as a matter of principle, there was always 
room for improvement no matter how effectively the Working Procedures operated.  In that spirit, 
Argentina had assessed, and continued to assess, the amendments proposed by the Appellate Body 
contained in document WT/AB/WP/W/10.  On the b asis of its analysis, Argentina wished to offer 
comments, which were very much the same as its comments made at the 20 April 2010 informal DSB 
meeting. 
190. With regard to the time-line for written submi ssions, and in particular the merger of the 
deadline for the Notice of Appeal and the appellant 's submission, Argentina saw the advantage of 
making use of a "waiting period" between the Notice of Appeal and the appellant's submission, on the 
understanding that the time would be used more effi ciently by the Appellate Body.  Argentina did not 
yet have a final position as to whether, following the merger, the Notice of Appeal should maintain 
the same legal effect as it currently had.  Argen tina understood the rationale behind the arguments put 
forward by delegations that had spoken in favour of  this proposal.  However, the same could not be 
said with regard to the other proposed changes, wh ich would restrict the capacity of delegations, in 
particular developing countries, to meet thei r requirements as appellees and other appellants.  
Argentina was concerned that those deadlines, whic h were already difficult to meet, could be even 
tighter, but there was no obvious reason or justification for making them so.  The Appellate Body's effectiveness depended ultimately on Members' ability to make effective use of the system and this 
would be compromised if deadlines were shortened,  as proposed.  Argentina proposed that the "net" 
working periods available both to the appellee and to any other appellant be no shorter than the 
current ones, namely, 18 and 8 days respectively as from the filing of the appellant's submission. 
191. With regard to the electronic filing and service of documents, in general, Argentina was in 
favour of any changes that would ma ke handling of documents easier and better.  However, Argentina 
was concerned that this proposal, which was based on current practice, suggested no real 
improvement, but implied that the parties involved in an appeal would have more responsibilities.  
The proposal allowed submissions to be filed by e- mail, but did not dispense with the requirement to 
submit paper copies.  The difference with current practice was the requirement to provide supporting 
certification that electronic copies and paper copies were identical.  Apart from adding to the workload of delegations, such certification raised  more question and risks rather than providing 
solutions.  By making the electronic copy the authen tic one in the event of discrepancy between the 
two versions, the proposal did not ta ke into account the fact that disputes might arise due to the use by 
delegations of different systems, programmes and versions.  This could give rise to differences 
between the versions sent and received.  Accord ingly, and unless a provision was introduced for a 
                                                     
 
14 WT/AB/WP/W/10, second paragraph of the introduction.  WT/DSB/M/283 
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  system affording equal access/use to all delega tions, which would resolve the matter adequately, 
Argentina would support the possibility, as envisaged  in the proposal, of submitting electronic and 
paper versions, but maintaining the paper copy as the original version in the event of any discrepancy, 
without the proposed requirements for certification. 
192. With regard to the consolidation of appellate proceedings, Argentina wished to reiterate its 
views expressed at the 20 April informal DSB meeting, which were similar to the views expressed by 
other delegations at the informal meeting and at th e present meeting.  He said that the language, form 
and circumstances of the proposal for new Rule 16(1) bis introduced amendments that had gone 
beyond mere procedural changes.  The proposal woul d alter the balance between Members' rights and 
obligations by subjecting a Member's wish, if it oppo sed the consolidation of proceedings or reports, 
to considerations which would be only procedural.  The Appellate Body was not better placed than the 
parties to evaluate considerations, which were not  purely legal but which Members brought to any 
decision to resort to the dispute settlement mechan ism.  Furthermore, even if supremacy of the 
Appellate Body's opinion were to be accepted over the wish of one or more parties to the proceedings, 
there was no clarity as to what criteria the Appellate  Body would apply, since the grounds on which 
the Appellate Body would decide whether or not pr oceedings should be consolidated appeared to be 
vague concepts.  For example, more than one pane l report was to be "circulated and/or appealed", 
although this did not appear to be a necessary or ex clusionary requirement;  such circulation and/or 
appeal took place "around the same time", with no men tion of why the mere coincidence in time of a 
report to be circulated with one already appealed  could and should be sufficient reason to decide 
a priori  on their consolidation, even in the event of  "substantial overlap" between them, a concept 
with no inherent indication of how exactly it would apply. 
193. With regard to the process, he said that Ar gentina had no partic ular position regarding 
Ecuador's request, but as a matter of principle it supported any initiative that would contribute to 
enhancing understanding on the part of delegations and facilitate an exchange of views and comments 
on the proposed amendments.  
194. The representative of the European Union  said that her delegation appreciated that the 
Appellate Body kept its Working Pr ocedures constantly under review in the light of past experience 
and with a view to cope with new developments.  With regard to the timing of appellate review 
procedures, the EU fully appreciated that the strict-time limit of 90 days put a severe strain on the Appellate Body and was supportive of the Appellate Body's efforts to tr y to make the best use of those 
days for the benefit of all stakeholders concerned.   That said, the timing of the appellate procedure 
must be respectful of the interests of all stakeholde rs in an appeal.  The EU  agreed that the present 
seven days between the Notice of Appeal and a ppellant submission may be  put to better use.  
However, the EU had some hesitations in comple tely collapsing the due date for both events and 
would prefer to maintain a short delay between th e Notice of Appeal and the appellant's submission, 
for example of two days.  This would allow the preservation of some flexibility to the process both 
inside the parties (the lawyers of the appellant ha d a couple more days;  the lawyers of the appellee 
get a warning of what was coming), as well as in Ge neva (i.e. to withdraw and re-file a Notice of 
Appeal, as had happened in a few cases in the past ).  However, it seemed from comments made at the 
present meeting that other Members saw no problem in collapsing the two deadlines, and the EU could work under that scenario.  If the date of the Notice of Appeal and Appellant's submissions were 
to be merged, the EU believed that the rules s hould still foresee the use of a Notice of Appeal, to 
ensure transparency vis-à-vis the Membership.  Its "jurisdictional" status, however, may become less 
evident, since considerations of due process woul d seem less relevant once a comprehensive appellant 
submission was submitted at the same time as the Notice of Appeal.  Ultimately, however, it would be for the Appellate Body to decide what value to gi ve to the Notice of Appeal.  The major concern of 
the EU as far as the proposed modifications to the ti metable were concerned related to the timing of 
the appellee submission.  The appellee had concrete notice as to what it was up to upon receipt of the 
appellant submission, and under present rules it already had less time than the appellant.  The WT/DSB/M/283 
Page 48  
 
  proposed rules further reduced the time available to  the appellee;  presently the appellee disposed of 
17 days from the receipt of the appellant submissi on, with an additional advance warning of seven 
days from the Notice of Appeal.  Under the proposed modifications this would be reduced to 15 days 
and without any advance warning.  The EU would be concerned about this deterioration of the 
appellee's position.  The EU would therefore suggest  fixing the due date for the appellee submission 
on day 20 (under the assumption that the appellant subm ission would be due on day 2).  In the same 
vein, the EU would suggest fixing the due date for the Notice of Other Appeal and the other appellant 
submission respectively on days 7 and 9.  Finally, the EU supported the Appellate Body's proposal to 
give third participants the benefit of having all submissions of the ma in parties before the due date of 
their submissions.  To this end, the EU believed that  an appropriate time would be day 22 (instead of 
day 18).  
195. With regard to the procedures for filing and service of submissions, the EU welcomed the 
Appellate Body's initiative to take technological de velopments in the field of document processing 
into account and move in the direction of electroni c filing and service of submissions.  The EU noted 
that the electronic alternative proposed by the Appellate Body was in reality a mixed electronic-paper 
procedure, but making the electronic version the dominant element (it reversed in a sense the present 
situation where the paper format was the dominant element).  Incidentally, the EU noted that the 
proposal formalized the exact time of electronic subm issions.  To the extent it did so, it should also 
formalize the exact time for the other option, name ly filing of a paper-only version.  While the EU 
considered this to be a step in the right direction,  it wondered if it were not preferable to go all the 
way to electronic-only filing and service of submissi on, if a party/participant so wished, courtesy 
paper copies could always be provided on request.  This would do away with all potential conflicts 
flowing from the co-existence of documents in sever al formats and different time lines for filing and 
service.  It went without saying that an electronic-only or electronic-dominant alternative would require secured and highly reliable electronic co mmunications systems for WTO Members and the 
Appellate Body Secretariat, for example, so as to guarantee that a submission had indeed been filed, 
and had been filed on time.  It was the EU's unders tanding that more general discussions on this topic 
were presently under way in the WTO.  In this situat ion it might be preferable to let things be as they 
stand for the time being and reconsider an elect ronic-dominant or electronic-only option once the 
necessary infrastructure was in place. 
196. With regard to the consolida tion of appellate proceedings, the EU was aware that while 
Article 9 of the DSU contained a specific rule for mu ltiple complainants at panel stage, no such rule 
existed for appellate review.  The EU was in princi ple sympathetic to the consolidation of appellate 
proceedings whenever possible and had indeed taken part in several consolidated proceedings.  That 
said, any consolidation of appellate proceedings was essentially in the hands of the parties, who could 
freely decide on the timing of their appeals (within the 60 days period, pursuant to Article 16.4 of the 
DSU), given that for each appellate procedure the A ppellate Body had to respect the 90 day deadline.  
That meant in practical terms that a consolida tion would effectively become impossible in cases 
where the different Notices of Appeal would be more than a few days apart.  Thus each party could to 
a large extent allow or disallow consolidation of appe llate proceedings.  In that situation, in the EU's 
view, it may not be effective or practicable to give  to the Appellate Body di scretion for consolidation 
(in extremis against the will of one or even all the parties).  Furthermore the EU did not fully understand why the Appellate Body limited the consolidation possibility to situations where more 
than one panel report was appealed, because the issue of consolidation also existed in situations where 
several co-complaints appealed an Article 9.1 of  the DSU panel report at different points in time 
during the 60-day period pursuant to Article 16. 4 of the DSU, thus allowing or prohibiting a 
consolidation of appeals.  Finally the EU wondered about the use of the term "likely" in the second 
sentence of the proposed Rule 16(1) bis of the Working Procedures.  Wh en the Appellate Body took a 
decision about "a substantial overlap in the conten t of the appeals" it would presumably do so on the 
basis of the Notices of Appeal and possibly th e appellant submissions which should allow the 
Appellate Body to form a definitive view on the "substantial overlap".    WT/DSB/M/283 
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  197. On procedure, first, on Ecuador's proposal , the EU did not see the need for further 
consultations and in fact agreed with China that  the procedures provided for in the 2002 Decision 
were agreeable.  They properly reflected what wa s laid down in Article 17.9 of the DSU, and did not 
require any changes at this stage.  Second, with re gard to the issue of circ ulation of written comments, 
the EU would have to assess, in light of the comment s made by others at the present meeting, whether 
it would want to make written comments above and beyond what the EU had stated at the present 
meeting.  If the EU would do so, it would request th at they be made available to all Members.  
198. The representative of Ecuador  said that his country thanked those Members who had 
supported its proposal.  Ecuador wished to clarify th at its proposal, in no way, aimed to move away 
from the 2002 DSB Decision.  Some delegations ha d expressed concerns that there was not enough 
time to hold an interactive dialogue with the Appe llate Body, but Ecuador be lieved that the dialogue 
could even take place after 26 May 2010.  Ecuador saw no problem with that and, in any case, it had 
not seen a total opposition to its proposal.  Ecuador h oped that the Chairman of the DSB would take a 
correct decision on this matter, in line with Ecuador's expectation.  
199. The Chairman  proposed that the DSB take note of the statements.  Furthermore,  in 
accordance with the procedures contai ned in document WT/DSB/31, he said that the Chairman of the 
DSB would convey to the Appellate Body the views expressed by delegations at the present meeting 
and any written comments to be provided by the deadline of 26 May 2010  on the amendments under 
consideration by the Appellate Body and would request  the Appellate Body to take them into account.  
200. The DSB took note  of the statements and agreed  to the course of action proposed by the 
Chairman.   
 
_______________ 
 
   
   WT/DSB/M/283 
 Page 51 
 
 
 
 ANNEX 
  
Written comments on the proposed amendments to the
 
Working Procedures for Appellate Review (WT/AB/WP/W/10)  
submitted by the agreed deadline of 26 May 2010 by  
Australia, Chile, China, Guatemala, Japan, Korea, Mexico, New Zealand,  
Singapore, Chinese Taipei, Thailand, Turkey and the United States  
 WT/DSB/M/283 
Page 52  
 
 Written comments submitted by Australia
 
 
1. I write to convey Australia's comments in relation to the Proposed Amendments to the 
Working Procedures for Appellate Review , circulated in document WT/AB/WP/W/10 of 
12 January 2010. 
2. In principle, Australia is sympathetic to the Appellate Body's view that amendments to the 
Working Procedures are needed to address the time lines for written submissions, electronic filing and 
the consolidation of appeals, where those amendmen ts balance the needs of the Appellate Body with 
those of the parties to an appeal.  However, Aust ralia is concerned that the underlying rationale and 
objectives for certain aspects of the proposed amendm ents are unclear, with a resulting lack of clarity 
in some aspects of the drafting of each of the pr oposed amendments.  Accordingly, Australia offers 
the following specific comments on the proposed amendments. 
Time lines for written submissions  
 
3. The Appellate Body has suggested a number of  adjustments to the time lines for appellate 
proceedings.  In Australia's view, any adjustments need to maintain a bala nce between the needs of 
the Appellate Body, parties to the appeal and third participants.  
(a) Appellant and Other Appellant Submissions  
 
4. Australia supports the proposal to eliminate th e seven-day period between filing the Notice of 
Appeal and lodgement of the appellant submission,  and for a corresponding adjustment to the times 
for lodgement of a Notice of Other Appeal and Other Appellant submission.  
5. Eliminating that delay does raise the issue of the ongoing utility of the Notice of Appeal and 
Notice of Other Appeal, provided for in Rule s 20(1) and 23(1) of the Working Procedures 
respectively.  Australia considers these Notices to  be important transparency tools in the appeal 
process, given that they may provide  the only public record that info rms Members not participating in 
the dispute and the public generally of the existence, nature and scope of the appeal.  For that reason, 
we support their retention.  We could, however, support the scope of the appeal being formally 
delineated by the appellant submissions themselves, on the assumption that the contents of the Notices and the respective submissions  would be consistent.  
(b) Appellee Submissions  
 
6. Australia is sympathetic to the time pressures being faced by the Appellate Body in the 
appeals process, but we are also conscious that the current timetable already places severe pressure on 
the appellee.  We are concerned that a reduction in the time available to the appellee following receipt 
of the principal appellant submission would disturb the current equilibrium of the parties' rights, to the 
disadvantage of the appellee.  In our view, the current equilibrium between appellant and appellee 
should be retained, and to that end we suggest that appellee submissions should be filed on the 
18
th day following commencement of the appeal, rather than on the 15th day as proposed by the 
Appellate Body.  
(c) Third Participant Submissions  
 
7. We also support the proposal that additional time be allocated to third participants to prepare 
their submissions following lodgement of appellee submissions.  Such a delay would allow time for 
third participants to reflect on arguments raised in appellee submissions, and to offer a holistic view in 
their written submissions on the arguments raised in  both appellant and appellee submissions, as is the 
case in panel proceedings.  Parties to the dispute an d the Appellate Body would then have adequate  WT/DSB/M/283 
 Page 53 
 
 
 time to consider third participants' perspectives ah ead of the oral hearing.  Questioning of third 
participants at the oral hearing could, as a result,  be focused on those aspects of third participant 
submissions of most interest to the Appellate Body.  
8. However, Australia questions whether three days  is sufficient time for third participants to 
prepare submissions that comment meaningfully on arguments that may be raised in appellee 
submissions.  We think a more realistic time frame would be for third particip ants to be required to 
lodge their submissions on the 5th day following lodgement of appellee submissions.  That said, we 
would like to emphasise that any additional time a llowed for third participants to prepare their 
submissions should not be allocated at the expense of the time allocated to the parties to the dispute to 
prepare their submissions.  
(d) Prohibited Subsidies Appeals  
 
