. /.   WORLD TRADE  
ORGANIZATION  WT/DS334/9 
26 October 2007 
 
 (07-4639) 
 Original:   English 
  
TURKEY – MEASURES AFFECTING THE IMPORTATION OF RICE 
 
Communication from the United States
 
   The following communication, dated 22 October 2007, is circulated at the request of the 
delegation of the United States. 
 
_______________ 
 
 
Systemic Concern Raised by the Final Report
 
   The final report in Turkey – Measures Affecting the Importation of Rice  ("Turkey – Rice") , 
WT/DS334/R, was circulated to Members on 21 Sept ember 2007.  While the United States is pleased 
with the overall result of this dispute, it would like to take this opportunity to highlight one aspect of 
the report that has systemic implications
1 that the United States believes should be of concern to 
Members:  the inclusion by a panel of findings not requested by either party and that neither party had a chance to review in the interim report.  
Inclusion of New Findings, Not Requested by Either Party, in the Final Report
 
 
 The final report issued to the parties in Turkey – Rice  included a completely new section in 
the report's findings, Part VII.G, that had not been included in the interim report.  Prior to the originally scheduled date for circul ation of the final report, the United States drew to the attention of 
the Panel the irregularity of Part VII.G's inclusion at the final stage in the panel process.  After the 
United States reiterated its objecti on and request for removal of Part VII.G in reply to both Turkey 
and the Panel's responses, the Panel delayed circulation of the final report.  At the Panel's invitation, 
the parties then submitted further comments on the issue of including Part VII.G, and on 
21 September, the Panel circulated the final repor t, which retained Part VII.G with some minor 
modifications, together with the parties' comme nts regarding the addition of new findings.   
 
 The United States is troubled by the systemic implications of the Pa nel's addition of new 
findings in the final report.  The Panel made the ne w findings despite the fact that Article 15.2 of the 
Understanding on Rules and Procedures Governing the Settlement of Disputes  ("DSU") provides that 
findings and conclusions are to be issued in the inte rim report.  Even more im portantly, neither party 
requested the findings in question.  Because Turkey never requested or raised the issues during the 
Panel proceedings, neither party presented any evidence or arguments on the subject, and the Panel 
had no factual basis for making the findings at all.   Furthermore, because neither the United States nor 
Turkey requested the findings as part of the in terim comments either, th ere was no basis under DSU 
Articles 15.2 or 15.3 for the Panel to make the add itional findings in the final report.  As previous 
                                                     
 
1 As noted in the statement of the United States to the Dispute Settlement Body at its 22 October 2007, 
meeting, there is more than one aspect of the panel repo rt that raises systemic concerns.  This paper is not 
intended to address more than the one aspect. WT/DS334/9 
Page 2  
 
  panels and the Appellate Body have noted
2, panels are not authorized to make findings under these 
circumstances.  The Panel's decision nevertheless to do so represents a serious erosion of the due 
process protections reflected in these DSU provisions.   
The "Findings" at Issue
 
 
 As the United States explained to the Panel, it does not matter what the substance of the "findings" at issue may be (in this case they i nvolved the treatment of Turkey).  The addition of 
findings after a panel has already provided its inte rim report and received the parties' requests for 
review raises important systemic concerns, regardless of what those findings are.  It means that, 
contrary to Article 15 of the DSU, the parties have  not been provided an opportunity to review and 
comment on the findings.  Accordingly, there has be en no opportunity to review the factual findings 
that may underlie any legal findings, for example, wh ether the relevant facts are accurately described, 
whether they were contested, or even whether they were  presented to the panel at all.  Similarly, there 
is no opportunity for either party to consider whet her the findings of law or legal interpretation take 
into account the claims made and arguments presente d by a party, including whether they concern a 
claim actually made by the complaining party or a defense asserted by a responding party.  And 
parties are unable to consider and comment upon how these additional findings might affect any other 
aspect of the panel report.  
Treatment of the Parties' Comments
 
 
 When the United States discovered that the Pane l had added findings to the final report that 
were not contained in the interim report and that  neither party requested either during the panel 
proceedings or in response to the interim report, the United States raised its concerns with the Panel.  
Annex K of the final report contains the parties' comments and the Panel's response.  This added to 
the transparency of the discussion and assists Member s' consideration of the sy stemic concerns arising 
from the addition of these findings.  At the same time, however, the United States wonders how this 
relates to the confidentiality of the interim and final reports provided to the parties.  The United States 
would call to Members' attention that this treatment  of the parties' comments also differs from the 
treatment that is accorded during the interim review phase.  At the interim phase, the interim report 
and the parties' comments on it are treated as c onfidential.  Although some of the comments on the 
interim report may be summarized as part of the "d iscussion of the arguments made at the interim 
review stage" that is required by Article 15.3 of the DSU to be included in the panel's final report, 
those comments are not treated as non-confidential in th eir entirety.  The fact that the Panel treated the 
comments on its final report differently than it treated the comments on the interim report only underscores the systemic concerns raised – the Panel considered those findings added for the first time 
at the final report stage to somehow be of a different  nature or status than the findings in the interim 
report.  There is no basis for this under the DSU.   
Conclusion
 
 
 It should not be possible to circumvent the ag reed process for interim review in the DSU by 
including findings for the first time at the final report stage.  The United States believes that the 
systemic interests of the WTO would be best ser ved by the careful adherence by panels to the 
provisions of the DSU in this area. 
__________  
                                                      
2 See Appellate Body Report, European Communities – Trade Description of Sardines , 
WT/DS231/AB/R, adopted 23 October 2002, para. 301; Panel Report, European Communities –  Selected 
Customs Matters , WT/DS315/R, adopted 11 December 200 6, paras. 6.3-6. 6; Panel Report, Australia – 
Measures Affecting Importation of Salmon , WT/DS18/R, adopted 6 November 1998, as modified by the 
Appellate Body Report, WT/DS18/AB/R, para. 7.3.