RESTRICTED  WORLD TRADE  
ORGANIZATION  TN/DS/M/23 
26 May 2005 
 (05-2148) 
Special Session of the Dispute Settlement Body 
28 February 2005  
 
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard  
on 28 February 2005  
 
Chairman:  Mr. David Spencer (Australia) 
 
  The Chairman
 welcomed participants to the twenty-s ixth meeting of the Special Session and 
said that the airgram for the meeting had been circ ulated in WTO/AIR/2511 and that the draft agenda 
(TN/DS/W/73) contained three items: (i) discussion of the contributions by participants, namely 
Job(05)/19 by Argentina, Brazil, Canada, India, Me xico New Zealand and Norway and Job (05)/23 by 
the United States; (ii) work programme of the Speci al Session and (iii) "Other Business".  He asked 
whether any participant would like to raise any issue under "Other Business".  As there was no 
response from participants, he suggested the deleti on of "Other Business" from the agenda of the 
meeting.  The Chairman's suggestion was accepte d and the agenda was adopted as amended.    
 
1. Discussion of the contributions contained in Job(05)/19 and Job(05)/23 
1. The Chairman  said that two new informal contributions had been received from the group of 
seven countries and the United States.  He suggested  that the discussion of the two proposals take 
place in an informal mode.  The Chairman's s uggestion was accepted by the proponents, although 
they requested that their introductory statements be  recorded in the minutes of the meeting.  He 
invited the Argentina, on behalf of the group of seven countries, to introduce their paper.  
2. The representative of Argentina  said that the proposal by th e group of seven countries dealt 
with the issue of third-party rights.  The proposal had not reinvented the wheels and had been inspired 
by previous inputs by participants on this issue and discussions in the Special Session.  In crafting this 
proposal, the proponents had been mindful of the basic objective of the dispute settlement system,  
which according to Article 3.7 of the DSU was to se cure a positive solution to the dispute between the 
parties.  While the proponents' proposal was in su pport of expanded third-party rights, it had been 
framed in such a way as not to undermine this basic obj ective of the DSU.  It had attempted to strike a 
careful balance between the rights of the parties to the dispute and those of third parties.  In striking this balance, account had been taken of the di fferences in resources available to Members to 
participate in the dispute settlement system.  In tabling this proposal, the proponents had also been 
guided by their belief that any changes to the DSU must be minimal and should also be as simple as 
possible.   
3. He said that the proposal covered four main issu es.  The first was the right of Members to be 
joined in consultations between the parties.  He recalled that the main provision in the DSU regulating 
this issue was Article 4.11.  As currently worded and applied, it permitted Members to which requests 
were addressed to reject them arbitrarily on th e ground that the requesting Members did not have a 
substantial trade interest in the case.  There w as also the risk of discrimination among Members 
requesting to be joined in the c onsultations.  Practice appeared to indicate that it was the defending 
Member which usually rejected requests to be joined in the consultations by third countries.  Attempts TN/DS/M/23 
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 to address this issue in the past had focused on finding an appropriate definition for the term 
"substantial trade interest".  Such efforts had so fa r failed as participants could not agree on a common 
definition.  Bearing this in mind the proponents had devised a novel approach – an "all or nothing 
approach", under which the defendant could reject a request to be joined in the consultations only if it 
decided not to accept re quests from any other Member.  The rationale being that the complaining 
Member could choose to request consultations eith er under Article XXII or Article XXIII of the GATT 
1994.  Should it choose to request Article XXII consultatio ns, it could not reject requests to be joined in 
consultations from particular Members.   In other words, all requests should be granted.  By contrast, 
Article XXIII consultations allowed the complaining Me mber to reject all requests to be joined in the 
consultations.  In other words, c onsultations were held on a bilatera l basis with the defending Member.  
Against this background, the proposal by the proponents was not radical.  It re flected current practice 
with the advantage of restricting the current right  of complaining Members to discriminate among 
Members requesting to be joined in the consultations.   