9. We note the timetable for prohibited subsidies a ppeals will largely be determined by the final 
timetable decided for general appeals.  As in th e case of general appeals, Australia supports the 
Appellate Body proposal that third participants be  allocated some additional time to prepare their 
submissions.  As with general appeals, however, we think the additional time should be such as to 
allow third participants to comment meaningfully on arguments in appellee submissions.  For that 
reason, we think third participant s ubmissions should be lodged on the 3rd day after appellee 
submissions.  
Electronic filing  
 
10. Australia supports the proposal to authorise el ectronic filing and service of documents, and 
notes that the Australian court systems have implemented effective electronic filing systems.  That said, we are conscious that some other Members have raised valid technical and procedural issues and consider these require clarification if the proposed  amendment is to be taken forward.  Australia 
wonders too at the requirement to file submis sions in hard copy as well as electronically.  
Consolidation of appeals  
 
11. Australia supports the consolidation of appeal proceedings in certain circumstances, and notes 
that consolidation has occurred in certain proceedings  in the past.  However, we are unclear as to the 
rationale for this proposed amendment, given th e relative infrequency of consolidated appeal 
proceedings and the availability of Rule  16(1) of the Working Procedures.  
12. We note too that the proposed amendments raise a number of questions, the answers to which 
are not clear on the face of the current draft.  
i. Would proceedings be consolidated only wh ere the proceedings concern the same measures 
of the same respondent?  
ii. Would proceedings be consolidated only wher e there were similar claims in respect of the 
same measures of the same respondent?  
iii. Would proceedings be consolidated where ther e were similar claims in respect of similar 
measures of different respondents?  
iv. Could a party to the dispute object to the c onsolidation of proceedings  and, if so, on what 
basis?  
v. Could the Appellate Body decide to conso lidate proceedings notwithstanding an objection by 
one or more of the parties to the disputes and, if so, on what basis?  
vi. Could the Appellate Body reject a party to the dispute's request for separate reports to be 
issued and, if so, on what basis?  WT/DSB/M/283 
Page 54  
 
 vii. At what point would consolidation of appeal proceedings have to be requested by a party to 
the dispute or decided upon by the Appellate Body  on its own initiative?  For example, would 
such a request or decision have to be made befo re an appeal is formally initiated for one, or 
both, of the relevant proceedings?  
 
13. In conclusion, Australia would like to thank the Appellate Body for making suggestions to 
amend the Working Procedures.  We think it importa nt that the Procedures are periodically reviewed 
to ensure their continued effectiveness, and we co mmend the Appellate Body for its proactive efforts 
in that regard.  
14. As a final matter, I ask that this letter be  circulated as a publicly available document. 
_______________ 
 
   WT/DSB/M/283 
 Page 55 
 
 
 Written comments submitted by Chile  
 
1. This communication is to convey Chile's comments on the proposals put forward by the 
Appellate Body (AB) to amend certain aspects of  the Working Procedures for Appellate Review. 
2. These comments have already been put forward by our delegation at the informal meeting of 
the Dispute Settlement Body (DSB) held on 20 April and at the formal meeting of the DSB on 
18 May. 
3. Without prejudice to the above, Chile requests that this communication be submitted to the 
AB together with any other communications subm itted to it in the context of these procedures. 
Timeline for Written Submissions 
 
4. Chile favourably views the proposal that the appellant's written submission be filed upon 
commencement of the appeal.  We agree with the AB 's reasoning that such a change will contribute to 
more efficient use of the time available.  On the other hand, we have a numbe r of concerns regarding 
two aspects relating to this amendment.  The first h as to do with the adjustments to timelines for the 
other steps involved in appellate proceedings.  In pa rticular, we are concerned about the shortening of 
the time-period for the appellee to file its written s ubmission.  We believe that a balance should be 
kept between the parties and accordingly request that the AB reconsider this aspect of the proposal, so 
as to give the appellee more time to file its written submission.  The second aspect of concern to us is 
that the notice of appeal would be maintained.  We  are not convinced of the need to do so if the 
deadline for filing the appellant's written submission were brought forward.  In our view, the purpose 
of the notice would, from then on, be achieved by means of the appellant's written submission 
(to demarcate the scope of appellate review). 
Electronic filing and Service of Documents 
 
5. Generally speaking, we believe that it is a ppropriate to encourage the use of electronic 
facilities in panel and AB proceedings.  We do,  however, harbour serious doubts regarding this 
specific proposal.  Why require the delivery of pape r copies where the party has decided to file the 
documents by electronic means?  What is the pur pose of requiring certification that the electronic 
copy is identical to the paper copy when the fo llowing sentence provides th at in case of discrepancy, 
only the electronic copy will be taken into account?  In short, it seems to us that although the overall 
objectives are positive, the wording of the amendments  proposed will thwart the achievement of these 
objectives. 
Consolidation of Appellate Proceedings 
 
6. Of all the proposals put forward, this is the one that gives us most cause for concern.  What it 
does is to establish seriously diminished participatio n by the parties in the ev ent of consolidation of 
proceedings.  In my delegation's view, it is essential that the parties should agree to proceed in this 
manner.  We disagree with the reasons given as underpi nning this change, there is no need to codify a 
practice, and it is preferable to continue with ad hoc decisions that take into account the specificities 
of the case and the positions of the parties in disput e.  We accordingly request that the AB reconsider 
this proposal, so as to safeguard the parties' ri ght to decide on and control the course of the 
proceedings. 
_______________ 
 
 WT/DSB/M/283 
Page 56  
 
 Written comments submitted by China
 
 
 China thanks the great effort made by the Appellate Body and its Secretariat on the improvement of Working Procedures for Appellate Review .  China considers that the practices up to 
date have proven that the Working Procedures work quite well, contributing significantly to the 
efficient settlement of disputes among Members and t hus share the view of the Appellate Body that 
the Working Procedures have operated smoothly and effectively.  We also recognize there might be 
room for further improvements and clarifications based on the DSU and growing practical experiences.   
 With regard to the proposed amendment of the Working Procedures on the table, China 
believes the following principles should be observed:    (1) Any amendment shall not nullify or impa ir the rights of defense of the Members 
under the dispute settlement proceedings.  
 
 (2) Any amendment shall consider the curr ent practices, be introduced in a progressive 
manner and not disproportionately result in additional burden on Members.  
  (3) Based on the above two principles, any amendment shall be aimed at enhancing the 
efficiency of the Working Procedures, strengthe ning of credibility of the Appellate Body and 
alleviating unnecessary burden on the Appe llate Body and its Secretariat.  
  (4) In the process of making amendment, the Appellate Body shall fully and impartially 
listen to and take into account the opinions of all Members, especially of developing country 
Members.  Any ultimate amendment shall be based on the endorsement of all Members.  
 
 With respect to the details of the proposed  amendments, China would like to make the 
following comments:  
 
1. The timeline for written submissions  
 
 China understands and is able to accommodate th e proposal to request the appellant to submit 
its written submission when an appeal is commenc ed, on the same day as the filing of a Notice of 
Appeal.  We think the Notice of Appeal has its merit, and thus are not in a position to agree with suggestions to abolish it.   
 But we have serious concerns on the proposal to  shorten the period of time allocated to the 
Appellee from 18 days to 15 days.  China considers th at, according to the current practices, 18 days is 
usually not enough for the Appellee to prepare its res ponses to all legal issues raised by the Appellant, 
and everyday is precious.  The prop osed shortened time frame will further squeeze the time period for 
the Appellee to fully assess appealed issues and have  substantial adverse impacts on the Appellee.  
We therefore request that the Appellee continue to be given at least 18 days for its submission.  
 
 With respect to the time of submission of third participants, because third parties still have the 
opportunity to make comments on the submissions of  the Appellee and other third participants during 
the oral hearing, whether or not giving third parties extra three days to prepare their submissions will not impair their substantial rights.    WT/DSB/M/283 
 Page 57 
 
 
 2. Electronic filing and service of documents  
 
 China acknowledges that electronic files are widely used nowadays as the result of the 
evolution of technology.  In making the proposed 18( 1)bis, the Appellate Body also says, in proposing 
to expressly authorize electronic filing, it does not in tend to eliminate the need to file paper copies 
with the Appellate Body Secretariat and indeed  anticipates having hard copies of submissions 
following Members' emails.  In the meanwhile, Memb ers who do not wish to file documents through 
electronic means could elect to file paper copies as contemplated in Rule 18(1).    Based on these understandings, China has the following comments:  
 
 (1) The content of electronic filing shall in clude an electronic cover letter (e.g. a scanned 
one) signed by officials of Members so that the authenticity and legality of the e-filed documents 
could be assessed.   
 (2) According to the proposed amendment, after the electronic filing has been submitted 
through emails, Members will receive a confirmation from the Secretariat.  In practice, this will 
require both the Secretariat and the submitting Member  to allocate a special person to monitor emails 
on a specific day.  Furthermore, if Members send emails out in time but have not received 
confirmations from the Secretariat by 5.00 p.m., or  if non-attributable technical problems occur and 
cause emails to be not correctly or properly receive d, it's not clear from the proposed 18(1)bis whether 
Members submitted the documents will be regarded as having done so within the required timeframe.  
  (3) According to the proposed 18(1)bis, hard copies of the electronic documents shall be delivered to the Appellate Body no later than 11 .00 a.m. the following day otherwise a document sent 
by email is not considered duly filed.  It's not very clear to China what purpose this requirement, 
namely the following submission of hard copies, is to serve if electronic document has been submitted 
in time and the Secretariat has confirmed the receipt of  it.  Indeed, it simply adds logistic burdens to 
Members electing to use email transmission and re duce the convenience and advantages of electronic 
filing compared with filing hard copies.  Furthermor e, because the proposed 18(1)bis stipulate that the 
electronic copy will prevail in case of discrepan cy, it seems unnecessary to further require a signed 
certification from Members stating identicalness.   
3. Consolidation of appellate proceedings  
 
 China understands the intention of the Appe llate Body to make good use of resources 
available.  China also understands  consolidation of appellate pro ceedings has been handled properly 
on a case by case basis in the past.  China also appr eciated previous efforts of the Appellate Body to 
keep decision-making consistent and consolidate cer tain particular disputes after full consultations 
with parties, indeed getting agreements from them.    We consider that prior practices evidence that the previous approach adopted by the Appellate 
Body, namely consulting with parties on a case by case basis and getting consensus of them, operates 
smoothly and effectively and gets the full support and cooperation from Members.  There seem to be 
no big practical problems and the Appellate Body in its proposal also did not inform Members of such 
problems which would make a change imperative.  Thus, we remain to be convinced that it's 
necessary to make changes as proposed in 16(1)bis.   
 Having said that, with respect to the detail of  the proposed 16(1)bis,  China has the following 
observations:    (1) The definition of 'substantial overlap' is not  clear from the text of 16(1)bis.  It's also 
not very clear how the Appellate Body may take a decision only on the presumption that a substantive WT/DSB/M/283 
Page 58  
 
 overlap is likely.  For instance, the text of 16 (1)bis seems not to preclude the consolidation of 
appellate proceedings in two disputes in which ne ither the complainants nor the defendants are the 
same, as long as the Appellate B ody decides there will be substan tive overlap of the content of 
reports.  China has doubts on the appropriateness of  such consolidation in such a scenario.  
 
 (2) The proposed 16(1)bis says the Appe llate Body may consolidate appellate 
proceedings "upon request by a party or on its ow n initiative" and "after consultations with the 
parties".  It seems from the text that the Appellate Body could consolidate proceedings even if parties 
to the dispute disagree.  Under such a scenario , it's difficult to understand how the appellate 
proceeding could operate efficiently and smoothly without the voluntary cooperation from parties to 
the disputes.  It seems a great challenge to full y secure that Member's rights bestowed by the DSU 
will not be impaired or prejudiced.    (3) The consolidation of appellate proceedi ngs in different disputes will necessarily lead 
to a number of procedural questions.  For inst ance, how should the Appellate Body guarantee the 
confidentiality requirements in the DSU would be  fully followed in consolidated appellate 
proceedings of different disputes to which parties and third parties are not the same?  What's the DSU legal basis for a non third party participant to obser ve the Appellate Body hearing?  The text of 
16(1)bis did not seem to provide a clear answer.  For these reasons, we kindly request the Appellate 
Body to reconsider its proposal on c onsolidation of appellate proceedings. 
 
_______________ 
 
    WT/DSB/M/283 
 Page 59 
 
 
 Written comments submitted by Guatemala  
 
 Guatemala hereby submits its written comments to the Appellate Body's proposals contained 
in document WT/AB/WP/W/10, in accordance with Article 17.9 of the Understanding on Rules and 
Procedures Governing the Settlement of Disputes (the "DSU"), Rule 32(2) of the Working Procedures 
for Appellate Review  (the "Working Procedures") and the Additional Procedures for Consultations 
between WTO Members and the Chairperson of the DS B with respect to amendments to the Working 
Procedures  contained in document WT/DSB/31 (the "Additional Procedures").  
  These written comments address the three issu es under discussion in the following order:  
 
 (i) the filing of the appellant's submission on the same day as the Notice of Appeal;    (ii) the authorization, subject to certa in conditions, to file  and serve documents 
electronically;  and  
 
 (iii) the consolidation of appellate proceedi ngs where two or more disputes share a high 
degree of commonality and are closely related in time.  
 
I. Filing of the appellant's submission on the same day as the Notice of Appeal and 
consequential changes to certain deadlines:  
  The Appellate Body proposes that an Appellant 's Submission be filed when an appeal is 
commenced (i.e., on the same day as the filing of a Notice of Appeal).  As a consequence, the 
subsequent deadlines for the filing of the Notice of  Other Appeal, the Other Appellant's Submission, 
and the Appellees' Submissions would also be adjust ed.  Thus, when comparing the periods of time 
between the current deadlines with those proposed by the Appellate Body, it is observed that there is 
an addition of three days for submissions from Thir d Participants while there is also a reduction of 
three days to file the Appellees' Submission after the filing of the Appellant's Submission.    The Appellate Body considers that the reduction of this period of time to file the Appellees' 
Submissions "would redress somewhat the imbalance resulting from the fact that – currently – an 
Appellee's Submission is due 18 days after the filing of the Appellant's Submission, whereas an Other 
Appellee's Submission is due 10 days after the fili ng of the Other Appellant's  Submission" (compared 
with 15 and 10 days, respectively, in the Appellate Body's proposal).    Furthermore, according to the Appellate Body, "the proposed change is intended to allow the 
Appellate Body and the other WTO Members participa ting in the appeal to focus on the substance of 
the specific points of law appealed as soon as possible,  thus contributing to a more efficient use of 
time during the 90-day appeal period".  Clearly, the Appellate Body's intention is to allocate more 
time for the analysis of the submissions, by eliminating the "7-day waiting period".    The Appellate Body also explained that in  making this proposal, it does not intend to 
eliminate the Notice of Appeal.  In its view, th e Notice of Appeal "remains necessary because it 
triggers an appeal and, together with a Notice of Other Appeal, serves the important function of 
demarcating the scope of appellate review in a specifi c dispute.  In addition, the Notice of Appeal in a 
given dispute is the only public document notifying WTO Members of the commencement of an appeal and informing the Members of its nature".  
 
