WORLD TRADE  
ORGANIZATION  RESTRICTED 
TN/DS/M/35 
26 October 2011  
 
(11-5365) 
Special Session of the Dispute Settlement Body 
30 September 2011  
 
 
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard 
on 30 September 2011 
 
Chairman: Mr. Ronald Saborío Soto (Costa Rica) 
  
The Chairman welcomed delegations to the thir ty-seventh meeting of the Special Session and 
said that the airgram for the meeting had been ci rculated in WTO/AIR/3805 and that the draft agenda1 
contained one item, namely, a report of recent work.  He asked whether any delegation wished to raise 
a specific issue under this agenda item.  There wa s no response from the floor and the agenda of the 
meeting was adopted.   
1. Report of Recent Work 
1. The Chairman first recalled the work that had been accomplished since the last formal 
meeting of the DSB Special Session held in August 2006.2  He noted that the DSB Special Session 
had met on numerous occasions in informal meetings  of the DSB Special Session, and that through 
this informal Member-driven process, participants presented improved draft legal text in respect of a 
number of areas.  Work in this context was reported regularly to the TNC.   
2. The Chairman mentioned that in 2006 and 2007,  Members considered revised contributions, 
including proposals relating to compensation a nd suspension of concessions, flexibility and 
Member-control, panel composition,  post-retaliation, remand, sequenc ing, special and differential 
treatment, strictly confidential information, third- party rights, time-savings and transparency.  These 
contributions by Members were discussed through informal consultations held in conjunction with 
regular open-ended informal m eetings of the Special Session.3   
3. The Chairman recalled how, in September 2007 , Members began to explore convergences in 
Members' positions through additi onal consultations in various form ats.  Following the consultations, 
in 2008, Members continued this work, which allowed for consolidation of the issues under 
consideration.4  The Chairman recalled that he issued a document under his own responsibility in 
July 2008 reflecting the progress made to date.5  This document included a consolidated draft legal 
text, based primarily on recent drafting proposals submitted by Members and some suggestions made 
                                                      
1 TN/DS/W/93. 
2 See TN/DS/M/34. 
3 See TN/DS/15 to TN/DS/20. 
4 See TN/DS/21 (and Corr.1) and TN/DS/22. 
5 See TN/DS/25, Annex 1.   TN/DS/M/35 
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  on specific issues in light of recent discussions.
6  The document also include d a thematic overview of 
the various issues under discussion in our negotiations.7   
4. The Chairman recalled that, following issuance of this text, consulta tions were held with 
interested delegations and groups of  delegations to discuss how to proceed further towards conclusion 
of the negotiations.  During these c onsultations, delegations were able  to provide initial reactions to 
the draft legal text.  In November 2008, Members endorsed the draft legal text contained in this 
document as a basis for the advancement of work.  The Chairman noted that Members have been 
working on the basis of that draft legal text since. 
5. The Chairman noted that between January 2009 and February 2010, Members in the Special 
Session met six times.  During this time, participa ting Members concluded a first round of discussions 
of all issues contained in the text of July 2008.  This involved holding informal consultations with 
interested delegations over the course of a week, w ith an open-ended informal meeting of the Special 
Session at the end of the week to report on the work  to the entire Membership .  The Chairman noted 
that this format had continued to pr ove useful to discuss all the draft legal text in a systematic manner.  
Despite progress, however, the Chairman recalled that much work remained at that time to achieve 
further convergence on the various issues under discussion. 
6. Turning to the current year, the Chairman explained that participants in the Special Session 
initiated a more intensive process, involving seven m eetings held this year, with plans to hold one 
additional informal meeting of the Special Session in November 2011.  The Chairman indicated the 
objective in this phase of the work is to conclude  a second round of discussion of all issues contained 
in the text of July 2008.  Toward this goal, th e work has been conducted around group meetings in 
variable geometry depending on the subject to be  discussed.  This has combined meetings convened 
by the Chair and space for meetings among delegations , with the objective of coming closer to a final 
agreement.   
7. The Chairman observed that participants have e ngaged in recent work in a constructive spirit, 
which contributed to measurable progress in a number of  areas.  As was indicated in the Report to the 
Trade Negotiations Committee on 21 April 2011 (April Report)8, the Chairman recalled that recent 
progress has been reflected in a series of summaries of  oral reports that were presented at the end of 
each week of meetings since May 2010.9  The Chairman highlighted this progress, mentioning that 
participants were close to an unde rstanding on draft legal text on seque ncing, that participants have 
identified key points of convergence on post-retaliation,  and that participants have thus far conducted 
constructive work on third-party rights, timesavings  and various aspects of effective compliance.   
8. The Chairman recalled that since the issuance of  the April Report, further consultations have 
been held on four more occasions.  During the se consultations, participants further discussed 
flexibility and Member-control, panel composition, stri ctly confidential information, transparency and 
amicus curiae  briefs, and mutually agreed solutions.  Dele gations in this period also initiated further 
consultations on remand, effective compliance and de veloping country interests, including special and 
differential treatment.  During this time, the Chai rman noted that participants made substantial 
                                                      
