RESTRICTED  WORLD TRADE  
ORGANIZATION  TN/DS/M/29 
20 January 2006 
 (06-0263) 
Special Session of the Dispute Settlement Body 
24 October 2005  
 
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard  
on 24 October 2005  
 
Chairman:  Mr. David Spencer (Australia) 
 
  The Chairman
 welcomed delegations to the thirty-second meeting of the Special Session and 
said that the airgram for the meeting had been circ ulated in WTO/AIR/2693 and that the draft agenda 
(TN/DS/W/81) contained three items, namely:  (i) discussion of contributions by delegations; (ii) 
discussion of Category II special and differential treatment provisions referred to the Special Session of the Dispute Settlement Body (DSB Special Sess ion) by the Special Session of the Committee on 
Trade and Development (CTD Special Session) and (iii)  "Other Business".  With respect to the first 
agenda item, he said that two new contributions ha d been received since the last meeting of the 
Special Session.  The first was a revision by Austra lia of its informal contribution on time-savings in 
the DSU.  This document had been circulated  as Job(05)/224.  The second was an additional 
contribution by the United States in respect of one of  the issues identified in its earlier contribution on 
additional guidance to WTO adjudicative bodies.  This  document would be formally circulated today 
as TN/DS/W/82.  Informal copies of the document ha d been available at the back of room by the 
United States.  He further said that it was his unde rstanding that an addendum to this document would 
be circulated shortly.  With respect to the second agenda item, he said that it was his intention to 
invite the proponents to introduce their proposals and then open the floor for discussions.  With regard 
to "Other Business", he said that he would be ma king an announcement about the date and agenda of 
the next meeting of the Special Session.  He asked whether any delega tion would like to raise 
anything under this agenda item.  There was no r esponse from the floor and the agenda of the meeting 
was adopted.  
 