 Guatemala supports the idea of making a more efficient use of time and resources, including the possibility of giving third participants the opportunity to revise all documents (appellants and 
appellees' submissions) before filing their respec tive submissions.  Guatemala believes that any WT/DSB/M/283 
Page 60  
 
 amendment to the Working Procedures should take in to consideration both the needs and interests of 
the Appellate Body as well as of all participants in a given dispute.    While the Appellate Body's proposal moves in th at direction, Guatemala considers that there 
are still some elements that need to be addressed.  Particularly, the legal effects of the Notice of 
Appeal and the imbalance between the deadlines pr ovided for each of the appellees in cases where 
there are cross appeals.    Concerning the first issue, Guatemala no longer sees the need to give certain legal effects to 
the Notice of Appeal:  namely, the effect of comme ncement of an appeal and the demarcation of the 
scope of appellate review.  
  Firstly, by filing the appellant's written submission on the same day as the Notice of Appeal, such notice would not necessarily "trigger" the appeal .  Put another way, the appeal could also be 
initiated by only filing the Appellant's Submission.  
 
 Secondly, the Appellant's Submission sets out detailed arguments in support of its position 
and spells out the recommendations and rulings request ed.  It is more complete and elaborated than 
the Notice of Appeal that only includes a brief statement of the nature of the appeal.  By submitting 
both documents on the same day, Guatemala does no t see the utility of "demarcating" the scope of 
appellate review through the Notice of Appeal when the Appellant's Submission explains in detail the 
scope of such appellate review.  
  Therefore, Guatemala suggests that the Appella te Body consider maintaining the Notice of 
Appeal only for transparency purposes.  In the view of  Guatemala, the function of demarcating the 
scope of the appellate review, as we ll as triggering the appeal, would be fulfilled by the Appellant's 
Submission.  Further, a way to clearly differentiate the legal effects of these documents could be the 
institution of the obligation to submit such Notice of Appeal "x" number of days after the filing of the 
appellants submission.    Regarding the second issue (i.e., the imbalan ce between the deadlines provided for each of the 
appellees in cases where there are crossed appeals), Guatemala obser ves that the Appellate Body 
proposes a reduction of three days from the deadlin e previously provided for Appellees Submissions 
after the filing of the Appellant's Submission.  Howe ver, there still remains a difference of five days 
between the deadline for the Appellee to file its  submission after the filing of the Appellant's 
Submission and the deadline for the Appellee to file its submission after the filing of the Other Appellant's Submission.  
 
 In Guatemala's view, this could be solved if  the Appellate Body addresses the issue of the 
legal effects of the Notice of Appeal and provid es for the submission of the Appellants Submission 
and the Other Appellants Submission on the sa me day as illustrated in the table below.  
 
 Guatemala's proposal 
Notification under Article 16.4 of the DSU 0 
Appellant's Submission and Othe r Appellant(s) Submission(s) 5 
Notice of Appeal and Notice of Other Appeal 7 
Appellee(s) Submission(s) 20 
Third Participant(s) Submission(s) 23 
Third Participant(s) Notification(s) 23 
Oral Hearing 30-40 
Circulation of Appellate Report 60-90 
DSB Meeting for Adoption 90-120  WT/DSB/M/283 
 Page 61 
 
 
  
 As reflected in the table, Guatemala proposes that the appeal be triggered by the notification under Article 16.4 of the DSU.  In accordance with th is provision, a panel report "shall be adopted at a 
DSB meeting* unless a party to the dispute forma lly notifies the DSB of its decision to appeal" 
(footnote omitted).  In this regard, the Appellant w ould only need to formally notify the DSB of its 
decision to appeal (and not necessarily to describe the scope and content of the appeal).  
  Five days after the presentation of formal  notification of a decision to appeal under 
Article 16.4 of the DSU, it is proposed that the Appe llant file its submission.  In cases where there are 
cross appeals, it is also proposed that the Othe r Appellant file its submission on the same day as 
provided for the filing of the Appellant's Submission.   The reason is that both the Appellant and the 
Other Appellant would have the same period of tim e to read and analyze the final panel report and 
commence their preparations for the appeal.  Conse quently, the proposed period of five days between 
the formal notification under Article 16.4 and the f iling of these submissions is only intended to give 
the Other Appellant the necessary time to finalize and f ile its submission.  This period of time is equal 
to the period of time proposed by the Appellate  Body between the filing of the Appellant's 
Submission and the filing of the Notice of Other Appeal and the Other Appellant's Submission.    Two days after the filing of the Appellant 's and Other Appellant's submissions, both 
participants would have to submit their respectiv e Notices of Appeal.  The idea of submitting such 
Notices of Appeal after the filing of the submissions is to make clear that the content of the notices no 
longer have the effect of triggeri ng the appeal or demarcating its sc ope.  The Notices of Appeal would 
simply be the public document notifying WTO Memb ers of the commencement of an appeal and 
informing them of its nature.    On day 20, it is also proposed that both Appe llees file their respective submissions.  This 
would eliminate the time difference that currently ex ists (and is maintained in the Appellate Body's 
proposal) between the deadlines for each Appellee.  Put another way, it wo uld redress the existing 
imbalances between the Appellees.    Finally, after having access to all submissions, Th ird Participants would have to file their 
submissions on day 23.  
 
 Guatemala is of the view th at the adjustments described above may contribute to improving 
the Appellate Body's proposal on this issue.   
II. Authorization, subject to certain conditions , to file and serve documents electronically:  
  As expressed by the Appellate Body, it has be en the practice of the participants to send a 
version of their documents by electronic mail to  the Appellate Body Registry on the day the 
documents are due, followed by same-day delivery of paper copies to the Appellate Body Secretariat.  
  For this reason, the Appellate Body consider s "appropriate, and practical, to explicitly allow 
electronic filing of documents in appellate proceedings ".  In addition, the Appellate Body anticipates 
that authorizing the submission of documents el ectronically "would assist participants and third 
participants in the filing process and better accord with their actual working practices".  
  In light of the above, the Appellate Body proposes a new Rule 18(1)bis in the Working 
Procedures.  In general terms, this proposed rule would give the participants the "option" to file 
documents through electronic mail.  Should the part icipants decide to submit a document through 
electronic mail, it would have to be sent by 5 p.m. on the day such document is due, with the 
obligation to deliver paper copies to the Appellate Body no later than 11 a.m. the following day.  
 WT/DSB/M/283 
Page 62  
 
  In addition, the paper copies would have to be accompanied by a signed certification stating 
that they are identical to the electronic copy.  Furt hermore, the Appellate Body proposes that in case 
of any discrepancy between the electronic copy a nd the paper copies, the A ppellate Body only would 
take into account the electronic copy.  
 In Guatemala's view, the only advantage of these proposed amendments is to give the 
participants a couple of extra hours to edit and correct their documents before submitting them 
electronically.  In effect, participants deciding to file electronically would have until 11 a.m. of the 
following day to print, staple and deliver the pa per copies to the Appellate Body Secretariat. 
 
 This could be very convenient for the particip ants, especially those that must consult with 
their respective capitals in different time zones.  Ho wever, this proposal contains some elements of 
concern to Guatemala.    One of these elements is the fact that curre nt technology does not guarantee on-time delivery 
of electronic communications.  It is a common problem that electronic mails, especially those 
including big amounts of information, reach the servers of the recipients some minutes, hours or maybe days after the moment they were actually sent.   Even though the Appe llate Body provides for a 
confirmation of receipt by its Secretariat, the proposal does not address the consequences that would have late arrival of electronic communications (i.e., after 5 p.m.).  Electronic communications register 
the date and time of receipt.  According to Rule 29 of the Working Procedures, it could be the case 
that any communication arriving after 5 p.m. might be considered as a failure to submit a document 
"within the required time-periods".  In Guatemala's view, this uncertainty could be resolved if the 
Appellate Body avoids including the expression "by 5 p.m." in its proposal.  
  Another element of concern to Guatemala is th e "signed certification" stating that the paper 
copies are identical to the electronic copy.  Ther e is no indication as to who has to issue such 
certification.  Neither is indicated the merit of such certification if, in case of any discrepancy between the electronic copy and the paper copies, only the el ectronic copy would be taken into account by the 
Appellate Body.  This, in the view of Guatemala,  would require that both the electronic version and 
the paper copies be revised, thereby creating an unnecessary burden on the Appellate Body Secretariat 
and the participants.  
 
 Therefore, Guatemala suggests that the Appe llate Body also consider the possibility of 
eliminating the requirement of certification as well.    Finally, Guatemala is of the view that the Appellate Body should allow either the submission 
of electronic files or paper copies, but not both.  
 
III. Consolidation of appellate proceedings wh ere two or more disputes share a high degree of 
commonality and are closely related in time:  
 
 According to the Appellate Body, where tw o or more disputes share a high degree of 
commonality, consolidation of appellate proceedings has proven to be a pragmatic way of conducting 
appeals, as it maximizes the efficient use of resour ces available to the parties, third parties and the 
Appellate Body.  In addition, the Appellate Body states that conso lidation of appellate proceedings 
also fosters consistency in decision-making.   
 For this reason, on certain occasions, the Appella te Body deemed it appropriate to consolidate 
appeals of separate panel reports into single a ppellate proceedings by establishing a single division 
and conducting a single oral hearing.    WT/DSB/M/283 
 Page 63 
 
 
  The Appellate Body has found a legal basis fo r these consolidated appellate proceedings in 
Rule 16(1) of the Working Procedures.  That rule  provides that the Appellate Body may "adopt an 
appropriate procedure for purposes of [a given] appeal  only, provided that it is not inconsistent with 
the DSU, the other covered agreements  and [the Working Procedures]".  
 
 Furthermore, the Appellate Body clarified that  decisions to consolidate appellate proceedings 
have been made on an ad hoc basis in consultation with the parties.  In its view, the frequent resort to 
consolidated proceedings makes it appropriate "t o codify this practice" by adding a rule on 
consolidation to the Working Procedures.   
 Guatemala supports the idea of having clear rules regarding consolidation of appellate 
proceedings.  It can enhance legal certainty and in crease predictability.  Nevertheless, Guatemala has 
doubts about the manner in which the Appellate Body interpreted current practice.  In Guatemala's 
view, current practice exists because the parties have understood the advantages of consolidation and 
have given their consent to it.  Further, to the b est of Guatemala's knowledge, there is no precedent of 
any party opposing consolidation.  Th is, probably, is due to the fact that both the Appellate Body and 
the parties have carefully analyzed all necessary el ements to guarantee that due process is respected 
for each single appellate proceedings that is consolidated.    However, looking at the proposal, it seems that the Appellate Body could take a decision to 
consolidate, even if any or all the parties are opposed to such c onsolidation.  Guatemala does not 
believe that this would be a re flection of current practice.  
  In addition, Guatemala observes that the Appellate Body is making an important effort to define the parameters for consolidation.  Neve rtheless, in so doing, the Appellate Body also 
introduces some phrases that may eventually be prob lematic and subject to different interpretations, 
such as "around the same time", "and/or" and "substantial overlap" in the first sentence;  or "good 
reasons" in the penultimate sentence, to mention some examples.    Moreover, there is no clear indication as to why the Appellate Body decided to use the expression "substantial overlap in the content of [the panel reports]" in the first sentence and 
"substantial overlap in the content of the appeals"  in the second sentence.  Without more information 
than that provided in the Appellate Body's proposal, Guatemala assumes that the second sentence 
would authorize the Appellate Body to take a deci sion to consolidate appellate proceedings, without 
consultations with the parties, if it considers that th e overlap in the content of the appeals is likely.  
  With respect to the issuance of the reports, the Appellate Body basically states that, in 
general, it will issue a single report.  If there is a request of a participant and "there are good reasons", 
the Appellate Body may issue separate reports, in a "single document" or in "multiple documents".  
  While it appears to be a nuance (although not necessarily clear) between a "single report" and 
"separate reports in a single document", Guatemala would have preferred to see reflected in the Appellate Body's proposal only two options:  either a single report (logically in a single document) or 
separate reports (in separate documents).  
  Further, for single reports, Guatemala is of th e view that the Appellate Body should include 
separate pages containing the rulings and recommenda tions coming out from each appeal.  Since all 
appeals may not necessarily refer to the same issues of law, this practice would be helpful in 
determining the specific results for each of them .  Finally, Guatemala suggests the elimination of 
"separate reports in single documents" since it w ould avoid confusion with a "single report".  
  In the light of the expressed above, I would be very grateful if you could kindly circulate 
these written comments to the Appellate Bo dy and the Membership of the WTO.   WT/DSB/M/283 
Page 64  
 
  
 In addition, let me take this opportunity to thank the Appellate Body for its proposed 
amendments and to you for your consultations, y our time and consideration of this issue. 
 
_______________ 
  WT/DSB/M/283 
 Page 65 
 
 
 Written comments submitted by Japan  
 
I. Introduction  
 
1. Japan thanks the Appellate Body for its  endeavor to review and update the Working 
Procedures for Appellate Review (the "Working Procedures ") and for seeking views of WTO 
Members on the amendments to the Working Procedures  it proposed in the document 
WT/AB/WP/W/10 (the " proposed amendments ").1  Japan would also like to express its appreciation 
to the Chairman of the Dispute Settlement Body for providing WTO Members with an opportunity to 
present their views on the proposed changes in pro cedural rules at the critical stage of dispute 
settlement process under the DSU, which may have a significant impact on the rights and interests of 
all Members.  Japan has carefully examined the proposed amendments  and has benefited from useful 
exchanges of views, both formal2 and informal3, with other Members on this matter.  Japan hereby 
presents its views and comments as follows: 
II. General Comment  
 
2. Japan believes that three proposals contained in proposed amendments  are mutually 
independent and each one is a stand-alone proposal.  Accordingly, each proposal should be considered 
on its own merit. 
3. While Japan understands that the objective common to these proposals  is to "maximize[] the 
efficient use of" time and resources for t hose who involve in appellate reviews4 and Japan subscribes 
to this underlying objective as such, any amendments  that purport to embody this objective must be 
consistent with the DSU and should not intro duce a new rule that may potentially cause any 
procedural complication at the appellate review st age.  As the Appellate Body acknowledges, "the 
Working Procedures … have operated smoothly and effectively".5 
4. In this respect, Japan wishes to recall the following statement of the Appellate Body: 
 … we emphasize that the Working Procedures mu st not be interpreted in a way that could 
undermine the effectiveness of the dispute settle ment, for they have been drawn up pursuant 
to the DSU and as a means of ensuring that the dispute settlement mechanism achieves the 
aim of securing a positive solution to a dispute.6 
 Japan believes that this description of Working Pro cedures' interpretations equally applies to their 
amendments.  Japan further notes the Appellate Body's  observation that "the protection of due process 
is an essential feature of a rules-based system of adjudication such as that established under the DSU" 
and "guarantees … that one party is not unfairly disadvantaged with respect to other parties in a 
dispute ".
7 
 
                                                      
1 Proposed Amendments to the Worki ng Procedures for Appellate Review (" proposed amendments "), 
WT/AB/WP/W/10. 
2 The proposed amendments  were placed on the agenda of, and were discussed at, the DSB meeting 
held 18 May 2010. 
3 For example, the informal DSB meeting was held on 20 April 2010 in which WTO Members 
exchanged their views on the proposed amendments . 
4 Proposed amendments , page 9, second paragraph from the top;  See also  proposed amendments, p. 5, 
first paragraph from the top. 
5 Proposed amendments , page 1. 
6 Appellate Body report, EC - Sardines , para.139. 
7 Appellate Body report, US - Hormones Suspension , para. 433. (emphasis added)  WT/DSB/M/283 
Page 66  
 