4. The second element related to the right of third parties to attend panel hearings and receive 
documentation.  On this issue, it was the propone nts' recommendation that third parties should be 
allowed to be present at the first and second s ubstantive meetings of the Panel and any other 
additional meetings that might be scheduled before  the issuance of the interim report, except when 
privileged or business confidential information was being discussed.  With respect to access to 
documentation, it was the proposal of the proponents that until the issuance of  the interim report of 
the panel, all submissions of the parties should be  made available to third parties, except those 
portions containing privileged or business confidential information designated as such by the party 
which submitted it.  Apart from these situations, th ere appeared to be no logical reason to limit the 
participation of third parties under the process.  It was difficult to justify the current rules in the DSU 
which restricted third parties to receiving only the first written submission of the parties and to 
attending a special session of the first substantive mee ting.  With regard to the active participation of 
third parties in the panel process, the proponents' proposal would not result in fundamental changes.  
Third parties would have an opportunity to file written submissions and be heard at the special 
sessions of the first substantive meetings.  The po ssibility for third parties to pose or respond to 
questions was left to each panel to decide on a case-by-case basis, as was currently the case during the 
first substantive hearings of the panel.  The propone nts' proposal also covered the issue of additional 
or so-called enhanced third party rights.  Currently , the decision to grant enhanced third party rights 
was left to the discretion of panels.  The proponent s' proposal would change the situation and allow 
the parties to the dispute to decide whether or not e nhanced third-party rights should be granted.  This 
approach struck a careful balance between the ri ghts of third parties to participate in panel 
proceedings and those of disputing parties with limited resources, who could be overburdened by 
intensive third-party participation in the proceed ings.  It was important to ensure control and 
predictability over the proceedings. 
5. The third element related to permitting Members which did not participate as third parties in 
the panel proceedings to join the dispute as third parties at the appeals stage.  Under the current 
provisions of the DSU, Members were obliged to notif y their substantial interest in the case at the 
panel stage before they could participate at the a ppeals stage, where issues of law and interpretation 
were essentially discussed.  At the same time, it was possible for new third parties to be admitted as 
third parties to participate in compliance panel pr oceedings occurring after both panel and appellate 
proceedings.  Given the systemic interest in issues co nsidered at the appellate stage and the interest of 
Members to make their views known, there was no va lid reason for denying them that opportunity.  
Additionally, amending Article 17.4 of the DSU to incorporate the right of Members to join as third 
parties at the appeal stage would allow Members wi th limited resources to participate in the process. 
They would not have to participate in the pane l proceedings before they could be allowed to 
participate in the appellate proceedings.  TN/DS/M/23 
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 6. The fourth element concerned some consequential amendments to Annex 3 of the DSU as a 
result of the proposal to grant third parties the right to attend all meetings of the panel, except where 
privileged or business confidential information was being discussed.  The term "parties" in 
paragraph 7 of Annex 3 referred to the parties to th e dispute and did not cover third parties.  He said 
that the group of seven countries would welcome any comments or questions which Members might 
have and that they would do their best to respond them now or as soon as practicable.   
7. The representative of the United States  thanked the Chairman for giving his delegation the 
opportunity to introduce the "questions for consider ation" that were circulated to Members.  He 
recalled that the U.S. proposal on Member flexibility and control included an item, item (f), that 
proposed providing additional guidance to WTO adj udicative bodies concerning the nature and scope 
of the task presented to them and rules of interp retation of the WTO agreements.  When the U.S. 
tabled the text for that proposal, it had specifica lly designated item (f) of that proposal as one that 
required further discussions with Members.  After further consultation and consideration, it seemed 
that a good way forward would be to suggest some questions to facilitate that discussion.  The topics listed were all ones that had come up in the course of various proceedings.  In those proceedings, it 
seemed clear that panels or the Appellate Body were grappling with some difficult issues.  These all 
seemed to be issues in which Members should have a strong interest.  In fact, it had seemed that 
Members were in the best position to provide guidan ce to panels and the Appellate Body about what 
was the most helpful approach in terms of resolvi ng disputes or in terms of clarifying what Members 
had agreed to in the DSU.  Th ese were the types of issues best discussed by Members as a whole and 
outside any particular dispute.  As noted in the doc ument itself, there might be additional questions or 
topics that would be appropriate.  The U.S. would be  interested in Members' thoughts on this as well.  