1. Discussion of proposals from delegations 
1. Before giving the floor to Au stralia, the Chairman recalled that the Australian proposal on 
time-savings had been discussed during informal c onsultations in September 2005 and said that it was 
his understanding that the proposal had been revised in light of comments provided by delegations. 
He then invited Australia to present its revised proposal. 
2.  The representative of Australia
 referred to the revised textual proposals on possible time-
savings in WTO dispute settlement procedures submitted by her delegation and circulated as 
JOB(05)/224 on 10 October 2005, and said that the original proposals contained in JOB(05)/65 had been revised following the comments of delegations  expressed during consultations.  The revised 
proposal contained a new text on Article 4.7 of th e DSU concerning the consultations period.  While 
this issue had been addressed in the earlier proposal , a specific text had not been put forward.  The 
proposed text on Article 6.1 of the DSU concerning  panel establishment had also been revised.  No 
changes had been made to the other textual propo sals.  The revised textual proposals on Articles 4.7 
and 6.1 of the DSU had been crafted taking into account the views expressed by delegations.  They 
seek to provide special and differential treatment to developing countries with a view to facilitating TN/DS/M/29 
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  their greater participation in the WTO dispute settlement  system.  With regard to Article 4.7, Australia 
was proposing the reduction of the consultations pe riod to 30 days, with a special and differential 
treatment provision for automatic extension to 60 days upon the request of a developing-country 
Member.  With respect to Article 6.1, Australia was  proposing the establishment of a panel upon first 
request, with a special and differential treatme nt provision that requests by developing-country 
Members for deferment to a later date should be acco rded sympathetic consideration by the DSB, but 
not granted automatically.  Australia was of th e view that the case for automatic special and 
differential treatment was not strong, as developi ng countries would have had ample time during the 
consultations period to prepare for the dispute. Aust ralia was also of the view that other possibilities 
would interfere with the objective of simplifying th e unnecessarily complicated and inefficient current 
Article 6.1.  She said that Australia w ould welcome any comments from delegations. 
3. The representative of India
 thanked Australia for its revised proposal and said that it was not 
appropriate to characterize the new proposals as sp ecial and differential treatment provisions for 
developing countries, as the current Articles 4.7 and 6.1 of the DSU already gave all Members those 
rights.  Under the new proposal by Australia de veloping countries would have to make a request 
before they could enjoy the rights they currently do under Articles 4.7 and 6.1 of the DSU. 
4.  The representative of Australia  stated that the Australian proposal offered genuine special and 
differential treatment to developing countries and attempted to address the concerns expressed by 
developing countries.  She said that Article 4.3 of the DSU required Members to hold consultations 
within 30 days of the request being made and th at the Australian proposal would not change anything 
in this respect. 
5. The representative of the United States  welcomed the opportunity to introduce the revised 
proposal on improving flexibility and Member control in WTO dispute settlement.  The proposal consisted of six elements.  The sixth element was to provide some form of additional guidance to 
WTO adjudicative bodies concerning the tasks entrusted to them.  He recalled that the United States 
had indicated that the sixth element would be supplied after further discussions with Members.  The revision that was discussed at the present meeti ng consisted mainly of the addition of some 
parameters as a basis for providing that additi onal guidance.  He noted, as the United States had 
indicated before, that the central objective of th e dispute settlement system should be the prompt 
resolution of disputes between parties.  For that reason, Members had emphasized both the 
importance of ensuring that dispute settlement proc edures facilitated resolution of a dispute and, as 
part of this approach, the need for flexibility in th e system to allow parties to resolve disputes in a 
prompt manner.  The core means for the system to resolve disputes was through the findings made. In turn, it was key to have appropriate, flexible pr ocedures to ensure that the findings made would 
actually help resolve the dispute.  The proposal the United States was pursuing recognized that there 
were areas where it would be useful for Members to  provide their views rath er than to leave WTO 
adjudicative bodies guessing as to Members' desires.  Furthermore, the proposal sought to address 
concerns that some limitations in the current procedures might have resulted, in some cases, in an interpretative approach or legal reasoning app lied by WTO adjudicative bodies that could have 
benefitted from additional Member re view.  It also sought to address  concerns that the reasoning and 
findings of reports might at times go beyond what the parties considered necessary to resolve the 
dispute, or, in some circumstances, might even be  counter-productive to resolving the dispute.  The 
proposal also built on the flexibility that was already in the dispute settlement system to ensure that 
the system did not itself pose obstacles to Members' efforts to find a solution to their disputes.  The 
United States believed that through the six elements , Members could strengthen their ability to ensure 
that the dispute settlement system served them in their efforts to resolve disputes, and to ensure high 
quality reports which enjoyed the highest level of cr edibility and support.  The six elements were as 
follows.  First, provide for interim reports at the Appellate Body stage, as was currently provided for 
at the panel stage.  Inasmuch as there was no appeal  from Appellate Body reports, it was particularly 
important that parties had an opportunity to addr ess the reasoning in these reports and, through their  TN/DS/M/29 
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  comments, ensure that they were of the highest quality and credibility.  Second, provide a mechanism 
for parties, after review of the interim report, to de lete by mutual agreement findings in the report that 
were not necessary or helpful to resolving the disput e, thus continuing to allow the parties to retain 
control over the terms of reference. Again, the purpos e of the dispute settlement system was to resolve 
disputes.  Unnecessary or unhelpful findings did not ser ve that purpose.  Third, provide for some form 
of a "partial adoption" procedure, in which the DS B would decline to adopt certain parts of reports 
while still allowing the parties to secure the DS B recommendations and rulings necessary to help 
resolve the dispute. In effect, adoption by negative consensus would be applicable not simply to the 
report as a whole, but to its parts. If there was a c onsensus that part of a report should not be adopted, 
it would not be. Fourth, provide the parties a right, by mutual agreement, to suspend proceedings to 
allow time to continue to work on resolving th e dispute.  Currently for example there was no 
provision for suspending Appellate Body pro ceedings once they were commenced, and panel 
proceedings could only be suspende d if the panel accepted the request of the complaining party.  If 
Members wished to seek the preferred result of a mutually agreed solution,  the dispute settlement 
process should not be so rigid as to stand in the wa y.  Fifth, ensure that members of panels had 
appropriate expertise to appreciate the issues presented in  a dispute. Experience to date showed that it 
could be helpful for the panelists to have the appropriate expertise concerning the particular issues in 
a dispute, although the current agreement did not speak to this issue.  Sixth, provide some form of additional guidance to WTO adjudicative bodies on th e scope and nature of the task presented to 
them.  This sixth element had been the main focus of the revision introduced today by the 
United States.  In particular, the United States wa s proposing at the present meeting parameters to 