6 The draft legal text of July 2008 covers the following issues:  third party rights; panel composition;  
remand;  mutually agreed solutions;  strictly confid ential information;  sequencing;  post-retaliation;  
transparency and amicus curiae  briefs;  timeframes;  developing country interests, including special and 
differential treatment;  flexibility and Member control;  and effective compliance. See TN/DS/25, pp. A-4 to 
A-32.  
7 See TN/DS/25, pp. A-33 to A-43. 
8 See TN/DS/25. 
9 The Chairman's summaries of recent work are reproduced as Appendix B to TN/DS/25.   TN/DS/M/35 
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  progress in particular towards draft legal text on  mutually agreed solutions, suspension of panel 
proceedings and the notification of retaliation measures.10   
9. The Chairman concluded that all of this cons tructive work reflects continued commitment by 
Members to this negotiation.  Nevertheless, he em phasized that much work remains to be done in 
order to complete this phase of the negotiation and to  reach agreement.  He encouraged delegations to 
demonstrate continued flexibility in this regard.  Based on his recent consultations, he noted that 
participants appear to be fully committed to c ontinuing to work constructively for the successful 
completion of this work, toward a ra pid conclusion of the negotiations.  
10. Following his report, the Chairman invited delegations to comment. 
11. The representative of the United States thanked the Chairman for calling a formal meeting of 
the DSB Special Session, and welcomed the opportuni ty to provide greater transparency as to the 
significant and substantial work that delegations ha ve been performing since the last formal meeting 
in 2006.   
12. The representative of the United States then wish ed to discuss briefly one of the topics that 
had been the subject of work during this p ast week, namely the proposal on flexibility and 
Member-control in the dispute settlement system.  Th e representative of the United States thanked the 
Chairman for his summary of those discussions, and thanked also the many delegations who 
participated actively in those discussions.  He said that the discussions had affirmed for the 
United States the ongoing value of addressing these i ssues and that they looked forward to reflecting 
on the points raised. 
13. With respect to the proposed guidance on th e measure under review and the interpretive 
approach in WTO dispute settlement, the represen tative of the United States noted that Members 
continued to rely on the concept of the distincti on developed by past panels between mandatory and 
discretionary measures.  Under that distinction, the representative of the United States said, a Member 
may challenge "as such" a measure  that has been adopted that mandates WTO-inconsistent action 
even if the measure is not currently in effect.  Conversely, under that distinction, where a measure 
does not require a Member to act consistently or inco nsistently with its WTO obligations, it is not to 
be found "as such" inconsistent with the WTO Agreem ent.  This was, he said, because it would not be 
appropriate for a dispute settlement panel or the A ppellate Body to presume that where a Member has 
the option to act in a WTO-consistent manner,  the Member will choose instead to act in a 
WTO-inconsistent manner.  The representative of the United States also said that he noted the general 
acknowledgment of the fact that the language in the covered agreements can on occasion be 
ambiguous, and in some instances deliberately so.    
14. Finally, the representative of the United Stat es recalled the discussion that week concerning 
aspects of the proposal requiring panels and the Ap pellate Body to delete findings from their reports 
where the parties so agree, and of providing for th e Dispute Settlement Body not to adopt part of a 
report where there is a consensus not to adopt that  part.  The representative recalled that panels and 
the Appellate Body should focus their reports on he lping the parties to resolve the dispute presented 
and not to include findings that are not helpful to resolving the dispute.  According to the representative of the United States, not only is this  the object and purpose of the dispute settlement 
system, it also avoids a number of significant systemic issues, such as avoiding prejudice to Members who are not a party to that dispute. 
15. The representative of the European Union thanked the Chairman for his efforts in leading this 
negotiation and recalled the long way that has been gone so far.  He noted that there are a number of 
                                                      