Item (f) of the U.S. proposal contemplated that th e guidance could take any of several forms.  Which 
form would be most useful would likely only become  clear in the course of discussions.  For example, 
the outcome could be an authoritative interpretation of the DSU, an amendment to the DSU, or a DSB 
decision.  The U.S. recognized that Members had only just received these questions and was not 
expecting more than preliminary reactions at the pre sent meeting.  He said that the U.S. hoped to have 
an ongoing series of formal and informal di scussions over the next period of time.   
2. Future Work 
8. The Chairman
 recalled that at the last meeting, he had indicated that he would continue to 
consult with Members on the best way of approachin g the work of the Special Session.  He had also 
indicated that it was imperative for Members to incr ease the pace of work if substantive progress was 
to be made in the negotiations.  Since then a num ber of developments at the level of the General 
Council  and the Trade Negotiations Committee had rein forced his view that there was the need for a 
change of gears in the Special Session.  It should be  assumed that when Ministers instructed at Davos 
that there should be substantive progress in the negotiations on rul es, they were not only referring to 
the issues being dealt with by the Negotiating Gr oup on Rules, but also to other issues, including 
dispute settlement.  There was therefore the expecta tion that substantive progress had to be made by 
the Special Session by the end of the year.  It was clear from his consultations that Members were generally happy with the bottom-up approach adopted t hus far and would like to continue with it.  The 
negotiations were between Members and as such th ey had the responsibility to take the lead by 
making proposals and building together the basis fo r a positive outcome.  He had been encouraged by 
the recent flurry of meetings between delegations with a view to discussing how to move the 
negotiations forward.  Such mee tings were important in building consensus around issues paving the 
way for an agreement to be reached.  He enc ouraged Members to continue to engage among 
themselves and explore the possibility of submitting re vised texts for the consideration of others.   
9. He said that while the bottom-up approach had proved to be useful, he  intended to supplement 
this process by initiating at the next meeting of the Special Session a series of informal meetings in 
different formats.  This would involve some "Roo m F" meetings with smaller groups of interested TN/DS/M/23 
Page 4  
 
 parties and also some "Room D" open-ended informal  discussions.  It was his expectation that these 
meetings would contribute to the negotiating process by providing Members with an opportunity to 
seek clarifications and forge consensus around the issues under discussion.  He stressed that these 
meetings would not replace plenary meetings where all necessary decisions would be taken.  They 
were being convened only to help the process and th at due regard would be given to the cardinal 
principles of transparency and inclusiveness.  In order not to impose additional burdens on 
delegations, it was his intention to convene the sma ller room meetings during the next Special Session 
which was scheduled on 4 and 5 April 2005.  A fax would be send to delegations ahead of time 
informing them which subjects would be discussed.  There were some obvious candidates, including 
the issue of third-party rights canvassed in the latest paper by the group of seven countries and the 
issues highlighted in the paper by the U.S.  There was the possibility that other issues would also be 
discussed depending on the inputs that would be  received from Members between now and the next 
meeting.  Regarding the nature of the decisions that might be taken in July 2005 and at the Hong 
Kong Ministerial Conference, he said that he did not have any firm views at this stage, as the possible outcomes were directly linked to the progress made in the negotiations.  If substantive progress was 
made in the coming months, it would largely determ ine the nature of the decisions that would be 
taken.  He urged Members to focus on the negotiations  and work hard to build consensus with a view 
of achieving substantive results by the time  of the Hong Kong Ministerial Conference. 