help provide guidance in two areas that Member s and bodies had struggled with under the dispute 
settlement system.  The first area was the use of public international law in  WTO dispute settlement. 
The second area was the interpretive approach to be taken by WTO adjudicative bodies.  On the 
question of public international la w, the parameters would recognize that public international law had 
an important role to play in WTO dispute settlement, but that role was not an unlimited one.  Rather, 
the WTO Agreement prescribed particular ways in which public international law could play a role. 
Members were uniquely qualified to provide guida nce in this area since it was Members who had 
agreed on both the role and the limitations of the role of public international law in WTO dispute 
settlement. On the question of interpretive appr oach, the parameters would recognize that the 
particular nature of the WTO Agreement and ho w it was developed should be respected when 
interpreting its provisions.  Members were uniquely qu alified to provide guidance in this area as well 
since the WTO Agreement was the product of the Members. 
6. The Chairman
 thanked the United States for its contribution and Members for their 
constructive comments.  He then invited Korea to present its paper on remand authority for the 
Appellate Body. 
7. The representative of Korea  recalled that Korea's proposal on remand authority for the 
Appellate Body had been discussed at the previous m eeting of the Special Session and said that at that 
meeting, delegations had posed a number of questions aimed at clarifying the scope of the proposal.   
The paper circulated by Korea was an attempt to respond to those questions. He said that Korea would 
welcome any further comments and stood ready to r espond to any questions that delegations might 
have concerning the proposal. 
8. The Chairman  thanked Korea for its paper and asked  whether any delegation intended to 
submit a new contribution for the consideration of the Special Session.  He stressed that time was of 
the essence and requested delegations which intend ed to submit contributions to do so as soon as 
possible. 
9. The representative of Canada  said that his delegation would soon be tabling a revised 
proposal for the protection of confidential information. TN/DS/M/29 
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  10. The representative of India
 said that in line with the Chairman's directions, India had been 
working with some delegations on issues of intere st to developing countries. The basis of these 
discussions had been the three contributions submi tted by a group of countries and circulated as 
TN/DS/W/18, TN/DS/W/19 and TN/DS/W/47.  India had also met informally with some other 
developing-country groupings, including the LDC Group and the African Group, which had tabled 
contributions containing similar proposals. He said that India had also been having discussions with 
its Group of Seven partners.  It was the considered  view of the co-sponsors of these documents that 
the proposals contained therein were realistic, feasible and worthy of acceptance by the entire 
membership. He said that India would continue to consult with the co-sponsors and also with other 
delegations.  However, given capacity constraints,  countries with small delegations could not fully 
engage in the DSU negotiations while preparing fo r the Hong Kong Ministerial Conference.  It would 
therefore be preferable if further discussions were deferred until after the Conference.  He recalled  that India and a number of countries had pointed out that the DSU negotiations were outside the 
"single undertaking" and would have preferred an early harvest, particularly of the issues of concern 
to the developing countries. This was yet to happen,  but for reasons given, India would like proposals 
of developing-country Members to be taken up after the Hong Kong Ministerial Conference. 
11. The representative of Malaysia
 expressed support for the statement made by India and said 
that Malaysia was committed to discussing the propo sals tabled by developing countries as well as its 
own proposal on preventive measures.  She thanke d Members for their indulgence in accepting to 
return to consideration of these proposals after the Hong Kong Ministerial Conference. 
12. The representative of the United States  said that his delegation would continue to work on its 
proposal on  measures under review. 
13. The representative of Nigeria , on behalf of the African Group, expressed support for the 
statement made by India and said that the me mbers of the African Group were reviewing the 
proposals tabled by them and would like to revert to them at subsequent meetings of the Special 
Session. 
14. The representative of Cuba  expressed support the statements made by India, Malaysia and 
Nigeria.  She said that the proposals were still on the table and should be considered after the Hong 
Kong Ministerial Conference. 
15. The representative of the Dominican Republic  expressed support for the statements made by 
previous delegations and said that the proposals tabled  by developing countries were of interest to her 
delegation and that discussions on them should resu me after the Hong Kong Ministerial Conference. 
16. The Chairman  thanked delegations for their active pa rticipation and said that delegations 
needed to redouble their efforts if the DSU negotiati ons were to be concluded next year.  In that 
connection, he requested delegati ons which wanted to submit propo sals for the consideration of the 
Special Session to do so as soon as possible.   
2. Discussion of Category II Special and Differential Treatment Provisions 
17.  The Chairman recalled that in May 2003, the Chairman of the General Council referred to the 
DSB Special Session for its consideration a number of proposals relating to the DSU which were initially submitted by a group of developing countri es to the Special Session of the Committee on 
Trade and Development.  He further recalled that th e Special Session undertook in July 2005 to report 
on these proposals at a later date when work on them would have been more advanced.  He said that it 
was his view that it would be appropriate at this  stage to provide an opportunity for discussion of 
these proposals, which had been compiled in document JOB(05)/258.  He invited delegations to pick 
up copies of this document at the back of the room.  The nine Category II proposals referred to the  TN/DS/M/29 
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  Special Session related to the following aspects of  the dispute settlement procedures:  SDT in 
consultations;  extended timeframes;  various aspects of the implementation phase;  special procedures involving LDCs;  and legal assistance by the WTO Secretariat.  He proposed giving the 
floor to India and the African Group to elaborate on the proposals contained in TN/CTD/W/2 and 6 
and TN/CTD/W/3/Rev.2, respectively and thereafter offe r the floor to delegations for their comments.  
He wondered whether the comments by developing countries under the previous agenda item would 
mean deferring discussion on these SDT proposals. 
18. The representative of India
 confirmed that India was a co-sponsor of some Category II 
proposals as reflected in TN/CTD/W/2 and TN/CTD/W/6  and said that for reasons previously given, 
they would like these proposals to be taken up after the Hong Kong Ministerial Conference. 
19. The representative of Nigeria  said that the African Group was also a proponent of Category II 
SDT proposals as reflected in TN/CTD/W/3/Rev.2, but  would like these proposals to be taken up at 
subsequent meetings of the Special Session given th e capacity constraints faced by small delegations. 
20. The Chairman  noted the comments of the proponents and said that he would accordingly  
inform the Chair of the Special Session of the Committee on Trade and Development.  He urged the 
proponents to pursue further consultations and repor t back to the Special Session as soon as possible. 
3. "Other Business" 
 
21.  The Chairman recalled that the Special Sessi on was scheduled to meet on 14 November 2005, 
but said that it might be necessary to schedule a meeting on short notice depending on the preparatory process for the Hong Kong Ministerial Conference.  He said that he would be conferring with the 
Director-General about developments and would prom ptly advise delegations if such a meeting would 
be held. 
 
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