 5. Thus, Japan's general approach in examining the proposed amendments  is:  
 (a) any new or amended rules should be simple and easy to understand and operate 
without causing unnecessary procedural complications;  
 (b) any new or amended rules should be  well balanced, taking due account of the 
interests of all participants in the appellate review proceeding;  and  
 (c) anything to be regulated under the Working Procedures  must be within the authority 
of the Appellate Body conferred under the DSU.  
 6. Bearing the above general approach in mi nd, Japan now wishes to present its specific 
comments and observations pertaining to the proposed amendments  as follows. 
III. Specific Comments
 
 A. Timeline for Written Submissions 
 
7. Japan always attaches utmost importance to the high quality of the Appellate Body reports, 
because such high quality reports ha ve served and will continue to serve the very objective of the 
dispute settlement system;  to provide "security a nd predictability to the multilateral trading system"
8;  
and to achieve "a satisfactory settlement of the matter in accordance with the rights and obligations 
under [the WTO agreement]".9  Under the DSU, the time period allowed for appellate proceedings is 
limited to 90 days.10  This proves to be extremely challenging, especially because disputes brought to 
the WTO dispute settlement proceedings have beco me more and more complex than before and, 
consequently, the volume of documents  to be filed is ever increasi ng.  Thus, even one working day 
may have a greater marginal utility and can make  a big difference.  Under these circumstances, a 
reallocation of timeline that would allow a better use of the limited time available for the Appellate 
Body may serve to maintain its high quality reports  and should therefore be considered positively.  
Given the preparatory time generally available for parties to disputes11, Japan is sympathetic to the 
proposal that an appellant's submission be filed on the day that a Notice of Appeal is filed. 
8. However, at the same time, the time-constrai nt in appellate proceedings under the DSU 
applies to the parties to the dispute as well.  Thus any change in the timeline or an allocation of time 
in appellate proceedings must strike a proper bala nce amongst interests of all participants in the 
proceedings, i.e. the parties to the dispute, third parties, and the Appellate Body, duly taking into 
account procedural fairness and burdens  to be born by all participants.  
9. For example, under the proposal, the time peri od between an appellant submission and an 
appellee submission will be reduced from present 18 days to 15 days.  Given the limited time 
available for the appellate review, this could mean that the proposal would change the allocation of 
working time to the disadvantage of an appellee who will lose 3 working days.12  Japan recognizes 
that an appellee would be basically a winning side in the panel proceedings and, like an appellant, 
have several months to prepare for an appeal procee ding (after the issuance of the interim report, for 
instance) anticipating possible challenges to the pane l report by the other side, based on its extensive 
knowledge on the file of a case.  However, because cases are often very close and the findings of the 
                                                      
8 Article 3.2 of the DSU. 
9 Article 3.4 of the DSU. 
10 Japan notes that the time available for Appellate Body's substantive work during this period is even 
shorter due to the time required to translate draft reports to other WTO official languages. 
11 Proposed amendments , page 2, second paragraph from the top of the page. 
12 In addition to these 3 working days, under the proposal, an appellee would also lose 7-day period 
currently available between the Notice of Appeal and the filing of an appellant submission, which the Appellate 
Body describes as "waiting period".  See proposed amendments , page 4.  WT/DSB/M/283 
 Page 67 
 
 
 panels may be reversed or modified by the Appe llate Body, an appellee's task of defending the 
findings of the panels by an appellee can be formidab le and may in turn require extra time to work for 
preparing its appellee submission.  Thus for the sak e of fairness to both an appellee and an appellant, 
Japan considers that the current 18-day period between  the filings of an appellant submission and an 
appellee submission should be maintained at the minimum.  
10. The Appellate Body also proposes that the date for filing of the other appellant submission be 
moved forward from Day 15 to Day 5.  Since, lik e an appellant, other a ppellant/appellee also has 
several months (from the issuance of the interim report,  for instance) to prepare for its other appeal if 
it wishes to do so, the Appellate Body may wish to  consider the possibility of moving forward the 
date of filing of the other appellant submission  further (say, to Day 3).  Given that other 
appellant/appellee is likely to focus on its appellee submission after the filing of the other appellant 
submission, in this way, other appellant/appellee may be relieved of its bur den somehow by gaining 
extra days for a period between its filings of the other appellant submission and the appellee 
submission, which is currently, and under the propo sal as well, 10 days.  Japan also recognizes that 
there would be a situation where other appellant/a ppellee may need more time for consideration and 
preparation taking into account the appellant submi ssion.  A case of a conditional appeal can be an 
example.  Accordingly, a few additional days betw een the filing of the appellee submission and that 
of the other appellant submission to the proposed amendment (say, from Day 5 to Day 8) could be 
also an option as well. 
11. Under the proposal, third participants will have  extra 3 days between the receipt of an 
appellee submission and their submissions.  This extra time would presumably enable the third 
participants to respond in their submissions to the appellee's arguments.  Japan understands that this 
proposed amendment purports to afford an opportunity for all participants and the Appellate Body to 
review and analyze all possible arguments to be presen ted in the proceeding before the oral hearing.  
Japan sees certain merits in this underlying objectiv e of fostering full and in depth analysis and 
discussions in appellate proceedings.  However, Japa n is not sure that, as a practical matter, 3 extra 
working days would make much of a difference in terms of comprehensiveness and extent of 
coverage of arguments achieved in third participan ts' submissions.  This seems to be the case, in 
particular, for a non-WTO official language speaking Member like Japan.  Moreover, giving extra time for third participants to prepare for their su bmission would assume more arguments in the third 
participants' submissions, but it would also mean le ss time for the participants and the Appellate Body 
to analyze third participants' argu ments before the oral hearing.  Thus the assumption of the proposed 
change would be more arguments to be reviewed with in less time.  Japan is further concerned that this 
amendment might create any presumption that third participants are afforded ample opportunities to set forth fully what they wish to say in their submissions, thus being afforded less opportunity to intervene at the oral hearing as a consequence.  On  balance, therefore, Japan considers that it would 
be more fair, efficient and effective use of time for all participants in the pr oceedings that the third 
participants would respond, if any, to the appellee' s arguments during the oral hearing, as is the case 
for an appellant.  This concern should also be appl icable to the proposal on timeline with respect to 
prohibited subsidies appeals. 
12. For the ease of reference, Japan would provide the following possible timelines which reflect 
the arguments developed above: WT/DSB/M/283 
Page 68  
 
  
 General Appeals
 Prohibited Subsidies Appeals  
 Day Day 
Notice of Appeal 0 0 Appellant's Submission  7
  0 4   0 
Notice of Other Appeal 12  5 -> 3 or 5 or 8  6  2 
Other Appellant(s) Submission(s) 15  5 -> 3 or 5 or 8  7  2 
Appellee(s) Submission(s) 25  15 -> 18 12  7  
Third Participant(s) Submission(s) 25   18 12  9-> 7 
Third Participant(s) Notification(s) 25   18 12  9-> 7 
Oral Hearing 35 - 45  30 – 40  17 - 23  15 – 20  
Circulation of Appellate Report 60 – 90 30 – 60 
DSB Meeting for Adoption 90 – 120 50 – 80 
 
B. Electronic Filing and Service of Documents 
 
13. As the Appellate Body noted in the proposed amendments13, there is an emerging practice 
that electronic media and means are used for the filing of documents in the dispute settlement 
procedures.  Japan has no quarrel with the genera l proposition that the dispute settlement system 
should be keeping up with the evol ution of technology, and allow for the better and more efficient use 
of such means and media. 
14. However, this must be done in full accord with the principle of procedural fairness, with due 
regard to the security and certainty of such delivery method and media.  
15. Under the proposal, a party has an option as to a means of delivery that it will use.  If one 
party decides not to file by an electronic means for legitimate reasons (e.g. security or certainty 
concerns) but the other party decides otherwise, gi ven the time needed for printing and other clerical 
works requiring for paper filing, the former part y must complete its substantive work on its 
submission much earlier than the latter.  This woul d create a discrepancy in terms of the practical 
deadline for the works associated with  the filings.  In "a rules-based system of adjudication, such as 
that established under the DSU"14, where a strict adherence to the principle of procedural fairness is 
required, Japan is not convinced why having a legiti mate concerns about the security or certainty of 
filing methods would cause a party being treated di fferently or why those who have such concern 
should be placed in a disadvantaged position just for the sake of having such concern. 15  
                                                      
13 Proposed amendments , page 6. 
14 Appellate Body report, US - Hormones Suspension , para. 433. 
15 Japan would also note that under the proposed text there is no 5 p.m. deadline in the case of paper 
filing under the Working Procedures .  WT/DSB/M/283 
 Page 69 
 
 
 16. Further, proposed Rule 18(4) appears to assu me that a means of serving document and the 
deadline can or do differ depending on recipients, i.e. between the Appellate Body and other parties to 
a dispute.  For example, "where a party chooses to  submit a document through electronic mail" to the 
Appellate Body, that party can still decide to serve that document on the other parties and third parties 
by a means of delivering a paper copy (Rule 18(4)(a)).   In that case, there would be no 5 p.m. deadline 
provided for in the case of document filin g to the Appellate Body under Rule 18(1) bis and no 
requirement to send to them an electronic copy of the document that the party filed to the Appellate 
Body as an authentic version.16  In other words, under the proposal, the party has no fixed deadline as 
long as the document is served on the other party a nd third parties on the date that the document is 
due and is not required to share the authentic versi on with the other parties and third parties at all.17  
Japan finds no legitimate reason to justify such a di fferent treatment in "a rules-based system of 
adjudication". 
17. Finally, Japan is not convinced that e-mail is  a secured means of delivery in the dispute 
settlement proceeding because of th e possibility of failure of mail servers of the Secretariat or 
missions of parties in Geneva, mistyping of e-mail addresses, or e-mail spoofing.  In addition, there 
would be a risk of discrepancy between the electr onic version and what the party intends to submit 
due to the difference in the version or language  setting of operational and/or word processing 
software.  Japan considers that such concerns on th e technical issues and security of delivery methods 
should be valid and must be addressed.  
18. In light of these considerations, Japan finds little  need to depart from the existing practice for 
the time being. 
C. Consolidation of Appellate Proceedings 
 
19. Japan has no quarrel with the Appellate Body's  general observation that consolidation of 
appellate proceedings would "maximize[] th e efficient use of resources available to"18 the participants 
in the proceedings and "foster[] consistency in decision-making".19  However, as Japan understands it, 
consolidation of appellate proceedings has been operated and made possible through practical and 
pragmatic cooperation and agreement among the parties to the dispute.  Given the voluntary nature of 
such arrangement and practice with respect to co nsolidation of appellate proceedings that have 
worked so well thus far, Japan is not convinced th at consolidation or practice thereof can be adapted 
to a formal and hard regulation by the Appellate  Body.  Although the Appellate Body may explain 
that the proposed rule is a mere codification of the existing practice, the proposed rule seems to go 
beyond a simple codification of the existing practices and add new elements or rules to the process, of 
which Japan is not supportive.   
20. Furthermore, Japan has a number of concerns on the proposed rule for consolidating appellate 
proceedings from the conceptual, legal, and practical points of view.  
21. For example, the proposed text indicates that the rule is designed to regulate not only the 
actual consolidation after the notice of appeal is f iled;  it appears to be designed to regulate the pre-
appeal stage as well.  The proposed text that cont ains such languages as "[w]hen more than one panel 
report is circulated … at or around the same time", and "the Appellate Body may take such a decision 
                                                      
16 Rule 18(1) bis provides that "In case of any discrepanc y between the electronic copy and the paper 
copies, only the electronic copy will be take n into account by the Appellate Body." 
17 Even where the party elects to send to the other pa rties and third parties an electronic copy, there is 
no "5 p.m." deadline stipulated in Rule 18(1) bis with respect to those recipients.  The same is true with respect 
to "11 a.m. of the following day" deadline also provided for in Rule 18(1) bis. 
18 Proposed amendments , page 9. 
19 Proposed amendments , page 9. WT/DSB/M/283 
Page 70  
 
 if it considers that a substantial overl ap in the content of the appeals is likely " (emphasis added)  is 
quite revealing.  Japan understands that cons olidation process contemplated under the proposal 
ordinarily involves such steps as consultations with  the parties and a decision by the Appellate Body 
whether or not to consolidate.  It may also foresee,  where necessary, a specific order by the Appellate 
Body requesting the parties to act in a particular  manner in accordance with such a decision, for 
example, to simultaneously file their notices of appe al on a specific (or the same) date.  And under the 
proposal, all these procedural steps can be taken even  before initiation of appe llate proceedings.  This 
brings us to a fundamental question.  Is the Appe llate Body, except for the cer tain institutional matter, 
authorized under the DSU to regulate or act on indivi dual appeals that have yet to be initiated?  To 
recall, Article 17.1 of the DSU provides "[t]he Appe llate Body shall hear appeals from panel report".  
Rule 3(1) of the current Appellate Body Work ing Procedures elaborates, "[i]n accordance with 
paragraph 1 of the Article 17 of the DSU, decisions re lating to an appeal shall be taken solely by the 
division assigned to that appeal".  Rule 6(1) further provides that [i]n accordance with paragraph 1 of 
Article 17 of the DSU, a division consisting of thr ee Members shall be established to hear and decide 
an appeal".  Given these explicit provisions, Japan fails to see how a division can be established and 
assigned to an appeal which is not even initiated, and hear and take any decisions as to such non-
existing appeal including those on consolidation of th e proceeding that has yet to be started with the 
other (also non-existing) appellate proceeding.  
22. The language in the proposed text "[t]he Appe llate Body may take such a decision if it 
considers that a substantive overlap in the content of the appeals is likely" also indicates that the 
Appellate Body, in deciding the issue of consolida tion, may prejudge the scope of the possible appeals 
at the pre-appeal stage.  This may lead to the s ituation where the parties may be forced to expose the 
possible scope and content of their appeals to ot her parties during the requi red consultations on the 
consolidation with the Appellate B ody before they actually file their notices of appeal.  Otherwise, 
how can the Appellate Body decide as to whether or not "a substantial overlap in the content of the 
appeals is likely"? 
23. Under the proposal, the Appellate Body may decide proprio motu to consolidate appeals over 
the objection(s) of the parties.
20  This is a clear deviation from the current practice as Japan 
understands it. 
24. While the proposed text authorizes the A ppellate Body to consolidate appeals proprio motu , it 
does not set forth any rule for remedy accorded to the parties who feel their rights and interests are 
prejudiced as a result of consolidation.21 
25. The proposed rule sets forth "substantial overlap in the content of [panel] reports" and a likely 
"substantial overlap in the content of appeals" as necessary condition for consolidation.  As explained 
in pages 7 to 9 of the proposed amendments, these "subs tantial overlap" tests appear to be intended to 
cover a wide variety of scenarios.  However, Japan is yet to be convinced whether this "substantial 
overlap" language can be applied cons istently to cover such diverging situations.  Furthermore, if the 
terms "substantial overlap" cover such a wide variet y of situations, one may wonder whether the terms 
do meaningfully define and confine the situ ations that would warrant consolidation. 
                                                      
20 The proposed text provides that "the Appellate Body may … on its own initiative, and after 
consultations with the parties, decide to consolidate the appellate proceedings before a single division". 
21 Under the proposed rule, the Ap pellate Body can consolidate the several appellate proceedings (or 
"likely" proceedings), "provided that consolidation of the appellate proceedings can be done consistently with due process and with the requirements of the DSU".  It is evident that the Appellate Body frames the issue of 
consolidation in terms of "due process".  Japan notes that the words "due process" is not a treaty term existing in 
the DSU and nowhere in the DSU is this term or concept defined.  Thus Japan is not sure how the Appellate Body ensures that consolidation be done, over the objection of the parties, consistent with this 
undefined term "due process".  WT/DSB/M/283 
 Page 71 
 