10. The representative of Canada
 said that his authorities had requested him to obtain more 
information about the work programme  of the Special Session.  He said that his delegation was in 
agreement with the U.S. that the negotiations should soon move from the current phase to actively 
considering legal texts which would form the basis of  an eventual agreement.  He asked whether this 
was foreseen that under the accelerated work progra mme earlier outlined by the Chairman.  He asked 
if the Chairman could provide more information about  the planned small room meetings, in particular 
the choice of issues that would be discussed.  Was it the intention to have an issue-by-issue discussion 
as was done under Chairman Peter Balas or was the intention to have more focussed discussions on a 
selected number of issues?  It seemed clear that  Members wanted to move beyond conceptual 
discussions into more focussed discu ssions that would prepare the ground for substantive decisions to 
be taken.  He said that it would be desirable if there was not too much overlap between the 
discussions to be held in Rooms D and F.  It was imperative for Members to judiciously use the 
limited time available so as to ensure progress in th e negotiations.  He said that Canada might offer 
further comments on the work prog ramme of the Special Session.   
11. The representative of Israel  thanked the Chairman for outlining the work programme he 
intended to follow and said that inasmuch as the process was Member-driven, the Chairman had a 
substantial role to play in moving forward the ne gotiations.  She said that her delegation shared the 
view that it was important for there to be a change of gears in the negotiations, if substantive results 
were to be achieved by the time of the Hong Kong Ministerial Conference.  She said that while it was 
important for there to be progress in all the negotia tions, it should be borne in mind that the DSU 
negotiations were not part of the single undertakin g.  She said that her delegation was supportive of 
the planned small room meetings but it was impo rtant for the process to be as transparent and 
inclusive as possible.    
12. The representative of India  thanked the Chairman for his able  leadership in the negotiations 
and said that India shared his general approach, particularly the emphasis on the Member-driven 
nature of the process and bottoms-up approach under which Members were required to take the lead 
in the negotiations.  He said that India would continue  to participate constructively in the negotiations.  
Regarding the planned small room meetings, he sai d that India was satisfied that they would be 
scheduled during the time allotted to the DSU nego tiations so as not to impose additional burdens on 
delegations, particularly those with limited resources .  He said that while there should be progress in 
all the negotiations, his delegation shared the views of  Israel that the DSU negotiations were distinct 
and not part of the single undertaking.     TN/DS/M/23 
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 13. The representative of Japan  said that his delegation was in support of the work programme  
outlined by the Chairman, particularly the planne d small room meetings.  He said that it was, 
however, important to minimize overlap of meetings as had been previously alluded to by Canada.   
He said that Japan was working on a proposal whic h it would soon submit to the Special Session.   
14. The Chairman  said that it was not in dispute that the DSU negotiations were outside the single 
undertaking.  He said that it was clear that the ne gotiations needed to move beyond the clarificatory 
phase to actively considering legal te xts.  He had already foreshadowed  the circulation of a text for 
the consideration of delegations, as the negotiati ons progressed but could not tell exactly the shape 
that it would take.  It was unclear at this stage wh ether the proposed decisions would be given effect 
to through a decision of the General Council, an amendment of the DSU or an authoritative 
interpretation of the DSU.  Memb ers would eventually have to d ecide which form the product should 
take.  He reiterated his view that he intended to  have focused discussions in the next phase of the 
negotiations.  Regarding the choice of subjects to be addressed, he asked de legations to give him 
some discretion to choose which subjects were ripe fo r discussions.  He recalled in that context that a 
large number of proposals had been submitted by de legations, including the recent ones submitted by 
the group of seven countries.  Regarding the need to avoid overlap of meetings, he said that it was not 
his intention to hold simultaneous meetings on the 4- 5 April.  He said that in the future, it might not 
be possible to avoid overlaps in meetings gene rally, as pressure mounted on negotiating bodies to 
achieve substantive progress.  He said that the Secretariat had reserved rooms for meetings of the Special Session on 9-10 May, 21-22 June and 28-29 July and that every effort would be made to 
respect the guidelines on meetings, but it was inev itable that there would be clashes at times. 
 
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