10 See the Chairman's summaries of recent work in JOB/DS/1, JO B/DS/2, JOB/DS/3 and JOB/DS/4. TN/DS/M/35 
Page 4  
 
  issues in these negotiations, some of which are of importance to the European Union, and some of 
which are of importance to other Members.  The Eur opean Union continued to be willing to engage in 
all the issues on the table constructively and to co ntinue its efforts towards an agreement in this 
negotiation.   
16. The representative of Japan thanked the Chairm an for holding this meeting and said that it 
generally shared the observations and assessment of  the Chairman on the state of ongoing work. The 
representative of Japan noted that, as the Chairman indicated, there were twelve topics on the table 
and that, without getting into the details, some proposals are getting mature, while others still needed 
further work. He further noted that Japan has b een fully committed to this negotiation since its 
inception, with the objective of improvement and cl arification of the DSU. With this objective in 
mind, Japan would continue to actively engage in  the negotiations in the coming days and months, 
with a view to achieving conclusion of the work.  
17. The representative of China thanked the Chairm an for organizing this meeting, no formal 
meeting having been held since 2006.  She noted that  there are a number of issues (twelve) currently 
under discussion and that the level of maturity of the technicalities of these issues varies.  She also 
noted that work had recently intensified and hoped that discussion would continue in a manner 
allowing all participants' views to be reflected.  She suggested that participants may wish to consider 
whether at least some form of detailed explanat ory note could be submitted to the Membership, 
maybe before MC8, on the basis of the current Chair' s text.  Such note could be a form of summary as 
to what has been discussed, that would help all Me mbers to understand what the text currently stands 
for.  The representative of China further noted that  this was only a tentative proposal for Members to 
consider and encouraged the Chairman to have mo re consultations with various delegations to see 
what could be prepared for MC8.   
18. The Chairman thanked delegations for the re newed commitments expressed.  He took note of 
the proposal from China and confirmed that it was hi s intention to hold consultations on future work, 
including work towards MC8. 
19. The representative of China noted that ongoing discussions in preparation for MC8 involved 
possible decisions by the Ministers as well as reporting current developments to MC8.  In this context, 
Members would need to agree on the forms of actions  to be taken by MC8, and China would be open 
to having discussions with Members on that.  
20. The Chairman thanked the representative of China, noting that this was an accurate 
description of the kind of work that delegations have  to do in preparation of MC8 with regard to the 
different areas of work.  He noted that with rega rd to the DSU negotiations, it was his intention, as 
other Chairs of other negotiating bodies will do, to re port and reflect the status of the negotiations.  If 
Members wanted Ministers to take note of the work  in the negotiations or express any other kind of 
message related to future work, that is somethi ng on which the Chairman was also ready to consult 
with delegations.   He recalled that, for the time being, a mandate was give n in paragraph 34 of the 
Hong Kong Ministerial Conference.  The Chairman sai d that he had taken note of informal views 
according to which something similar could be envi saged, and that, as a Chairman, he was ready to 
listen to participants' views on how to proceed.  He  encouraged delegations to participate in his 
forthcoming consultations and provide their input.   
21. No other delegation having requested the floor, the Chairman closed the meeting.   
 
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