 
 26. Under the proposal, issuing of a single report becomes a norm and the parties must show 
"good reasons" when they wish to depart from this norm.22  In considering the issue of a single report, 
we need to underline that findings and conclusions of the Appellate Body report would constitute a 
basis for a future implementation action by the r esponding party and for a claim of non-compliance or 
a possible enforcement action by the complainant.   And because of the concern about a possible 
complication as to the rights and oblig ations of the parties at the impl ementation stage of a dispute in 
a multiple complainants' situation, the practice ha s been developed in which separate reports are 
issued, should the parties so request.  This curre nt practice has been established based on its own 
legitimate reason and background and therefore ma kes perfect sense.  Japan finds little reason to 
justify a departure from this well established practice.  In this respect, Japan notes that Article 9.2 of 
the DSU provides that "if one of the parties to th e dispute so request, the panel shall submit separate 
reports on the disputes concerned".  Thus under the DS U, at least at the panel stage, issuing separate 
reports upon request by any party to the dispute is a norm, not an exception that must be justified with 
"good reasons".  More generally, Article 9.2 pr ovides that the single panel shall organize its 
examination and present its findings in such a manner that the rights which the parties to the dispute 
would have enjoyed had separate panels exami ned the complaints are in no way impaired " (emphasis 
added) .  Japan sees little reason to believe that "the ri ghts which the parties to the dispute would have 
enjoyed" should be treated differently depending on the different stages of a dispute. 
27. Finally, under the proposal consolidation can be  made when "more than one panel report is … 
appealed at or around the same time".  However,  under the separate proposal on "the Timeline for 
Written Submissions", an appellant submission shall be  filed on the same date as the notice of appeal.  
In a multiple complainants' situati on, if the notices of appeal are filed and the appeals are initiated by 
different parties on the different dates, how coul d it be practically possible to consolidate these 
staggered proceedings and align the two or more tim etables without prejudice to any parties to the 
dispute and within the prescribed 90 day time period?  This is surely an important point that need to 
be addressed. 
28. For all these reasons, Japan considers that cons olidation of appellate proceedings should be 
left to ad hoc, practical and voluntary arrangements to be agreed on by the parties and confirmed by 
the Appellate Body. 
IV. Conclusion  
 
29. These are comments and views on the proposed am endments.  Japan hopes that the Appellate 
Body would find these comments to be helpful fo r its further consideration of this matter. 
_______________ 
 
                                                      
22 The proposed text uses several different terms and concepts in this context without defining them:  "a 
single report"; "separate reports; "a single document" and "multiple documents".  Japan notes that under 
"Definitions" part of the current Working Procedures , the term "documents" "means the Notice of Appeal, any 
Notice of Other Appeal and the submissions and other writ ten statements presented by the Participants or third 
participants".  It appears that Appellate Body reports do not fall within this definition of the term "documents". WT/DSB/M/283 
Page 72  
 
 Written comments submitted by Korea
 
 I. INTRODUCTION 
 
1. In response to the request from the Appellate Body, Korea would like to provide its views on 
the Proposed Amendments to the Working Procedures for Appellate Review  ("Proposed Working 
Procedures Amendment ") dated 12 January 2010 in accordance with Article 17.9 of the 
Understanding on Rules and Procedure Governing the Settlement of Disputes  ("DSU").
1 
2. Korea believes that the th ree items included in the Proposed Working Procedure Amendmen t 
have provided a solid and useful platform for productive discussions among Members in order to 
further facilitate and improve the a ppellate review of the WTO dispute settlement system.  Korea thus 
appreciates the Appellate Body's and its Secretariat's efforts in preparing the Proposed Working 
Procedure Amendment .   
3. As a general matter, Korea underscores the potentially significant impact the proposed 
amendments could bring in the overall operation of the WTO appellate proceedings.  Any change to 
the Appellate Body's existing Working Proce dure merits a careful and thorough analysis. 
4. Korea recognizes the logistical burden the Appellate  Body is currently facing in the course of 
discharging its duty under the DSU within a relativel y short timeframe.  We have been keenly aware 
of the need for the Appellate Body to conclude its wo rk within the stringent dead line.  In that respect, 
proposals for enhancement of time-saving and effici ency, as encapsulated in the three amendments, 
are indeed timely and appropriate. 
5. The pursuit for time-saving and efficiency, ho wever, could sometimes lead to unintended 
abridgement of Members' legitimate right under the DSU as parties participating in Appellate Body 
proceedings.  In that spirit, Korea believes that discussions on the three proposed amendments should 
not lose sight of this potential conflict between the efficiency and Members' right, and that efforts 
should be made to strike a pr oper balance between the two.  
II. THE SIMULTANEOUS SUBMISSION OF THE NOTICE OF APPEAL AND THE 
APPELLANT’S SUBMISSION COULD NEGATIVELY AFFECT MEMBERS’ RIGHT IN THE APPELLATE PROCEEDINGS AND THUS DESERVES CAREFUL CONSIDERATION 
 
6. First , one of the three proposals in the Proposed Working Procedures Amendment  is to 
require an appellant to file its Notice of Appeal and the submission at the same time and to adjust 
subsequent proceedings accordingly.  The purpose of this suggestion is to cut down time allocated to 
the parties and put it for better use by the Appellate Body. 
 A. Discussions to Re-allocate Time Betwee n the Parties and Appellate Body Should 
Proceed with the Necessity to  Maintain the Proper Balance of the Interests of the Two 
in Mind 
 7. It is almost undisputable that the simultaneous submission of a Notice of Appeal and an 
appellant submission coupled with following curtailm ent of time for subsequent steps will expedite 
the entire appellate proceedings and thus provide th e Appellate Body with more time to contemplate 
on appealed issues.  The practical benefit such an  expedited procedure may bring notwithstanding, the 
reality also tells us that to many Members sta nding at the doorstep of initiating the appellate 
                                                     
 
1 WT/AB/WP/W/10 (Jan. 12, 2010).  WT/DSB/M/283 
 Page 73 
 
 
 proceedings the initial 7-day period after the subm ission of a Notice of Appeal offers crucial 
opportunities to prepare overall strategi es and develop legal arguments.   
8. Consequently, eliminating the 7-day period by collapsing the two separate submissions could 
impose a significant logistical burden on the appellant Member.  It is not so uncommon that a decision 
to appeal an adverse panel report is made only at the last minute.  Under these circumstances, having 
an appellant Member to lay out all its legal claims and arguments as early as the submission of the 
Notice of Appeal may carry the potential of undermining the Member's right to present its claims and arguments effectively.   
9. Under the proposed scheme, an appellee woul d face a similar logistical burden as well, 
because it would have to submit an appellee's submi ssion 15 days (rather than the current 18 days) 
after the filing of the Notice of Appeal and the appe llant's submission.  In other words, the appellee 
does not get any advance warning about the appeal until the appellant files its submission together 
with the Notice of Appeal.  The appellee then has onl y 15 days to respond.  We are concerned that the 
absence of an advance warning and the curtailment of critical three days under the proposed scheme 
would make it practically difficult for th e appellee to seek effective defense.  
10. If such a concern were indeed realistic, Memb ers would have to ponder how such expedited 
proceedings would actually serve the DSU's basic obj ective of "providing security and predictability 
to the multilateral trading system".
2  The appropriateness of time-saving for time-saving's sake should 
be questionable if the time-saving does not guarantee be tter fulfilment of the objective of the DSU.  In 
Korea's view, Members should remain mindful that time-saving and efficiency of the Appellate Body 
proceedings should not be achieved at the expense of the Members' right to present its claims and 
defenses effectively. 
11. Therefore, in addressing this particular issue, it seems critical for Members to strike a careful 
balance between the interest of the Appellate B ody to enhance overall efficiency in the appellate 
proceedings and the interest of the Members to preser ve their right as participants in the proceedings.  
The merits and demerits of eliminating the 7-day preparation period for the appellant and subsequent 
period adjustment should be put into perspective.   This issue deserves careful consideration of 
Members. 
B. The Notice of Appeal Has Its Own Dis tinct Function and Role in the Appellate 
Proceedings 
 12. Another potential consequence to be effected by this proposal is that a notice of appeal would 
then become a mere formality.  The No tice of Appeal would cease to have its own raison d’être  and 
become a cumbersome incidental document which is virtually subsumed in the appellant submission.  
Given that the notice of appeal has a designated role to play under the DSU
3, including its status as 
the only document available to the public, Member s will have to ponder over the appropriateness of 
rendering the notice of appeal virtually "meaningless", as proposed in the Proposed Working 
Procedures Amendment .  For instance, while stressing the impor tance of the Notice of Appeal in the 
context of preserving the due process principle, the Appellate Body stated in US – Countervailing 
Measures on Certain EC Products stated: 
 In sum, our previous rulings have underscored the important balance that must be maintained 
between the right of Members to exercise the ri ght of appeal meaningfully and effectively, 
                                                      
2 See Article 3.2 of the DSU. 
3 See Article 17.5 of the DSU. WT/DSB/M/283 
Page 74  
 
 and the right of appellees to receive notice thr ough the Notice of Appeal of the findings under 
appeal, so that they may exercise their right of defence effectively...
4  
 As such, we note that the current proposal do es not necessarily dovetail with the Appellate Body 
practice concerning the Notice of Appeal.   
 
13. In addition, Members have also observed from pr evious disputes that sometimes an important 
procedural issue arises regarding whether the appella nt's submission is compatible with its Notice of 
Appeal
5, as the latter provides for the outer parameter of the former.  All these practices and 
precedents collectively stand for the proposition that a Notice of Appeal has its own distinct function 
and role in the appellate proceedings. 
14. Under these circumstances, collapsing the Notice of Appeal and the appellant's submission is 
tantamount to virtually terminating the unique role  of the Notice of Appeal under the DSU and the 
appellate proceedings.  We believe that a decision to adopt that path requires more discussions and 
consensus among Members. 
III. CONSIDERING BROADER APPLICATION OF IT TECHNOLOGIES TO ASSIST 
THE APPELLATE BODY IN CONDUCTING THE APPELLATE REVIEW SEEMS APPROPRIATE PROVIDED THAT SOME TECHNOLOGICAL SAFEGUARDS ARE INTRODUCED 
 
15. Secondly , the Proposed Working Procedure Amendment  suggests that Members consider 
wider application of recent IT technologies in the Appellate Body proceedings.  As a general matter, 
Korea believes this proposal both appropriate and timel y, considering the effort of other international 
and domestic tribunals to reflect IT development in their respective proceedings.   
16. As mentioned by some Members, applica tion of the IT technologies also poses new 
challenges as well.  Confirming authenticity of the electronic submission, preserving confidentiality 
of the electronic documents and maintaining a reliable electronic submission system to accommodate 
a large volume of documents are some examples of such new challenges.  Experience of other 
tribunals may shed some helpful light on how to  deal with and overcome these new challenges. 
17. In addition, Korea also recognizes that some  Members propose duplicate submission of hard 
copies one day after the electronic submission.  We note the benefit of such duplicate submission as it could provide the Appellate Body with full set s of hard copies and probably ease the colossal 
logistical burden the Appellate Body faces.  But at the same time, a concern could be raised that such 
a system would virtually impose double deadlines for th e parties.  If duplicate submission were to be 
found indeed necessary even if the Appellate Bo dy allows parties to make their submissions 
electronically, the deadline for hard copy submission could be pushed back so as to give the parties 
sufficient time to prepare the official, electronic submission.   
18. At the same time, if the Appellate Body requires Members to submit both electronic 
submission and paper submission either at the same time or with some interval, it may also explore 
adopting a guideline to determine which of the two ( i.e., electronic submission vs. hard copy 
submission) supersedes in the case of inconsistency of contents.
6   
                                                      
4 United States – Countervailing Measures Concerning Certain Products from the European 
Communities  (WT/DS212/AB/R) (Jan. 8, 2003), at para. 62. 
5 See US - Byrd Amendment , paras. 161-162. 
6 For instance, Members may include the provision that  says "in case of inconsistency, the electronic 
version will prevail".  WT/DSB/M/283 
 Page 75 
 
 
  
IV. THE APPELLATE BODY'S CONSOLIDATION OF MULTIPLE CASES SHOULD 
PROCEED WITH THE CONSENT OF PARTIES 
 
19. Lastly , regarding the proposal for consolidation of the multiple appella te proceedings, Korea 
shares some Members' concern that the proposal is somewhat vague and does not necessarily reflect 
the current practice.  Particularly, in our view it is  not entirely clear from the proposed text whether or 
not the Appellate Body retains the authority to cons olidate multiple cases even in the absence of clear 
consent from the parties.   
20. In our view, such ex officio  consolidation without the parti es' consent may run the risk of 
undermining or abridging Members' legitimate right for appellate review as guaranteed under 
Article 17 of the DSU.  Here again, an effort to strike a proper balance between facilitation of 
Appellate Body proceedings and the preservati on of Members' right is arguably in order. 
21. Consideration of this proposal should proceed with the existing Appellate Body practice in 
mind.  In our view, the current practice dictates that consolidation becomes an option only with the 
Members' consent, either explicit or implied.   When a Member does not agree to a proposed 
consolidation, for whatever reason, in a particular  case, such a decision will have to be respected by 
the Appellate Body.  The Appellate Body's statements in previous cases clearly indicate that parties' consent is one of the essential elements in reaching a decision to consolidate.  It thus stated that: 
 In a letter dated 30 May 2008, the Division noted that, in the interests of "fairness and orderly 
procedure", as referred to in Rule 16(1) of the Working Procedures , and in agreement with the 
participants , the appellate proceedings in respect of  the European Communities' appeal from 
the Panel Reports in US - Continued Suspension and Canada - Continued Suspension would 
be consolidated due to the substantial overlap in the content of the disputes.7  (underlines 
added) 
 
 The Division further noted that, in the inte rests of "fairness and orderly procedure", as 
referred to in Rule16(1) of the Working Procedures , and in agreement with the participants , 
the appellate proceedings in respect of the appeals by both Thaila nd and India would be 
consolidated due to the substantial ove rlap in the content of the disputes.8  (underlines added) 
 22. The consolidation in the panel proceedings is mostly for the situation where multiple 
complainants challenge the same  measure of the respondent.  On the other hand, according to 
Proposed Working Procedures Amendment,  the consolidation at the Appellate Body proceedings 
could sometimes involve two different measures from different respondents, simply because the 
underlying legal issues are the same or similar.   If two more different measures are involved, 
however, it is possible that there are legitimate reas ons for an appellant to seek a separate review even 
if the underlying legal issues are the same. 
23. Members should also be fully cognizant of the prac tical obstacle in this regard.  In accordance 
with time limits in Article 17.5 of the DSU, mu ltiple appeals could only be grouped in one single 
procedure if they are brought within a few days afte r the initiation of the first appeal.  As it is indeed 
difficult to say what is a range of permissible spread s of dates among multiple initiations of appeals, it 
would make more sense to seek consent from the parties at this juncture. 
                                                     
 
7 Canada/United States – Continued Suspension of Obligations in the EC - Hormones Dispute  
(WT/DS320/AB/R, WT/DS321/AB/R) (Nov. 14, 2008), at para. 27. 
8 United States – Measures Relating to Shrimp from Thailand  (DS343), United States – Customs Bond 
Directive for Merchandise Subject to Anti-Dumping/Countervailing Duties  (DS345) (WT/DS343/AB/R, 
WT/DS345/AB/R) (Aug. 1, 2008), at para. 16. WT/DSB/M/283 
Page 76  
 
 V. CONCLUSION 
 
24. Overall, Korea does recognize and share the reaso ns and rationale of the three amendments 
that could help expedite and fac ilitate the appellate proceedings.  At  the same time, these issues do 
raise wider systemic implication including, most notably, how to preserve Members' right to 
effectively present claims and defenses throughout appellate proceedings.   
25. In Korea's view, the systematic benefit from the expedited appellate proceedings and the 
systematic benefit from preserving the parties' ri ght during the appellate proceedings are equally 
important, and one does not necessarily outweigh th e other.  Korea suggests that Members be 
especially mindful, throughout our development of th e new Working Procedures, of the necessity to 
provide all parties with the fundamental right  to be heard, both in writing and orally. 
26. Korea looks forward to working with Appellate  Body and other Members to exchange views 
and find workable solutions.  Korea will also conti nue to provide its views in the light of its own 
practical experience in appellate proceedings. 
_______________ 
 
   WT/DSB/M/283 
 Page 77 
 
 
 Written comments submitted by Mexico  
 
1. We thank the Chairman of the Dispute Settleme nt Body (DSB) for giving us the opportunity 
to comment on the proposed amendments to the Working Procedures for Appellate Review.  
Article 17.9 of the Dispute Settlement Unders tanding (DSU) expressly authorizes the Appellate 
Body (AB) to draw up its working procedures in co nsultation with the Chairman of the DSB and the 
Director-General.  Members play an indirect role in the establishmen t of the AB's working 
procedures, but any amendment thereto has an immediate impact on WTO Members' dispute-related work.  Therefore, Mexico sees it as extremely import ant to take part in these exercises to exchange 
views within the DSB on potential amendm ents to the AB's working procedures. 
Proposal 1. Simultaneous filing of the noti ce of appeal and the appellant's written 
submission 
 
2. New time-frames .  We are pleased to note that all the time-frames, except one, between an 
appeal's procedural stages have remained the same in terms of the number of days or the number of 
days is being increased under this proposal.  This is a very positive development.  The only instance 
in which the number of days has been reduced is th e deadline for the appellee's submission.  This is a 
negative point because the appellee needs sufficient time to prepare its submission.  The following 
alternative may be more efficient: 
 a. We would suggest extending the time- period for appellees' submissions in the 
AB proposal to 18 days instead of 15.  This  would give appellees three more days to 
present their written submissions. 
 b. We note that this amendment to the AB's proposal would leave no time for third 
participants to respond to appellees' s ubmissions in their written submissions.  
However, we consider it more important to give sufficient time to appellees, even if this shortens the deadline for third parties by three days.  In any event, three days is 
very little time for incorporating appellees' arguments efficiently into third-party 
written submissions. 
3. Use of the notice of appeal .  With this proposal, the notice of appeal loses much of its legal 
utility.  Although it would continue to be a documen t served in the interests of transparency, its legal 
utility would appear to be considerably diminished. 
4. We note that Article 16.4 of the DSU provides th at a panel report shall be adopted " … unless 
a party to the dispute formally notifies
 the DSB of its decision to appeal … ".  This Article of the DSU 
in principle gives the AB the opportunity to amend,  abolish or regulate the notice of appeal in some 
other way under its working procedures.  In other words, the DSU does not require a notice of appeal 
for the party commencing the appeal to notify the DSB of its intention to appeal. 
5. To our mind, the status of a notice of appeal th at is to be delivered simultaneously with the 
appellant's or other appellant's submission should be clarified. 
Proposal 3. Consolidation of appellate proceedings 
 
6. The criteria for consolidation appear to give th e AB discretion in terms of whether or not to 
consolidate, which is not necessarily a bad thing.  We do have a comment to  make, however.  To our 
understanding, the AB does not have jurisdiction over pa nel reports at the circulation stage.  The AB's 
jurisdiction begins only once the appeal has commenced .  This should be reflected at the beginning of 
paragraph 16(1) bis of the proposals for amendment. WT/DSB/M/283 
Page 78  
 
 7. One basic question as regards consolidation of proceedings is the format of an AB report.  
The last two points of the AB proposal do not specify what the format will be in the event that reports 
are issued as a single document.  Cases where there is more than one complainant or more than one 
defendant involve a series of bilateral legal relations hips.  Therefore, each of these legal relationships 
needs to be very clearly specified in the conclusi ons and recommendations part of the AB report.  It 
would be very useful if such a format were provide d for in the AB's working procedures.  This would 
prevent a great many implementation problems. 
_______________ 
 
 
  WT/DSB/M/283 
 Page 79 
 
 
 Written comments submitted by New Zealand  
 1. Introduction  
 New Zealand welcomes the opportunity to prov ide written comments on the Appellate Body's 
proposed amendments to its working procedures.  New Zealand's written comments reflect the oral 
statement New Zealand made at the meeting of the DSB on 18 May 2010.    New Zealand expresses its support and apprecia tion for the work of the Appellate Body.  
New Zealand is sympathetic to the Appellate Body's wish to make more efficient use of time during 
the 90-day appeal period.  It supports changes that will give the Appellate B ody more time to engage 
in its careful and thorough analysis.  New Zealand wi shes to ensure that, at the same time, this goal is 
balanced with the needs of all the pa rties involved in the appeals process. 
  New Zealand is happy for its written comments to  be circulated to DSB Members, and to the 
Appellate Body. 
 
2. Timeline for notice of appeal and written submissions 
 
 a. Removal of 7-day period between No tice of Appeal and Appellant submission 
 
 New Zealand supports the proposal to require the appellant to file its submission on the same 
day as the Notice of Appeal.  New Zealand believes that  the 7 days currently allocated to the appellant 
from the time of filing its Notice of Appeal can be  more effectively and appropriately used by the 
appellee.  By the time the appellant files its Notice of Appeal, it will already have had sufficient time 
to prepare for the appeal and to draft its submissi on.  The appellee, however, has much to gain from 
seeing the appellant's full submission as soon as possible,  in order to give the appellee adequate time 
to prepare its own submissions in response.  New Zealand addresses this issue further under the 
heading "Appellees".   b. Notice of Appeal  
 New Zealand notes that during DSB discussions, th ere was debate over the utility of retaining 
the Notice of Appeal, if it is to be submitted at the same time as the appellant's submission.  
New Zealand considers that there is benefit to be ha d for the parties, and the public, in the filing of a 
Notice of Appeal.  The Notice serves important f unctions, both in terms of transparency and 
delineating the scope of the appeal.  
 
 c. Appellees    New Zealand has concerns over the proposal to  bring forward the appellee's submission date.  
Currently the appellee has 25 days from the date of Notice of Appeal (and 18 days from receipt of the 
appellant's submission) during which to prepare and file its submission.  The AB's proposal would see 
the Notice of Appeal and appellant's submission due on the same day, with the appellee's submission 
due 15 days later.  This reduction in time for the appellee (10 days from the Notice of Appeal and 3 days from receipt of the appellant's submission)  risks upsetting the balance of rights between the 
principal parties, particularly in the case of r esource-constrained appell ees.  Not only would the 
appellee lose time in which to prepare its submis sion after having seen the appellant's submissions, 
but it would also lose the 7 days otherwise available to organise resources and to prepare based on the 
information provided in the Notice of Appeal.   WT/DSB/M/283 
Page 80  
 
  New Zealand considers that it is important for the effective functioning of the appeal process 
that appellees have sufficient time to prepare and to  consider the appellant's submission.  As noted 
above, the extra 7 days gained by requiring the No tice of Appeal and appellant's submission to be 
filed on the same day would be appropriately allocat ed to the appellee.  New Zealand considers that 
25 days from Notice of Appeal to tabling of the appellee's submission would represent a fair balance 
of rights between the principal parties.   
  d. Third Parties    In principle New Zealand supports third parties having the opportunity to review the 
appellees' submission before submitting their own.  Ho wever, the extra three days proposed for third 
parties to prepare their submissions should not come  at the expense of the preparation time for the 
principal parties, particularly the appellee.  
3. Combined proceedings 
  New Zealand is sympathetic to the idea of formalizing current prac tice around consolidation 
of proceedings in appeals, particularly to the extent  that it would make it easier for third parties with 
limited resources to participate.  However, real a nd meaningful consultation with the parties before 
determining whether or not to consolidate would be  vital.  New Zealand agrees with the point made 
by other Members during DSB discussions that, in r eality, consolidation will only work if the parties 
to the dispute agree to it.  
 
4. Electronic filing 
 
 With regard to electronic filing, New Zealand notes that the Appellate Body's proposal contemplates that filing would not be complete until both electronic and paper copies were received 
by the Appellate Body.  However, New Zealand is sympathetic to concerns expressed orally by other 
Members regarding the potential for corruption of electronic documents.  New Zealand would 
therefore prefer that paper copies continue to be  regarded as the official filed documents.  The 
obligation also to supply electronic copies to the par ties to the dispute and to the Secretariat should be 
formalised, but not be a requirement of successful filing.  
 
 We understand that more general discussions on the topic of electronic filing are underway 
within the WTO Secretariat, which may provide for more secure and reliable means of filing.  We 
would support leaving this proposal and considering amendment at a later date, once there is a clearer 
picture of the infrastructure that may be put in place. 
 
_______________ 
 
   WT/DSB/M/283 
 Page 81 
 
 
 Written comments submitted by Singapore  
 
1. Singapore submits these written comments pursuant to paragraph 3 of the decision adopted by 
the Dispute Settlement Body ("DSB") on 19 D ecember 2002 on the Additional Procedures for 
Consultations between the Chairperson of the DSB and WTO Members in relation to Amendments to 
the Working Procedures for Appellate Review .1  Singapore made oral comments on the Proposed 
Amendments to the Working Procedures for Appellate Review  (WT/AB/WP/W/10) during the 
meeting of the DSB on 18 May 2010.  These written comments add to and elaborate on the comments that Singapore made at the DSB meeting. 
2. The Working Procedures for Appellate Review ( "Working Procedures ") are important not 
only for appeal proceedings.  They may have impor tant implications on proceedings at the panel 
stage.  They can, possibly, set precedent standard s for procedures in other fora, which may look 
towards the WTO as the model for international dis pute settlement.  Singapore thanks the Appellate 
Body for document WT/AB/WP/W/10.  We appreciat e the Appellate Body's efforts to improve the 
Working Procedures  and make them current. 
3. In principle, Singapore supports the A ppellate Body's efforts to amend the Working 
Procedures , provided that the amendments do not undermine  the parties' rights.  Having a smooth and 
efficient appeal process and preserving the rights of th e parties are not mutually exclusive, nor do they 
need to compete.  An appropriate balance must be struck. 
4. Any amendment to the Working Procedures  should be simple, clear and improve the existing 
procedures.  It must be within the power of th e Appellate Body to make.  Although the Appellate 
Body is not bound by the provisions in the Understanding on Rules and Procedures Governing the 
Settlement of Disputes ( "DSU ") relating to panel proceedings, pr ocedures at both the appellate and 
panel stages should be consistent. 
5. The following are Singapore's specifi c comments on the proposed amendments. 
Timelines 
 
6. In the proposed amendments, third parties have three days after the appellee's submissions, to 
file their submissions.  Singapore welcomes this aspect of the proposal that provides third parties with 
the opportunity to consider and address both the appellant's and appellee's arguments in their 
submissions.  In addition to making the third parti es' submissions more bala nced and their arguments 
for and against both the appellant and appellee more transparent, the proposal can potentially save the 
time otherwise taken by the third parties to address the appellee's submissions in the oral proceedings. 
7. We have heard the proposal from other Members,  during their oral interventions, to extend 
the timeline for the third parties' submissions to be due from 3 days to 5 days after the appellee's 
submissions.  We support this exte nsion provided that it does not ex tend the appellate review beyond 
90 days. 
8. We note that in the current proposal, the appellee will have 15 days instead of 18 days to 
consider the appellant's submission.  The reduction in  time for the appellee needs to be considered in 
conjunction with the proposal for the notice of appeal  and the appellant's submission to be filed at the 
same time.  The appellee will also be disadvantaged  by not having an earlier notice of the appeal. 
                                                     
 
1 WT/DSB/31. WT/DSB/M/283 
Page 82  
 
 9. The improvement to the procedures for the third parties should not be at the expense of the 
appellees.  On the understanding that the overall tim eline of 60-90 days for appellate review would 
not be affected, the current timeline for the ap pellee's submission to be due 18 days after the 
appellant's, should be maintained together with th e improvement in timelines for submissions by third 
parties. 
Electronic Filing 
 
10. Singapore recognises that electronic filing is a trend in many judicial systems around the 
world.  In Singapore's domestic judicial proceed ings, all matters relating to civil proceedings, 
including documents for civil litigation, are electronica lly filed.  In principle, Singapore supports the 
initiative for documents to be electronically fi led.  We recognise that electronic filing can 
substantially reduce the many paper copies of submi ssions that are currently submitted.  A lot of time 
can also be saved for the parties.  However, we  find that the proposal is silent on the system 
supporting electronic filing. 
11. The proposal provides for submission through an e-mail as an alternative mode of 
submission.  Although paper copies will still need to  be submitted, in the event of discrepancy, the 
version sent via e-mail would prevail.  For elec tronic submission to be relied on as a mode of 
submission envisaged by the proposal, the system supporting it must address: 
 a. the security of confidential information which may be contained in the submission; 
  b. the format of the documents submitted, 
 
 c. the veracity of the identity of the sender, and   d. the accuracy and certainty of the time at which documents are received electronically.  
12. The current proposal does not contain sufficient information on these important matters, 
which need to be addressed before parties can re ly on electronic submission with full confidence in 
the integrity of the system.  If the system is not ready, it is pre-mature to provide any detailed 
provision on submissions via electronic mail. 
13. The proposal stipulates several conditions for subm issions by electronic mail to be valid.  The 
submission will need to be submitted by 5 p.m. on the day of the deadline.  The Appellate Body 
Secretariat will also need to acknowledge receipt of  the submission.  Paper copies will need to be 
submitted by 11 a.m. the following day, with a signe d certification that the versions submitted by 
electronic mail and in the paper copy are the same. 
14. With these conditions, the submissions via electronic mail may not result in a more 
streamlined appeal process or a reduction of the numb er of paper copies that need to be submitted.  
Without any clear advantage to offset the conditions, the proposal does not make submissions via e-
mail a better option for parties.  As already stated by some Members at the DSB meeting on 18 May 2010, the proposal will provide parties with  the option of submitting hard copies alone or 
hard copies with e-mail and added conditions. 
15. It is also not clear from the proposal how the conditions will work in practice.  First, it is not 
clear how the deadline of 5 p.m. will be calculated if there is no acknowledgement by the Appellate 
Body Secretariat that the submission has been receiv ed.  Second, there is an issue of how the 11 a.m. 
deadline for submission of paper copies will be cal culated if the submission is sent via e-mail way 
before the due date.  Third, it is not apparent what  effects there will be on a party if the certification 
sent with the paper copies is inaccurate.  WT/DSB/M/283 
 Page 83 
 
 
 16. We understand that in practice, submissions are sent by electronic mail to supplement the 
submission of paper copies without  any of the conditions or effect s proposed by the amendments.  If 
the Appellate Body needs to provide clarification in the Working Procedures  about electronic 
submission to justify the current practice, the provi sion should simply allow submissions by electronic 
mail to supplement and facilitate pa per submissions without any of th e conditions or effects imposed. 
Consolidation 
 
17. Singapore supports the efforts to consolidate proceedings and reports.  We recognise that 
consolidation can save the time and resources of the A ppellate Body and the parties involved.  We are 
aware that consolidation for appellate reviews takes place in practice. 
18. In the proposal, the Appellate Body can conso lidate proceedings without the consent of the 
parties.  Does this reflect the current practice?  We also find the tests of "substantial overlap" for 
consolidation of proceedings a nd "good reasons" for issuance of separate reports in the proposal 
difficult, because of their subjectivity and lack of clarity.  The proposal provides for single reports to be issued from consolidated proceedings as the nor m.  We question why this should be the case when 
single reports do not seem to clearly delineate the ru lings applicable to respective parties and can 
make the separate adoption and implementation of  the rulings by different parties difficult. 
19. The proposal does not provide when the conso lidation process will take place.  It suggests 
that the consultation with the parties and decisi on on consolidation can take  place even before any 
notice of appeal is filed.  This raises questions on whether the parties' positions may be prejudiced and 
whether the Appellate Body can decide on consolid ation before the notices of appeal are filed. 
20. We note that the proposal takes a different approach from Article 9 of the DSU  which 
provides for the equivalent procedure at the pane l stage.  No reason has been provided why the 
approach for consolidation at the appellate stage should be different from the panel stage.  If there 
needs to be a provision in the Working Procedures  on consolidation, we suggest that the Appellate 
Body rely on a formulation along the lines of Article 9 of the DSU . 
_______________ 
 
 WT/DSB/M/283 
Page 84  
 
 Written comments submitted by Chinese Taipei
 
 
1. The Separate Customs Territory of Taiwan, Pe nghu, Kinmen and Matsu (hereinafter referred 
to as "TPKM") appreciates the efforts of the Appe llate Body and its Secretariat in putting forward 
these Proposed Amendments to the Working Procedur es for Appellate Review.  Noting the significant 
impact these proposed amendments may have on the appellate review proceedings and the WTO 
dispute settlement mechanism as a whole, TPKM would like to provide some comments on these proposed amendments. 
2. With respect to the first proposal on the Ti meline for Written Submissions, the focus of our 
comments is on two issues:  1) the shorter time  period for appellees to prepare their written 
submissions, and 2) the three-day period given to the third participants to comment on the appellees' 
submissions.   
3. On the first issue, TPKM notes that, compared  with the current eighteen-day period, the 
appellees, according to the proposal, would have thr ee fewer days to work on their submissions, as 
such submissions would be due only fifteen days after the filing of the Notice of Appeal and the 
appellant's submission.  TPKM considers this prop osal would constitute such a drastic change that 
puts the appellees at a great disadvantage in th e litigation process, especially when they are 
developing Members. 
4. According to the statistics provided in A nnex A of the Appellate Body's Proposed 
Amendments to the Working Procedures for Appella te Review, the appellants already have a very 
long time to craft their submissions, on average spanni ng more than four months between the issuance 
of the interim report and the filing of the Notice of Appeal.
1  On the other hand, the appellee has no 
way of knowing the scope and nature of the issues  appealed by the appellant before receiving the 
submission, and the time allotted to an appellee fo r analyzing the appellant's submission and crafting 
responses within the original eighteen-day period already makes for a challenging task, to say the 
least.  It seems to us that subtracting three days fr om the already short period of time allotted to the 
appellee for crafting a response to an appellant's submission would only serve to exaggerate the pre-
existing imbalance in the process.  We therefore believe it would be more reasonable to maintain the current rule of the appellee's submission being filed within eighteen days. 
5. Turning to the second issue, the proposed amendm ent to make the filing of third participants' 
submissions due three days after the filing dead line for the appellee's submission, TPKM sees this 
adjustment as a positive development in th e appellate review on the following grounds. 
6. First, the present rules do not allow third partic ipants to comment in writing in response to the 
appellee's submission, and the only chance for comment ary would be the third participants' statements 
at the oral hearing, which is quite short.  The proposed amendment would mean the appellate 
proceeding being held with rules that parallel th e panel stage as provided in the Understanding on 
Rules and Procedures Governing the Settlement of Di sputes (hereinafter referred to as "DSU"), where 
third parties get a chance to comment in writing in response to both parties' written submissions.  It 
would allow the Appellate Body and all the participan ts an opportunity to consider third participants' 
arguments in response to appellee's submission before the oral hearing, rather than encountering such 
arguments for the first time right on the spot at the hearing. 
7. Second, this design would make the entire a ppellate proceeding more balanced among the 
interests of stakeholders in the dispute and the di spute settlement system, i.e., the appellant(s), the 
appellee(s) and third participant(s).  
                                                     
 
1 WT/AB/WP/W/10, p. 5, footnote 6.  WT/DSB/M/283 
 Page 85 
 
 
 8. Therefore, TPKM supports providing third particip ants with an opportunity to respond to both 
the appellant's and the appellee's submissions in writing before the oral hearing.  We have noticed that 
some Members suggest that third participants' submi ssions be due five days after the filing date for 
appellee submissions.  We would have no problem w ith such a proposal if it is acceptable to a 
majority of Members. 
9. On the second proposal, i.e., the Electronic Filing and Service of Documents, TPKM notes 
that the Appellate Body proposes to codify current  practices of parties/participants and third 
parties/third participants sending electronic version of their submissions on the day the filings are due, 
and of delivering their paper copies after such electronic filing is made.  While such practices may have been maintained for years and appear to be operating smoothly, there are instances where 
parties/participants have encountered problems in the past.  For example, parties may have sent via 
email attachment their submissions to the Appellate  Body and copied other participants and third 
participants.  However, there may have been instan ces of some recipients not receiving the email and 
its attachments due to mail server problems and bot h parties being unaware of such issue until hours 
or even a whole day later.   
10. While TPKM welcomes the Appella te Body's proposal to incorporate a technological advance 
with a view to making the filing and servicing docum ents more efficient, it would like to remind the 
Appellate Body that electronic communications may not be as reliable as the filing and serving of documents via hand delivery or courier/post-delivery under current rules.  There may be "crashes" or 
problems with the internet or mail servers at either  end of the parties or the WTO secretariat.  We 
share the concerns of many other Members that the current proposal may not be as comprehensive as 
it may be required.  TPKM finds that the doubts expressed by Members on the issues surrounding the 
mixed mechanism of filing and servicing documents seem not to have been fully addressed by the 
Appellate Body's proposal.  As the current practice has been in place for years without much trouble, 
it would not seem the best time for pa rticular changes to be made to cu rrent practices in this regard.  
Rather, if and when a more secure and relia ble technological infrastructure or electronic 
communication system is in place, such a proposal with more comprehensive rules may find more 
support among Members.  
11. On the third proposal, i.e., Consolidation of Appellate Proceedings, TPKM understands and, 
in principle, sympathizes with the Appellate B ody's attempt to codify the current practice of 
consolidating the appellate proceedings that sh are a high degree of commonality.  However, the 
language of "substantial overlap in the content" ma y not be as clear as it may have to be, and it 
appears that many Members, including TPKM, are still concerned that the discretion to consolidate 
appellate proceedings will lay exclusively in the hands of the Appellate Body, while parties shall 
retain a higher degree of control of the dispute r esolution proceedings.  Therefore, TPKM would urge 
the Appellate Body to further consider revampi ng such design in its current proposal and make 
changes accordingly that would not overly deprive th e Parties to the dispute of their control over the 
appellate proceedings.   
12. On the issue of Appellate Body's discretion in  issuing a single report as a default rule, the 
Appellate Body's proposal seems different from wh at the DSU provides for at the Panel stage.  
13. DSU Article 9.2 provides that whenever any pa rty to the dispute makes a request, the single 
Panel shall defer to that request without determ ining whether there's any "good reason" and issue 
separate reports in a dispute with multiple complainants .  Therefore, it is a right of the Parties to have 
separate reports issued to them if they so wish even when a single Panel was established to examine 
the same matter of concern to multiple complainants.   WT/DSB/M/283 
Page 86  
 
 14. However, the amendment proposed by the Appella te Body would change such a default rule 
and make issuing a single report a default rule unl ess requested by a party to issue separate reports, 
and only when the Appellate Body finds "good reasons" to do so.  
15. Apart from the ambiguous and undefined term "good reasons", this proposal appears to differ 
from the rules and current practices at the Panel st age as provided in the DSU.  Such inconsistency 
may likely create instability and unpredictability in th e dispute settlement system.  Further, it has been 
a party's right to have a separate report if it so  wishes for the purpose of clarity and for any other 
reasons "the party" finds sufficient to justify such  a request.  It seems unclear as to why it would be 
necessary for the Appellate Body to obtain such di scretion in determining whether a single report or 
multiple reports are to be issued.  
16. In summary, TPKM appreciates the Appellate B ody's hard work on this subject and looks 
forward to more balanced and agreeable amendments  that accommodate not merely the efficiency of 
the appellate review proceedings but also the expect ations of most Members in structuring a fair and 
predictable dispute settlement system that properl y balances the rights and obligations of Members. 
_______________ 
 
  WT/DSB/M/283 
 Page 87 
 
 
 Written comments submitted by Thailand  
 
 I have the honour to refer to the request by the Chairperson of the DSB meeting on 18 May 2010 that Members should make written comments on the proposed amendments to the 
Working Procedures for Appellate Review as cont ained in WT/AB/WP/W/10 dated 12 January 2010, 
to the Chairperson by 26 May 2010.  In this  connection, Thailand appreciates and supports the 
Appellate Body (AB)'s effort and hard work to c onstantly review its working procedures in order to 
improve its efficiency for the bene fits of all parties concerned.  
  However, Thailand would like to share comment s on the three amending proposals, namely, 
the timeline for written submissions, the electronic filing and service of document and the 
consolidation of Appellate proceedings as follows:   1. On the issue of time line for written submissions, Thailand is sympathetic to the AB that the 
time period to issue its reports under the DSU is qu ite limited.  However, we do not agree to its 
proposal to entirely eliminate the 7-day period between the filing of the notice of appeal and the 
appellant's submission to the AB in order to have  more time to prepare the AB' s report.  As a 
developing country, we need the said time period fo r coordinating among our relevant authorities and 
consulting with lawyers in our preparatory pro cess for the written submission.  Furthermore, the 
proposal will also dismiss the opportunity for the conf licting parties to have a consultation in order to 
reach an acceptable solution before entering the Appellate proceedings.  
2. Regarding the issue of electronic filing and service of documents, Thailand welcomes and 
supports the AB's initiative to introduce electronic filing of documents as an option in appellate 
proceedings.  It is our understanding that, according to the proposal, the participants in the electronic 
filing of documents may, at any stage in the pro ceedings before the electronic documents are received 
by the WTO Secretariat, revert to the hard-cop y submissions for whatever reason e.g., computer 
system failure, security concern, etc.  We are also  concerned about the reliability and security of the 
electronic communication system of the WTO Secr etariat, including some technical issues as 
expressed by a number of Members.  In this regard , we would be appreciative if the AB and the WTO 
Secretariat could share with us their views on this matter.  
3. Finally, Thailand has no objection to the AB' s proposal on the consolidation of the appellate 
proceedings before a single division.  However, we  are of the opinion that, upon the completion of the 
appellate proceedings, the AB should issue separate re ports by default in orde r to avoid confusion and 
to highlight the importance of individual cases. 
_______________ 
 
 
 WT/DSB/M/283 
Page 88  
 
 Written comments submitted by Turkey
 
 
 Turkey believes that any proposal to facilitate  the appeal process would be useful for all 
members.    
 In general terms, Turkey is of the view that these amendments  
 
• shall not nullify and impair the rights and obligations of the Members under WTO, 
• shall not impose disproportionate burden to the parties, 
• shall alleviate the unnecessary burden and time pressure of the Appellate Body, 
• should take into account the needs and the views of members who are the ultimate 
users of the mechanism, especially the de veloping members which have significant 
difficulties to be a part of the dispute settlement system.  
 
 The specific comments of Turkey regarding the proposed amendmen ts to the working 
procedures of the Appellate Body are submitted below:   
TIMELINES FOR WRITTEN SUBMISSIONS
: 
  With respect to the filing of the "appella nt's submission" on the same day as "Notice of 
Appeal", Turkey supports the proposal to eliminate the seven-day period between filing the "Notice of 
Appeal" and the appellant's submission and similarl y where there is an "other appeal".  Turkey 
considers that this amendment will contribute to usin g the limited time period in a more effective and 
efficient manner.  It will also contribute to allevi ating time pressure on the Appellate Body to some 
extent.    
  However, this proposal is based on two assumptions.  The first assumption is that the appellant does not work on its submission after the filing of "Notice of Appeal".  The second 
assumption is that the appellee does not work after receiving of "Notice of Appeal".  Both of the 
assumptions are invalid and unsounded.  "Notice of  Appeal" is an "early warning mechanism" not 
only for the appellee but also for the third parties.  
  "Notice of Appeal" includes information regard ing a brief statement of the nature of the 
appeal as stated in Article 20(2)(d).  The info rmation provides significant clues for appellees to be 
informed and be given an opportunity to make them selves ready about the claims of the appellant.  
 
 In this respect, taking into account the elimina tion of the meaning of the notice of appeal for 
the appellee, the shortening of seven days does not ha ve the same effect for the appellant as for the 
appellee.  Therefore, Turkey strongly believes that 15 days for the appellee should be extended to at 
least 18 days.  
 This amendment (filing the appellant's writte n submission on the same day as "Notice of 
Appeal") also assumes that there will be no certain le gal effects of "Notice of Appeal".  The "Notice 
of Appeal" will not "trigger" the appeal, the a ppeal could be iniated by providing "appellant's 
submission".  In this respect, Turkey believes that  "Notice of Appeal" could be submitted later than 
filing "appellant's submission".    
 
 In addition to this, taking into account that  the "Notice of Appeal" is the only publicly 
available document regarding the existence and the sc ope of the appeal, it should be retained for the 
sake of transparency.     WT/DSB/M/283 
 Page 89 
 
 
  Turkey welcomes the timeline changes for the thir d parties.  It is an important improvement 
for the enhancement of third party rights in the a ppellate process.  Turkey supports giving opportunity 
to third participants to comment on appella nts and appellees' submissions in writing.  
  Turkey considers that this amendment also  provides a sequencing process for the appellate 
review stage parallel to that for the panel stage.  
  However, we also believe that three days are not really sufficient for third participants to 
consider and reflect upon the appellees' submissions and take them into account when drafting their 
third participant submissions.  
 
 Turkey is of the view that increasing this ti me to five days (from the proposed three days) 
would provide a more realistic time frame for third participants to re spond properly to the issues raised 
by the interested parties rather than  to leave the substantive issues to  be addressed at the oral hearing 
in which they have time constrains.  This would al low third parties sufficient time to prepare a fully 
considered submission that addresses issues raised not ju st by the appellant but also by the appellee.  
  Turkey considers that any additional time allo wed for third participants to prepare their 
submissions should not be allocated at the expense of the time allocated for the appellees to prepare 
their submissions.    ELECTRONIC FILING
: 
 
 With respect to the electr onic filing Turkey supports any amendment that will encourage 
electronic filing.  Turkey believes that submis sion of the documents electronically would assist 
interested parties and third parties in the f iling process and better accord with their working 
procedure.   
  However, Turkey is of the view that th is proposed amendment would not encourage 
electronic filing, because it does not eliminate the requirement to file paper copies and it creates new rules for the parties who submit electronic filing.  Tu rkey considers that there should be no additional 
paper copies requirement for the members w ho submit electronic filing in due time.  
 
 In addition to this, we have some technical questions regarding the proposal:  What will be 
the consequences if there is a last minute technical problem with sending electronic-file or receiving confirmation message?  In this case, would the d eadline (11 a.m. for the following day) for the paper 
copies also be valid?  Why do paper copies have pr evalence over electronic filing?  Who will be the 
authorized person to sign certification stating that the paper copies are identical to electronic copy?  If 
electronic copies have prevalence over paper copies, why do we need such a certification?    In addition to this, the requirement to review  both the electronic and paper copies to identify 
the discrepancies between them, if any, would cr eate an unnecessary burden on the Appellate Body 
Secretariat and the participants. 
 
CONSOLIDATION OF APPELLATE PROCEEDINGS
: 
 
 With respect to consolidation of appellate pr oceedings, Turkey supports the consolidation of 
appellate proceedings in certain circumstances and notes that this has occurred in certain appellate 
proceedings in the past.  Turkey believes that havi ng clear rules regarding consolidation of appellate 
proceedings will give guidance to the participants  and enhance transparency and predictability. 
 WT/DSB/M/283 
Page 90  
 
  One of the main aspects of this proposal is  giving discretion to the Appellate Body to 
consolidate the appeals by disregarding the view of  the parties.  The proposal states that "[t]he 
Appellate Body may take such a decision if it consider s that a substantial overlap in the content of the 
appeals is likely."    
 Turkey is of the view that this creates probl ems because this proposed amendment allows the 
Appellate Body to consolidate with or without th e parties' consent.  The question that how this 
process moves forward without parties' cooperation should be addressed.  Turkey believes that the 
parties' consent or at least non-objection is proba bly a necessary precondition to this consolidation. 
 
 Turkey notes that the Appellate Body is ma king an important effort to introduce a new 
guideline to consolidation of appellate proceedings .  However, the Appellate Body also introduces 
new concepts while trying to do this.  The phr ases such as "around the same time", "and/or", "a 
substantial overlap" and "likely" in the first sen tence and "good reasons" in  the penultimate sentence 
are vague and ambiguous in the language  of the proposed amendment.  
 
 This will create uncertainty and unpredictability for the par ticipants and may cause problems 
in terms of different interpretations.    With respect to the single report, the propo sed amendment assumes that the Appellate Body 
will always issue a "single report" unless a reasonable request is received from the participants.  As it 
is drafted the proposed amendment imposes the "burde n of request" regarding th e need of the separate 
reports on the participants.  Turkey considers that  issues regarding this burden of proof should be 
addressed.  
_______________ 
 
  WT/DSB/M/283 
 Page 91 
 
 
 Written comments submitted by the United States  
 I. Introduction  
 
1. The United States thanks the Chairperson of the Dispute Settlement Body ("DSB") and the 
Appellate Body for providing Members the opportunity  to comment on the "Proposed Amendments to 
the Working Procedures for Appellate Review " (WT/AB/WP/W/10) ("Proposed Amendments") 
pursuant to Article 17.9 of the Understanding on Rules and Procedures Governing the Settlement of 
Disputes  ("DSU") and the procedures established by the DSB on December 19, 2002 (WT/DSB/31).  
Discussions held with Members, including during  the formal and informal sessions of the DSB 
devoted to the Proposed Amendments, have affo rded delegations time to study the proposed 
amendments and exchange views on them, which has led to a deeper understanding of the proposals.  
Our comments are organized in the same order, an d using the same headings, for each of the three 
proposals as is found in the Proposed Amendments. 
II. The Timeline for Written Submissions  
 
A. Filing Appellant Submission on Day 1/Notice of Appeal  
 
2. First, it has become increasingly apparent that th e 90 days allotted for Appellate Body reports 
places significant time pressure on the Appellate Body.  Of course, the time period is effectively less than 90 days once account is made for translation.  A ccordingly, it is important that this time be used 
productively.  
3. It is thus helpful to view the proposal rega rding filing of the appellant's submission on the 
same day as the notice of appeal and consequential ch anges to the deadlines in light of the desire to 
optimize the use of the time allotted to appeals.   
4. An appellant typically has had a significant amount of time before filing an appeal to develop 
its appeal, including its appellant submission.  Fo r example, even aside from the interim report, the 
final report of the panel is typically provided to th e parties weeks, if not months, before the report is 
circulated.  As a result, the time currently pr ovided between commencing an appeal and filing the 
appellant submission does not appear to be time th at is being used as productively as it could be.  
These seven days could better serve the system if they  were used for the Appellate Body's work.  An 
appellant should be able to prepare its appellant submission in advance such that it can be filed at the 
beginning of an appeal. 
5. Therefore we are sympathetic to making the a ppellant submission due on the first day of an 
appeal. 
6. However, as many delegations have noted in their comments, this does raise questions about 
the continued role of a notice of appeal.  We not e that the proposed amendments would retain the 
Notice of Appeal as a separate document.  That notice would continue to retain some role in 
expressing the scope of the appeal.  This raises qu estions about whether there would be jurisdictional 
arguments in an appeal based on the Notice of Appeal. 
7. With the full appellant submission in hand, it is hard to understand why the Notice of Appeal 
should serve to limit or constrain the scope of appeal.  Presumably the appellant intends its 
submission to be a full expression of its appeal.  In particular, the Working Procedures already 
provide that the appellant submission must contain:   "[A] precise statement of the grounds for the WT/DSB/M/283 
Page 92  
 
 appeal, including the specific allegations of errors in  the issues of law covered in the panel report and 
legal interpretations developed by the panel, and the legal arguments in support thereof."
1 
8. It would seem that there should be ways to prov ide the transparency currently afforded by a 
notice of appeal while avoiding the procedural i ssues that accompany giving the notice of appeal 
some sort of jurisdictional status.  Furthermore, it would seem contrary to the desire to use the time 
for an appeal as productively as possible to invite ju risdictional arguments based solely on the notice 
of appeal. 
9. The United States notes that Article 16.4 of th e DSU requires a notice of appeal, but that 
notice is to the DSB only – it does not call for one to be filed with the Appellate Body.2  Therefore it 
would appear that one option could be for th e Appellate Body's Working Procedures to omit 
specifying any requirement for a Notice of Appeal to the Appellate Body and rely simply on the DSU. 
10. Alternatively, the Appellate Body typically  requests that the appellant submission be 
accompanied by an executive summary.  Perhaps th e executive summary could serve the function of a 
notice of appeal, or some other brief statement of the appeal could be filed, without according that 
document any sort of jurisdictional status. 
B. Other Appellant's Submission/Notice of Other Appeal  
 
11. The Proposed Amendments would alter the subs equent deadlines after the filing of the 
appellant submission.  With respect to the dead line for filing the other appellant submission, the 
Proposed Amendments would shorten this time period from the current eight days following the filing 
of the appellant's submission to five days.  As other delegations have not ed, five days may be 
insufficient time to permit a party to review the a ppellant submission that it has received and complete 
or revise the other appellant submission in response to  the appellant submission.  In light of Members' 
concerns, perhaps it would be preferable to have the other appellant submission due no earlier than 
seven days after the appellant submission.  A seven  day period also has the advantage of facilitating 
scheduling since that would ensure that the due date would not fall on a weekend. 
12. As a separate matter, while there is some symmetry in also requiring the other appellant 
submission to be filed on the same day as the No tice of Other Appeal, this would raise the same 
concerns regarding a Notice of Other Appeal as with r espect to a Notice of Appeal.  In other words, it 
would seem that there should be ways to provide th e transparency currently afforded by a Notice of 
Other Appeal while avoiding the procedural issues that accompany giving th e notice some sort of 
jurisdictional status. 
C. Appellee Submission  
 
13. The United States also would not see value in shortening the time for appellee submissions 
from 18 days to 15 days.  As the Appellate Body  noted in the proposed amendments, "Appellants' 
submissions are typically the longest written submissions in an appeal."3  A number of delegations 
have commented that the time period for the appe llee submission is the most challenging in the 
current appellate time line.  Accordingly, reduc ing the time for appellee submissions could prove 
particularly disadvantageous for an appellee.  
                                                      
1 Working Procedures for Appellate Review , WT/AB/WP/5, Rule 21(2)(b)(i) ("Working Procedures"). 
2 DSU, Article 16.4 ("Within 60 days after the date of  circulation of a panel report to the Members, the 
report shall be adopted at a DSB meeting unless a party to the dispute formally notifies the DSB of its decision 
to appeal or the DSB decides by consensus not to adopt the report.  If a party has notified its decision to appeal, the report by the panel shall not be considered for adoption by the DSB until after completion of the appeal."). 
3 WT/AB/WP/W/10, at 4 n. 3.  WT/DSB/M/283 
 Page 93 
 
 
 14. Instead, there would appear to be merit to affo rding a slightly longer period of time for the 
appellee submission – for example, 21 days from recei pt of the appellant's submission instead of the 
current 18 days.  A period of 21 days would ha ve the scheduling advantage of ensuring the 
submission is not due on a weekend.   
15. Making the appellee submission due on day 21 would provide even greater relative benefits to 
the other appellee, which currently only has 10 days to respond to the other appellant's submission;  
under this option, the other appellee would have inst ead 14 days (if the other appellant's submission 
were due on day 7, as suggested above).  With th e appellee submission due on day 21, the Appellate 
Body would still be in a position to hold the oral hearing over a time period similar to what it has proposed.
4  Making the appellee submission due on day 21 and scheduling the oral hearing between 
days 31-40 would provide a minimum of 10 days from filing of that submission to the oral hearing, as 
is currently the case under the Working Procedures.5  Finally, extending the time period for the 
appellee submission may address the concerns expressed by some Members in their comments that the increased length of appeals has increased burdens on Members.
6 
D. Third Participant Submission  
 
16. There does not appear to be value in changing the existing practice of the past 15 years so as 
to provide for third participant submissions to be f iled after the appellee submission.  In the first place, 
it appears odd that third participants should be prov ided an opportunity to respond in writing to the 
appellee submission while the appellant  does not have that opportunity.  
17. Second, the explanation for the proposal is to allow third participants time to respond to the 
appellee submission.  However, in reality the add itional three days proposed would not be sufficient 
time to prepare a written response to the appellee subm ission.  As one delegation explained, this may 
particularly be the case for those WTO Member s whose native language is a non-WTO official 
language.  Indeed, some delegations in their comment s have proposed giving third participants even 
more time to prepare their submissions.  The three days proposed would likely preclude a third 
participant from addressing the appellee submission other than perhaps providing a simple indication 
of support or disagreement with the positions in that  submission.  We assume that the Appellate Body 
would be interested in more than such a simp le indication and would instead prefer a reasoned 
reaction.  That reasoned reaction has been provided to  date in the oral hearing, just as the reasoned 
reaction of participants has been provided in the hearing. 
18. Moreover, this proposed change could undermine the objective of using the time for an appeal 
more productively.  The United States assumes that the oral hearing is set for the earliest date possible 
after the appellee and third participant submissions , taking into account the need to review those 
submissions and prepare for the hearing.  Providing for a later date for third participant submissions 
would imply delaying the hearing, thus reducing th e time for the Appellate Body's deliberations and 
work during the 90-day period.  The proposals by so me delegations to provide even more time for 
third participant submissions – for example, five days – would only heighten the difficulties with such 
a change. 
                                                      
4 See WT/AB/WP/W/10, at 24 (proposed amendment to Rule 27(1), with oral hearing to be held 
between days 30-40); id. at 26 (proposed amendment to Annex I to Working Procedures, with oral hearing to be 
scheduled between days 30-40). 
5 Under the current Working Procedures, the appellee submission is due on day 25, and the oral hearing 
is scheduled for day 35-45.  The explanation of the proposed amendments does no t indicate that the current 
minimum 10-day period between appellee submission and oral hearing has given any cause for concern or is 
intended to be addressed by the amendments. 
6 Compare  WT/AB/WP/W/10, at 4 ("In certain exceptio nally large and complex appeals over the past 
three years, these problems have been further amplified by the increased length of appellants' submissions.") 
(footnote omitted). WT/DSB/M/283 
Page 94  
 
  
III. Electronic Filing and Service of Documents  
 
19. With respect to the second proposal – electronic filing of documents – as an initial matter the 
United States appreciates the fact that filing electronic versions of documents has become much more 
prevalent since the Working Procedures were first developed. 
20. However, since it has become typical for Members to file an electronic version in addition to 
the paper copy, it is not clear why this amendment is needed or what is its value added.  And the 
proposed amendments do raise some concerns. 
21. The proposed amendment would appear to mean that a Member must either file only
 paper 
copies, or be subject to the new rules, including that the electronic version prevails.  This may 
discourage rather than en courage electronic filing. 
22. The mandatory time for filing ("the document shall be sent by 5 p.m. on the day it is due") in 
the proposed amendment also raises concerns.  In  particular, imposing a mandatory time for filing 
electronically would only add further disincentive to electronic filing.  And experience has shown that 
a mandatory time may only lead to further procedural  issues to distract the Appellate Body from its 
review of the merits.  For example, there would be a question as to whether there would be an electronic receipt verifying time of receipt.  In the case of last minute difficulties with electronic mail, 
it is unclear what would happen if the filing is received at 5.15 p.m. instead, or even later.  As some 
delegations have noted, time zone differences can also affect the ability to coordinate with capital, for 
example, to ensure that the electronic version be ing filed is the correct one, and the problem would 
appear particularly acute for those Members in the Western Hemisphere. 
23. There have been previous instances in which di fferences in software or hardware, or merely 
transmitting via email, has meant that the electronic version appears differently on one system than on 
another system.  There is a concern about what it means to say that the electronic version prevails 
over the paper copy since in those circumstances th ere could be more than one electronic version. 
24. The proposed requirement for a signed certificati on also raises a number of concerns.  It is not 
clear what the purpose of such a certification is othe r than to highlight the fact that allowing paper 
copies to be filed the following day could increase th e chance that the paper copy would diverge from 
the electronic copy.  In addition, there would be concerns as to what would be the consequence if, 
despite the best efforts of the Member, there were  any inadvertent discrepancy.  The proposal does not 
provide any indication of what  those consequences might be. 
25. As a result, the concerns raised by the pr oposal would appear to outweigh any potential 
benefits. 
IV. Consolidation of Appellate Proceedings  
 
26. The third proposal concerns consolidation of appellate proceedings.  The proposed 
amendments raise a number of questions and concerns. 
27. For example, consolidation of appeals to this  point has been handled on a case-by-case basis 
and with the consent of the parties.  Dealing with c onsolidation on a flexible basis is not a flaw in the 
system but a strength.  We are concerned by the po ssibility raised by the proposal that the Appellate 
Body could consolidate two appeals when at least one party says that it should not.  We are not aware 
of any appeal in which parties did not consent to consolidation.  But neither are we aware of any 
instance of consolidation over the objection of a party.   WT/DSB/M/283 
 Page 95 
 
 
 28. Also of concern is the idea that the Appellate  Body would decide to consolidate two appeals 
based on the Appellate Body's view that a substantial overlap in two appeals is "likely".  This raises 
the question of on what basis the Appellate Body w ould determine a substantial overlap is "likely", 
perhaps even at a time when no appeal has yet been  filed.  The wording of the proposed amendments 
implies that the Appellate Body has not yet seen th e appellant submissions in both appeals.  Thus, 
there does not appear to be any clear basi s on which to make this determination. 
29. Furthermore, if an appeal has not been filed, then there is no basis for the Appellate Body to 
prejudge the question of whether there will be an app eal, nor is there any legal basis for the Appellate 
Body to take any decision with resp ect to such a hypothetical appeal.  
30. Concerning issuing single or separate reports, the proposal also raises a number of questions.  
Again, the United States does not understand what is  not working about the current approach where, 
at least recently, the Appellate Body has issued separ ate reports (even if in a single document) when 
at least one party has requested it.  We are troubled by the possibility raised by the proposal that the 
Appellate Body could issue a single report covering appeals of separate pane l reports when at least 
one party to the dispute says that it should not, and perhaps even where a party believes that its rights 
could or would be impaired by a single report.   
31. Again, the concerns raised by the proposal w ould appear to outweigh any potential benefits. 
V. Effective Date for Amendments  
 
32. As a final matter, the United States has taken note of the proposed revision on the first page of 
Annex B of the Proposed Amendments stating that:  "The Working Procedures for Appellate Review  
consolidated in this document will be applied to appeals initiated after [2010]."7  The United States 
understands by this language that the Appellate Body, upon adoption of any final amendments to the 
Working Procedures, would specify as from which da te and to which appeals the amendments would 
apply ( e.g., to appeals already pending or only to appeals begun after the amendments are issued). 
__________  
                                                      
7 WT/AB/WP/W/10, at 11 (strike-through and underlining omitted).